Karnataka

Bidar

CC/66/2015

Nagamma w/o Late Santoshkumar - Complainant(s)

Versus

ICICI Bank Ltd. - Opp.Party(s)

Smt.Shakuntala Patil Adv.

07 Feb 2017

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

AT BIDAR::

 

 

                                                                                                                 C.C.No. 66/2015

 

                                                                                                  Date of filing : 01/09/2015

 

                                                                                             Date of disposal : 07/02/2017

 

 

P R E S E N T:-                    (1) Shri. Jagannath Prasad Udgata,

                                                                                         B.A., LL.B.,

                                                                                                       President.

    

                                              (2) Shri. Shankrappa (Halipurgi),

                                                                                 B.A.LL.B.,

                                                                                           Member.

 

                                   

 

                                               

COMPLAINANT/S:          1.  Nagamma w/o late Santosh,

                                              Age: 25 years, Occ: House hold,

                                                 R/o Kamthana,Tq.&Dist.Bidar.

 

                                          2.  Sai, s/o Late Santosh kumar,

                                                 Age: 5 years, under gardian of his real

                                                 Mother Nagamma, w/o Late Santosh Kumar                                             Age: 25 years, Occ: House hold,

                                                 R/o Kamthana,Tq.&Dist.Bidar.

 

              

 

 

                                           (By Smt. Shakuntala Patil, Advocate )

 

 

                                                      VERSUS

 

OPPONENT/S   :-                  The Manager,

                                               ICICI Bank Ltd. Branch Bidar,

                                                B.V.B. college road, Bidar.585401.  

                                     

 

 

 

                                          ( By Shri. Baswaraj U., Advocate)   

 

 

                                                

 

 

 

 

 

 

 

 

 

::   J UD G M E N T  : :

 

 

 

By Shri. Jagannath Prasad Udgata, President.

 

              Vide this case, a widow and her minor child are before us U/sec. 12 of the C.P.Act, 1986, urging for justice against the vile actions of the sole O.P.  Their grievances are hereunder.

 

2.         That, the late husband of complainant no.1 and father of complainant no.2 by name Santosh had availed a loan from the O.P. during the year 2013, by pledging a 4 line gold chain weighing 50 gms.  The loan was subsequently renewed on 8-03-2014 to be liquidated by 8-03-2015. 

 

3.               When the matter stood as such, the borrower Santosh died on 02-02-2015, leaving behind the complainants as his legal heirs.  It is stated that, the complainant no.1 had approached the O.P. Bank to pay the due amount and take back the gold chain earlier pledged by her late husband, intimating about the death of the borrower.  The OP. in turn, advised her to obtain a certificate from the Tahasildar, Bidar and also asked her to furnish two stamp papers worth Rs.100/- each to comply with the formalities to release the gold chain.  The complainant no.1 obtained the stamp papers, approached the Tahasildar concerned for the survival certificate, which was provided to her on 24-04-2015 (Ex.P.3).  On her approach to the O.P. Bank, it was revealed that, the pledged 4 line gold chain weighing 50 gms. has been sold in auction by the O.P. bank, without issuing any notice to the L.R.S. of the original borrower, which she claims as  illegal act, and since the O.P. bank is not coming forward to settle her claim in spite of legal notice dt.30-06-2015, she and her minor son, represented by her are before us asking relief (s) of returning the 4 line gold chain weighing 50 gms. and other ancillary reliefs.

 

4.                   The O.P. receiving Court notice, engaged a counsel who file Vakalath on 17-11-2015 with an I.A. under order IX Rule 7of the C.P.C.  The Vakalath was accepted, there being no appearance or objections from the complainant’s side and time was granted till 8/12/2015 to file versions.  After availing several adjournment even upto 14/03/2016,  the versions were not filed but still with the coaxing of the O.P, final chance was given to file versions by 01/04/2016 against a penalty of Rs.200/-  On that day, the O.P’s counsel canvassed that, no communication was received from his client so far.  Hence version was taken as nil and the complainant’s counsel was called upon to lead evidence. 

 

5.                  On the next date of hearing i.e. 13/04/2016, both sides were absent.  Abruptly, on the next date of hearing i.e. 23/05/2016 an attempt was made to file the versions along with an I.A. U/sec.51 C.P.C.  On the same day this Court passed a reasoned order basing onthe principles fixed by the Hon’ble Apex Court reported  I(2016) CPJ ( New India Insurance Co.Ltd V/s Hilli Multipurpose Cold Storage Pvt. Ltd.), whereby the written version was expunged.  However acting under the age old principles of “ Ex debito justitae” and “ Actus curiae naminem gravabit” we were liberal enough allowing the O.P. to file evidence affidavit, written argument and documents of it’s choice.  The complainants in due course of the proceedings have filed their evidence affidavits, written arguments and documents furthering their cause.  The O.P. has also had quoted a ruling of the State Commission passed before 2002 amendment to drive in the point that, when the relationship of the complainant vis-a-vis the O.P. is borrower and lender, the former is not a Consumer.  The same being of vintage origin, we don’t place any reliance on the same.

 

6.                 To quote in brief, sans the versions, the O.P. asserts that, deceased Santosh had in fact pledged a 4 line chain, weighing 50 grams of 22 carat specifications against an amount of Rs.83,300/- and consequent upon his failure to liquidate the loan, after paper notification in news paper dt.07/06/2015 (Ex.R.6), the O.P. has sold the ornament in public auction on 18/06/2015 against a sum of Rs.1,12,514/- as is revealed in Ex.R.5 of the case.

 

7.           Basing on the canvassment aforesaid, the O.P. asserts that, nothing is left to adjudicate and prays that, the complaint be dismissed.

 

8.       We would note here further that, on 24/01/2017, the complainant’s side has filed an extract of the procedures prescribed to deal with the claims of legal heirs of a deceased gold loan borrower.  The paper so received is unsigned, source of origin and genesis not explained and hence we decline to accept it’s face value.

 

 

9.                Delving back to the core of the issue, basing on the pleadings of the parties, their respective evidecne, arguments and documents, the following points arise for our considerations.

 

 

1. Are the complainants Consumers as defined in the Act, 1986?
2. Has not the O.P. resorted to unfair practice as defined U/s.2 (1)(r) r/w 2(1)(d) of the C.P.Act, 1986?
3. What orders?

10.           Our answers to the points stated above are as follows:-

               1. In the affirmative.

               2. In the affirmative.

               3. As per the final order, for the following:

 

 

                                                                                                       :: REASONS ::

 

11. Point No.1 :The answers to point No.1.  Notwithstanding the hoopla raised by the O.P., we have to take recourses of section 2(1)(d) and 2(1)(o) of the C.P.Act,1986, which are read as hereunder.

 

Section 2(1)(d)- “ consumer” means any person who- Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods  other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or [ hires or avails of] any services for a considerationwhch has been paid or prmised or parly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such series are availed of with th approval of lthe first-mentioned person[but does not include a person who avails of such services for any commercial purpose] {Explanation: For the purposes of this clause,” Commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by lmeans of self-0employment:}     Section 2(1) (o)- “ service’ means service of any description which is made available to potential [ users and includes, but not limited to, the provision of] facilities in connection with banking, financing, insurance, transport, processing supply of electrical or other energy, board or lodging or both, [ housing construction], entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

 12.                    From the quotes herein above, the complainants fit into the shoes of the original deceased borrower Santosh as defined U/s.2 (1)(d) (ii) of the C.P. Act,1986, hereinafter refered to as the Act.  Secondly section 2(1)(o) interalia including the terms “financing” would engulf, fortified with the terms “banking”” each and every person(s) as defined U/s. 2(1)(b) of the act. To our humble opinion, the term financing and banking, would include the original borrower, lender, investor, beneficiaries, legal representatives, assigns, executives, administrators and sundry.  Hence, placing all parlances at the foreground, we hold that, the present complainants are consumers and we answer the point accordingly.

 

13.                 From the pleadings, both parties appear to be unanimous on the aspect of the pledging of the gold chain under caption by deceased Santosh and borrowing an amount of Rs. 83,300/- by him on 12/08/2013.  From Ex.P.2 it is evident that, a sum of Rs.6,895/- was remitted by the borrower on 08/03/2014 and the loan was renewed.  As per the ;evidence affidavit of the O.P., the said loan was matured on 08/03/2015 and a  sum of Rs. 95,729/- was due as calculated on d13/04/2015 by the O.P. which numerical calculation appears to be correct.  The defence of the O.P. is to the effect that, consequent upon  failure of the deceased borrower to liquidate the loan, recall notice was sent on 28/04/2015(Ex.R.3).  The same was returned to the sender (O.P.) with postal endorsement “ In complete address”  on 05/05/2015, by which time the borrower had died on 02/02/2015, before the maturity of the loan.  The O.P. further claims that, on 22/05/2015 a notice for enforcement of security was issued.(Ex.R.4).  We see the postal endorsement on the body of  envelop which reads “ party expired return to sender”.  This cover was received back by the O.P. on 06/06/2015as is evident from the postal stamp implanted on the reverse side of the envelope.  The fact being so, the death of borrower was known to the O.P. on 06/06/2015.  Had the O.P. shown a little prudence, business acumen and decency, it would have tried to find out the legal heirs of the borrower, call upon them to liquidate the loan and in the event of their failure to do so, could have proceeded further to auction the article to redeem it’s assets.  Instead, the O.P. had hurriedly got published notices on “ Samyuktha Karnataka” and “ Deccan Chronicle” news papers on 07/06/2015 and went ahead to conduct auction of the article on 18/06/2015 and thereafter proceeded to sell the same against Rs. 1,12,514/- to an undisclosed bidder, as is informed vide Ex.R.5.  The corollary of events speaks for themselves and it is crystal clear that, deficiency of service, unethical and unfair trade practice in the part of the O.P.s have reached their zenith and we hold point no.2 in the affirmative and proceed to pass the following:

 

:: ORDER ::

 

   

   The complaint is allowed in part.

 

1. The O.P. is directed to return to the complainant no.1, a four line gold chain of 50 gms. weight and 22 carat specifications of the same design or any other design approved by her, provided she comes forward to repay the due amount of Rs.95,729/- as mentioned in the evidence affidavit of the O.P.
2. For smooth implementation of this order it is directed that, the amount aforesaid be deposited in the account of this Forum within forty days of receipt of the order under the intimation to the O.P, and thereafter within a further period of two weeks the O.P. would submit the four line gold chain in the custody of this Forum.
3. The complainant no.1, within one week of submission of the article would take delivery of the article and file a declaration of satisfaction, consequent upon which, the O.P. would be at  liberty to claim the amount deposited.
4. It is made clear, any failure in the part of the Opponent to comply the order subject to the deposit by the complainant as  aforesaid, a penalty of Rs.1,00,000/-would be leviable on him in terms of section 14(1)(hb) of the act payable to the Consumers Legal Aid account of the Forum.
5. Under the facts and circumstances, we are not inclined to award any further compensation a litigation expenses.

  

 

(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 7^th day of February-2017)

 

 

 

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                                                                             

 

 

 

Documents produced by the complainant

1. Ex.P.1-Token card, dt.12/08/2013.
2. Ex.P.2-  Receipt, dt.08/03/2014.
3. Ex.P.3-  Copy of survivor certificate dt.24/04/2015.
4. Ex.P.4  Stamp paper for Rs.100/- dt. 12/06/2015.
5. Ex.P.5-  Another stamp paper for Rs.100/-,dt.12/06/2015.
6. Ex.P.6-  Original death certificate of Santosh.
7. Ex.P.7- Office copy of legalnotice dt.30/06/2015.
8. Ex.P.8- Postal receipt.
9. Ex.P.9- Postal endorsement of delivery.

 

Document produced by the Opponent/s

 

1. Ex.R.1- Copy of G.P.A. in favour Sri. Anuj Kaila.
2. Ex.R.2- Copy of G.P.A in fvour of Sri. Vyshak Kannan.
3. Ex.R.3-Envelope of loan recall notice (undelivered)
4. Ex.R.4- Envelope of enforcement of security notice ( undelivered).
5. Ex.R.5- Reply to legal notice, dt.28/07/2015.
6. Ex.R.6- Copy of Samyuktha Karnataka dt.07/06/2015.
7. Ex.R.7Copy of Deccan Chronicle,dt.07/06/2015.
8. Ex.R.8-Copy of A/c Statement.
9. Ex.R.9-Letter amendment, dt.08/03/2014.
10. Ex.R.10- Inventory cum appraisers’ certificate.
11. Ex.R.11- Coppy of election I.D. card of Santosh.
12. Ex.R.12- Copy of Sale certificate.
13. Ex.R.13- Copy of renewed letter, dt. 08/03/2014.

 

 

 

Sri. Shankrappa H.,                                             Sri. Jagannath Prasad,                                  

       Member.                                                                      President.     

 

 

mv.