Delhi

New Delhi

CC/618/2010

Suresh Dutt Sharma - Complainant(s)

Versus

M/S. HSBC Bank Ltd. - Opp.Party(s)

23 May 2016

ORDER

 

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI),

 ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE,

 NEW DELHI-110001

 

Case No.C.C./618/2010                                  Dated:

In the matter of:

SURESH DUTT SHARMA,

R/o 185, Pocket A-4,

Kalkaji Extension,

New Delhi-110 023.

        ……..COMPLAINANT

 

VERSUS

1.     HDFC Bank through its Chairman

        Hindustan Times Building,

        K.G. Marg, Connaught Place,

        New Delhi

2.     HDFC Bank through its Regional Manager,

        Hindustan Times Building,

        K.G. Marg, Connaught Place,

        New Delhi.

3.     Branch Manager,

        HDFC Bank,

        A-333, Meera Bagh, Outer Ringh Road,

        Paschim Vihar,

        New Delhi.

               .... OPPOSITE PARTY

 

PRESIDENT: S.K. SARVARIA

ORDER

This complaint under section 12 of The Consumer Protection Act, 1986 (in short Act) is filed by the complainant alleging, in belief, that on 5/11/2007, the complainant applied for loan against the deposit of gold. The OP sanctioned a loan vide account number 69420 for Rs. 1,20,000/- against the jewellery weighing 215.7 grams whose valuation at the time of loan was Rs. 1, 20, 578/-. On 8/3/2010, the complainant has written a letter to the OP for making full and final payment to the OP and return of the jewellery pledged by complainant. Since the jewellery entrusted by the complainant is having emotional attachment of his elders and dear ones being a gift that is why the complainant has not straightaway sold the jewellery in the market at the first instance, and has adopted the option of letting the jewellery with the OP. The complainant’s several visits and request to OP became futile. Then the complainant served a legal notice dated 17/3/2010 through his counsel. By reply dated 25/3/2010, the OP informed that it had already sold the gold without giving any information/notice to the complainant. The alleged notices dated 10/12/2008 and 22/12/2008 and final sales notice dated 7/1/2009, and the telegram dated 28/1/2009, referred to in the reply were never received by the complainant. The complaint has prayed for the following reliefs against the OP bank:

 

1. To direct the OP to calculate the final amount payable to them
2. To return the pledged jewellery to the complainant or to pay Rs.3,66,000/- towards the value of the gold jewellery.
3.     To compensate the complainant to the extent of Rs.5,00,000/- as compensation for wastage of time of the complainant by the OP by calling the complainant in their office in the pretext of solving the dispute.
4. To compensate the complainant to the extent of Rs.5,00,000/- for harassment caused by the OP and
5. Any other order(s) which this Hon’ble Forum deems fit and proper in the facts and circumstances of the case may also be passed in favour of the complainant and against the OP.

Notice of the complaint was issued to the OP bank, who initially was proceeded with ex parte and ex-parte proceedings were set aside on 4/10/2012 as per order dated 29/8/2012, passed by Hon’ble State Commission remanding the matter, by setting aside of the ex-parte proceedings, before this District Forum. The OP then contested the complaint by filing reply, admitting, the loan in question against pledge of the gold as alleged by complainant. According to OP, the said loan in sum of Rs.1,20,000/- against pledge of 215.7 grams of the gold as security was given by the complainant as per gold loan agreement dated 5/11/2007. The tenure of the gold loan was 90 days and its maturity date was 3/2/2008. The complainant, by letter dated 27/2/2008 requested for renewal of the said gold loan and OP renewed the said loan for a sum of Rs. 1,20,000/- for another period of 90 days vide loan sanction order dated 27/2/2008 and tenure of the renewed got loan account number 85751 was 90 days with repayment date as 27/5/2008. The complainant, by letter dated 7/8/2008 requested for renewal of the loan against said Gold Loan Account No. 128314. The tenure of the renewed loan was 90 days with the repayment date 5/11/201 .

According to the OP as per the terms of the loan, and renewed loan against gold, it was agreed that the terms and conditions of Gold Loan Agreement dated 5/11/2008, shall be applicable to the renewed loan. The terms and conditions of the Gold Loan Agreement show that in case the complainant fails to repay the loan as per schedule of payment, then the OP bank shall have right to sell the pledged gold, after due notice to the borrower/complainant. The complainant was in total breach of the Terms and Conditions of the Gold Loan Agreement and the payment of the loan amount.

According to the OP, the complainant failed to repay the loan amount of the sum of Rs. 1,20,000/- by the repayment date i.e. 5/11/2008.The OP, upon default of complainant of repayment of loan amount which was due in November 5, 2008 issued Notices dated 10/12/2008, 22/12/2008 and Final Sale Notice dated 7/1/2009 and lastly, when no response came from complainant and the complainant still did not pay the loan amount, OP sent  Telegram dated 28/1/2009, asking the complainant to pay the loan amount failing which OP shall be constrained to sell the pledged gold in order to recover the loan amount. Despite issuance of all reminders/notices the complainant failed to repay the loan amount, hence the OP was constrained to sell the pledged gold for the sum of Rs. 2, 18, 217.98/- on 4/2/2009 to the highest bidders received from Anand Diamond Private Limited and Hira Sons Jewellers and sold the pledged gold. After, the sale of the pledged Gold the balance amount of Rs. 93, 281.54/- was refunded to the complainant on 4/2/2009. The complainant duly encashed the refund and did not raise any protest letter and/or objection proving that he was satisfied by the said sale of gold by the OP, in order to realise the goal loan amount. The OP has denied the other facts stated in the complaint and has prayed for dismissal of the complaint with punitive and exemplary costs.

In support of his case, the complainant has filed his affidavit in evidence. On behalf of the OP bank, the affidavit in evidence of Mr. Alok Sharma, working as Legal Manager with the OP bank is filed. Both parties have filed written arguments and the complainant has also filed additional written arguments by way of an application.

We have heard the learned counsel for the parties and have gone through the record of the case and relevant provisions of law.

The basic facts are not disputed. Admittedly, the complainant was given the loan of Rs. 1,20,000/- by the OP bank against the pledge of Golden ornaments weighing 215.7 gms. The complainant on 8/3/2010 had written a letter to the OP for making full and final payment and return of the jewellery pledged and thereafter issued a legal notice dated 17/3/2010 through his counsel, which was replied by the OP through its counsel on 25/3/2010. It is not disputed that OP bank has sold the gold and jewellery of the complainant and realised sale proceeds, and after appropriating the loan amount with interest, the excess amount realised in the sum of Rs. 93,281.54p had been deposited by the OP bank in the bank account of the complainant on 4/2/2009.

In the backdrop of the above admitted position the contention on behalf of the complainant is that before the sale of the gold and jewellery of the complainant no notice was given to the complainant, so the relief claimed by the complainant should be granted to the complainant. Reliance is placed upon Prabhat Bank Ltd versus Babu Ram AIR 1966, Allahabad 134. In the application for additional arguments, the question of Section 13 (2) of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is taken to show that 60 days notice should have been given to the complainant.

The contention on behalf of the OP, however, is that despite notices issued to the complainant the complainant did not pay the loan amount so under the agreement in question, the OP was entitled to sell the golden jewellery pledged and the excess payment received has been deposited in the bank account of the complainant.

We have given careful consideration to the respective contentions, and find that in this case OP bank had been extra generous to the complainant. Initial loan period was 90 days ending on the date of maturity and payment on the part of complainant being 3/2/2008. As per Gold Loan Agreement Exhibit OP W1/B (Colly). Thereafter, on the request of the complainant, who could not make the payment, the said loan was renewed on the same terms and conditions by Loan Sanction Order dated 27/2/2008 Exhibit OP W 1/C (Colly). The loan payment was not made by complainant in the renewed period and instead the complainant by letter dated in 7/8/2008 requested for second renewal of the loan against Gold Loan Account No. 87571 and OP bank renewed the loan for another period of 90 days by Loan Sanction Order dated 7/8/2008 Exhibit OP W1/D (Colly). The renewed loan as per date of maturity was to be paid by 5/11/20008.  The complainant has though pleaded the loan initially taken by him on 5/11/2007, but has clearly concealed the factum of its renewals on his request by the OP bank by Loan Sanction Order dated 27/2/2008 Exhibit OP W 1/C (Colly) and Loan Sanction Order dated 7/8/2008 Exhibit OP W1/D (Colly) on account of inability of the complainant to repay the initial loan. Further, when the loan was not paid by the complainant by the last renewal date of maturity being 5/11/2008, the OP bank was constrained to sell the pledged gold in terms of the loan agreement in question for which the notices dated 10/12/2010 dated 22/12/2008 and final sales notice dated 7/1/2009 and telegram dated 28/1/2009 Exhibit OP W1/E (Colly) were issued by the OP bank to the complainant and on failure of the complainant to make payment the OP sold the pledged Golden jewellery.

 In our view, the repeated notices, referred before, issued by OP to the complainant before sale of the alleged gold items are sufficient compliance of the relevant clause in the loan agreement between the parties that in case of default by the complainant in repaying the loan, the pledged gold items can be sold after due notice to the complainant. Therefore, Prabhat the bank Ltd. case (supra) relied on behalf of the complainant, instead of supporting the complainant supports the OP bank.       The additional ground raised on behalf of the complainant by application regarding violation of Section 13 (2) of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 looks to be valid in the light of the fact that the OP bank has failed to give 60 days notice to the complainant before selling the pledged golden articles. But this violation, which would normally have led this District Forum to allow the complaint, in the given facts and circumstances of the present case is not sufficient to do so. The reason is not far to seek. It is a case where initial the loan in question was obtained by the complainant by pledging Golden jewellery with the OP bank for a period of three months, instead of repaying the loan on or before the expiry of three months period, the complainant moved the OP bank for renewal of the loan twice for further renewal of three months each which was done.  What is more when the pledged gold jewellery was sold by OP bank after due notices to the complainant and after appropriating the sale proceeds to the outstanding loan amount the balance amount of Rs. 93,281.54/- was refunded to the complainant on 4/2/2009 by crediting the amount in his bank account with the OP bank. The complainant did not raise any objection to receiving of this amount of Rs. 93,281.54 and pocketed it without raising any objection or filing any protest letter or notice to the OP bank, and this fact is also not pleaded in the complaint that the complainant has received the said balance amount from the OP bank, the complainant has further concealed that she got renewed the loan amount twice for three months each. Therefore, this conduct of the complainant, mainly, by pocketing the balance amount of the sale proceeds of the alleged gold in the sum of Rs. 93,281.54 without any protest shows that the complainant has consented to the sale of the pledged of gold items. Therefore, on account of own conduct of the complainant, he is estoppel from raising the question of return of the gold items. There does not seem to be any genuineness in the plea of the complainant that he wants to repay loan and get back the pledged gold items, in the given facts and circumstances of the case. Hence, in our view, the complaint fails.

In view of the above discussion the complaint is dismissed. The parties are left to bear their own cost of litigation. Copy of the order be sent to each of the parties free of cost by registered post.  This order be sent to server (www.confonet.nic.in ).

File be consigned to record room.    

Pronounced in open Forum on 23.5.2016.

 

 

 

 

 

(S K SARVARIA)

PRESIDENT

 

                                            (H M VYAS)

MEMBER