Heard the learned counsel for both the sides.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The case of the complainant, in nutshell is that the complainant had availed gold loan of Rs.64,000/- from the OPs on 25.11.2013 by pledging 38 grams of gold. The OP had issued one receipt bearing No.3164432 vide loan account No. 18536100019127. The OP No.1 had requested the complainant to repay the entire dues of Rs.76,656/- within 7 days. The complainant went to OP No.1 to repay the loan amount, but the OP No.1 refused to accept the loan amount and also refused to return the 38 grams pledged gold ornaments to the complainant. The complainant thereafter on many occasion requested OP No.1 to allow to repay his loan dues and get back his gold ornaments. However, on 30.03.2015 OP No.1 informed complainant that the gold ornaments are found duplicate after careful examination of the gold but gold loan to the complainant has been sanctioned showing same as gold. Since, the gold ornaments are not refunded the by the OP, showing deficiency in service on the part of the OP, the complaint was filed.
4. The OP filed written version stating that the complaint is not maintainable and there is no cause of action to file the case. The OP No.1 submitted that the complainant is not a consumer as defined in the Consumer Protection Act. They admitted that they have sanctioned gold loan of Rs.64,000/- in favour of the complainant on 25.11.2013 payable within a period of 12 months with interest and same should be closed as on 25.11.2014 as per the terms and conditions laid down in the loan agreement. It is also agreed that if the loan is not paid within the stipulated period the OP No.1would be at liberty to sell the pledged gold ornament even by private sale and realize its dues. The complainant could not pay the gold loan within the scheduled time and OP No.1 sent the Registered notice. Complainant requested to pay the loan dues within 15 days, failing which the OP will dispose of the gold ornaments through private sale. But during sale process the gold ornaments of the complainant were found to be not pure and same is spurious one. It is further case of the OP that while pledging the gold ornaments with the OP-Bank the complainant had declared with confirmation that the ornaments are made up of 22 ct. gold and they belong to him and nobody else has any right over the same. When OP - bank accepts the gold ornaments for the purpose of sanctioning loan, apart from appraising the ornaments, Bank relied on the declaration received in good faith which is one of the most vital relationship on which banker customer relationship exists.
5. It is case of the OP that custody of the pledged articles including pledged ornaments are kept under the joint custody of two officers of two officers and all the operations in the pledged items are closely watched by the Branch Manager through CCTV. But here the complainant had pledged the spurious gold as alleged by OP and did not pay his loan dues, even after service of registered notice, the OP No.1 lodged an FIR against the complainant and police has seized the gold ornaments. Then the matter is under investigation by the police, hence the complaint is not maintainable on that ground and prayed for dismissal of the complaint.
6. After hearing both the parties, learned
District Forum has passed the following order:-
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“The Consumer case is allowed in part on contest against the OPs without any cost. The OPs are directed to return the gold ornaments on receiving the outstanding gold loan against the complainant, failing which the bank authority is at liberty to proceed as per Law and the complainant is also directed to deposit the outstanding dues and after it, he would have right to receive the gold ornaments from the OP-Bank. “
7. Learned counsel for the appellant submitted that as per banking norms the loan amount below Rs.1.00 lakhs the gold ornaments which once pledged are not tested. He further submitted that the gold ornaments of the complainant while being kept with them were not tested but during sale it was tested by the professional person and found that there are salvage of the gold ornaments. Learned District Forum has failed to apply judicial mind to the facts and law involved in this case. He further submitted that they have got the testing report where it is found that the OP-Bank has got it tested through a professional person and testing report has been filed by him. Learned District Forum ought to have considered the plea and dismiss the complaint but allowed the complaint by directing to return the gold ornaments on receiving the outstanding loan amount against the complainant and the complainant was also directed to deposit the outstanding dues. He submitted that the learned District Forum has not paid attention to the fact that the gold ornaments have been seized by the police and they are no more in possession of the OP for which learned District Forum has passed order for return of the gold ornaments on receiving the outstanding loan dues. Therefore, he submitted that the impugned order should be set-aside by allowing the appeal.
8. Learned counsel for the respondent submitted that the concerned circular produced by the learned counsel for the appellant never disclosed that appraisal of the gold below Rs.1.00 lakhs needs no testing. On the otherhand, she submitted that in all cases appraisals by using nitric acid method is mandatory. In this case the OP has already tested gold ornaments and then kept same as a matter of course to grand gold loan. However, he supports the entire order of the learned District Forum.
9. Considered the submission of learned counsel for the respective counsels, perused the DFR and impugned order .
10. It is admitted fact that the gold loan has been obtained by the complainant by pledging the gold ornaments of 38 grams with the OP. It is also not in dispute that there was testing of gold ornaments on 04.06. 2010. It is also admitted fact that FIR has been lodged and police has given his report. The complainant in order to prove his case has filed certain documents. The copy of the money receipts show that the complainant was sanctioned gold loan of Rs.64,000/- on 25.11.2013. by pledging 38 grams. of gold ornaments. The loan amount was Rs.64,000/-. Another report is filed vide Ext.2 showing that on 24.04.2015 the OP has asked the complainant to pay the outstanding dues either they have to renew the auction by selling the existing liability, failing which they will sell the item as pledged with them but the letter shows that there was outstanding of Rs.76,656/- as on 24.11.2014.
11. The OP has stated in their plea that gold loan could not be repaid after auction of the gold because during appraisal they found that the spurious gold was there for which they lodged FIR before the police. It appears from the testing report that there was only salvage to 1.5 grams but never the ornaments are found to be spurious one. Moreover the FIR was lodged on 18.04.2015. As the testing is the basis of FIR but there is discrepancy between the date of lodging of FIR and testing of gold. Apart from this the entire Federal Bank Rule dtd.22.10.2012 with regard to the gold loan clearly stated that the purity/quality/fitness of gold ornaments shall be examined and confirmed in all cases irrespective of loan amount. When there general circular as such the statement of learned counsel for the appellant to the effect that the testing is only to be done in case of loan more than one lakh is untenable. On the otherhand the testing report on the beginning has been suppressed by the OP. Hence, there is reason to believe that the gold loan has been allowed after the with proper testing.
12. Learned counsel for the appellant submitted that the gold ornaments are not available and it has been seized by police. In this regard we found in the seizure list shows that gold ornaments have been seized. When there is legal process already started we can not direct the OP for return of the gold ornaments as ordered by the learned District Forum. However, as discussed above, we are of the opinion that the appellant has deficiency in service by not returning the gold ornaments even if when the complainant is ready to pay the loan amount and further it is found that the gold ornaments being not tested properly but declaring same as duplicate, unnecessary put up the matter under police investigation on the allegation of the OP is to an act of detriment of complainant from his right over the property. This is unfair trade practice clearly proved on the part of the OP.
In view of aforesaid discussion, while affirming the impugned order, we modified the impugned order by directing the OP to waive the entire gold loan and pay compensation of Rs.1,00,000/- to the complainant within a period of 45 days from today, failing which it will carry interest @ 12 % from today till date of payment.
In the result, the appeal stands dismissed. No cost.
Free copy of the order be supplied to the respective parties or they may download same from the confonet or webtsite of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith.
