Ld Advocates are present. Judgement is ready, it is pronounced in open Commission in 4 pages 3 separate sheet of paper.

BY -    SRI ASISH DEB, PRESIDENT

Brief facts of the complainant’s case are that the Complainant is a citizen of India and a permanent resident of the above mentioned address mentioned in the Cause Title of the complaint which is under this Jurisdiction and the Opposite Party is a Bank which situated at Tamluk and carried its business under this Jurisdiction. For the purpose of business relating to “Fashion Cosmetic, stationary goods supply” the Complainant took gold loan from the Branch of opposite party, Bank amounting Rs. 12,000.00 (Rupees Twelve thousand only) on 13.09.2013 in C/W Gold Loan Account No. 3403842000148 &Rs. 5,500/- (Rupees Five Thousand Five Hundred Only) on 14.09.2013 in C/W Gold Loan Account Number 3403842000152 after depositing gold by Complainant which ornaments had been collected from the niece of the Complainant. Owing to loss of business of the Complainant he could not be able to repay the loan in due time and did not collect the ornaments of the niece of Complainant. So the Complainant and his niece has faced a mentally torture from her matrimonial house. Being resigned in all aspects the Complainantcollect the money from his friends circle and repaid whole gold loan with full interest up to date which estimated by the bank O.P. amounting Rs. 14,651.00 (Fourteen Thousand Six Hundred Fifty One only) on 29.10.2015 in gold account no. 3403842000148 and Rs. 6,783,00 on 31.10.2015 in account no 3403842000152 to the Opposite Party Bank. After repayment of the above mentioned gold loan amount to the opposite party said opposite party did not return the deposit gold ornaments to the Complainanton that day. At that time the opposite party told the Complainantthat after completion of some formalities they would return that gold ornaments to the Complainant within one week. There after the Complainantmet with the O.P. time and again to get back the gold ornaments but being failure the Complainantlodged an application to get back the deposited gold ornaments on 10.11.2015. After lodging the application the O.P. bank told the Complainantthat the O.P. bank is busy for its regular work so they would return the ornaments after fulfilling all formalities and also the O.P. would return the same within few days. In the above way the O.P. bank killed the long time and at last being failure in all efforts the Complainantsent a notice with Regd. A/D on 31.01.2018 to the opposite party through Mr. Subrata Roy, Ld. Advocate. Instead of returning the deposited ornaments the O.P. Bank sent a reply letter to the Complainantthrough his Ld. Advocate on 01.02.2018 and illegally charged of Rs. 100/- per month which is illegal, unlawful and bad in law. For the above incident the Complainantand his niece have been suffering from irreparable loss of both mentally and physically. The Complainant took cash credit loan from the aforesaid bank vide loan A/C No. 3403285000002 in the name of proprietorship M/S Fashion Cosmetic stationery of Rs. 7,50,000/- on 20.03.2013. The business of the Complaint had suffered irreparable loss due to flood. The Complainant informed this matter to the Bank Manager on 27.05.14 inspite of that the Complainant paid of Rs. 3,00,000/- to the said bank. The Complainant also informed the said matter to the B.D.O ,Gram Panchayet and also Executive Officer, Pipulberia, even the Bank Manager also investigated the said matter. After receiving the borrower notice from the said bank the Complainantissued a legal notice to the Branch Manager of the said bank on 19.02.2018. The Complainant was cheated by one customer of Rs. 10,00,000/- for that the Complainanttook the proceedings under N.I. Act against the customer vide case No. CR 183/ 2015 which is pending in the Court. The Complainant sworn an affidavit before the Ld. S.D.M Court on 07.02.2018 and advertised the same in the “Pratidin Pratika” dated 16.02.2018 regarding stopped and irreparable loss of the said business. In spite of that the Bank authority issued a notice to the Complainanton 13.03.2015 regarding the said loan account. After receiving the same the Complainantfiled an application before the Ld. Legal Service Authority on 04.12.2015 stating that the Complainant wanted to do mutual understanding with the said bank. But the said bank did not pay any heed to it. The Complainant has an income certificate issued by Pradhan, Pipulberia —I Gram Panchayet dated 17.07.2015. The cause of action arose on and from 10.11.2015 to 31.01.2018 which within this Limitation. The Complainantmade this complain enclosing a Demand draft of Rs. 200/- . In the above facts and such circumstances the complainant/ petitioner humbly prays for passing necessary order orders: i) For return the Gold Ornaments to the Complainant which was deposited by the Complainantin the custody of Opposite Party Bank ii) For compensation of Rs. 1,00,000/- for physical harassment and mental agony iii) For litigation cost of Rs. 25,000/-  and iv) for other relief/reliefs as  Complainant is entitled to get as per law and equity.

Having received the notice of the case, the op has contested the case by filing written version against the complaint. The sum and substance of the written version can be stated as follows: the instant case is not maintainable in its present formand in law. The Complainant has got no cause of action against this Opposite Party to file the instant case.The complainant has concealed certain facts. The complainant availed one cash credit loan vide loan account no 3403285000002 in the name of his proprietorship namely M/S Fashion Cosmetic Stationary from the opposite party amounting to Rs.7,50,000/- on 20.3.2013 against which the complainant has executed various loan documents in favour of the opposite party. The complainant also availed two gold loan vide loan account no. 34033842000148 for an amount of Rs. 12000.00 and 3403842000152 for an amount of Rs. 5500.00. The complainant deliberately defaulted in re-payment of all three loan accounts. Even after repeated requests made by the opposite party the complainant has not regularized his loan accounts.In the meantime other business loan turns in to NPA on 30.11.2014, subsequently it was up graded, again turns into NPA on 29.9.2015, then again upgraded and finally turns in to NPA on 31.3.2017. As Complainant has not deposited outstanding amount in his business loan even after given him sufficient time, so the opposite party took steps under SARFASEI Act, 2002 against him and served a notice under section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “SARFAESI Act, 2002”) on10.11.2017. In such circumstances opposite party bank has power to retain the gold ornaments for purpose of recovery of another loan of the same borrower under section 171 of Indian Contact Act as banker’s lien. The opposite party could not return/ release the gold jewelry pledged in favour of the Bank since the complainant did not clear his outstanding liabilities in the cash credit loan account. There is no cause of action under the Consumer Protection Act since there is no deficiency of service on the part of the humble Opposite Party. It is pertinent to mention here that as per the existing laws of the land  secured assets of any financial institution/creditor may not be released by the creditor/financial institution if the borrower/Pawner has any direct or indirect liability towards the same financial institution/ creditor even the borrower/ Pawner re-pays its outstanding liability in the loan account against which the pledge was created. In the instant case the complainant has substantial amount of liability towards the opposite party which exists even today as a result the  opposite party could not release/ return the pledged gold jewelries. To buttress the contentions the op has cited decision of the Hon’ble  Courts reported in AIR 1999 ANDHRA PRADESH 367 C.V.N. SASTRI, J. K. Sita, Petitioner V. Corporation Bank, Kakinada, Respondent. Writ Petition. No. 20178 of 1993, D/- 9-4-1999 wherein the Hon’ble Court held that bank can retain gold ornaments for purpose of recovery of another loan subsequently advanced to petitioner.The pawnee has a right to retain the goods pledged with him to recover the subsequent advances made by him to the pawnor. It is not the case of the petitioner in the instant case that there was any such contract to the contrary displacing the presumption available under latter part of S. 174 or the right of general lien available under S. 171. The banker’s lien contemplated by S. 171 as such is specific provision relating to banker’s lien and has an overriding effect on general provisions of S. 174 which provide for relationship of pawnee and pawnor in respect of pledged goods. The banker’s lien will carry over to such pledges and bank can retain pledged goods, if the debtor had not cleared his amount in connection with another loan. . As such the complainant is not entitled for any compensation/ damage and the complainant is liable to be dismissed with explanatory cost.

Points for determination are:                                                            

1. Is the case maintainable in its present form and in law?    

2. Is the Complainant entitled to the relief(s) as sought for?

Decision with reasons

Both the points, being inter related to each other, are taken up together for discussion  for sake of brevity and  convenience.

We have carefully perused and assessed the affidavit of the complainant, written version filed by op, evidence of both parties and other documents. We have anxiously considered the arguments advanced by the Ld counsel of rival parties.

 Indisputably, the complainant obtained three loans from the op viz 1. Cash credit loan vide loan account no 3403285000002 in the name of his proprietorship namely M/S Fashion Cosmetic Stationary from the opposite party amounting to Rs.7,50,000/- on 20.3.2013. 2.Gold loan vide loan account no. 34033842000148 for an amount of Rs. 12000.00 and  3. Gold loan account no - 3403842000152 for an amount of Rs. 5500.00. The complainant repaid the loan dues against aforesaid two gold loans. The complainant did not meet up the dues in respect of  Cash credit loan vide loan account no 3403285000002 in the name of his proprietorship namely M/S Fashion Cosmetic Stationary from the opposite party amounting to Rs.7,50,000/- on 20.3.2013.

It is the contention of the op is that the complainant deliberately defaulted in re-payment of all three loan accounts. Even after repeated requests made by the opposite party the complainant has not regularized his loan accounts. In the meantime other business loan turns in to NPA on 30.11.2014, subsequently it was up graded, again turns into NPA on 29.9.2015, then again upgraded and finally turns in to NPA on 31.3.2017. As Complainant has not deposited outstanding amount in his business loan even after given him sufficient time, so the opposite party took steps under SARFASEI Act, 2002 against him and served a notice under section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “SARFAESI Act, 2002”) on10.11.2017. In such circumstances, opposite party bank has power to retain the gold ornaments for purpose of recovery of another loan of the same borrower under section 171 of Indian Contact Act as banker’s lien. The opposite party could not return/ release the gold jewelry pledged in favour of the Bank since the complainant did not clear his outstanding liabilities in the cash credit loan account.

Now, it the moot question to be decided is as to whether the op falls in the mischief of any deficiency of service or unfair trade practice  fornot returning gold ornament after clearing the dues against said two gold loan accounts by the complainant. To record an answer to the said moot question we find that the contentions of the op have substance and backed by the law of the land.The opposite party bank has the power to retain the gold ornaments for purpose of recovery of another loan of the same borrower under section 171 of Indian Contact Act as banker’s lien. The opposite party has got no fault as it could not return/ release the gold jewelry pledged in favour of the Bank since the complainant did not clear his outstanding liabilities in the said cash credit loan account. This commission has nothing to consider the facts leading to failure of business of the complainant and his other alleged losses caused by extraneous circumstances. The complainant has come before this commission after getting served a notice under section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “SARFAESI Act, 2002”) on10.11.2017. Ageneral lienis a right to retain the propertyof anotheron account of general balance due from the owner. Bankers have general lien on all securities left with them by their customers. Abanker’s lien is special form of general lien. The legal foundation for a banker’s right of lien is mentioned under section171 of the Indian Contract Act.  Consequently, if a bank is owed money in one account, it may keep any movables that are acquired in another account as security, including paying back any later advances. In the above backdrop,we are of the view that the complainant has failed to bring home any element of deficiency of service or unfair trade practice against the op. Therefore, the complainant is not entitled to get any relief in this case.

Thus, the case does not succeed.

Hence, it is

O R D E R E D

That CC/77 of 2018 be and the same is dismissed on contest against the op.

Let a copy of the judgment be supplied to each of the parties free of cost.