DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD Dated this the 19th day of April 2010 .
Present : Smt. H. Seena, President : Smt. Preetha G. Nair, Member : Smt. Bhanumathi.A.K, Member
C.C.No.75/2009
Smt. Prasanna D/o. N. Lakshmikutty Amma 2/663 Prasanna Nivas Manalmantha, Ambikapuram Post Palakkad. - Complainant. (Adv. U. Suresh & Adv. K.Dhananjayan) V/s Branch Manager Canara Bank Kalpathy Branch Kalpathy Post Palakkad. - Opposite party (Adv. A. Gourisankar & Sri.G.Ananthakrishnan) O R D E R By Smt. Preetha G. Nair, Member. Complainant had pledged the gold ornaments in Opposite party's Bank and availed gold loan No.GL 11971 dated12/11/08 for Rs.8,709/- and GL 11298 for Rs.8000/-. The complainant repaid the entire amount of loan debt amounting to Rs.8,709/- on 12/11/08 in gold loan No.11971/-. But the opposite party Bank has not returned the gold ornaments to the complainant so far. Therefore the complainant has sent a lawyer notice to the opposite party Bank and demanding them to return the pledged gold ornaments as the entire amount was paid. But instead of returning the ornaments the bank has taken an indifferent stand. Opposite party has sent a notice to the complainant on 06/12/2008 stating false contentions. The opposite party has taken a contention that the complainant has tendered a cheque No,630518 dated 29/10/08 drawn by one Viswanathan, drawn on the Syndicate Bank, Palakkad and presented it for collection through her SB Account No.11912. The opposite party has credited Rs.1,00,000/- in the complainants account. The complainant has withdrawn the amount of Rs.1,00,000/- after crediting into the account of the complainant. The complainant has no responsibility to repay the amount of Rs.1,00,000/- which is credited in her account by opposite party. The complainant has paid the full - 2 - amount in the gold loan weighing 2 soverigns have not released to her. The opposite party stated that they have a general lien over amount of due from the complainant as temporary over draft. Complainant does not have any dues to the opposite party on any account. There was no demand and no application was filed at any point of time to avail an over draft facility to herself temporarily or permanently. The gold ornaments of the complainant cannot be retained as a security on any account. Opposite party has committed grave irregularity and deficiency in service towards the complainant. Hence the complainant prays an order directing the opposite party to release the gold ornaments pledged in connection with the gold loan and pay damages of Rs.20,000/- on account of mental agony and harassement and Rs.2,000/- as cost to the complainant.
Opposite party filed version stating the following contentions. Opposite party admitted that the complainant is a Savings Bank Account holder having S B account No.11912 with opposite party Bank. Further stated that the complainant had also availed 8 gold loans earlier from the opposite party bank which were repaid in time. Thus the complainant is a long standing customer having good relation with the opposite party bank. Opposite party admitted that the complainant had presented a cheque on 30.10.08 for the sum of Rs.1,00,000/- dated 29/10/2008. The cheque deposited in the account of complainant was entered as uncleared balance. The cheque was sent for clearing in the usual course on 31.10.2008. On 04/11/2008 at 1.00 PM the complainant approached the opposite party and withdraw the amount of Rs. 1 Lakh. But to the surprise of the opposite party the Syndicate Bank returned the cheque on the grounds of insufficient funds. Such intimation regarding the dishonour of the cheque was received by the opposite party on 04/11/2008 at 1.30 PM. The opposite party had paid the amount to the complainant on good faith believing that the cheque tendered would be honoured by the drawee Sri. Viswanathan. The amount was withdrawn by the complainant at 1 P M on 04/11/2008 creating a temporary overdraft in the S B Account of the complainant. The opposite Bank had personally called upon the complainant requesting to repay the said amount of Rs. 1. lakh. The complainant did not repay the amount, a registered letter was sent on 12/11/2008 to which there has been no reply. Later the opposite party had caused a notice to be sent to the complainant. Further the opposite party stated that the complainant was informed the gold ornaments will be - 3 - kept under general lien. Opposite party admitted that complainant had availed 2 gold loans GL 11971 dated 19/11/2008 for Rs.8,500/- and GL 11298 for Rs.8,000/-. Further the opposite party admitted that the complainant has repaid the dues in the gold loan No.11971 but the gold was not released to the complainant. The opposite party is entitled to exercise general lien over the gold ornaments. The opposite party will be initiating legal proceedings to recover the dues from the complainant as well as drawee Sri. Viswanathan. The averment that the non realizing gold ornaments to the complainant are indeed a deficiency in service attributed by the opposite party is not correct and hence denied. The complainant is not entitled to get damages of Rs.20,000/- on account of mental agony and harrassment and is also not entitled to get cost of the proceedings. The complainant is not a consumer as defiend under Section 2 (i) (d) of Consumer Protection Act. Hence the opposite party prays the complainant may be dismissed with costs. Complainant filed proof affiavit and documents. Exhibit A1 to A4 marked on the side of the complainant. Opposite party also filed chief affidavit and documents. Exhibit B1 to B10 marked onthe side of opposite party. Matter was heard. Issues to be considered are: Whether the complainant is a consumer or not? Whether there is any deficiency in service on the part of opposite party? If so, what is the reliefs and costs?
Issue No. 1 Opposite party stated that complainant is not a consumer and does not come within the definition of consumer as contemplated Under Section 2(1) (d) of the Consumer Protection Act. The Honourable State Commission in Standard Chartered Bank Ltd Vs Dr. B.N. Raman [2006 CTJ 841 SC] wherein it is held that Banking services come under the term service under Section 2(1) (0) of the Consumer Protection Act and that Banking means acceptance for the purpose of lending or investment of deposit of money from the public, repayable on demand or otherwise. The complainant had availed the services of the Bank and considertion was paid interms of interest and Banks provide or render services to its customers. Banking is business transaction between the Bank and the customers, such customers are consumers within the meaning of Section 2(1) (d) (ii) of the Act.
- 4 - Issues No 2 & 3 We perused relevant documents on record. It is undisputed fact that complainant had pledged the gold ornaments in opposite party bank and availed gold loans No. GL 11971 dated 12/11/08 and GL 11298. Opposite party admitted that the complainant paid the entire amount of loan debt and not returned the gold ornaments to the complainant so far. As per Exhibit B1, B2 and B4 the complainant had presented the cheque No.630510 dated 29/10/2008 for collection through the opposite party bank account No.11912.
Opposite party stated that the opposite party bank has the power of general lien under section 171 of the Contract Act. In the instance case as the loans were entirely different and the loans being gold loans, Opposite party submitted that the bank was entitled to retain as a security for a general balance of account, any goods bailed to them under Section 171 of the Contract Act. When any property or gold was given in pledge or security under an express contract the pledge or security would be avaialble only for the discharge of the said debt. In this case complainant's gold ornaments are deposited in opposite party's bank for advance a gold loan. When that purpose is over, the bank should returned the gold ornaments to the complainant. In this case the gold loan and temporary over draft facility of account of rupees one lakh has been credited were for different purposes taken at two different times. With regard to exercise of general lien of Banker, we have to see the relevant provision of Section 171 of Indian Contract Act. Section 171-General lien of Bankers, factors wharfingers: attorneys and policy broker -Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may, in the absence of a contract to the contrary, retain as security for a general balance of account, any goods bailed to them: but no other person have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect.
So far as this part is concerned, it is clear that if the Bank has any property or goods bailed to it, those goods as security for general use in the account of the customer and also can adjust from the proceeds of the gold loan to liquidate the dues to the Bank.
The opposite party has not proved any dues are pending in the name of the complainant. The Bank claimed lien on the gold ornaments under general law as well as under the agreement of pledge for any other amounts which might be due at any time from the borrower to the bank whether singly or jointly with others and that in addition to any general lien or similar right to which the bank is entitled to in law. Question was whether the clause which provides that an article pledged for a specific loan can be taken as a security for all liabilities, past and future. It was observed that when any property or gold was given in pledge or security under an express contract the pledge or security would be available only for the discharge of the said debt. In the present case the opposite party has not proved that the complainant is liable to pay any amount to the opposite party or any other financial liabilities or towards the repayment of any loan to the Bank. The opposite party Bank admitted that the cheque was sent for clearing in the usual course on 31/10/2008 and the complainant approached the bank on 04/11/2008 at 1.00 P M and withdrew the amoiunt of Rs. 1 Lakh.
According to Exhibit B4 the complainant has withdrwan Rs.1 Lakh only after crediting in the S B account . Opposite party stated that the amount was withdrwan by the complainant at 1 P M on 04/11/2008 creating a temporary overdraft in the SB account of the complainant. The oppostie party has not produced the details or proof regarding the availing of over draft facility. In such a situation it can be presumed that no over draft facility has been availed by the complainant. Opposite party has stated that intimation regarding the dishonour of the cheque was received on 04/11/2008 at 1.30 P M. The opposite party has not produced any evidence to show that intimation received on 04/11/2008 at 1.30 PM. General lien of the bank as per Section 171 of the Indian Contract Act has no applicability in this case. Complainant's gold ornaments are deposited in Opposite party's Bank for gold loan. The opposite party admitted that complainant has paid the entire dues on gold loan. But the opposite party has not returned the pledged gold ornaments to the complainant. The opposite party has not produced any evidence to show dues from the complainant on any account. It is clear case of deficiency in service from the opposite party. Hence the complaint allowed. - 6 - We direct the opposite party to release the gold ornaments of the complainant and Rs.5,000/- as compensation on account of deficiency in service and Rs.1,000/- as cost to the complainant within a period of one month from the date of communication of this order failing which the complainant is entitled to get interest at the rate of 9% per annum for the whole amount from the date of order till realization. Pronounced in the open court on this the 19th day of April 2010. PRESIDENT (SD) MEMBER (SD) MEMBER (SD)
APPENDIX Witness examined on the side of Complainant Nil Witness examined on the side of Opposite party Nil Exhibits marked on the side of the complainant Ext. A1 – Canara Bank slip for Rs.8709/- Ext. A2 – Acknowledgement card
3. Ext. A3 - Copy of Lawyer notice dated 06/12/2008 4. Ext. A4 – Copy of Canara Bank Savings Account Pass Book Exhibits marked on the side of the Opposite Party 1. Ext. B1 – Copy of cheque dated 29/10/2008 of Syndicate Bank, Palakkad for Rs.1,00,000/- 2. Ext. B2 – Copy of Pay-in-slip of Canara Bank dated 30/10/2008 3. Ext. B3 - Copy of Syndicate Banks.slip dated 31/10/08 4. Ext. B4 – Copy of cheque dated 04/11/2008 5. Ext. B5 – Copy of letter dated 12/11/2008 of Canara Bank 6. Ext. B6 – Copy of lawyer notice dated 06/12/2008 7. Ext. B7 – Copy of Application cum letter of pledge for OD/loan agaisnt Gold jewellery 8. Ext. B8 - Copy of Application cum letter of pledge for OD/loan agaisnt Gold jewellery 9. Ext. B9 – Copy of Application cum letter of pledge for OD/loan agaisnt Gold jewellery 10. Ext. B10 – Copy of Bank statement for the period 06/02/03 to 27/07/09 Forums Exhibits Nil
| | HONORABLE Smt.Bhanumathi.A.K, Member | HONORABLE Smt.Seena.H, PRESIDENT | HONORABLE Smt.Preetha.G.Nair, Member | | 
