District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.150/2019.
Date of Institution: 19.03.2019.
Date of Order: 08.07.2022.
Pramod Kumar Upadhaya s/o Late Shri Om Prakash R/o H.No. 76, Gali No.2, Near G.B.Panth School, Chacha Chowk, Sanjay Enclave, Parvatiya Colony, Faridabad.
…….Complainant……..
Versus
1. Kotak Mahindra Bank Limited through its Managing Director and Directors) Reg. office: 27 BKC, C-27, G Block, Bandra Kurla Complex, Bandra (E), Mumbai -400 051.
2. Uday Kotak, Managing Director and CEO, Kotak Mahindra Bank Limited, Reg. office: 27 BKC, C-27, G Block, Bandra Kurla Complex, Bandra (E), Mumbai -400 051.
3. Dipak Gupta, Joint Managing Director, Kotak Mahindra Bank Limited, Reg. office: 27 BKC, C-27, G Block, Bandra Kurla Complex, Bandra (E), Mumbai -400 051.
4. Kotak Mahindra Bank Limited, through its General Manager, Shop NO.4, Ground floor, near 1 & 2 Chowk NH-2, NIT, Faridabad.
5. Shri Surjit Executive, Kotak Mahindra Bank Limited, Shop NO.4, Ground floor, near 1 & 2 Chowk NH-2, NIT, Faridabad.
6. Mr. Rahul Executive, Kotak Mahindra Bank Limited, Shop NO.4, Ground floor, near 1 & 2 Chowk NH-2, NIT, Faridabad.
7. Mr. Rajesh Executive, Kotak Mahindra Bank Limited, Plot NO.7, Near By HCL Building, Sector-125, Noida (U.P).
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
PRESENT: Sh. Hemant Garg, counsel for the complainant.
Sh. Kamal Garg, counsel for opposite parties.
MUKESH SHARMA, MEMBER,
ORDER:
The facts in brief of the complaint are that on believing the words of opposite parties, the complainant had applied for a gold loan and opposite parties had sanctioned a loan of Rs.2,15,000/- to the complainant vide loan account No. GLN813882 on dated 07.11.2016 this loan was sanctioned by the opposite parties for tenure of 36 months @ 15% per annum and the maturity date of this facility was settled as 10.11.2019. Before sanctioning the above said gold loan opposite parties had kept the valuable gold jwellery of 120.10 gms/12 tola of 23 carat of worth market value of Rs.3,60,000/- at that time of the complainant and also took the signatures of the complainant on some blank stamp papers and on some printed format by convincing that this was only the formality and even opposite parties did not allow the complainant to read over the said printed format. However on the assurances of the executive of the opposite parties the complainant had signed those blank stamp papers and documents in good faith and as the complainant was not so educated.The complainant was regularly paying the installments against the above said gold loan account but in the month of April, 2018 the complainant had to go his village District Eta for some personal reasons and could not pay three or four installments of Rs.7,480/- each for the months of April to June, 2018. The complainant had also provided his cell phone NO. 9873717274 to the opposite parties for communication but the said telephone number got disconnected and thereafter the complainant had furnished his new cell No. 9873717275 to the executive of opposite parties Nos.5 to 7 namely Surjit, Rajesh and Rahul at present posted at Kotak Mahindra Bank, Shop No.4, Ground floor, Near 1 & 2 Chowk, NH-1, NIT, Faridabad. On 21.05.2018 executive of opposite party No.5 Mr. Surjit called the complainant on his new telephone number and asked the complainant to deposit the due installments in the above said loan account number and the complainant assured him that he was coming back in the second week of June, 2018 and as he returned back the total balance loan amount of Rs.27,540/- only should be paid by him and the above said loan account would be closed. The complainant visited at local branch of opposite parties on 11.06.2018 and met the executive of opposite parties Nos.5 & 6 Mr. Rahul, Mr. Surjit and requested them to deposit all the balance amount of Rs.27,540/- against the above said gold loan account and further requested them to close the said gold account. But the complainant got shocked and surprised to see the behavior of the executive of the opposite parties and they started misbehaving with the complainant in abusive language and threatened him to never come back again in the branch and told that they have melted the gold ornaments of the complainant and sold the said gold in the market, The complainant responded that without any notice, communication and consent how can opposite parties melted the gold ornaments of the complainant. But the opposite parties Nos.5 to 7 did not pay any attention to the genuine request of the complainant and even denied to give the statement of the account to the complainant. Thereafter the complainant tried to contact Mr. Rajesh i.e opposite party No.7 on his telephone No. 7290094030 and requested him that he was willing to pay the balance amount of Rs.27,540/- in a single term and requested him to return his gold jewllery and then the complainant was advised by opposite party No.7 to pay more Rs.30,000-40,000/- to the jeweler and then only the ornament sof the complainant can be recovered and thereafter the opposite party No.7 had also started avoiding the complainant on one pretext or the other by making the false excuses. The opposite parties had transferred Rs.75,410.52 and Rs.1,44,465.99 in the bank account of the complainant without his permission. The complainant sent legal notice dated 15.06.2018 to the opposite parties but all in vain. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) return the gold ornaments of the complainant as possessed by the opposite parties.
b) pay Rs. 2,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 50,000/- as litigation expenses .
2. Opposite party No.1 put in appearance through counsel and filed written statement wherein Opposite party No.1 refuted claim of the complainant and submitted that the present complaint filed by the complainant wrongfully impleaded the opposite parties Nos.2 to 7 in the present complaint with the sole motive to harass the answering opposite party(s). The complainant fully aware of the fact the opposite party was a corporation and the opposite party No.1 was responsible for all the acts done by their employees and representatives. Since the present complaint was civil nature and no specific attribution of allegations were required in civil
proceeding sunless and until the presence of such person was necessary to give effectually and completely adjudicate the matter hence the impleadment of opposite parties Nos.2 to 7 wasdeliberate, willful and unlawful in the eyes of law. The complainant concealed the material fact qua non-payment of monthly installment amount for the period of February March & April 2018 to the opposite parties despite having the knowledge of the fact that the complainant was contractually bound to make the payment to the opposite parties. Such non-payment on the part of the complainant prima facie establishes the lapses on the part of the complainant and in order to avoid their contractual duty imputing the false and frivolous to avoid their contractual duty, imputing the false and frivolous allegations against the opposite parties. It was further submitted that the complainant had failed to give his soundness to make the entire loan amount in the second week of June 2018. Opposite party No.1 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Shri Kamal Garg, counsel for opposite parties Nos.1 to 7 has made a statement that already filed written statement on behalf of opposite party No.1 be also read as written statement on behalf of opposite parties Nos.2 to 4 vide order dated 14.02.2020.
4. Opposite party No.5 has filed an affidavit in the form of written statement for & on behalf of opposite party No.5 to rely upon the written statement filed by opposite party No.1.
5. Opposite party No.6 has filed an affidavit in the form of written statement for & on behalf of opposite party No.6 to rely upon the written statement filed by opposite party No.1.
6. Opposite party No.7 has filed an affidavit in the form of written statement for & on behalf of opposite party No.7 to rely upon the written statement filed by opposite party No.1.
7. The parties led evidence in support of their respective versions.
8. We have heard learned counsel for the parties and have gone through the record on the file.
9. In this case the complaint was filed by the complainant against opposite parties –Motak Mahindra Bank Limited & Ors. with the prayer to : a) return the gold ornaments of the complainant as possessed by the opposite parties. b) pay Rs. 2,00,000/- as compensation for causing mental agony and harassment . c) pay Rs. 50,000/- as litigation expenses .
To establish his case the complainant has led in his evidence Ex.C-1 – Sanction letter, Ex.C-2 – letter dated 14.06.2018 regarding loan statement, Ex.C-4 – statement of account, , Ex.C-5 – legal notice, Ex.C-6 - reply to legal notice
Opposite party No.1 has filed the written statement alongwith Annexure-A – Gold Loan Application Form, Annexure B – Statement of account, Annexure-C – Demand notice dated 18.04.2018, Annexure-E – Intimation for Appropriation of Gold Loan Dues Post Auction, Annexure-f – Resolution.
As per order dated 22.12.2021 evidence on behalf of opposite party not filed. Adjournment sought. Perusal of the file reveals that opposite party has already availed several effective opportunities for filing evidence on behalf of the opposite party. After availing several effective opportunities opposite party failed to file evidence on his behalf. Hence, evidence on behalf of opposite arties Nos.1 to 7 was hereby closed by court order.
10. From the facts & circumstances of the case, it has been transpired that the complainant availed a Gold Loan Facility from the opposite parties & a loan amount of Rs.3,59,400/- was disbursed vide loan account No. GLN 818352 dated 07.11.2016. Opposite party No.1 admitted in para No.2 (reply on merits) in its written statement that since the value of gold provided by the complainant was assessed & admitted to Rs.4,85,000/- approx. therefore the loan was sanctioned to Rs.3,59,400/- to the complainant. In this regard, the opposite party submitted an Appraisal Certificate dated 07.11.2016(Annexure A Page 7) in which the value of the gold has been shown as Rs.4,85,727.27/- against the loan amount of Rs.3,59,400/-. From the discussion, it becomes clear that on the day the loan was given to the complainant, the value of the pledged gold according to Opposite parties was Rs.4,85,727.27.
11. Later on, the complainant could not pay the installments against the loan amount. According to the written statement, the opposite parties had dispatched demand notices dated 18.04.2018, Loan Recall notice dated 27.04.2018, Final Auction Notice dated 15.05.2018 which were duly served & despite that the complainant did not come forward to make the pending installment to the opposite parties. Opposite party No.1 submitted copy of Final Auction Notice dated 15.05.2018 & online consignment report of courier company to prove that the opposite party has issued the notice to the complainant as prior information to conduct an auction of pledged gold & to comply the condition No.27 of ‘Terms & Conditions” of the loan placed on file vide Annexure A.
12. After perusal of the record, it revealed that the opposite party No.1 submitted the copy of Final Auction Notice dated 15.05.2018 (Annexure –C, page 34) & names of parties with courier No.RT 331028695 IN (Annexure C. page 35), which is reflect to have sent to the complainant. But on the other hand, the opposite party submitted the courier current status report of courier No. RT 331028660 IN (Annexure C, page 36) with this Final Auction Notice. As such, the opposite party has failed to prove that it served a notice before auction to the complainant, which was mandatory according to the’ Terms & Conditions” of the loan agreement placed on file.
13. A telescope is needed to read the copy of the auction advertisement (Annexure D) which has been submitted by the opposite party. This also indicates the intention of the opposite party. Later on, the bank/opposite party has auctioned the gold ornaments pledged by it (Annexure E page 39) on 28.05.2018 as well as did not produce the details of auction conducted by the opposite parties. It is an interesting fact that the value of the pledged gold was Rs.4,85,727.20 as per the Appraisal Certificate dated 07.11.2016 (Annexure A, Page 7) submitted by opposite party but the opposite party itself auctioned the gold form highest bidder in auction (Annexure E, page 39) only in Rs.4,27,734.95 on 28.05.2018.
14. During the course of arguments, the counsel for the complainant has submitted a calculation sheet , the details are as under:
Calculation Sheet
S. No. Particular Amount(Rs.)
a. Gold Loan Availed vide loan account No. GLN818352 : 3,59,400/-
(Weight of Gold-196 gm 20 tola Worth Rs.6,00,000/-
b. Value of gold illegally sold by opposite party on : 4,27,734.95/-
Undermined valuation.
c. Value of Gold at the time of illegal sale (196 gm x : 5,88,000/-
30000 per 10 gms)
d. Pending principal amount : 1,97,966/-
e. Pending interest (12,212x4) : 48,848/-
f. Penal interest levied by opposite party : 31,056/-
g. Miscellaneous charges illegally deducted by :5399/-(1024+915+3460)
Opposite party (Annexure E).
h. Excess amount refunded by Opposite party : 1,44,465.95/-
i. Amount due in favour of complainant +interest : Rs.1,60,265.05 + interest
(c-d-e-f-g-h=i)
15. Keeping in view the calculation sheet submitted by the complainant on 08.07.2022 placed on the file, the opposite parties are directed to make payment of an amount of Rs.1,60,265.05/- alongwith interest @ 6% p.a. to the complainant from the date of auction till realization. The opposite parties further directed to pay Rs.10,000/- as compensation for harassment & mental agony & an amount of Rs.5500/- towards litigation costs to the complainant. The liability of the opposite parties shall be jointly & severally. This order shall be complied with by the opposite parties within 30 days from the date of receipt of copy of this order, failing which, the opposite parties shall be liable to refund the above said awarded amount to the complainant alongwith interest @ 9% p.a. from the date of auction i.e. 28.05.2018 till realization, besides costs of litigation & compensation. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 08.07.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
