DATE OF FILING: 9.1.2014.
DATE OF DISPOSAL: 20.09.2017
Dr. N.Tuna Sahu, Presiding Member:
The complainants have filed this consumer dispute under Section 12 of the Consumer Protection Act, 1986 alleging deficiency in banking service against the Opposite Party ( in short the O.P.) and for redressal of their grievance before this Forum.
2. The brief facts that relevantly required for disposal of this consumer dispute are that the complainant No.1 & 2 are being minors represented through their guardian namely Smt. U. Sabitri, wife of Sri U. Syamasundar Rao appointed by the learned District judge, Ganjam vide GUP (P) No. 9 of 2012 dated 31.08.2013. The complainants submitted that their parents during their life time pledged gold ornaments to avail gold loan vide A/c No.320291922727 and A/c No. 320291927344 respectively. As per the complaint, while the matter stood thus, both the mother and father of complainants No.1 & 2 died on 07.02.2011 and 02.02.2011 respectively and on their death the entire estate devolved on them as the sole successors in interest. Accordingly since the death of their parents, the gold ornaments which are with the O.P. Bank becomes the properties of the minors. Under law any property of a minor or minors is to be safeguarded and also it is mandatory to obtain permission from the competent court i.e. from the Hon’ble District judge, Ganjam, at Berhampur, if the minor properties are to be dealt with for sale, transfer or mortgage etc. The complainant No.1 & 2 after the death of their parents were under the guardianship of maternal grandmother and the fact of demise of the father and mother of the complainant No.1 & 2 informed to the O.P. Bank through Advocate notice dated 15.03.2012 informing that the gold becomes the properties of the complainants and ready to furnish the material particulars for release of the pledged gold. The O.P. Bank acknowledged the notice dated 15.03.2012 and send a reply through their Advocate Sri Y.V. Rama Murty on dated 10.05.2012 with all untenable pleas. The complainants again sent a reply through their Advocate on 01.06.2012 intimating that they are ready to release the gold. Again, the complainants sent another registered notice through their Advocate Sri Datatreya Behera, Berhampur, on 28.10.2013 confirming that they are ready and willing to redeem the gold under pledged and to make good all the amounts there under through the guardian appointed by the competent court. The O.P. Bank received all the legal notices addressed to the Bank but did not choose to comply the requests of the complainants. The complainants further mentioned that the above acts of the O.P. Bank are amounts to breach of trust, illegal against the public policy, violation of mandatory provisions and deficiency in service. Alleging deficiency in service on the part of the O.P. Bank, the complainants filed this case before this Forum with a prayer to direct the O.Ps to return the gold ornaments to the complainants on receipt of the amount due there under and to grant damages to the complainants @ Rs.500/- per day towards mental agony, loss sustained and cost of litigation in the best interest of justice.
3. On receipt of notice from this Forum, the Opposite Party Bank appeared through learned counsel Shri Y.V. Rama Murty, Advocate, Berhampur and filed written version/arguments. In the written version it is stated that the averments made in the complaint are not all true and the complainants are put to strict proof of the same. The complainant under law should have filed the certified copies of the findings of the Civil Court. This Hon’ble Forum should have rejected the complaint petition for want of the authenticated documents, instead of the photocopies, which are not admissible under law. The gold loans bearing No.3202.919.22727 and 3202.919.27344 are said to have been availed by the parents of the complainants is not true and is also vague for want of necessary particulars like the weight of the gold, quality of the gold and nature of gold articles. The records of the bank indicate that one Ajit Kumar Panda availed the gold loan as per the norms and rules provided in respect of availing the gold loan from the Bank. In the instant case the Bank as per the norms issued two notices i.e. on 10.03.2012 and subsequently on 14.07.2012 in compliance to the Bank provisions informing the loanee to discharge the gold loan availed to the tune of Rs.1,92,408.00 paisa. The O.P. also confirmed the willingness or to the effect that the complainant to repay the loan at the outset and obtain the relevant documents from a competent court to release the gold to such person or persons as directed by the competent court to avoid multiplicity of litigations. The O.P. fairly dealt with the matter to avoid the delay which results in augmenting the loan amount due to the interest payable on the loan amount in the existing conditions of uncertainty as to when such orders from a competent court could be obtained. If the complainant or any person claiming through them would have deposited the total loan amount for both the loan amounts availed by Late Ajit Kumar Panda with the interest prevailing therein and prevented the O.P. not to have option for auction the gold but to be a garnishee to that gold and the person so authorized could have claimed and released the gold instead of making false allegations against the O.P. Bank. The complainant did not state or show any cause as to why the loan amount was not repaid in due time and should have requested the O.P. Bank to release the gold to the person authorized there under. It is also contended that the complainant did not state as to why the impugned gold loan is not referred to in the said guardian petition nor the O.P. was impleaded as one of the parties as the respondent. The law is well-settled that any lis or finding of any Court binds only to the parties to the said suit. It is further averred that the complaint is not maintainable as the two gold loans were availed independently on two different dates. The established principle of law is where cause of action is not pleaded the dispute is to be dismissed in limine. It is also contended that after following due procedure prescribed under the Banking laws, the concerned loan was dealt and the bid amount of the gold was adjusted towards the subsisting loan amount and the balance nexus after adjustment is transferred to the suspense account to release the said amount to the person or persons who can produce the authority to claim on behalf of the legal heirs of the deceased Ajit Kumar Panda and to the satisfaction of this O.P. Bank to deal with the property of persons whether they be minors or majors. The bank has no locus-standi to pay the amount to any person whoever that claims without the sanction from the competent authority that is the learned District Judge, Ganjam, Berhampur. The complainants ought to have filed a petition before the learned District Judge, Ganjam praying to direct the O.P. to release their amount lying under suspense account for more clarity and legality. The O.P. Bank acted prudently in proper way and time to safeguard the interest of minors by prudently acting and to the benefit of the legal heirs of the deceased loanee. The other allegations made in the complaint are all speculative in nature and the complainants are put to strict proof of the same. In absence of proof of any alleged deficiency in service the complaint is liable to be dismissed with costs with a further direction that the complainants, may seek the reliefs if any available by making application before the appropriate Forum to enable the O.P. to immediately release the amount kept in suspense account as stated above in the circumstances and in the interest of justice.
4. On the date of denov hearing of the consumer complaint, we have heard arguments from both sides at length. We have also perused the complaint petition, written version, written arguments of both parties and documents available on the case record. On going through the record of the file we find that there is no pale of controversy that one Ajit Kumar Panda whilst alive had availed two gold loans from the O.P. Bank on 18.6.2010 bearing A/c No.320291922727 and on 12.1.20 bearing A/c No.320291927344 respectively for an amount of Rs.1,15,000/- and Rs.38,000/- respectively on pledge of gold jewelries said to be weighing 123.500gms and 30.700gms respectively. It is also a fact that as per the loan agreement the loan was payable on demand. While the matter was stood thus the loanee deceased Ajit Kumar Panda was died on 02.02.2011 and her wife deceased Parbati Panda was also died on 07.02.2011 respectively leaving complainant No.1&2 as orphaned. During the course of argument, the learned counsel for the complainant contended that the present petitioner Smt. U.Sabitri has been declared as the guardian of two minor complainants as per order dated 31.8.2013 of learned District Judge, Ganjam. The aforesaid order of learned District Judge was communicated to the O.P. Bank on 28.10.2013 to redeem the gold loan and to get back the pledged gold jewels as stated above. As contended, prior to that the complainants also issued legal notice on 15.03.2012 and on 01.06.2012 to the O.P. Bank through their Advocate to know detail particulars of loan dues to get back the pledged gold but the O.P. Bank remained silent and did not respond the request of the complainant. Hence, the complainants have filed this complaint with the prayer to direct the O.P. Bank to return the pledged gold on receipt of amounts due there under and to grant damage to the complainant @ Rs.500/- per day in the interest of justice. He has also filed a citation of Hon’ble National Commission reported in 2015(2) CPR 457 (NC) in support of his case where the Hon’ble National Commission held that ‘bank can’t retain titled deeds after liquidation of loan account’.
5. Per contra, the learned counsel for the O.P. bank in his argument contended that the bank is governed under the banking rules and norms and the law is well settled that no court shall interfere with the internal administration of bank. In the instant case, admittedly the O.P. Bank issued two notices on dated 10.3.2012 and 14.07.2012 respectively calling upon the loanee to make repayment of loan dues of Rs.1,92,408/- and there was no deposits made towards the total loan amount. The O.P. bank acted prudently and the amount derived from the action of pledged gold was adjusted towards the subsisting loan and the balance amount there under has been transferred to the suspense account for payment to the person who can produce any authority as provided under law for the benefit of the minors. It is also submitted that a petition should have been preferred before learned District Judge, Ganjam, Berhampur, praying to release the amount lying under suspense account. The question of deficiency in service on part of O.P. Bank does not arise since the O.P. bank took effective steps to safeguard the interests of minors awaiting appropriate orders from competent court directing the O.P. Bank to disburse the balance amount under the suspense account hence the complaint is baseless and the same is liable to be dismissed with costs.
6. From the pith and submissions of learned counsel appearing for complainant as well as for the O.P. and on perusal of materials placed on record, the points that are crop up for consideration and to adjudicate the following issues in dispute:
- Whether the O.P is deficient in service for selling pledged gold in public auction due to non-payments of loan over dues?
- Whether the complainants are entitled to get back the pledged gold under the present fact and circumstance of the case or to get back the surplus amount remained in the suspense account of O.P. bank with interest?
- Whether the complainant is entitled for any compensation for mental agony or loss and cost of litigation in the fact and circumstance of the case?
7. To address and adjudicate the first issue in dispute in our view we would like to state that the loan being a demand loan and the O.P. bank officials issued a notice on 10.03.2012 and 14.07.2012 respectively to the said loanee but the loanee did not take any steps to repay the overdue loan amounts. On or before the effecting of the auction sale of the pledged gold, neither the complainants nor any of the legal representatives of the said Ajit Kumar Panda approached the O.P. and repaid the amount. In such a situation, the O.P. bank officials sold the pledged gold by public auction and realized an amount of Rs.1,92,408/- towards the loan dues and the surplus amount was kept in the suspense account of the Bank as admitted by the O.P. In the foregoing context, it is pertinent to refer Sections 176 and 177 of the Indian Contract Act, 1872(Act No.9 of 1872). Section 176 deals with the Pawnee’s right where Pawner makes default. The said Section prescribes that if the Pawner makes default in payment of the debt, or performance, at the stipulated time of the promise in respect of which the goods were pledged, the Pawnee may bring against the Pawner upon the debt or promise and retain the goods pledged as a collateral security or he may sell the thing pledged on giving the Pawner reasonable notice of the sale. What is further prescribes therein is that if the proceeds of such sale are less than the amount due in respect of the debt or promise, the Pawner is still liable to pay the balance. If the proceed of the sale are greater than the amount so due, the Pawnee shall pay over the surplus to the Pawner. Further, Section 177 of the Act, 1872 deals with the defaulting Pawner’s right to redeem. The said Section provides that if a time is stipulated for the payment of the debt or of performance of the promise, for which the pledge is made and the Pawner makes default in payment of the debt or performance of the promise at the stipulated time, he may redeem the goods pledged at any subsequent time before the actual sale of them; but he must on that case, pay in addition, any expenses which have arisen from his default. It is thus crystal clear from the salient provisions as mentioned under Section 176 and 177 of the Act, 1872 that the O.P. bank officials are entitled to bring the pledged by Late Ajit Kumar Panda for sale for recovery of the amount due under the loan after making a demand for the payment of the same. The demand having been made by the O.P. for the payment of the loan by notice as discussed above. As is evident from case record, the pledged gold was sold in public auction and before the sale took place neither the complainants nor any of the legal representatives of the deceased Ajit Kumar Panda approached the bank and repaid the loan. In such circumstances, it can’t at all be stated that the O.P. bank officials committed any sort of deficiency in service even assuming for argument sake that the transaction between the complainant and the O.P. is falling under the definition of relationship of complainant being construed as a consumer qua the O.P.
8. With regard to the second issue as framed above, we would like to state that in this case, the O.P. Bank has already sold the pledged gold in public auction by intimating to the complainants thorough prior notice dated 10.03.2012 and 14.07.2012 respectively and the complainants did not take any effective steps to stop auction sale of the pledged gold. It is also a fact not in dispute that the bank has closed the loan account of the deceased Ajit Kumar Panda on sale of pledged gold and adjusted the loan dues of Rs.1,92,408/- leaving the surplus amount in the suspense account of the Bank. It is also an admitted fact that bank is ready to pay the surplus amounts to the complainants on production of orders from competent courts. In the above context of the dispute, it would not be just and proper to direct the O.P. Bank to return the pledged gold to the complainant since it has already been sold in public auction. However, in our considered view the O.P. Bank is liable to refund the surplus amount kept in the suspense account to the complainants with interest to meet the ends of justice. As far as interest on surplus amount is concerned, we would like to view that the complainants are orphans and there is no source of income for pursuing their study. It is also a fact that the O.P. Bank has retained the amount since long and even on repeated approaches and through Advocate’s notices did not prefer to disburse the same to the complainants during their adverse conditions. In the aforesaid fact and circumstances, it will be just, proper and reasonable to direct the O.P. Bank to pay interest at the rate of 6% per annum on the surplus amount from the date of retaining the surplus amount till the actual payment is made to the complainants.
9. As far as the third issue as set above for entitlement of any compensation and cost to be paid by the O.P. bank, we would like to state that as per the prayer, the complainants have prayed to direct the O.P. bank to make payment of Rs.500/- per day towards compensation for financial loss and for mental agony along with cost of litigation. However, as discussed above, we are not inclined to award any compensation since we have already directed the O.P. Bank to pay interest at the rate of 6% per annum from the date of retaining of the surplus amount till actual payment is made to the complainants. Thus, in this case the complainants are not entitled to any compensation amounts as discussed. However, we are convinced that the complainants are entitled for cost of litigation since the complainants have hired the services of an Advocate for filing his complaint in this Forum and have also paid the court fees and have incurred expenses attending the case for the last more than two years. Under above peculiar fact and circumstances, in our considered view, a sum of Rs.2,000/- will be just and proper to meet the litigation cost of complainants to be paid by the O.P bank. The citation as discussed above filed by the learned counsel for the complainant in support of his case is not applicable to this present case due to factual difference of the present dispute in hand. We are therefore not inclined to accept the same hence the decision cited in the said case is rejected.
10. In the light of the above discussions and considering the fact and circumstance of the case, we partly allowed the case of the complainants against the O.P. Bank who is liable to return the surplus amount kept in the suspense account of bank accrued from the sale of pledged gold of the deceased loanee and to pay interest at the rate of 6% per annum from the date of retention of the amount by the bank till the amounts paid to the complainants. The amounts so received by the complainants from the O.P. bank shall be invested in fixed deposit in any national bank or post office for a period of 3 years in the name of the minors which shall not encumbered in any way and the interest accrued there from shall be spent for better education, well being and welfare of minors only. The complainants are therefore directed to produce the original fixed deposit receipt along with a photocopy thereof before this Forum with in fifteen days of the amounts received from the O.P. Bank.
11. Resultantly, the O.P. Bank is directed to return the surplus amount to the complainants kept in the suspense account of bank along with interest at the rate of 6% per annum from the date of retention to till the date of actual payment made to the complainants. Simultaneously, the O.P. Bank is also directed to pay a sum of Rs.2,000/- to the complainant towards cost of litigation. The above orders shall be complied by the O.P. Bank within 45 days from the date of receipt of this order failing which the complainants are at liberty to recover the same according to the relevant sections of the Consumer Protection Act, 1986. There are no orders at to compensation. The case of the complainant is disposed of accordingly.
12. The order is pronounced on this day of 20th September 2017 under the signature and seal of this Forum. The office is directed to supply copy of this order to the parties free of cost and a copy of same be sent to the server of
