COMPLAINT FILED: 29.01.2009 <br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> <br /> 31st AUGUST 2009<br /> <br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NO.265/2009<br /> <br /> <br /> COMPLAINANT Smt. Vasantha Sachidananda,<br /> W/o Sachidananda,<br /> Aged about 48 years,<br /> <br /> Rep: by her husband and <br /> GPA Holder <br /> Sri. K.P.Sachidananda,<br /> S/o Late K.Panchaksharaiah,<br /> Aged about 59 years,<br /> Both R/o 79/1, 5th & 6th Cross, <br /> 4th Main, Chamarajpet,<br /> Bangalore – 560 018.<br /> <br /> Advocate: Sri Raghunandan M.G.<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTY The ICICI Bank Ltd.,<br /> M.G. Road Branch,<br /> Bangalore.<br /> <br /> Rep: by its Manager <br /> Loan against Securities.<br /> <br /> Advocate: Sri Jaimpatil <br /> <br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay a compensation of Rs.15,00,000/- and for such other relief’s on an allegations of deficiency in service.<br /> <br /> 2. The brief averments, as could be seen from the contents of the complaint, are as under:<br /> <br /> 3. Complainant is the current account holder at OP bank and availed OD facility of Rs.5,00,000/- against pledging of certain securities. Complainant had several transactions with the OP. With all that to her utter shock and surprise on 07.11.2008 complainant received a letter dated 03.11.2008 sent by the OP with regard to selling of certain shares pledged on 22.10.2008. Complainant never consented for selling of the said shares at that juncture. The arbitrary act of the OP has caused her both mental agony and financial loss. Not only that in another letter OP informed about selling of another lot of shares worth Rs.8,483/-. The repeated requests and demands made by the complainant to set right the mistake committed by OP went in futile. She even caused legal notice on 11.11.2008 again there was no response. Thus complainant felt the deficiency in service on the part of the OP. Under such circumstances she is advised to file this complaint and sought for the relief accordingly. <br /> <br /> 4. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP complainant availed the OD facility on pledging shares as security and also executed irrevocable power of attorney to deal with the said shares. Complainant is bound by the terms and conditions of the said OD facility. Complainant failed to make payment of the OD amount as contemplated. OP did intimate the complainant about share conditions and their price and requested her to regularize the account, but it went in futile. Without any other option OP is obliged to initiate the sale of the securities to regularize the account and that act of the OP does not amount to deficiency in service. OP has followed the terms and conditions of the agreement as well as RBI guidelines. Complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint. <br /> <br /> 5. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.<br /> <br /> 6. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No.1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP?<br /> <br /> Point No.2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No.3 :- To what Order?<br /> <br /> 7. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> Point No.1:- Negative.<br /> Point No.2:- Negative.<br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 8. At the outset it is not at dispute that the complainant has got a current account at the OP and availed OD facility loan to an extent of Rs.5,00,000/-, by pledging the shares as a security for the repayment of the said loan. Now the grievance of the complainant is that without her consent and knowledge OP sold the shares at their whim and fancy and convenience for a faulty some of Rs.3,53,482/- and in another set for Rs.8,483/-. She came to know of the same when she received the letters from the OP, copy of the said letters are produced. Of course OP has not disputed the contents of the said letters. <br /> <br /> 9. Further it is contended by the complainant that because of the carelessness and negligence of the OP in selling the said shares when the share market is down, she suffered both monitory loss and mental agony thereby she caused the legal notice not once but twice. Copies of the legal notices produced. There was no proper response from the OP thus she felt deficiency in service hence she is advised to file this complaint. <br /> <br /> 10. As against this it is specifically contended by the OP that the complainant is bound by the terms and conditions of the loan sanctioned under OD facility. She has signed loan application, not only that she executed irrevocable power of attorney in favour of the OP to deal with the said shares in case of default in regularizing the OD account by the complainant. Complainant has not disputed the said terms and conditions as well as about the power of attorney. <br /> <br /> 11. When we go through the application form it specifically states when the loan is availed against the securities margin of securities required to be placed with OP bank 50% of the loan amount of facility. When complainant availed OD of Rs.5,00,000/- she would have share value of Rs.10,00,000/-. No where complainant has stated that she is regularly maintaining her account and repaid the outstanding dues in course of transaction. When OP noticed the down fall of the share immediately intimated the complainant to regularize the account by sending telegram on 16.08.2008. This fact is not denied by the complainant. Then wrote letters on 06.11.2008 and 18.12.2008. Though OP intimated the complainant about the position of shares when there was no response and a default in regularizing the said account, without waste of time OP opted to sell those shares when that is so the allegation of the complainant that without her consent and knowledge OP sold the shares rather does not hold force.<br /> <br /> 12. As could be seen from the terms and conditions of the agreement and the contract the complainant is bound to regularize the account every now and then. When she failed it is but natural OP being the financial institution, is constrained to initiate the sale of the securities since as on the date of sale the margin in the account had depleted to 24% as against the required 50%. In our view that act of the OP is governed by the agreed terms and conditions, under such circumstances it does not amounts to deficiency in service. OP followed the guidelines of the RBI in initiating the said action. Complainant had a sufficient and reasonable opportunity and time to regularize her account by making payment of the amount due or by production of additional shares as contemplated. But she has not exhausted the said remedy. Under such circumstances complainant herself become the defaulter and a defaulter cannot allege the deficiency in service.<br /> <br /> 13. We have taken note of the decision relied on by the complainant reported in 2007 CPJ P 122. The facts on hand differ from the facts enunciated by their Lordship in the above said ruling. We have borne in our mind the basic principles and guidelines while coming to the just conclusion in this case. <br /> <br /> 14. In view of the elaborate discussions made by us we find the complainant has failed to prove the deficiency in service against the OP. Complaint appears to be devoid of merits hence she is not entitle for the relief claimed. Accordingly we answer point Nos.1 and 2 in negative and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is dismissed. In view of the nature of dispute no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 31st day of August 2009.) <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> s.n.m. <br />