Date – 28.01.2022
SRI SWADES RANJAN RAY
President
Facts of this case, in short, is that the Complainant applied a gold loan on 27.11.2018 to the Opposite Party and the Opposite Party after following all necessary formalities sanctioned the loan application on 29.11.2018. The Complainant deposited the gold of 179.75 gm to the Opposite Party and the Opposite Party duly received and accepted the ornaments.
That the Opposite Party sanctioned the loan amount against the ornaments/gold of ₹3,90,000/- (Rupees Three lakh Ninety thousand only) in favour of the Complainant and the Opposite Party deducted ₹2,301/- (Rupees Two thousand Three hundred and One only) from the loan amount as processing fees.
That thereafter, Complainant wanted to know the bank how many EMI she has to pay against this loan amount and in reapply the bank verbally disclosed for 36 instalment having ₹12,530/- (Rupees Twelve thousand five hundred and Thirty only) per month.
That the Complainant due to financial problem and physical trouble did not pay EMI to the bank at least for 4 months. The Complainant thought and believe that the bank will not take any legal action taking this default reason as the sufficient gold was under their custody. But the Opposite Party gave a letter to the Complainant which was written on 20.02.2019 but sent on dated 22.03.2019 and received on 23.03.2019 for closing loan account and in this letter the Opposite Party requested to close the loan account within 15 days otherwise the ornament will be sold.
That the Opposite Party violated their own commitment which they gave to the Complainant stated in the letter dated 25.01.2019 and the Complainant came to know that the gold was sold on 29.03.2019 during the option period. It is beyond the imagination to each and every customer in the sense that there is no any safety or security on which any one can depend upon the Opposite Party Bank and in order to increase the business development they are trying to convince the customer on behind it there is no basis. Here in this case the Opposite Party bank has practiced an unfair trade business and there is a gross negligence on the part of the Opposite Party and for that the Opposite Party duty bound to pay the compensation for harassment both by mentally, physically and economically.
That the bank did not wait during the option period and the Opposite Party bank has not a little common séance how to behave and deal with the customer and even the bank without giving any proper notice or information sold the ornaments without any hesitation. The bank should be noted that the Complainant took the loan against this gold for urgency and the gold was deposited to the Opposite Party bank to keep safety and under their custody as because this said gold will be used for the marriage of her daughter. The bank sold the gold amounting to ₹4,66,400/- (Rupees Four lakh Sixty Six thousand and Four hundred only) for few gold but there are also rest of gold which is under their custody but it is not only mentioned vide a statement letter dated 28.06.2019.
That the bank did not use a single word about the ornaments which are under their custody. (i) Chur 2 pic., (ii) Neckles 1pic., (iii) Locket 2 pic., (iv) Kankana 1 pair.
That the bank authority (Opposite Party) failed observed and comply the rules framed by authority itself.
Hence, this case,
Opposite Party filed Written Version, wherein Opposite Party/Bank denied all the allegations as made in complaint.
It is the case of the Opposite Party/Bank that the Complainant took gold loan of ₹3,90,000/- (Rupees Three lakh Ninety thousand only) as per sanction letter dated 28.11.2018 with a condition that Complainant would repay the loan amount in 30 equal monthly instalments. But Complainant failed to pay any single instalment. As a result loan of Complainant declared NPA on 01.02.2019.
That Opposite Party/Bank sent a notice through SMSs and the said notice was published in the local Newspaper on 27.03.2019. In that notice, requested the Complainant to repay her outstanding dues within 4 p.m. on 28.03.2019.
That the Complainant has visited the bank on 27.032019 i.e. two days before the auction date and requested her to repay the loan amount immediately otherwise Opposite Party/Bank bund to complete the auction proceeding on 29.03.2019. But the Complainant has failed to comply the instruction of Opposite Party/Bank. After auction the excess amount of ₹16,080/- (Rupees Sixteen thousand and Eighty only) was credited in the bank account of the Complainant and requested the Complainant to return remaining gold ornaments.
Hence, there is no laches on the part of Opposite Party/Bank and this complaint case is liable to be dismissed.
Points for decision
- Whether Complainant has any cause of action to file this case or not?
- Whether there is any deficiency of service on the part of Opposite Party or not?
- Whether Complainant will entitle to get any relief /reliefs as prayed for or not?
Decision with reason
All these points are taken up together for sake of convenience and brevity.
I have carefully perused the petition of complaint, Written Version of Opposite Party, Questionnaire of Opposite Party and its reply, Affidavit in Chief and Brief Note on Argument (BNA).
Ld. Advocate Mr. Avijit Bhunia appearing on behalf of Complainant submits that as per banking rules Opposite Party/Bank should give clear 15 days notice before holding auction proceeding. In this instant case, Opposite Party/Bank issued notice on 20.02.2019 and said notice dispatched on 22.03.2019 and Complainant received the same on 23.03.2019 which reflected in track report of postal department and the auction held on 29.03.2019. Hence, Complainant got only 6 days notice. Hence, notice is illegal and bad in law and auction proceeding is also illegal and bad in law.
Ld. Advocate Mr. Avijit Bhunia further submits that there is circular of Opposite Party/Bank that Opposite Party/Bank will give clear 90 days notice before declaring the N.P.A. of loan amount. But in this instant case, Opposite Party/Bank violated its own circular.
In support of this reference, Ld. Advocate Mr. Bhunia refere:
1. 1 (2019) CPJ 159 (NC)
2. 1 (2019) CPJ 417 (NC)
3. (IV) 2019 CPJ 321 (NC)
4. (IV) 2020 CPJ 175 (NC)
In reply to this, Ld. Advocate for the Opposite Party/Bank submits that Complainant took gold loan of ₹3,90,000/- (Rupees Three lakh Ninety thousand only) by putting her signature on loan agreement. That the Complainant bound by the terms of loan agreement.
In this regard Ld. Advocate relied on Section 177 of Indian Contract Act. After taking loan, Complainant did not pay any single instalment after several request of Opposite Party/Bank.
Regarding notice, Ld. Advocate for Opposite Party/Bank submits that Opposite Party/Bank issued notice in due time. Complainant received notice on the date as mentioned, due to postal delay. There is not bad intention for sending notice delayed stage and Opposite Party/Bank correctly declared the loan in N.P.A. account.
As the Complainant did not pay the single instalment as per terms of the loan agreement and after auction bank credited excess amount in the Account of the Complainant and also inform the Complainant to return her remaining ornaments which are lying under the custody of Opposite Party/Bank.
Hence, allegation against Opposite Party/Bank has no basis and this complaint case is liable to be dismissed.
I have carefully perused the notice dated 20.02.2019 (Annexure – C) where I found that Opposite Party/Bank failed to give clear 15 days notice. In my view, mere issuing the notice in time, does not amount to clear 15 days notice. It should be counted on the date of receipt of notice.
For declaration of N.P.A. account, Opposite Party/Bank should give clear 90 days notice. In this instant case it was not strictly observed.
But I found that before declaration of N.P.A. account, Opposite Party/Bank gave notice to the Complainant and before auction sale, Opposite Party/Bank also gave notice to the Complainant with a request to repay to loan amount before the auction sale. But Complainant did not repay the loan amount or did not make any prayer for time to repay the loan amount.
On the other hand, bank credited the excess amount in the account of Complainant and requested the Complainant to return the remaining gold ornaments from the custody of Opposite Party/Bank.
It appears from available documents that the Opposite Party/Bank has failed to give 90 days notice for declaring the N.P.A. account and 15 days notice for auction sale of gold ornaments.
Now, the question before this Commission, (i) if I declare the procedure of N.P.A. account and the auction sale be bad in law and liable to be set aside. Opposite Party/Bank bound to purchase ornaments which were sold out in the aforesaid auction sale. Inspite of that, Opposite Party will return the gold ornaments unless and until made payment of loan amount by the complainant.
In this instant case there is no such prayer that Complainant is interested to repay the loan amount, if Commission gives necessary order for that effect.
If Opposite Party/Bank strictly follows the procedure regarding declaration of N.P.A. account and giving clear 15 days for auction sale, the result will be remains same, but only to waste of time and money of Opposite Party/Bank.
So in my view, technicalities should not be strictly followed in this instant case. There are several rulings of Hon’ble Supreme Court on this point.
The sole object of this Court/Commission to give effective justice.
If I allow the complaint case, position of Complainant will be remained same.
So, I am unable to agree with the view of Ld. Advocate Mr. Avijit Bhunia.
All the points disposed of accordingly.
In the result, this complaint case fails.
Court Fee paid correct.
Hence, it is
O R D E R E D
that the Complaint Case be and the same is dismissed on contest against the Opposite Party.
No order as to cost.
Hence, this complaint case is disposed of accordingly.
Let a copy of this judgement be supplied to all the parties at free of cost.