Karnataka

Kolar

CC/31/2015

Sri.Narayana Nayka - Complainant(s)

Versus

The Branch Manager, Pragathi Krishna Gramina Bank - Opp.Party(s)

13 Jan 2016

ORDER

Date of Filing: 13/08/2015

Date of Order: 13/01/2016

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 13^th DAY OF JANUARY 2016

PRESENT

SRI. N.B. KULKARNI, B.Sc., LLB,(Spl.)    …….    PRESIDENT

SRI. R. CHOWDAPPA, B.A., LLB               ……..    MEMBER

SMT. A.C. LALITHA, BAL., LLB         ……  LADY MEMBER

CONSUMER COMPLAINT NO :: 31 OF 2015

Sri. Narayana Naik,

S/o. Champla Naik,

Hosaupparahalli,

Hampasandra Post,

Gauribidanur Taluk,

Chikkaballapur District.

 

(In-person)                                                         ….  Complainant.

 

- V/s -

The Branch Manager,

Pragathi Krishna Gramina Bank,

Ramapura Branch,

Gauribidanur Taluk,

Chikkaballapur District.

(Rep. by Sriyuth. B.N. Vasudeva Murthy, Advocate)    …. Opposite Party.

-: ORDER:-

BY SRI. N.B. KULKARNI, PRESIDENT

01.   The complainant having submitted the complaint (since submitted in-person, taken read as Under Section 12 of the Consumer Protection Act, 1986, which shall be referred to hereafter in short, as “the Act”) has sought, relief of returning of the gold ornaments and for difference in the market price of the gold by way of indirect compensation in a sum of Rs.7,500/-, for loss of status in a sum of Rs.25,000/-, and for mental stress and suffering damages in a sum of Rs.25,000/-, towards cost of litigation Rs.10,000/- with regard to the expenditure incurred for consultation with an advocate sum of Rs.1,800/-, travelling expenses Rs.2,000/-, staying and other expenses Rs.5,000/- and unnecessary interest paid for sum of Rs.1,500/- and thus total sum of Rs.78,800/-.

 

02.   The facts in brief:-

It is contention of the complainant that, his younger sister by name Shanthamma, D/o. Champla Naik, aged about 40 years, died on 08.01.2015 on account of intensive stomach pain.  And that some time after untimely demise of his said sister, he could get a document pertaining to loan bearing account No.78515301036514.  And that on 11.07.2015 he approached the OP who agreed that on payment of Rs.12,764/- (Rs.12,000/- towards principal plus interest in a sum of Rs.764/-) the gold ornaments pledged would be returned.  And that, accordingly he cleared the said outstanding dues.

 

(a)    Further it is contended that, on approach being made as aforesaid for return of the gold ornaments pledged by his said deceased younger sister the OP told that, the said deceased had another loan account vide No.78515101012914 for having availed loan of Rs.50,000/-.  And that unless the said dues were to be cleared the said pledged gold ornaments would not be returned.  And that when asked as to why earlier itself existence of such dues were not disclosed, the OP did not respond properly, but gave an endorsement with holding the said gold ornaments for the said loan.  And that this act of the OP was in violation of the provisions of the Indian Contract Act, 1872 coupled with Rules made by the RBI and also provisions of the Act.

(b)    Further it is contended that, as per the said endorsement even if there could be another loan outstanding, there were ways and means to recover the same as it was so given after taking security.  And that this loan by pledging the gold ornaments was entirely an independent contract vide provisions of Sections 148 to 181 of the Indian Contract Act, 1872.  And that in spite of discharging the debt liability as the OP with held the gold ornaments without returning the same this amounted to violation of provisions of sections 73 to 75 of the Indian Contract Act, 1872.  And that consequently the OP is making use of the pledged golden ornaments in utter negligence of provisions of sections 148 to 181 of the Indian Contract Act, 1872.

 

(c).   Further it is contended that, with regard to the loan on the basis of pledging gold ornaments the OP has described in writing that the account came to be closed (as dues were paid).  So contending, the complainant has come up with this complaint on hand to seek the above stated reliefs.

 

03.   Along with the complaint on 13.08.2015 with list the complainant has submitted Xerox copies of the following ten documents:-

(i)    Letter dated: 17.07.2015 issued by the complainant to the OP Bank seeking reasons for non-return of golden ornaments which were pledged and endorsement issued by the bank.

(ii)   Complainant’s younger sister’s bank pass book

(iii)  Receipt pertaining to gold loan account No.75515301036514

(iv)   Receipt with regard to the payment made to the gold loan account No. 75515301036514

(v)    Legal Notice Dated: 15.07.2015

(vi)   Postal acknowledgements

(vii) Certificate of PH pertaining to the complainant.

(viii)          Edition printed in Kannada Prabha News Paper, dated: 15.07.2015 with regard to filing of criminal case against Banks in case of using Gundas to recover the outstanding loans from its customers.

(ix)  D.D. of Rs.100/-

(x)    Death Certificate of complainant’s younger Sister Late Shanthamma, D/o.Champla Naik.

 

04.   On registration of the case and issuance of the notice through RPAD the OP has put in appearance through the said learned counsel and has submitted the written version resisting the claim of the complainant in toto:-

        It is specifically contended that, the contended relationship of the complainant with the deceased is disputed.  However it is conceded that, the complainant had so approached.  But it is specifically denied that, it had agreed to return the said gold ornaments.  It is also contended that, for the legal notice given there was a suitable reply issued.  And that thus there could be no deficiency in service as contended.

 

(b)    Per contra, it is specifically contended that, the said deceased had availed gold loan of Rs.12,000/- on 19.08.2014 agreeing to pay interest at the rate of 11.25% per annum.  And that she had agreed to repay the same by 19.08.2015.  It is further specifically contended that, the deceased had also agreed to take the gold jewellery as security for repayment of the outstanding balance of other loan.  And that this stipulation was very clear in loan/over draft facility.

 

(c)    Further it is specifically contended that, the said deceased earlier to the gold loan, on 05.04.2014 by furnishing co-obligation of one Sri. Seva Naik, S/o. Soma Naik, Hosa Upparahally, Gowribidanur Taluk, had availed a loan of Rs.50,000/- for business purpose and the said loan was not cleared by her.  And that still the balance in a sum of Rs.36,296.88 remained in arrears as on 30.09.2015.

 

(d)    Further it is contended that, it was expected of the complainant to discharge the liability under both the loans and it was expected of him to produce succession certificate as issued by the competent Civil Court which would enable him to collect back the said gold ornaments.  So contending dismissal of the complaint with costs has been sought.

 

05.   On 19.10.2015 the OP along with the list has submitted the following seven documents:-

(i)    Request for Loan/Over draft facility against the security of gold jewellery executed by Sahanthamma dated: 19.08.2014.

(ii)   Copy of reply notice dated: 24.08.2015 issued by the Advocate G. Mallikarjuna, Gowribidanur to the Advocate of the complainant.

(iii)  Postal receipt for having posted the said reply to advocate of complainant from Advocate Mallikarjuna dated: 25.08.2015.

(iv)   Served postal acknowledgment to Sri.K.Lakshminarayana Advocte, Gowribidanur

(v)    Pronote with take delivery letter to DPN dated: 05.04.2014 from Smt. Shanthamma to OP.

(vi)   Agreement cum Deed of Hypothecation dated: 05.04.2014 from Smt.Shanthamma to OP.

(vii) Loan application of Smt. Shanthamma.

 

06.   The complainant has submitted his own affidavit evidence and on behalf of the OP Sri. A.N. Chandra Shekar, Senior Manager, has submitted his affidavit evidence.  Besides the complainant and the learned counsel appearing for the OP have submitted written arguments.  On 11.01.2016 the learned counsel appearing for the OP has submitted Xerox copy of the Circular No.46/2013-14 it being the guideline with regard to recovery and legal section in order to settle death claims.

 

07.   Therefore the points that do arise for our consideration in this case are:-

1. Whether the Op is legally competent to with hold the pledged gold ornaments of the deceased till recovery of the said earlier loan dated: 05.04.2014?

 

2.  If not, whether the complainant is entitled to the reliefs sought for?

 

3.  What order?

 

08.   Findings of this District Forum on the above stated points for the following reasons are:-

 

POINT 1:     In the Negative.

 

POINT 2:     Partly Affirmative

POINT 3:     As per final order for the following:-

 

REASONS

POINTS 1 & 2:-

09.   To avoid repetition in reasonings and as these points do warrant common course of discussion, the same are taken up for consideration at a time. 

 

(a)    It is an admitted aspect that, the OP having received sum of Rs.12,764/- from the present complainant in the capacity of elder brother of the deceased Late. Shanthamma  issued an endorsement on 11.07.2015 to this complainant and indisputably this endorsement reveals that, the gold loan pertaining to account No.78515301036514 has been completely repaid by the complainant together with the outstanding interest and through this document itself the OP has almost prompted the present complainant to approach this Forum, in as much as vide this endorsement only the OP is trying to assert the claim for earlier existing loan standing in the name of the said deceased vide account No.78515101012914.  And as per this endorsement the dues claimed would come to Rs.50,000/- plus penal interest and thus the contended outstanding dues would be in sum of Rs.60,327/-.

 

(b)    Before entering in to the contended claim of the OP for the earlier existing loan we find it feasible to look in to another document being the pass book issued by the OP with regard to the account maintained by the said deceased.  On the first page itself there is an endorsement by the OP through the staff that, on 08.01.2015 the said Shamthamma had died and she was sister of the present complainant by name Narayana Naik, a lecturer by profession.  And in this pass book they have mentioned the account No. as 78515301036514.  However there is also reference with regard to earlier loan dated: 05.04.2014 which was in a sum of Rs.50,000/- with regard to said account No.78515101012914.

 

(c)    The OP cannot deny that the said earlier loan was so given to the said deceased on furnishing the said co-obligation of Sri. Seva Naik, S/o. Soma Naik, Hosa Upparahally, Gowribidanur Taluk, in as much as in Para-10 of the written version there are crystal clear pleadings.

 

(d)    With regard to the endorsement dated: 11.07.2015 the OP as a responsible Bank claims the outstanding dues as of Rs.60,327/- inclusive of penal interest.  Whereas the written version being dated: 19.10.2015 and hence subsequent to this endorsement have shown the liability as in a sum of Rs.36,296.88 being the due as on 30.09.2015 (reliance placed at Para-10 of written version).  Therefore it was up to the OP Bank to come up with relevant documentary evidence to convince us that in-spite of the liability for the first loan being in sum of Rs.36,296.88 as on 30.09.2015 being a subsequent date the said deceased had remained in arrears as on 11.07.2015 in a sum of Rs.60,327/-.  As such the OP is not properly maintaining the accounts with regard to the said dues on the first loan.  When so, how could it exercise its general lien available Under Section 171 of the Indian Contract Act, 1872 ?  Therefore our answer shall be in the absence of specific and concrete liability the scope of the general lien available under the said provisions cannot be exercised by resorting to whims and fancies.

 

(e)    At any event we are of the definite opinion that, when first loan was a secured loan the OP bank cannot opt to exercise the general lien as open under Section 171 of the Indian Contract Act, 1872.

 

(f)     It is a fact that, the said Shanthamma died on 08.01.2015 to the knowledge of the OP.  Even then the OP is guilty of reaching the balance with regard to the contended first loan as on 30.09.2015.  As such, the OP is self-prevented even to contend the lien on this un-warranted exceeding liability.  For, there cannot be continuity of liability on the part of the deceased with effect from 08.01.2015.

 

(g)    Once it is an admitted aspect that, the said gold loan has been completely discharged by the complainant in the capacity of an heir of his deceased younger sister Shanthamma; the OP even on any stretch of imagination cannot invoke provisions of the Indian Succession Act, 1925 in general and Section 370 in particular, expecting of this complainant to come up with Succession Certificate.  Further the reasons are very simple.  When to the knowledge of the OP the complainant is elder brother of the said deceased and when endorsement has already been made in the Bank pass-book of the deceased by the OP as noted above it would be futile to ask the complainant to come up with the Succession Certificate.  In this context also the OP has committed a grave error; leading to deficiency in service.

 

(h)    Consequently, there is no escape from holding that this complainant being the elder brother of the said deceased since he has discharged the said gold loan liability is legally entitled for the gold ornaments as covered by the gold loan account standing in the name of the said deceased bearing account No.78515301036514.

 

(i)     The complainant who is fighting the matter in-person is a lecturer in college, hence responsible person.  It is a fact that, he is partially physically handicapped as he is laming while walking.  Perse, it does not give right to him to plead compensation on the said various grounds which are nothing to imaginations.  However we cannot overlook merciless conduct of the OP in refusing to return the gold ornaments in spite of the said loan dues being completely discharged by the complainant.  So to this extent the complainant has been harassed.  And we are of the definite opinion that, awarding compensation of Rs.5,000/- in this context would serve the ends of justice.  Further we are of the opinion that, this compensation shall carry the interest at the rate of 9% per annum from 13.08.2015 being date of the complaint till realization for being paid by the OP.

 

POINT 3:-

10.   We proceed to pass the following:-

 

ORDER

01.   For foregoing reasons the complaint stands allowed with costs of Rs.2,500/- against the OP as hereunder:-

 

(a)    The OP stands directed to return the gold ornaments forthwith to this complainant with regard to the gold loan availed by the said deceased Shanthamma being the younger sister of this complainant bearing account No.78515301036514.  Further the OP shall pay to this complainant compensation of Rs.5,000/- together with interest at the rate of 9% per annum from 13.08.2015 being the date of the complaint till realization.

 

(b) The OP is given time of one month to comply the order from the date of receipt of copy of this order.

 

(02)  Send a copy of this order to both parties free of costs.

 

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 13^th DAY OF JANUARY 2016)

 

 

 

 

 

MEMBER                             MEMBER                     PRESIDENT