By : SMT. BANDANA ROY, PRESIDENT

          The story of the complaint case  in short is that  the complainant  took a loan of Rs. 60,000/- from the OP Bank  by mortgaging gold ornaments weighing total 39.100 Gms on execution of an agreement dated 28.02.14 with interest at the rate of Rs. 9% per annum and it was repayable on 28.02.2015. There was also a Prabal Stone in a finger ring whose value was Rs. 10,000/-. On 21.08.15 the Bank authority sent a letter to the complainant informing that there will be an online auction of his mortgaged gold ornaments on 16.09.15 for collection of the loan amount for non-payment of the loan. The complainant further alleged that in said notice of the Bank there was mention that Demand notice dated 13.03.15, 28.3.15 and 24.08.15 had been sent to the complainant, which is false.  Thereafter on receipt of said letter dated 21.08.15 the complainant visited the office of the OP and made repayment of Rs. 15,000/- on 15.10.15. As per loan agreement the complainant had to pay a sum of Rs. 67,821 within 28.02.15. On 15.10.15 the complainant wanted two months’ time for repayment of all the dues. Accordingly in December, 2015 the complainant had been to the office of the OP to repay the said loan   but was surprised to know that the said ornaments have been auctioned on 25.10.15. Thereafter repeatedly the complainant ran to the office of the OP for return of the mortgaged ornaments but in vain. Lastly on 18.07.16 the complainant informed the matter to the Assistant Director of Consumer Affairs and Fair Business Practice of Purba Medinipur but the OP denied to settle the same.

           Hence, the complainant has filed the instant complaint with the prayers as made in the complaint on the grounds of unfair practice of banking business on the part of the OP ICICI Bank.

        The OP appeared to contest the case by filing written versions and denied all the material allegations of the complaint petition.

          It is the specific case of this OP that the petitioner is not a Consumer within the meaning of Consumer Protection Act, 1986 but he is only a borrower of money. The complainant deposited his ornaments for taking loan by his application no. JL 337169 on 28.02.14 knowing all the details of the agreement. The bank weighted the ornament as 39.100 Gms and valued it Rs. 60,093/- by an independent appraiser Mr. Biplab Kumar Rana. Thereafter the bank sanctioned an amount or Rs. 60,000/- against the said loan application. As per agreement of the loan the complainant had to  refund the loan amount within 12 months with 13% interest per annum  and default interest @ 6% per annum. In spite of all these facts the complainant defaulted in repayment of dues of the bank as per the agreed terms of the contract. The bank issued Demand notice on 13,.03.15 calling attendance of the complainant before the bank within 15 days for repayment of the loan amount or renew the same loan facility otherwise auction would be held for realization of the outstanding dues. In spite of that the complainant did not turn up and so,  a loan recall notice dated 28.03.15 was issued demanding a sum of Rs. 67,821/- within 10 days of receipt of the notice. Unfortunately in the said notice in place of 10 days, 710 days had been typed. So, another corrigendum notice dated 10.04.15 was issued and was received by the complainant.  This time too, the complainant failed to pay the dues and a notice dated 21.08.15 was issued for enforcement of security and an online auction was scheduled on 16.09.15. On receipt of this notice the complainant turned up and prayed for time when bank conveyed that no time would be allowed as five months have already been elapsed since the first demand notice and auction is scheduled to be held on 16.09.15.  So, as the complainant failed to repay the loan amount with interest, the bank auctioned the mortgaged ornaments on 6.10.15. One Ambar Saha, the highest bidder purchased the ornaments at Rs. 68,238/-. Then after proper adjustment of the due amount, a sum of Rs. 3,140/- is lying  in the account of the complainant, the complainant in spite of being informed accordingly did not turn up to receive that amount. The bank issued a letter dated 29.11.16 along with a Demand Draft  for Rs. 3,140/-  but the complainant refused to receive the demand draft .

       In the aforesaid circumstances, the OP has prayed for dismissal of the complaint petition with costs.

       The point for consideration in the case is whether the complainant case is maintainable and (2) whether the complainant is entitled to get the relief as prayed for.

Decision with Reasons.

       We have carefully gone through the materials on record. Admittedly the complainant took a loan of Rs 60,000/-pledging gold jewelry weighing 39.100 Gms. The allegation of the complainant is that the complainant defaulted in repayment of the loan amount and the Op sold the gold jewelry in auction without giving any notice to the complainant. The complainant also stated that on receipt of the demand notice of the bank he paid Rs. 15000/- to the OP Bank. Even then the OP sold the pledged gold jewelry of the complainant in auction.

          Ld advocate for the OP referred Section 172 and 173 of the Contract Act where the complainant is bound by the terms and conditions of the agreement entered into by complainant and the OP regarding pledging of gold jewelry against money.

We have carefully gone through the terms and conditions of the agreement. It appears that this terms and conditions is written so illegibly that ordinary man will not understand its meaning. We know that once the State Commission Punjab observed that bank is taking advantage of complainant/loaner’s innocence by obtaining signature of the loner on the agreement which is actually illegible and cannot be understood by a poor ordinary people. Here also  we see that the complainant signed in the agreement in Bengali which proves that the complainant is not a proper literate person. Question is whether the OP gave demand notice and notice of auction sale  to the complainant before the alleged  auction of the gold jewelry.

In this aspect the OP submitted a copy of letter dated March, 13, 2015 which says  that said letter is notice of selling the jewelry in auction. The complainant alleged that he has not received any such notice. To substantiate that fact, the OP  has filed Xerox copy  of the registered AD which shows that one Dipu Maity signed in the original AD Card.

We have compared  the signature of Dipu Maity with that appearing on the petition of complaint. We find that the signature in the AD card  is not tallying with the signature of complainant appearing in the  complaint petition. So, it cannot be said confidently that the complainant received the said notice. When complainant paid Rs. 15,000/- and Op has accepted that amount the OP should not have sold the gold jewelry in auction.

Ld lawyer for the OP has referred two decisions i.e First Appeal No. 864/2005 delivered by State Consumer Dispute Redressal Commission, Orissa, Cuttack and judgement of Revisional Application No. 3211 of 2015 against the order dated 16.0-9.15 in Appeal No. 926/14 by the State Consumer Dispute Redressal Commission Maharashtra. It appears  that these decisions are not reported decisions and cannot be considered to judge  the fact of this case. In this connection it may be mentioned “ A good bank is not only a financial heart of the community  but also one with an obligation of helping in every possible manner to improve the economic condition of the common people”.

Ld lawyer for the complainant vehemently argued that the complainant did not receive the notice of auction sale. Ld lawyer further argued that it is fact that the complainant defaulted in payment of the loan amount in proper time and paid only Rs 15,000/- to the OP to protect his gold jewelry from auction sale and the OP accepted the said money. So,  the question  of recalling the loan by the OP does not arise and  the action on the part of the bank Op surely a deficiency of service. Ld lawyer for the complainant alsoi referred to a decision reported in (2004) CPJ 155 wherein it has been held that bank straight way issued notice to pay or face auction -Complainant had no information of date of auction –Lapsed on part of Bank proved –Bank liable for deficiency in service ,liable to pay cost of ornaments– Compensation and cost awarded.

Here, we find that the complainant had no knowledge of the date of auction. Even for the sake of argument we hold that the complainant received the demand notice but we cannot say that the complainant had knowledge of the date of auction. Had the complainant known it he could have arranged for repayment of the loan or arrange his own bidder to fetch better value in the auction.

Hence, we find  that there was lapse on the part of the OP.

Ld advocate for the complainant also referred another decision reported ion (2009) CPJ 368 (NC) and this decision relates to repossessing of a vehicle by the bank. It has been held  that the vehicle financed -Instalments defaulted—Vehicle seized—Auctioned without intimation to complainant—Complaint dismissed by Forum – Order set aside  in Appeal – OP directed to pay awarded amount—Hence, revision—Illegal, unjust method resorted by bank for forcibly repossessing vehicle proved—Order of lower For a Upheld.

In this connection we want to refer a decision reported ion ICICI Bank Versus Prakash Kaur and others which has been held “ Now bank is the aggressor and  the public is victim . The first step of recovery of money due is through the so-called recovery/collection agents. A very dignified terms used for paid recovery agents who are individual and independent contractors hired by the banks  both to trace the defaulters and to physically, mentally and emotionally torture and force them into submitting their dues.

In the present case the bank should pay the current value of  39.100 Gms of gold jewelry which was pledged to the bank. We find there is deficiency on the part of the OP under the facts and circumstances of the case.

Hence, it is

ORDERED

That the CC 266 of 2016 be and the same is allowed on contest against the OP.

The OP ICICI Bank is directed to pay the Current market price of the gold jewelry pledged before the OP or to pay compensation of Rs. 1,20,000/-  to the complainant for harassment and mental agony within one month from the date of this order.

The loan amount of Rs. 60,000/- along with agreed interest of the bank and the deposit of Rs. 15000/- shall be adjusted against the amount of Rs. 1,20,000/-.

The OP is also directed to  pay litigation cost of Rs. 5,000/- to the complainant within one month from the date of this order, failing which the OP shall be liable to pay punitive charge at the rate of Rs 100/- per day which will be payable to the Consumer Welfare Fund.

Let copy of this judgement be supplied to both the parties free of cost.