| ORDER | KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.APPEAL NO. 317/2010JUDGMENT DATED 23.03.2011 PRESENT:- SMT. VALSALA SARANGADHARAN : MEMBER SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER SHRI.M.K.ABDULLA SONA : MEMBER APPELLANT The Canara Bank, Kalpathy Branch, Kalpathy Post, Rep. by its Senior Manager(Law) . ( Rep. by Adv. P. Balakrishnan) Vs. RESPONDENT Prasanna, D/o N. Lakshmikutty Amma, 2/663, Prasanna Nivas, Manalmantha, Ambikapuram P.O., Palakkad (Rep. by Adv. Sri.K. Dhananjayan) JUDGMENT SHRI. M.V. VISWANATAN : JUDICIAL MEMBER The appellant was the opposite party and the respondent was the complainant in C.C. No. 75/2009 on the file of CDRF, Palakkad. The complaint therein was filed alleging deficiency of service on the part of the opposite party, Branch Manager, Canara Bank in refusing to release the gold ornaments pledged with the opposite party/Bank under gold loan No. G.L. 11971 dated. 2.11.2008. The complainant alleged that even after remitting the amount due under the gold loan, the opposite party bank refused to release the gold ornaments covered by the said gold loan and that the opposite party retained the gold ornaments by exercising Banker’s lien under the Indian Contract Act. 2. The opposite party entered appearance and filed written version denying the alleged deficiency in service. It was contented that the complainant has drawn a sum of Rs. 1,00,000/- on 4.11.2008 at 1 P.M. on the strength of the cheque for Rs. 1,00,000/- presented for collection on 29.10.2008 and that the aforesaid cheque was dishonoured by the drawyee bank on the ground of insufficient funds and thereby the complainant was bound to repay the amount of Rs. 1 lakh covered by the said cheque; that the complainant failed to repay the said amount of Rs. 1 lakh and so the opposite party bank exercised its lien over the said gold ornaments. Thus, the opposite party justified his action in retaining the gold ornaments covered by the gold loan No. G.L. 11971 dtd. 12.11.2008. 3. Before the Forum below Exts. A1 to A4 and B1 to B10 documents were marked on the side of the parties to the complaint in C.C. 75/09. On the basis of the documentary evidence on record, the Forum below passed the impugned order dated 19.4.2010 directing the opposite party to release the gold ornaments to the complainant and to pay Rs. 5,000/- as compensation with cost of Rs. 1,000/- aggrieved by the said order the present appeal is filed. 4. We heard both sides. The learned counsel for the appellant/opposite party submitted his arguments based on the grounds urged in the memorandum of present appeal and argued for the position that the opposite party bank has the right to retain the gold ornaments by exercising banker’s general lien under Section 171 of the Contract Act. and also by exercising banker’s lien under Section 174 of the contract Act. He also relied on Exts. B7 to B9 documents and submitted that the complainant has given the gold ornaments as security for the amounts/debts due to the bank. Thus, the appellant prayed for setting aside the impugned order passed by the Forum below and to dismiss the complaint in C.C. 75/2009 on the file of CDRF, Palakkad. 5. On the other hand, the learned counsel for the respondent/ complainant supported the impugned order passed by the Forum below and argued for the position that the opposite party, bank has no right to exercise the banker’s general lien under Section 171 of the Contract Act. He justified the finding of the Forum below regarding deficiency in service on the part of the opposite party. Thus, the respondent prayed for dismissal of the present appeal. The points that arise for consideration are:1. Whether the appellant/opposite party can be justified in retaining the gold ornaments by exercising the right under banker’s lien?2. Whether the respondent/complainant has succeeded in establishing her case regarding deficiency in service on the part of the opposite party, bank?3. Is there any sustainable ground to interfere with the impugned order dated. 19.4.2010 passed by CDRF Palakkad in C.C. No. 75/2009. 6. Points 1 to 3 : Admittedly the respondent/complainant availed the gold loan facility under the gold loan No. G.L. 11971 dated 12.11.2008 and thereby she availed the gold loan for Rs. 8,709/- by pledging gold ornaments. It is true that the complainant had also availed gold loan under G.L. 11298 for Rs. 8,000/- But we are concerned with gold loan No. G.L. 11971 dated. 12.11.2008. There is no dispute that the entire amount due under the said gold loan was paid by the complainant and she requested for release of the gold ornaments which were pledged under gold loan No, G.L. 11971. The appellant/opposite party refused to release the gold ornaments by exercising the banker’s lien over the said gold ornaments. The appellant/opposite party retained the said gold ornaments covered by Gold loan No. GL 11971 on the ground that the complainant was bound to repay a sum of Rs.1,00,000/- to the opposite party, bank and that the complainant failed to repay the said sum of Rs. 1,00,000/- with interest due to the bank. There can be no doubt to the fact that the respondent/complainant had received Rs. 1,00,000/- from the Bank on 4.11.2008 at about 1.PM. The aforesaid amount was received on the strength of the cheque for Rs. 1,00,000/- deposited in the account of the complainant for the purpose of collecting the cheque amount. Admittedly the respondent/complainant presented a cheque for Rs. 1,00,000/- dated. 29.10.2008 for collection. The said cheque was drawn on the Syndicate bank and the drawyer was one Viswanathan. The said cheque was sent for collection on 30.10.2008. After the presentation of the said cheque, the opposite party/bank credited the said cheque amount in the S.B. account No. 11912 of the complainant with the opposite party, bank . It is to be noted that the cheque amount was credited in the complainant’s S.B. account prior to the collection of the cheque amount from the drawyee bank. The complainant received the said cheque amount of Rs. 1,00,000/- from the opposite party, bank on 4.11.2008 at 1 P.M. There is also no doubt about the fact that the said cheque amount was received by the complainant from the opposite party, bank on 4.11.2008. But at the same time the drawyee bank dishonoured the cheque on presentation for collection. The said cheque was dishonoured on the ground that there was no sufficient fund in the account of the drawyee Sri. Viswanathan. The opposite party, bank received the intimation from the drawyee bank about dishonouring of the cheque on 4.11.2008 at 1.30 P.M. It is pertinent to note this juncture that by the time the complainant had withdrawn Rs. 1,00,000/- from her S.B. Account No. 11912 with the opposite party bank . In effect, the complainant withdrew the said amount of Rs. 1,00,000/- before getting the cheque amount collected from the drawyee bank. There is no case for the complainant that there was enough fund in her S.B. Account No. 11912 for withdrawing Rs. 1,00,000/- on 4.11.2008 from her S.B. Account. Only because of the premature crediting of the aforesaid cheque amount of Rs. 1lakh in the complainant’s S.B. account No. 11912. The complainant could withdraw Rs. 1 Lakh Thus, it can be very safely be concluded that the complainant had withdrawn Rs. 1,00,000/- from her S.B. Account which was in fact not due to her. 7. Admittedly the opposite party bank requested the complainant to repay the said sum of Rs. 1,00,000/- which the complainant had withdrawn on 4.11.2008. Even after acceptance of the said notice, the complainant was reluctant to repay the said sum of Rs. 1,00,000/- with interest due to the opposite party, bank. So, the opposite party bank had the right to recover the said sum of Rs. 1,00,000/- with interest from the complainant. The opposite party exercised the banker’s lien under section 174 of the Contract Act. 8. The execution of B7 to B9 application cum letter of pledging for overdraft/loan against gold jewellery is admitted by the complainant. There is no dispute regarding the execution of B7 to B9 documents. As per B7 to B9 agreement, the complainant had given the aforesaid gold ornaments as security for the loan granted and also for all moneys now owing or that may be owing hereafter to the opposite party bank from the complainant in any manner and capacity the recitals in B7 to B9 agreements would made it abundantly clear that the complainant has given the gold ornaments as security for the amounts due to the bank from the complainant. Thus, it can be concluded that the said gold ornaments were given as security specifically giving the same as security. If that be so, the opposite party bank can very well exercise the banker’s specific lien under section 174 of the Indian Contract Act. 9. The Forum below has got a case that the opposite party/bank failed to establish their case that Rs. 1 lakh was taken under overdraft facility. It is also held that the opposite party has not established that any amount is due to the bank from the complainant. The aforesaid finding of the Forum below cannot be upheld, in the light of the documentary evidence B1 to B10 produced from the side of the opposite party/bank. Ext. B1 is the cheque dated 29.10.2008 drawn on Syndicate bank, Palakkad for Rs. 1 lakh. It would show that the said cheque was drawn on Syndicate bank, Palakkad by one Viswanathan. Ext. B3 slilp dated 31.10.2008 issued by Syndicate Bank, Melamuri Branch, Palakkad to the opposite party, Canara Bank would show that the B1 cheque was dishonoured by the drawee bank on the ground of insufficient funds in the account. Ext. B4 is copy of the S.B. withdrawal order form executed by the complainant for withdrawing Rs. 1 lakh from her S.B. Account No. 11912 on 4.11.2008. This B4 document would show that the complainant had withdrawn Rs. 1lakh on 4.11.2008 from her S.B. account No. 11912 with the opposite party, bank. B5 is the letter issued by the opposite party, bank for repayment of the cheque amount of Rs. 1,00,000/- with interest. This B5, copy of the letter would show that the opposite party, bank requested the complainant to repay the said amount which she had withdrawn on 4.11.2008. B6 is copy of the lawyer notice dated 6.12.2008 at the instance of the opposite party Canera Bank to the complainant and drawyee of the cheque Sri. Viswanathan, requesting for repayment of the amount covered by the dishonoured cheque for Rs. 1 lakh. Postal receipts and acknowledgment cards would establish issuance of B6 letter to the complainant and the drawyee of the cheque. B7 to B9 are the application cum letter of pledge executed by the complainant in favour of the opposite party, bank for availing gold loan by pledging gold ornaments with the opposite party, bank. B10 is Statement of account with respect to S.B. account No. 11912 in the name of the complainant Prasannan with the opposite party, Canara Bank. The entry in B10 statement of account No. 11912would show the presentation of the cheque, crediting of the cheque amount and withdrawal of the said cheque amount by the complainant on 4.11.2008 and also dishonouring of the above said cheque by the drawyee bank. Thus, the documentary evidence available on record is sufficient enough to substantiate the case of the opposite party, bank. But the Forum below failed to consider the contentions raised by the opposite party, bank and also the documentary evidence adduced from the side of the opposite party, bank. In fact, the Forum below failed to appreciate the evidence on record in its correct perspective. 10. Ext. A4 is copy of the Pass Book issued by the opposite party bank in the name of the complainant with respect to S.B. account No. 11912. The entries in A4 pass book would also support the case of the opposite party that the cheque for Rs. 1 lakh was presented by the account holder for collection and the said cheque amount was credited in her account and the same was withdrawn by the account holder on 4.11.2008. It can also be seen that there was no other amount in her S.B. account on 4.11.2008. It is to be noted that on 4.11.2008, balance amount in her S.B. account was only Rs. 830/- The Forum below has gone wrong in allowing the complaint by directing the opposite party to release the gold ornaments. In fact the appellant/opposite party had every right to retain the said gold ornaments by exercising banker’s lien under section 174 of the Indian Contract Act. The Forum below cannot be justified in passing the impugned order. The Forum below ought to have dismissed the complaint in C.C. 75/2009. Therefore, this state Commission has no hesitation to set aside the impugned order passed by the Forum below. These points answered accordingly. In the result, the appeal is allowed. The impugned order dated 19.4.2010 passed by C.D.R.F, Palakkad in C.C. No. 75/2009 is set aside and the complaint therein is dismissed. The parties are directed to suffer their respective costs through out. M.V. VISWANATAN : JUDICIAL MEMBER VALSALA SARANGADHARAN : MEMBER M.K. ABDULLA SONA : MEMBER ST | |
