FINAL ORDER/JUDGMENT   

SMT. SUKLA SENGUPTA, PRESIDENT

This is an application  filed by the complainant Md. Sabir U/s 35 of CP Act, 2019.

The fact of the case in a nutshell is that the complainant obtained gold loan from the OP ICICI Bank Ltd. situated at 3A Guru Saday Road, PS Ballygunge, Kolkata-700019 on 17.04.2019 being loan No. 128605000796  for 12 months tenure. The OP sanctioned a sum of Rs. 1,22,500/- with interest @ 14.45 % per annum (i.e. of Rs. 17,701.25/-) and the loan duration ends on 14.04.2020 (Annexure “A”).

It is further stated by the complainant that at the material point of time the complainant was in badly need of considerable  amount of money and in the aforesaid manner he tried to get money easily. The complainant  got the gold loan against 79.15 gms of gold 6 pieces of gold ornaments namely neckless one piece (15.9 gms), neckless one piece (9.65 gms), earnings (2.726 gms), finger rings (5.00 gms),  neckless (1) 31.11 gms,  earrings  (2) 1.016 gms.

The complainant further stated that since  24.03.2020 whole India was under lock down due to pandemic situation and at the time Reserve Bank of India declared that the government as well as Pvt. Bank shall waved the interest upon any loan agreement. The complainant during the lock down period went to his native place at Allahabad and returned home on 06.12.2020 from Prayagraj Junction (Annexure-“B”)   then he made contact  with the OP bank and came to know that gold ornaments  had  already been  auctioned by them without any prior intimation and the standing  dues of the complainant for the gold loan was of Rs. 1,40,201.25/-  along with interest . The complainant was ready to pay the amount but from the statement as supplied by the OP. It is found that the subject gold ornaments had already been auctioned by the OP bank (Annexure-“C”). 

Under such circumstances,  when the complainant was willing to eager  to pay actual due the OP without giving  any prior intimation  had auctioned the subject gold ornaments .  It was alleged by the complainant that on several occasion he requested  the OP bank to return  the subject gold ornament on receipt  of the amount dues to the tune of Rs. 1,40,201.25/- only but the OP bank neglected the request of the complainant and practically did not pay any heed to his words. The OP bank harassed the complainant   which is amounting to deficiency in service on the part of the OP bank.

Thus,  the complainant has filed this case with a prayer to give direction to the OP bank to return the  subject gold ornaments to the complainant which is pledged to them against the loan dated 17.04.2019 after realization of a sum of Rs. 1,40,201.25/- of the complainant.  The complainant  further prayed for giving direction to the OP to pay compensation of Rs. 8,00,000/- for harassment,  mental pain and agony for deficiency in service on the part of the OP along with litigation cost of Rs. 50,000/-.

The OP bank has contested the claim application by filing a WV denying all the material allegations leveled against it.

It is admitted by the OP bank that the complainant took gold loan from the OP bank against pledge of gold for 12 months. The net weight of gold ornaments were 61.80 gms and the loan amount as sanctioned by the OP bank amounting to Rs. 1,22,500/- which was sanctioned and disbursed  on 17.04.2019 having its fixed rate of interest @ 14.45 % p.a. The tenure of loan facility was for 12 months and interest payment rate frequency was at the end of the tenure or closure of facility whichever is earlier.  The loan was repayable on 17.04.2020.

  The OP bank further stated that as per terms agreed by the complainant he had to read the loan account on 17.04.2020 in case,  the complainant is failing to read the loan within tenure of facility. The complainant should have applied for renewal of loan facility in that case the default interest at the rate of 6 % p.a. will be charged.

The OP further stated that in the event if the borrower fence repaid the loan amount or commit s breach of any terms of the transaction documents, the OP bank has the right to sell the asset, provided as security, in order to recover borrower dues.  The OP bank is also authorized and entitled to repay the custody/possession of the subject gold/ornaments as security at banks sold direction. The copy of loan application form, sanctioned letter containing “MOST IMPORATANT TERMS AND CONDITIONS/ KEY FACTS STATMENT” are annexed here to collectively   as annexure “A” series.

The OP further  stated that  the new worth of gold ornament was 61.80 gms but not 79.15 gms as demanded by the complainant and the total appraised facility amount is of Rs. 1,22,700/-. The copy of “INVENTORY CUM APPRAISER’S CERTIFICATE”   is annexed as annexure “B”.

The OP further stated that the subject loan facility tenure was of 12 months and repayable on 17.04.2020 and RBI and Hon’ble Apex Court did not declare that the interest of gold loan will come under the category to wave the interest. So, i.e. is not applicable in the instant case.

The OP further stated   that the complainant did not disclose the debt when he went to his native place but the railway service presumed from the middle of November, 2020. but the complainant did not informed the OP bank by any means about its difficulty  to repay the loan amount in time and did not pray to the OP bank to extend the time . The OP bank extended the time till 31.08.2020  instead of 17.04.2020. The demand was issued by the bank on 07.09.2020 and the outstanding was of Rs. 1,47,958/- which was due and payable by the complainant as on 05.09.2020.  The OP bank also sent the  loan recall notice to the complainant  but the complainant did not make any contact with the OP bank then the OP bank served the notice of the auction in two daily newspaper namely  “Aajkal on 29.10.2020 and the Business Standard dated 29.10.2020”.  In spite  of the same the complainant did not take any fruitful step and repay the loan amount of Rs. 1,22,500/- with interest of Rs. 1,7701.25/- total amount of Rs. 1,40,201.25/- as well as by the complainant. It is the case of the OP that there was no deficiency in service on the part of the OP bank rather the complainant committed the breach of condition of the subject loan. So, the complainant has no action to file the case and is liable to be dismissed.

In view of the above stated facts and circumstances, the points of consideration are as follows:-

1. Is the case maintainable within the ambit of law?

2. Is complainant a consumer within the ambit of CP Act, 1986?

3. Has the complainant any cause of action to file this case?

4. Is there any deficiency in service on the part of the OP?

5. Is the complainant entitled to get relief as prayed for?

Decision with reasons

All the points of considerations are taken up together for convenience of discussions and to avoid unnecessary repetitions.

On a careful perusal of material as well as evidence on record, it is found that the case is well maintainable in the eye of law and this commission has got ample jurisdiction to try this case.

From the material and evidence on record, it is   also revealed that admittedly, the complainant is a consumer as per CP Act 2019 and the OP bank is a service provider.

It is also admitted fact that the complainant have taken loan of Rs 1,22,500/- by pledging gold ornaments to the OP bank for  12 months at a fixed rate of interest @ 14.45 % pa. gold ornaments (79.01 gms) . The OP bank sanctioned the letter containing the most important terms and conditions of the said loan.  it is also admitted that repayment date of the subject loan was 17.04.2020 and the default interest rate was of @ 6 % p.a. will be charged in the case of the complainant failed to reading the loan within the tenure of facility as agreed.

From the content of the petition of complaint and evidence on record,  it is revealed that admittedly the complainant failed to repay the loan amount within specified tenure and he is stated that due to lockdown period because of pandemic situation he was stuck at his native place at Allahabad. He returned on 06.12.2020 after résumé of railway service. The complainant in his written complaint, evidence and written argument stated that after returning home from Allahabad,  he made contact with the OP bank and came to know the OP bank already auctioned the gold ornaments without any prior intimation to the complainant . Let us see whether any such intimation  was given by the OP bank to the complainant or not?  From the evidence on record it is revealed that the subject loan was repayable  by the complainant  on 17.04.2020 and the OP bank alleged that the complainant did not disclose  the date in his written complaint  or evidence when he went to his native place at  Allahabad. Admittedly,   the railway service resumed at middle of November,  2020 and  it is well within the knowledge of complainant  that the date of repay of loan amount was on 17.04.2020 but he did not contact with the OP bank and  he was unable to repay the loan within facility  tenure either he made any application to the OP bank for extension of period as per terms and conditions. He had option to do the same as per loan facility terms and conditions but on evidence on record,  it is revealed that the complainant all along remains silent to that effect.

On the contrary,  the OP bank itself extended the period from  17.04.2020 to 31.08.2020 for repayment of the subject loan and as per rules and regulations of the bank  the OP issued the demand notice on 07.09.2020 demanding a sum of Rs. 1,47,958/- which was payable by the complainant as on 05.09.2020. The OP issued the loan recall notice upon the complainant on  23.09.2020 demanding the amount ultimately, without having any respond from the end of the complainant  by any means  as the complainant did not repay the loan amount even within the  extended  period. The   OP bank under such circumstances constrained to issue a notice for auction on 13.10.2020  of the subject gold ornament which were pledged  by the complainant  to the OP bank as security for recovery of the amount due by way of selling as revealed  from evidence on record. It is also revealed that the OP bank also published the auction notice in the name of the complainant in two daily newspaper one Bengali Newspaper namely Aajkal dated 29.10.2020  and another  is English Newspaper namely “The Business Standard dated 29.10.2020”. In spite of the same,  the complainant failed to make contact with the OP bank even through the mail .

Under such circumstances in the event,   the borrower fails to repay  the facility amount and commits breach of any terms of the transaction documents. The OP bank has exercised  its right to sell the subject gold ornaments/assets provided as security in order to recover the borrowers dues.

Considering the entire facts and circumstances, and also evidence on record,  this commission is of view that the complainant did not suffer any loss due to the OP bank rather he himself did not make any contact by any means with the OP bank for the purpose of extension of period of repayment , rather he kept mum and was sitting ideally  with an intention  to take advantage of pandemic situation.

So, the commission is of view that the complainant failed to prove the deficiency in service on the part of the OP bank but he is entitled to get the excess amount of the sale price of the gold ornaments. The sale amount of subject  gold ornaments  was of Rs. 2,57,000/- and the outstanding amount was of Rs.  1,57,149/- So, the balance excess amount was of Rs. 99,851/- which is payable to the complainant by the OP bank and it is lying with the OP bank since the sale of the gold  ornaments. So, the complainant is only entitled to get back the balance excess of sale amount of gold ornaments  amounting to Rs. 99,851/- along with interest.

In view of discussion  made above, it is held by this commission that though the complainant is a consumer as per CP Act but he failed to prove  that there was deficiency in service  on the part of the OP bank and at the same time the complainant is entitled to get the execs amount of  gold ornaments amounting  to Rs. 99, 851/- along with interest.

All the points are thus considered and decided accordingly.

Hence,

Ordered

that the case be and same is  decreed on contest in part against  the OP only in respect  of the excess balance sale amount of Rs.  99,851/- which is lying with the OP bank along with interest without any cost.

The OP bank is directed to refund  the balance excess sale amount of the subject gold ornaments amounting to Rs.  99,851/- to the complainant along with interest @ 7% p.a. on the amount  from the date of filing of this case till relisaiton of the amount within 45 days from this date of order,  i.d. the complainant will be liberty to execute the decreed as per law.

The copy of the judgment be uploaded forthwith on the website of the commission for perusal.