By Smt. C.S. Sulekha Beevi, President,<br /> <br /> <br /> 1. Brief say of the case on the side of complainants is that 1st Complainant availed of 24 Nos. of gold pledged loans and 2nd complainant availed of 3 Nos. of gold pledged loans from opposite party bank. On 23-7-2007 the complainants who are husband and wife cleared all dues by paying Rs.8,88,839/-. When opposite party released the pledged ornaments complainants realised that the same did not belong to them and so refused to receive the ornaments. Opposite party assured that the matter would be solved and settled very soon. 1st complainant has moved a petition before Sub Inspector of Kondotty Police Station. Complainants allege deficiency in service against 1st opposite party and pray for return of 1100.5 gms of gold ornaments pledged with the b Bank or the amount of Rs.8,80,400/- (1100.5 x 800) which is the market value of the gold along with compensation and costs.<br /> <br /> <br /> 2. Opposite party has filed version admitting that gold loans were granted to the complainants on several occasions. Loans were granted only on the belief that the ornaments offered as securities were genuine and real. On 6-7-2007 officials of the bank detected that the ornaments pledged were spurious. Immediately on 9-7-2007 bank in order to get back the money advanced contacted the complainants and enlightened them the gravity of cheating and the consequences. Thereby complainants cleared the loans on 23-7-2007. Opposite party has informed Police and Co-operative departmental authorities. During the period 21-7-2007 to 24-7-2007 the inspectors of Co-operative department have inspected and verified the ornaments as spurious. The authorities have seized the spurious items and entrusted with bank the same duly,y sealed for safe custody. It was on knowing the progress of inevitable legal proceedings the complainants recompensed the amounts due to the bank. The bank is unable to release the spurious ornaments to the wrongdoers without further directions in this regard. The act of complainants amounts to cheating and wrongful gain to the time of several lakhs of rupees. The dispute is pending inquiry as per Ke4raqla Co-operative Societies Act and therefore this Forum lacks jurisdiction to try this complaint. Complaint is liable to be dismissed.<br /> <br /> 3. Affidavits and documents filed by either side. Exts.A1 to A7 marked on the side of complainants and Ext.B1 to B6 marked on the side of opposite party.<br /> <br /> <br /> 4. On filing of the version by opposite party and raising the contention that the ornaments pledged were not genuine this Forum had the apprehension whether the matter could be decided by summary trial. Thereafter both sides filed affidavits and documents. On going through the affidavits, documents and hearing both sides we are of the view that the first and foremost point that needs consideration is whether a just decision can be arrived by summary enquiry and resorting to principles of natural justice or whether lengthy and elaborate evidence is be led to prove the claim and contentions then complainants will have to be given the liberty to approach Civil Court.<br /> <br /> <br /> 5. Let us first consider the allegations raised by complainants in their complaint and affidavit. The complainants who are husband and wife have filed joint affidavit. It is affirmed that 1st complainant availed 24 numbers of gold loans and 2nd complainant availed 3 numbers of gold loans. 1st complainant has pledged 1100.5 gms of ornaments. 2nd complainant has pledged 270.2 gms of ornaments. The prayer in the complaint is for return of 1100.5 gms of gold ornaments pledged or to pay an amount of Rs.8,80,400/- (1100.5 x 800) being the market value of the gold ornaments. Ext.A1 series are the 24 receipts issued by opposite party to 1st complainant on remitting the whole amount for clearing the 24 gold loans. Ext.A2 are 3 receipts issued by opposite party to 2nd complainant on remitting amounts for clearing the 3 gold loans availed by him. Ext.A1 and A2 series are dated, 23-7-2007 and the total amount paid to opposite party by these documents is Rs.8,88,839/-. Ext.A3 is the copy of the complaint filed by complainant before Kondotty Police on 24-7-2002. Ext.A4 is the photo copy of the plaint in O.S.251/07 filed by complainants against one Kurikkal Mammad. Ext.A5 is the photo copy of registered Kanam assignment deed executed by complainants in favour of the above said Kurikkal Mammad. Ext.A1 is the notice to stop payment of cheques from the amount of 1st complainant. Ext.A7 series are three lawyer notices issued against 1st complainant under section 138 of Negotiable Instruments Act, on behalf of three different persons. As per Ext.A4, the Suit O.S.,251/07 is to declare Ext.A5 registered Kanam Assignment deed null and void. The allegation in the plaint is that Kurikkal Mammad who is the daily collection agent of opposite party bank has cheated and committed fraud upon the complainants and thereby has concocted Ext.A5 assignment deed.<br /> <br /> <br /> 6. Opposite party contends that the pledged ornaments are spurious. Ext.B1 is a letter written by 1st complainant to President of opposite party bank. Ext.B2 is the copy of the complaint filed on 31-7-2007 before the Kondotty Police by opposite party regarding the pledge of spurious ornaments by complainants. Ext.B3 is the receipt issued by police for the above complaint. Ext.B4 is a petition filed by 2nd complainant to President of opposite party bank. Ext.B5 is a petition filed by 1st complainant to President of opposite party bank. Ext.B6 is the copy of the report of inspection conducted by authorities of co-operative department. Complainants disputed Ext.B1, B4 and B5 documents. Counsel for complainant contended that the hand writings in these three documents are different. Ext.B4 and B5 contain statements of complainants admitting that they have pledged ornaments which are spurious. Ext.B4 and B5 contains statements showing the willingness of the complainants to assign their immovable property and clear the liability to the bank. It is the very same properties mentioned in Ext.B4 and B5 that is the plaint schedule property in Ext.A4. It is the same property described in Ext.A5 also. Ext.B4, B5 and B6 and Ext.A5 are attested by witnesses. The dues asper the gold loans were cleared by the complainants on a single day by paying a huge amount. Both sides have set the law into motion by filing complaints before the police. What is the present position of investigation/inquiry is not brought before us by either side. Opposite party has affirmed that the bank does not have an appraiser. To decide the question whether the items pledged are spurious or not the ornaments have to be produced before the Forum. Complainants have to adduce evidence as to identification of the items. Thereafter each item has to weighed and send for expert opinion. The expert has to be subject to cross examination. The documents of which handwriting is disputed has to be send for expert opinion. The witnesses of these documents will have to be examined and cross examined. We are of the view that this case involves determination of complex and complicated questions of which decision cannot be arrived by summary trial. It involves recording of elaborate and lengthy evidence not permissible within the scope of summary enquiry. Further the transaction of immovable property which according to complainants has connection with the pledge of ornaments is subjudice before the Munsiff Court, Manjeri.<br /> <br /> <br /> 7. In James Vs. Federal Bank Ltd and another 2005 CTJ 570 (CP) SCDRC (Kerala) the Honourable State Commission held “Each item of ornament is to be subjected to expert examination followed by recording of lengthy evidence – Evidently carrying on of such an exercise not permissible within summary jurisdiction of the Forums. Complainant asked to approach Civil Court”. Applying the principles laid down in the above decision the complainant is to be asked to approach the competent Civil Court.<br /> <br /> <br /> 8. Considering, the elaborate evidence that is necessary to reach a just decision of the case (the huge amount of Rs.8,88,839/- involved) and the involvement of immovable property for which matter is subjudice, the only course open to us is to return the complaint to the complainants asking them to approach the competent Civil Court for granting the reliefs prayed for.<br /> <br /> <br /> 9. In the result complaint is returned to the complainants and it is open to the complainants to approach the competent Civil Court for redressal of their grievances.<br /> <br /> <br /> Dated this 31th day of December, 2007.<br /> <br /> <br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> K.T.SIDHIQ, MEMBER<br /> <br /> <br /> APPENDIX<br /> <br /> Witness examined on the side of the complainant : Nil <br /> Documents marked on the side of the complainant : Ext.A1 to A7<br /> Ext.A1 series : 24 receipts issued by opposite party to 1st complainant<br /> on remitting the whole amount for clearing the 24 gold loans.<br /> Ext.A2 : 3 receipts issued by opposite party to 2nd complainant<br /> on remitting amounts for clearing the 3 gold loans.<br /> Ext.A3 : Copy of the complaint filed by complainant before <br /> Kondotty Police on 24-7-2002.<br /> Ext.A4 : Photo copy of the Plaint in O.S.251/07 filed by complainants<br /> against one Kurikkal Mammad.<br /> Ext.A5 : Photo copy of the registered Kanam assignment deed executed <br /> by complainants in favour of Kurikkal Mammad.<br /> Ext.A6 : Notice to stop payment of cheques from the account of <br /> 1st complainant.<br /> Ext.A7 series : Three lawyer notices issued against 1st complainant on behalf of <br /> three different persons.<br /> Witness examined on the side of the opposite parties : Nil<br /> Documents marked on the side of the opposite parties : Ext.B1 to B6<br /> Ext.B1 : Letter written by 1st complainant to president of opposite <br /> party bank.<br /> Ext.B2 : Copy of the complaint dated, 31-7-2007 before the<br /> Kondotty Police by opposite party regarding the pledge <br /> of spurious ornaments by complainants.<br /> Ext.B3 : Receipt regarding complaint issued by Police to <br /> opposite party <br /> Ext.B4 : Petition filed by 2nd complainant to President of <br /> opposite party bank.<br /> Ext.B5 : Petition filed by 1st complainant to President of <br /> opposite party bank.<br /> Ext.B6 : Copy of the report of inspection conducted by authorities <br /> of co-operative department.<br /> <br /> <br /> <br /> <br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> K.T.SIDHIQ, MEMBER