PER:
Charanjit Singh, President;
1 The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.
2 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 12 and 13 against the opposite parties on the allegations that the complainant is lady and she has appointed her husband Kulwinder Singh as her Special attorney vide power of attorney dated 13.7.2017 and as such, the present complaint is signed, verified and instituted by the competent person. The attorney is also fully conversant with the facts of the present case being husband of the complainant. The complainant was in need of money and she took gold loan of Rs. 1,76,300/- from the opposite party and LAN was 006605007050 dated 18.10.2014. The complainant handed over gold ornaments i.e. one Karrah of 24.630 Grams, One Karrah of 19.330, three Pandel set of 21.710 gms, three pandal set of 14.500 Gms, Two Jhumka of 70540 gms, three set of 36.860 and her CUST ID is 53867190. The opposite party obtained the signature of complainant on blank papers. The complainant approached the opposite party and requested to accept the entire amount due towards her and to return her gold ornaments but the opposite party always lingered on the matter on one pretext or the other and now few days the opposite party told the complainant that they have already sold the gold ornaments of the complainant and now the complainant is not entitled to get back her any gold ornaments. The opposite party has not obtained any consent from the complainant and has wrongly sold the gold ornaments of the complainant whereas the opposite party is bound to return the gold ornaments of the complainant to her on receipt of the amount due towards him. From the above said facts it is clear that there is deficiency in service on the part of the opposite party. The complainant has prayed the following relies:-
(a) The opposite party be directed to return the entire gold ornaments of the complainant to her on receipt of the payment due towards her.
(b) The opposite party be also directed to pay compensation to the complainant to the tune of Rs. 50,000/- on account of mental pain, agony and harassment suffered by him due to the said acts and deeds of the opposite party.
(c) The costs of proceedings to the tune of Rs. 5,000/-.
3 After formal admission of the complaint, notice was issued to Opposite Party and opposite party appeared through counsel and filed written version and contested the complaint by interalia pleadings that the complainant has not come to this Commission with clean hands and has concealed actual facts from this commission. The fact is that the complainant had approached the Amritsar branch of ICICI Bank for availing Gold Loan facility and avails the facility to the tune of Rs.1,76,300/- under the Gold Loan Scheme of the bank by pledging gold items. At the time of execution of the loan documents, she had agreed and undertaken to comply and abide by all the terms and conditions governing the facility and regularly make payments in accordance with the transaction documents. She violated the terms and conditions of the loan documents and did not make the payments regularly. In this regard the official of the bank had contacted her on numerous occasions over phone and by way of written communications informing her about the dues payable but he did not respond. Even the bank had sent reminders to the complainant time and again but to no effect and ultimately a demand notice dated 7.11.2015 followed by loan recall notice dated 23.11.2015 but to no effect. Bank also sent auction notice dated 14.12.2015 to the customer followed by newspaper publication in two newspapers both dated 29.12.2015 in English newspaper namely ‘pioneer’ and Punjabi newspaper ‘Ajit’ but insptie of notices and the publication made in the newspapers, the complainant failed to approach the bank prior to auction of jewellery. Bank had sent notice to customer informing the date, venue and the time of the auction. There was no response from her to the said notices, hence the pledged jewels were sent for auction. As per records, no request for change of address has been received from customer. While serving the notice the complainant was called upon to approach the ICICI Bank and cleared all the the outstanding borrower’s Dues, failing which ICICI Bank shall, among other rights available to it under the Transaction Documents, have a right to sell the assets pledged with the Bank to recover the Borrower’s Dues, failing which ICICI Bank shall among other rights available to it under the Transaction Documents, have a right to sell the Assets pledged with the Bank to recover the borrower’s Dues. Despite the notices, she neither made the payment nor responded to the said notices and as such, under the compelled circumstances, the said Jewellery was auctioned for an amount of Rs. 2,25,000/- and the said amount was adjusted towards repayment of the borrower’s Dues on 12.1.2016. After giving credit of the said sale proceeds the outstanding, at present there is excess credit balance of Rs. 14203. As per process before auction, the bank did valuation of ornaments and fixing the minimum bid Price before auctioned Revaluation was done before auction by the auction branch. Even at the time of auction, the complainant was requested to visit the branch alongwith valid photo identity proof (Voter ID, PAN, Adhar Card) and the Token Card (if available) for collection of excess amount at the branch. When the bank is granting any facility in favour of any customer it is not the plan principal amount which has to be returned to the bank and it always carry the interest part alongwith the Principal amount. Therefore, the amount which is conveyed to her for closure of the loan, is inclusive of the interest on the loan amount and cost of advertisement which is collected as per the (clause 57(ii) of- Terms & Condition) As per the contract Act, the bank has the charge an lien over the pledged gold. As already conveyed, the Bank is a trustee of public funds. Those who take loan and avail financial facilities from the Bank are contractually bound to repay the amount strictly in accordance with the terms of the contract. Any lapse in such matter is viewed seriously and the Bank is not only entitled, but also duty bound to recover the amount by adopting all legally- permissible methods. Therefore, the bank has not committed any wrong by putting the pledged gold items to auction in order to recover the dues from the complainant. The complainant is the borrower of the complainant who had committed defaults in payment of dues of the bank. The complainant had failed to repay the loan amount to the bank alongwith interest as per agreed terms and conditions, the bank has rightly put the pledged ornaments to auction to recover its lawful dues. The complainant was bound by the terms and conditions of the loan documents clause No.20 (reproduced below) the bank has the right to sell the said pledged gold items in the event of defaults committed by the borrower and not cleared in spite of due notice served on him:
“ 20. If at anytime the value of the Asset (s) created in favour of ICICI bank falls so as to create deficiency in margin requirement specified by ICICI bank from time to time, the Borrower shall immediately on intimation from ICICI Bank, deposit with ICICI Bank additional security in the form of cash or such other Asset (s) which may be acceptable to ICICI Bank within a period of 30 days from the date of letter sent by ICICI Bank, failing which ICICI Bank may in its discretion sell, dispose off or realize any or al the security created in favour of ICICI Bank without being liable for any loss or damage in the value realized thereby and also without prejudice to ICICI Bank’s right to proceed againt the Borrower for any balance/additional amounts that may be outstanding in respect of the facility. The security, if any, which is already created in favour of ICICI Bank, and subsequently declared by ICICI abnk to be unacceptable shall nevertheless continue to be maintained in ICICI bank’ favour unless it is released by ICICI Bank’
The official of the bank had contacted her on numerous occasions over phone and by way of written communications informing her about the dues payable but the complainant did not respond. Even the bank had sent reminders to the complainant time and again but to no effect and ultimately a demand notice dated 07.11.2015 followed by loan recall notice dated 23.11.2015 but to no effect. Bank also sent auction notice dated 14.12.2015 to the customer followed by newspaper publication in two newspapers both dated 29.12.2015 in English newsaper namely ‘pioneer’ and Punjabi newspaper ‘Ajit’ but inspite of notices and the publication made in the newspapers, the complainant failed to approach the bank prior to auction of jewellery. Bank had sent notice to customer informing the date, venue and the time of the auction. There was no response from her to the said notices, hence the pledged jewels were sent for auction As per record, no request for change of address has been received from customer. While serving the notice the complainant was called upon to approach the ICICI Bank and clear all the outstanding Borrower’s Dues, failing which ICICI Bank shall, among other rights available to it under the Transaction Documents, have a right to sell the Assets pledged with the Bank to recoever the Borrower’s dues. Despite the notices, she neither made the payment nor responded to the said notices and as such under the compelled circumstances, the said ornaments were auctioned for an amount of Rs. 2,25,000/- and the said amount was adjusted towards repayment of the Borrower’s Dues. The opposite party has not committed any deficiency in service of negligence nor is guilty of fault , imperfection, shortcoming and inadequacy in the quality, nature and manner of performance of service. The oppoite parties have denied the other contents of the complaint and prayed for dismsisal of the case.
4 To prove his case, power of attonrey of the complainant has placed on record his affidavit Ex. CW1/A, Special Power of attonrey Ex. C-1, copy of the token card dated 18.10.2014 Ex. C-2, copy of the achar Card Ex. C-3, copy of the demand notice Ex.C-4, copy of the letter dated 23.11.2015 Ex. C-6 and closed the evidence. Ld. counsel for the oppostie party No. 1 has tendered in evidence affidavit of Vikas Mahajan Ex. OP1, documents Ex. OP-2 to Ex. OP-10 and closed the evidence.
5 From the combined and harmonious reading of documents and pleadings on record is going to prove that the complainant has appointed her husband Kulwinder Singh as her Special attorney vide power of attorney dated 13.7.2017. The complainant was in need of money and she took gold loan of Rs. 1,76,300/- from the opposite party and LAN was 006605007050 dated 18.10.2014. The complainant handed over gold ornaments i.e. one Karrah of 24.630 Grams, One Karrah of 19.330, three Pandel set of 21.710 gms, three pandal set of 14.500 Gms, Two Jhumka of 70540 gms, three set of 36.860 and her CUST ID is 53867190. The complainant approached the opposite party and requested to accept the entire amount due towards her and to return her gold ornaments but the opposite party told the complainant that they have already sold the gold ornaments of the complainant and now the complainant is not entitled to get back her gold ornaments. The opposite party has not obtained any consent from the complainant and has wrongly sold the gold ornaments of the complainant whereas the opposite party is bound to return the gold ornaments of the complainant. On the other hands, the case of the opposite party is that the complainant has failed to deposit the loan amount and the opposite party has auctioned the Jewellry deposited by the complainant in accordance with procedure and terms and conditions of the Gold Loan given in the rules and as such no illegality has been committed by the opposite party.
6 In the present case it is not disputed that the complainant took gold loan from the opposite 18.10.2014. It is admitted fact that complainant initially took loan on 18.10.2014 and date for repayment was 18.10.2015. Application Form Ex. OP/2 shows that the loan was to be repaid up to 18.10.2015. As such, complainant was duty bound to repay the loan amount before 18.10.2015 but complainant did not repay the outstanding amount. The complainant was required to contact the Opposite Party-Bank after expiry of loan period but complainant even did not contact the Opposite Party-Bank and then Opposite Party-Bank issued the demand notice dated 7.11.2016 Ex. OP/3 requesting the complainant either to renew the loan or to redeem the gold ornaments by paying the due amount but complainant did not care for this notice. Thereafter, Opposite Party-Bank issued another notice i.e. loan recall notice Ex. OP/4 again requesting the complainant to renew the loan account or redeem the gold ornaments by paying the due amount but the complainant did not care for this notice also. Thereafter, opposite party bank issued a notice to the complainant for enforcement of security Ex. OP/9 for taking further action in loan account for recovery of outstanding amount by selling the pledged gold ornaments through online auction and complainant was requested to make the total outstanding payment within a period of 7 days failing which the Opposite Party-Bank would continue with the auction of pledged ornaments at the cost and consequences of the complainant but even then complainant did not care for this notice. Opposite Party-Bank even issued public notice through publication in the newspaper i.e. ‘English Newspaper Pioneer’ and ‘Daily Ajit Punjabi’ but even then complainant did not care for these publications. The complainant cannot deny the said procedure taken by the opposite party because the complainant himself produced on record Demand notice dated 7.11.2015 Ex. C-4 and loan recall notice dated 23.11.2015 as Ex. C-5 on record. Ex. C-4 is the same document i.e. Ex. OP-3 and Ex. C-5 is the same document i.e. Ex. OP-4. After following the due procedure, the gold ornaments of the complainant were auctioned and auction money was adjusted towards outstanding loan of complainant. Both the parties were bound by the terms and condition of the gold loan and the complainant has not returned the loan amount to the opposite party as per terms and condition of the gold loan, therefore, there is lapse on the part of the complainant. There was no deficiency in service or illegality on the part of the Opposite Party-Bank and complainant is not entitled to any relief under the complaint.
9 In view of above discussion the present complaint is dismissed and the parties are left to bear their own costs. Copy of order will be supplied by District Consumer Disputes Redressal Commission, Amritsar to the parties as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar.
Announced in Open Commission
04.10.2022
