DOF 20.1.2005

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy:               Member

Dated this, the 10^th day of  June   2010

CC.23/2005

M.Prajith,

Madappurakkal House,

Kanachery, P.O.Eachur                                                Complainant

(Rep.by Adv.K.Raghunathan)

The Secretary,

Mowancherry co.op.Rural Bank,

Munderi Motta Branch.                                           Opposite party

(Rep. by Adv.O.K.Sasindran)

O R D E R

Smt.K.P.Preethakumari, Member

            This complaint is filed under section 12 of consumer protection act for an order directing the opposite party to pay compensation with cost.

            The complainant’s case is that he had availed gold loan of Rs.4500/- by pledging his 2 sovereign gold ornaments with opposite party on 26.5.03. But the opposite party had sold the ornaments on 24.3.04, without informing him, and he came to know the same when he went to the bank to redeem the ornaments. Even though it was mandatory to issue notice to the complainant, the bank has not complied the same and no steps was taken by the opposite party to ensure that the  complainant is made known about the proposal and conducting auction. The item pledged is heavily attached to the complainant and hence it cannot be equated with the mere value of the gold. So he issued a notice to the opposite party on 5.5.04 and the opposite party issued a reply stating false things. So the act of the opposite party  amounts to deficiency of service. Hence this complaint.

            In pursuance to the notice issued by the Forum opposite party appeared and filed their version.

            The opposite party field version admitting the pledging of gold ornament on 26.5.03 and availing Rs.4500/- as gold loan and also admits that the pledged ornament is of 16 Gms. As per the terms of the loan the complainant had to redeem the pledge on or before 26.11.03 i.e. within 6 months and the same was mentioned in the loan tickets. Because of the absence of the complainant on 5.2.04 the opposite party issued an ordinary notice calling upon the loanee to take back the pledged item on payment of the due amount. Due to his absence again on26.2.04 a registered notice was sent to the complainant and the complainant had acknowledged the same on 12.3.04. Due to repeated absence of the complainant another letter was issued again on 3.3.04 and all the notices were issued to the complainant is in his address furnished by the complainant in the bank and it was specifically stated that if the loan debt is not discharged within the stipulated time the bank would sell the pledged item in public auction to realize the loan dues. The bank had constrained to take further steps since the complainant has not complied the notice. A paper publication was given in Desabhimani daily dt.17.2.04 wherein it was stated that the gold item pledged under loan account No.441/03-04 would be put for sale in public auction on24.3.04 at 11 am at bank’s head office premises and further notice was exhibited in notice boards of all branches of the bank regarding the public auction on 17.3.04 itself. This pledged item was auctioned in public as per rules since the complainant has not turned up. On adjusting the proceeds with the debt due to the bank, there was an excess amount of Rs.2511/- and the same was credited in the suspense liability account and a letter was issued to the complainant intimating to collect the excess amount of Rs.2511/- from bank but it has also no response. The complainant had approached the bank during the 2^nd week of May and not on 30.3.04. The complainant had issued a letter there after to the opposite party and the opposite party had issued a reply to it. So there is no deficiency of service on the part of opposite party and hence the complaint is liable to be dismissed.

            Upon the above contentions the following issues have been raised for consideration.

1. Whether there is any deficiency on the part of the opposite party?

2. Whether the complainant is entitled to any relief as prayed in the complaint?

3. Relief and cost.

            The evidence consists of the oral testimony of PW1, DW1 and Exts.A1 to A4 and B1 to B9.

Issue Nos. 1 to 3

            The complainant’s case is that without his knowledge ands consent his pledged gold ornaments was auctioned by the opposite party and he has produced documents such as Ext.A1 loan ticket having No.4431/03-04. dt.26.5.03, A2 the lawyer notice, A3 postal acknowledgement and A4 the reply notice. Opposite party also produced Ext.B1 bond cum loan application, dispatch registers (B3to B 5) acknowledgement B6, paper publication B7 and specimen notice B8 to disprove the complainant’s case. The opposite party admits that the complainant had pledged 16 Gms of gold ornament and availed Rs.4, 500/- as per loan account NO.441/03-04.and the terms of the loan was for 6months. According to the opposite party, the complainant had pledged 2 sovereign gold ornaments before them on 26.5.03andafter 6 months the complainant has to redeem the pledge with interest at the rate of12%per annum. But due to the absence of complainant, the opposite party issued an ordinary notice to the complainant to redeem the pledge and again issued a registered notice on 26.2.04 and the same was acknowledged by the complainant on 12.3.04 and again on 3.3.04another ordinary notice was sent and a paper publication was also made on 17.3.04 in Desabhimani daily. But the complainant denied the acknowledgement of notice on 12.3.04 and all other notices and also the paper publication. But the opposite party has produced Exts.B3 dt.5.2.04 Ext, B4, 26.2.04 and Ext. B5 dt.3.3.04 which are the certified copy of the postal dispatch register and the stamps issued as per thisExts.B3 and B5, it is proved hat the opposite party had issued two ordinary letters on 5.2.04and 3.3.04. Similarly B4 shows that opposite party had issued a registered letter to complainant on 26.2.04. Moreover the Ext.B7 i.e. the paper publication with respect to auction of articles in loan No.441 2003/04 carried out from Munderi motta branch along with so many pledged articles. This proves that the opposite party had published the date of auction and the articles with respect to the loan numbers. The complaint denied the B4 acknowledgement dt.12.3.04. But the opposite party had taken steps to examine the postman Eachur post office, and the postmaster by summoning them. But the above said postman was present before the Forum and he field an affidavit to the effect that the documents required to be produced is not presently available in the Eachur sub post office and it was sent to Kannur Head post office. Later on steps was taken to summon the post master, Kannur and he was present and filed as affidavit stating that he was not the custodian of the documents. From these it is seen that a genuine attempt was made by the opposite party to prove  Ext.B4. But it was not fruitful. The complainant contended that in Ext.A1 i.e. loan ticket, there is no condition  stipulated that it will be sold after 10 months. The Ext.B1 is the loan application along with a bond and the complainant admitted the Ext.B1 document. In that bond it is very specifically stated that  Rm³ ]­-]-W-b-¯n³ta 4500/--þ cq] C¶v_m-¦vsk-{I-«-dn-bp-sS-]-¡Â \n-¶p-T- sdm-¡T IST hm§n-bn-cn¡p-¶p. AXn\v sImÃ-¯nÂ100\p 12 cq] {]Im-c-T-]-en-i-tbm-Sp-IqSn 6am-k-¯n-\p-f-fn aS-¡n-A-S¨v FS-]mSv XoÀ¯ ]WvST-a-S¡n hm§n-sIm-f-fp-¶-Xm-Wv. ]­-¯n-\p-Ass{]kÀI-W-¡m-¡nb hne Rm³ k½-Xn-¨n-cn-¡p-¶p. _m¦n-sâ-C-t¸m-gp-ff \n_-Ô-\-I-fp-T-N-«-§-fp-T- t_¦v t\m«okv t_mÀUn³ta ]-c-k-yT sNbvX hgn¡v F\n-¡va-\-Ên-em-bn-«p-­v. taen tvFÀs¸Sp-¯p¶  kI-e-\n-_-Ô-\-I-fpT F\n-¡v_m-[-I-am-bn-cn-¡p-¶-Xm-Wv. ]Wb km[-\-§Ä kz-´-ambn Ah-Im-i-s¸-«-XpT Rm³ hm§nb IS-¯n-\p- A-h-a-Xn-bm-Im-sX-h-¶m t]m-cm-sX -h-cp-¶-k-T-J-y¡v Rm\pT Fsâ FÃm-k-z-¯p-¡-fp-T-D-¯-c-hm-Z-s¸-«-Xp-am-Ip-¶p.

So from this it is clear that the complainant is aware of the fact that, after 6 months he has to redeem his pledge after repayment and otherwise, the bank can realised it towards the loan amount. More over the opposite party is a co-operative bank governed by the provisions of Kerala Co-op. society’s act and rules. So it cannot act as its whims and fancies alone. Above all while going through the complaint, vakalath, affidavit, Ext.B1 loan application etc, the signature of the complainant are different with different documents. Above all the complainant contended that the items pledged are heavily attached to the complainant. So the complainant is duty bound to enquire within time about the pledged articles with the bank. So mere denial of Ext.B4 is not sufficient to make a burden upon the bank. So we are of the opinion that the complainant has failed to prove his case. The opposite party admits that there is a balance amount of Rs.2511/- with the bank in suspense liability account. The complainant is entitled to receive the same. So the complaint is liable to be dismissed and order passed accordingly.

            In the result, the complaint dismissed. No cost.

                                            Sd/-                    Sd/-                  Sd/-

President          Member           Member

APPENDIX

Exhibits for the complainant

A1.Receipt issued by OP

A2.Copy of the lawyer notice sent to OP

A3.Postal AD

A4.Reply notice

Exhibits for the opposite party

B1.Bond-cum-loan application

B2.Loan ticket

B3 to B5.copy of postal despatch register

B6.Postal acknowledgement

B7.Paper publication

B8.Specimen notice

B9.Postal receipt

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite party

DW1.K.M.Subhadra                                                    /forwarded by order/

                                                                                    Senior Superintendent

Consumer Disputes Redressal Forum, Kannur