IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 258/09 DATED 03.09.2009<br /> ORDER<br /> <br /> Complainant B.Shivanna, S/o Late N.Basappa R/at Gattavadi Village, Kavalande Hobli, Nanjangud Taluk, <br /> Mysore District.<br /> (By Sri. R.Somashekara, Advocate)<br /> <br /> Vs. <br /> Opposite Party The Manager, Indian Overseas Bank, Kavalande Branch, Nanjangud Taluk, Mysore District.<br /> (By Sri.S.Umesh, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 20.07.2009<br /> Date of appearance of O.P. : 17.08.2009<br /> Date of order : 03.09.2009<br /> Duration of Proceeding : 17 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainant has filed the complaint seeking a direction to the opposite party for release of the jewels pledged and also for compensation of Rs.25,000/- for deficiency in service. <br /> <br /> 2. Amongst other facts, in the complaint it is alleged that, complainant barrowed gold loan, pledging gold articles under account No.363/2007 and 409/2007. The complainant cleared the said loan, believing the words of the opposite party that the pledged articles will be released soon after repayment of the loan. The complainant requested the opposite party to release the jewels pledged, but, the opposite party failed to do so. Ultimately, complainant sent letter to the opposite party to release the jewels, for which the opposite party replied stating that the jewels can be released only in case of closure or regularization of the agricultural crop loan of the complainant at No.19/04. Hence, it is alleged that, non-release of the jewels amounts to deficiency in service.<br /> <br /> 3. The opposite party has filed version, contending that it has got lien over the pledged articles and the complainant has become defaulter in respect of agricultural loan and it is over due to the extent of Rs.1,17,010 plus interest. It is further stated that, under section 171 of the Contract Act, the opposite party has general lien and the complainant has agreed while availing gold loan as per condition No.8 that the opposite party can exercise its lien over the gold articles pledged for the other loans availed by the complainant. Hence, it is prayed to dismiss the complaint.<br /> <br /> 4. To prove the facts alleging in the complaint, the complainant has filed his affidavit and produced certain documents. On the other hand, the opposite party also filed affidavit of the officer and certain documents are produced. We have heard the arguments of both the learned advocates and perused the material on record.<br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of the opposite party and that he is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : Negative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- The fact that, the complainant had availed gold loan pledging certain jewels and that loan has been cleared, is not in dispute. Likewise, there is no dispute that the complainant availed certain agricultural loan from the opposite party and that has not been regularized or cleared. <br /> <br /> 8. The opposite party contend that it has not released the gold articles since agricultural loan has become over due and in that regard it has exercised the general lien, which has been agreed by the complainant at the time of availing the gold loan. <br /> <br /> 9. Copy of the gold loan application submitted by the complainant is placed on record. 8th Condition is to effect that <br /> “The bank shall have lien on the jewels in respect of any other sum or sums of money, which the borrower may be liable to pay to the bank either solely or jointly with other persons at any office of the bank”.<br /> This condition agreed by the complainant at the time of availing the gold loan from the opposite party has not been disputed by the complainant. Hence, it is clear that, there is an agreement between the parties as noted above.<br /> <br /> 10. Learned advocate for the complainant submitted that complainant availed agricultural loan, for which other security has been furnished. But, that is not the point for consideration. Only, we have to consider, whether the opposite party can exercise the general lien or otherwise.<br /> <br /> 11. Counsel for the complainant relied on the ruling reported in II (2008) CPJ 75. In this ruling, the Hon’ble Hariyana State Commission has held that, despite repayment of entire loan withholding of the documents is not permissible. In the case on hand, it is not the contention of the complainant that he has paid the entire loan not only in respect of gold, but other loan that is agricultural loan. For this reason alone, the ruling will not help the complainant. The counsel further referred to the commentary on page 203 in the book Consumer Protection Act. Wherein, it is stated that non-return of the gold ornaments, though loan repaid amounts to deficiency in service. In the case hand, though, the gold loan has been repaid, other loan is due. Further, in the said book, there is mention withholding ornaments without any justification amounts to deficiency in service. In the case hand, the opposite party has justified its claim of general lien since the agricultural loan of the complainant has not been cleared.<br /> <br /> 12. On the other hand, for the opposite party counsel has relied on the order of the Hon’ble National Commission dated 17.04.1997 in Revision Petition No.336/1996 between Branch Manager, Union Bank of India and another Vs. Tele Surya Rao. In this order, the Hon’ble National Commission has referred to the meaning of the general lien of the bankers defined in Hulsabury’s law of England and found that the lien cannot be exercised unless there is an express or implied contract to the contrary. In the case on hand there is express contract between the parties that the opposite party can exercise its lien over the gold articles pledged. In that order, the Hon’ble National Commission has also referred to the ruling of the Hon’ble Supreme Court in Syndicate Bank Vs. Vijayakumar and others (1992) SCC 330. The Hon’ble Apex Court in this ruling has held that lien is a right of defence and not right of action. Even though, the facts of that case are different, ultimately, the Hon’ble National Commission has observed that if there is express or implied contract, general lien can be exercised.<br /> <br /> 13. Copy of the one more order of the Consumer Disputes Redressal Commission Circuit Bench at Bangalore in Revision Petition No.2458/03 between ING Vysya Bank Ltd. And Y.G.Sreeram Setty is produced. The Hon’ble Commission, in this order has observed that under section 171 of the Contract Act, the banker straightway cannot appropriate the money deposited. In that case, the main point for consideration was whether the money with the bank can be equated with goods. The ruling of the Apex Court in Syndicate Bank Vs. Vijayakumar and others (1992) SC 230 is referred. In that case, the Hon’ble Apex Court observed that the deposit receipts of renewals are remained with Bank so long as any amount on any account due to the bank is cleared. It is different aspect that the facts of that case are not similar.<br /> <br /> 14. In 2009 CTJ 329 – Orrisa State Commission has held that “The bank has general lien over all forms of the securities deposited by it’s customers and this has been judicially recognized and affirmed”.<br /> <br /> 15. Considering the facts, evidence and the discussion made here before, we are of the opinion that in view of the specific agreement between the parties, the opposite party has exercised its general lien over the gold articles pledged by the complainant and hence, even though the complainant has cleared the gold loan, he is not entitled for release of the pledged ornaments till other loan is cleared. Accordingly our finding is in negative. <br /> <br /> 16. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. There is no order as to cost.<br /> 3. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 3rd September 2009)<br /> <br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />