West Bengal

Dakshin Dinajpur

CC/2/2021

Sri Binoy Chandra Karmakar, S/O- Late Rabindranath Karmakar - Complainant(s)

Versus

The Branch Manager, State Bank of India, Buniadpur Branch - Opp.Party(s)

Santanu Dey

27 Feb 2023

ORDER

   The instant case has been initiated by the complainant U/S – 35 of C.P. Act, 2019 against the Opposite Parties claiming an amount of Rs. 80,230/- along with 10.2% interest on and from 11.07.2018 + Rs.3,00,000/- as compensation + Rs. 50,000/- as litigation cost, Total = Rs.4,30,230/-

  The fact of the case, in brief, is that the Complainant took gold loan of Rs.1,25,000/- only from the Opposite Party/ Bank  in the year 2015 vide A/C No.34775128212 by depositing his gold ornaments gross weight 685 gm. After taking the said loan, the Complainant also paid installments to the Opposite Party in regular manner till 03.07.2018. Surprisingly, on 11.07.2018 the Opposite Party No.1 closed the said account by auctioning the said gold ornaments of the Complainant without giving him intimation about the said auction so, the Complainant did not get any opportunity to present in said auction. So far the as the knowledge of the Complainant is concern, the sale value of those deposited ornaments as on 11.07.2018 was Rs.2,12,830/- and the sale value of those deposited ornaments as on 07.03.2020 was Rs.3,12,360/-. The demwnded clarification from the Opposite Party in writing but the Opposite Parties did not provide any reply deliberately. Getting no response, the Complainant sent a demand notice on 27.04.2020 through registered post. On 10.06.2020, the Opposite Party No.1 replied without mentioning any details. that they have auctioned those gold ornaments to one Madhu Devi, the highest biding amount as Rs.1,32,600/- although the market value of those ornaments were Rs.2,12,830/-. There is a difference of Rs.80,230/- which has been misappropriated by the Opposite Party fraudulently. The statement of loan account shows that since 29.03.2018 to 03.07.2018, the Complainant has paid Rs.41,000/- and on 03.07.2018 the amount lying with the loan account was Rs.01,15,197/- and the Complainant deposited Rs.4,000/- on 03/07.2018 in the said loan account.. Surprisingly, on 11.07.2018, the outstanding loan amount converted to Rs.01,25,032/- by the Opposite Party No.1 by adding interest and other charges and the Opposite Party No.1 closed the loan account on 11.07.2018 without intimating the Complainant. The Complainant also applied for obtaining information regarding auction through RTI on 09.07.2019 which was received by Opposite Party on 21.08.2019. The Opposite Party on 26.08.2019 sent some information to the Complainant which contradicts the reply letter of Opposite Party No.1 dated 10.06.2020. The Complainant requested the Opposite Parties to make necessary arrangements for payment to the Complainant but the Opposite Parties did not incline to do so.  Having no alternative the Complainant filed this case before this Commission for relief as prayed in the plaint.

            Notice was duly served upon the opposite Party No.1 and 2 and after receiving the notice, the Opposite Party No.1 appeared before this commission and filed written version but the Opposite Party No.2 did not appear before this Commission so, the case is proceeded ex parte against him.   

           By filing written version the Opposite Party No.1 has stated that the Complainant took a gold loan from SBI, Buniadpur Branch on 10.03.2015 of Rs.1,25,000/- by depositing net weight 68.5.gm of gold ornament and the said amount was required to be paid within 36 months. The Complainant paid some amount on irregular basis. On several times, the Bank requested him to repay the loan amount but he did not respond. Then, the 1^st demand notice was sent to him on07.03.2018 which he received on the same date and the 2^nd demand notice was sent to him on 05.05.2018 which was also received by him on the same date but the Complainant did not reply. Then, the Bank decided to sale in auction those ornaments before public auction and the matter was published in daily news paper and the date of auction was fixed on 08.06.2018 and copy of that auction was also hanged in the notice board of the Bank. On the date of auction, one Madhu Devi purchased the ornaments as highest bidder and by a highest biding price of Rs.1,32,600/- and at that time his outstanding loan amount was stood at Rs.1,23,032. So, an excess amount of Rs.7,568/- was credited in his saving account on 11.07.2018. There is no deficiency in service on the part of the Opposite Party so, there is no question of any compensation.

      

               In support of his case, the Complainant has filed the following documents -

1) Photo copy of memorandom in respect of gold ornaments of Complainants 

2) Photo copy of notice addressed to Complainant for recovery of loan

3) Photo copy of statement of loan account of the Complainant 

4) Photo copy of letter of Complainant dated 20.08.2018

5) Photo copy of Advocate letter dated 17.04.2019 issued on behalf of the Complainant

6) Photo copy of reply letter by O.P. against letter dated 17.04.2019

7) Photo copy of reply letter dated 26.08.2019 issued by O.P. to the Complainant 

8) Photo copy of market value of gold ornaments deposited 

9) Photo copy of demand notice of Advocate Santanu dey dated 27.04.2020. to O.P.No.1 with postal receipt

10)  Photo copy of demand notice  of the same Advocate dated 27.04.2020 to O.P.No.2 with postal receipt. 

11) Photo copy of reply letter dated 10.06.2020 issued by O.P.No.1 with envelop 

12) Photo copy of statement of account no.11889417090 of Complainant from 01.04.2018 to 31.03.2019.

         

  On the other hand, the Opposite Party has filed the following documents in support of his defense-

(i) Clarification regarding market rate on the date of auction.

(ii) Photo copies of some documents without firisti

 

                     In view of the above mentioned facts, the following points are cropped up for consideration- 

                                      POINTS FOR CONSIDERATION

1. Whether the Complainant is a consumer to the Opposite Party? 
2. Whether there is any deficiency in service on the part of the Opposite Party?
3. Whether the Complainant is entitled to get relief/reliefs as prayed for?

   

                     DECISION  WITH  REASONS

 

              We have heard arguments by Ld. Advocates for the both sides. We have also gone through the written examination – in – chief and written arguments filed by the Complainant and the Opposite Party No.1 as well as the other materials on record.         

            At the time of argument, Ld advocate for the Complainant narrated the facts of the case as mentioned in the complaint. He further submitted that the Opposite No.1did not serve the notice of auction dated 05.05.2018 to the Complainant as alleged. There is no signature of Branch Manager in e- circular and the name of signatories are written in the same handwriting. In the recording of auction of gold ornaments, there is no seal of the Bank and the column of signatures of persons present is blank. And there is no signature of the Branch Manager also. So, it can be said that the auction done is false and fraudulent.                                                                So, the Complainant is entitled to get relief as prayed in the plaint.  

          On the other hand, Ld. Advocate for the Opposite Party also narrated his defense case as mentioned in the written version. Ld. Advocate further added that due to non-payment of installment against the loan account for several months the Opposite Party No.1 was bound to sell the gold ornaments in auction. Before auction, the matter was informed to the Complainant by sending letters and paper publication was also done. There is no fault on the part of the Opposite No.1 and there is also no deficiency in service so, the Complainant is not entitled to get any compensation against the Opposite Parties.   

             Now, let us discuss all the points one by one.   

POINT NO. -  1

              It is admitted fact that the Complainant took gold loan of Rs. 1,25,000/- only from the Opposite Party No.1 by depositing his gold ornaments weight 91.40 gm. and net weight 68.50 gm. If this be the so then it is crystal clear that the Complainant is a consumer to the Opposite Parties U/S – 7 (i) of the Consumer Protection Act, 2019.   

            Accordingly, this point is decided in favour of the Complainant. 

 

 

POINT NO. -  2 & 3

            Both these points are taken up together for the sake of convenience and brevity. 

              Admittedly, the Complainant took gold loan of Rs.1,25,000/- from the Opposite Party on 10.03.2015 and paid Rs.41,000/- + Rs.4,000/- total Rs.45,000/- by cash against the said gold loan on 03.07.2018. The gold ornaments are one choor 1 pair gross wt 33.5 gm. and net wt.25gm. , two hair 1 pc gross wt. 18.6 gm. and net wt.15.5gm. , three chain 2pc gross wt.28.4gm. net wt.23gm. and four dul 2 pair gross wt.10.9gm. net wt.5gm.

           Now, it is the contention of the Complainant that he came to know that his all the gold ornaments have been sold by the Opposite Party on 08.06.2018 in auction behind the back and knowledge of him. In response, the Opposite Party has stated that the Complainant was duly intimated by letter dated 07.03.2018 and 05.05.2018 regarding auction sale. Further , it has been stated by the Complainant that Opposite Parties have shown the highest biding amount as Rs.01,32,600/- although the market value of those ornaments were Rs.02,12,830/-. There is a difference of Rs.80,000/- and he is entitled to get this excess amount. On the other hand, it is submitted by the Opposite Parties that one Madhu Devi purchased the said gold ornaments in auction to the tune of Rs. 1,32,600/- and at that time the outstanding loan amount of the Complainant was Rs.1,25,032/-. So, the excess amount of Rs.7,568/- was credited in the saving account of the Complainant on 11.07.2018.

.       Now, it is the contention of the Complainant that on 11.7.2018, the rate of fine gold was Rs.3107/- and in support of his contention he produced a certificate issued by Karmakar & sons dated 07.03.2020 whereas it is the contention of the Opposite Parties that as per e- circular issued by Department of Precious Metals Department (PBBU), the rate of 22 carats gold on 01.06.2018 was Rs.2148/-. Here, the certificate submitted by the Complainant is not authentic whereas the e-circular submitted by the Opposites seems authentic. 

     According to Auction Notice the net weight of all the ornaments was 68.50gm. and the total cost of the ornaments were 68.50x2148/gm. = Rs.147138/- and after deduction of 10% margin, the total value stands as Rs.1,32,424/-.and the said ornaments were sold at Rs.1,32,600/- considering it as highest bid in auction sale. The total outstanding of loan amount on the part of the Complainant  was Rs.1,25,032/- and after deduction of said outstanding loan amount, the rest amount of Rs.7,568/- has been credited in the saving account of the Complainant ( which is seen from the statement of account of the Loan account and the saving bank account). 

       It is the allegation of the Complainant that before holding auction, the Complainant was not intimated but on perusal of the notice dated 05.05.2018 sent by the Opposite Party to the Complainant, the allegation of the Complainant has no legs to stand. 

       Further, at the time of argument, it is submitted by Ld. Advocate for the Complainant that the auction notice has no seal and signature of the Branch Manager but on perusal of the auction notice, it appears that there is signature and Bank seal on the auction notice.  

          Ld. Advocate for the Complainant further submitted that in the Recording of Auction of Gold Ornaments, there is no signatures of persons present and the not signed by the witnesses and the name of the breach functionaries are written by the same handwriting. Here, on perusal of the Recording of Auction of Gold Ornaments, it appears that though the column of signatures of the persons present are blank but there is signatures of bidders and there is short signatures of the witnesses and branch functionaries. The full name of the branch functionaries have been written by the same persons. We, think that it is natural that any one of the staff of the Bank has written the full name of the other staffs i.e. branch functionaries. For this reason, the merit of the case does not effect. 

       Further, it is alleged by Ld. Advocate for the Complainant that the Letter of Approval for Floor/Reserve Price for Auction of Gold Ornaments do not have the name of the Complainant but on perusal of the said document, it appears the said document is for the Auction Sale held on 28.05.2018 whereas in the instant case the Auction Sale was held on 08.06.2018 so, it is natural that the name of the Complainant could not be included. 

               In view of the above mentioned discussion, it is correct that the Complainant is a consumer to the Opposite Parties according to the provision of section 7(i) of the Consumer Protection Act, 2019 but we do not find any kind of   deficiency in service on the part of the Opposite Party.                   

        

 

  Hence, it is

                                                     

                                                   O R D E R E D

 

          That the Consumer Case No. 02 of 2021 is dismissed on contest against the Opposite Party but without cost. 

          

              Let a plain copy of this order be supplied to the parties free of cost.