Date of Filing : 08-06-2009
Date of Disposal : 24-07-2015
BEFORE THE DISTRICT CONSUMER FORUM, PRAKASAM DISTRICT AT ONGOLE.
PRESENT: SRI P.V. KRISHNA MURTHY, B.A., B.L PRESIDENT
SRI K. UMAMAHESWARA RAO, M.A., B.L., MEMBER
This the 24th day of July, 2015
C.C.NO.101/2009
BETWEEN:
Mogilisetty Nagamani,
W/o. Late Srinivasa Rao, Hindu,
R/o. Isukavagu, aged 35 years,
Chimakurthy. … Complainant.
AND
1. The Andhra Pragathi Grameena Bank,
Rep.by its Branch Manager,
Chimakurthy.
2. The Branch Manager,
The Andhra Pragathi Grameena Bank,
Chimakurthy. … Opposite parties.
This complaint under Sec.12 of the Consumer Protection Act, 1986 coming on 09-07-2015 for final hearing before us in the presence of Smt. I. Indira, advocate for the complainant and Sri O.N.Sastry, Advocate for the opposite parties and having stood over for consideration till this day and this Forum made the following:
ORDER
(ORDER BY SRI P.V. KRISHNA MURTHY, PRESIDENT)
1. The brief averments of the complainant as are fallows:-
The complainant pledged her ornaments and obtained loan from the 1st opposite party on 24.04.2007. The 2nd opposite party is the Branch Manager of the 1st opposite party. The opposite parties did not serve notice demanding repayment of the loan. On 21.03.2009, the complainant approached the opposite parties for clearing the loan and releasing the ornaments. The opposite parties sent back the complainant asking her to come after two days. The complainant again approached the bank on 25.03.2009. She was informed that the ornaments were auctioned and were credited to her loan. The bank sold the ornaments at the low rate. The cost of the ornaments on the date of auction was about Rs.60,000/-. The auction proceedings appear to be nominal. The same is a deficiency of service. There was an exchange of legal notices. Hence, the complaint for return of the cost of the gold with compensation and costs.
2. The brief averments of the counter of opposite parties are as fallows:-
The averments of the complaint are not correct. The complainant did not approach the opposite parties for clearing the loan on the dates mentioned. The averments in para 4 of the complaint are false. The cost of the ornaments on the date of the auction, was not Rs.60,000/-. The complainant availed the gold loan as alleged. The complainant when remained a defaulter. The bank got issued a registered notice on 02.02.2009 asking her to repay the amount by 25.02.2009. The public notice was published in Eenadu news paper on 15.03.2009. The complainant did not approach even then. The ornaments were auctioned as for the circulars and adjusted the amounts to the loan. The balance was credited to the account of the complainant there is no deficiency of service. The complainant is not a consumer. Hence, the complaint may be dismissed.
3. Now the point for consideration is “whether the opposite parties committed any deficiency of service”?
4. The complainant filed her affidavit and the affidavit of another person as Pw.1 & Pw.2. Exhibits A1 and A2 were marked on behalf of the complainant. On behalf of the opposite parties, Exhibits B1 to B8 were marked.
6. POINT:- The complainant alleged that the gold ornaments pledged by her with the opposite party were sold away for a low price in the nominal auction which amounts to deficiency of service and negligence. The complainant is seeking the return of the cost of gold of Rs.60,000/- or return of the gold ornaments along with costs and compensation of Rs.25,000/- towards mental agony. The complainant filed her affidavit (Pw.1). She also filed the affidavit of her neighbor (Pw.2) to the effect that the purchased gold ornaments at the rate of Rs.1375/- per gram on 24.03.2009. The purchase bill was also filed along with affidavit of the neighbor of the complainant. The bank denied of the allegations. The bank contended that they have sold the pledged ornaments after giving sufficient time and also after publication in news paper which is circulated locally. The bank denies negligence, as well as, the deficiency of service on their part. The bank also contended that the complainant is not within the definition of the consumer and as such this complaint is not maintainable.
In view of the maintainability of the complaint in this forum, the said contention is being dealt with first. In Mr.P.K.Masumdars Law of Consumer Protection in India at page.293, it was mentioned that in a case of pledge of gold ornaments, the creditor and debtor relationship exists and not the relationship of a consumer. The above synapsis was as per the decision of Kerala State Commission covered by I 2000, C.P.J., page.308 (Muthoot bankers Vs. N.Shadadhari). The circumstances of the case also support the above ruling. The complainant under the circumstances of the case cannot be called a consumer as defined under the Consumer Protection Act. However, considering the facts of the case, all the aspects are being dealt with in this order.
Exhibits A1 and A2 are the legal notice and reply respectively. The Ex.B3 is the paper publication in Enadu district edition dated 15.03.2009 to the effect that the pledged gold ornaments will be auctioned in the premises of the ongole main branch of the bank on 24.03.2009. In the above paper publication, the name of the complainant, her address, the gold loan account number and the weight of the pledged gold ornaments were mentioned. The banker is supposed to issue public notice of the proposal auction. The complainant as a consumer knows the date of redemption of the pledge. As such, she cannot attribute motive to the opposite parties. The borrower has a duty to repay the loan, under law. The complainant cannot forsake that legal duty and attribute motives to the opposite parties. The bank has not conducted in an illegal manner as alleged by the complainant. The opposite parties conducted themselves in a legal manner and then auctioned the pledged ornaments. The opposite party may not have any control over the prospective bidders. In addition, the opposite party is an institution, to which motives cannot be attributed, under law. The complainant in para 4 of the complaint attributed mischief to the opposite parties. Mischief is an offence cognizable before a criminal court. The complainant failed to prove the deficiency of service or negligence on part of the opposite parties. As such, the complainant is not entitled to the reliefs sought in this case. The point is held against the complainant.
7. In the result, the complaint is dismissed, without costs.
Dictated to the Shorthand-writer, transcribed by her, corrected by me and pronounced in the open Forum this the 24th day of July, 2015.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined for the complainant
P.w.1 : 29.09.2009 - Smt. M.Nagamani, W/o. Late Srinivasa Rao, Chimakurthy.
(Chief Affidavit filed)
P.w.2 : 04.02.2010 - Smt. Dasari Venkata Ramana, S/o. Subbarao, Chimakurthy.
(Chief Affidavit filed)
Witnesses Examined for the opposite parties
NIL
DOCUMENTS MARKED FOR COMPLAINANT:-
Ex.A1: 26.03.2009 : Notice.
Ex.A2: 02.04.2009 : Reply.
DOCUMENTS MARKED FOR OPPOSITE PARTIES :-
Ex.B1: 24.03.2009 : Proceedings of auction of gold jewels of chimakurthy branch held at Andhra
Pragathi Grameena Bank, Ongole, main branch.
Ex.B2: - : Statement of account of petitioner.
Ex.B3: 13.03.2009 : Publication In Eenadu news paper (district addition)
Ex.B4: 24.01.2009 : Lletter RO Cir.No.1/RO:CRD/1/109/08,dt.05.01.09.
Ex.B5: 09.06.2008 : Circular No.127-2008-BC-CST.
Ex.B6: 24.03.2009 : Auction sale schedule.
Ex.B7: 02.02.2009 : Notice.
Sd/-
PRESIDENT
Copies to:
1. Smt. I Indira, Advocate, Ongole
2. Sri. O.N. Sastry, Advocate, Ongole.
Date when free copy was issued:
