By :  ASISH DEB, PRESIDENT,

The case of the complainant in short is that the  complainant had availed of one gold loan from the OP Bank namely ‘Facilities Against Gold’  vide Facility/Loan Account  No 11010500102 customer ID No. 543347663 on 29.12.2015 by depositing some gold ornaments viz. one necklace weighing 18.70 Gms, with appraised value of Rs. 26,061/-; five  golden chain weighing  21 Gms with appraised value of Rs. 29,893/- and three hansli finger rings weighing total 31 Gms with approximate value of Rs. 53,250/-.  Thus, the complainant pledged gold valued amounting to Rs. 1,09,204/-,  The complainant  claims that the market value of the total gold was Rs. 2,50,000/- or more. The complainant repaid the yearly premiums as per stipulated terms of the OP. The complainant made the last payment on 16.01.2017 as per renewal letter and the next payment was fixed on 16.01.2018. Unfortunately the complainant failed to collect the yearly premium on 16.01.2018 but had been to the office of the Op in April 2018 to make payment to renew the loan agreement and was ready to make adjustment by paying fine for delay of three months. Surprisingly, on that date the OP informed him that all his ornament had been sold in auction, On being asked about the course of action, the OP claimed that they had informed the complainant beforehand about the auction for default of his repayment of the loan. But the complainant states that no such notice had ever been received by him. Till date the complainant had got no such document from the OP’s office. Finding no other alternative the complainant issued legal notice upon the OP dated 30.06.2018 dispatched on 04.07.2018 through his Ld.Advocate for necessary steps by the OP  but the OP did not bother to reply the same.

Hence, this case has been instituted with the prayer as made in the complainant.

Summons was duly issued and served upon the Opposite party. The OP contested the case by filing written version and   denied all the material allegations made in the complaint save and except which are specifically admitted . 

 The specific defense of the OP is that the complainant approached the OP bank for sanction of a loan and after being satisfied with the terms and conditions of the OP the complainant submitted one Credit Facility Application Form vide Account No. H0105004102 on 29.12,2015. The complainant also signed and accepted the terms contained in the Inventory cum Appraiser’s Certificate on the same date which contains details of the jewelries being pledged in favour of the OP. The complainant further submitted a KYC related documents to the OP for enabling the bank to ascertain his credentials. The complainant was sanctioned a total amount of Rs. 1,09,204 at the rate of interest of 14% per annum and default interest was 6% per annum payable in addition to the aforesaid interest. The loan amount was subject to be paid by 12 months and the complainant agreed to repay the entire amount within 29.12.2016. But the complainant defaulted in payment of dues in terms of the loan agreement. The OP issued one demand notice on 07.01.2017 requesting the complainant to visit the branch within 15 days. The complainant visited the branch on 07.01.2017 and got the aforementioned facility renewed by executing a renewal letter and the overall limit was stated as Rs. 1,03,974/-. But on 07.01.2017 the complainant failed to adhere to the stipulations.  The OP again issued a demand letter on 07.02.2018 requesting the complainant to make payment of   the aggregate amount of Rs. 1,18,178/- calculated as on 06.02.2018 within 15 days thereof. For further default of the complainant on the basis of the said demand notice dated 07.02.2018 thereafter the OP issued a Loan Recall Notice on 22.02.2018 by which the complainant was asked to make payment of Rs 1,18,178 calculated as on 21.02.2018 within the specified period therein.  In the said notice it was also mentioned that in the event of non compliance of the complainant to make payment the OP had the right to take necessary measures to realize the outstanding dues. Still the complainant did not turn up. Then the OP issued a notice for Enforcement  of Security dated 13.03.2018  wherein the complainant was informed that for his failure to make payment of the outstanding dues the OP would initiate necessary auction of the pledged gold jewelries by April 7, 2018. Then the OP published the matter of auction    in the Millennium Post and the Ganasakti Bangla on March, 28 2018 relating to the auction.  Thereafter the OP auctioned the gold   through online auction to realize Rs.1,71,962/- and the surplus amount was kept with the Op bank as the bank failed to contact with the complainant in the given address.

  Under the above circumstances, the OP prays for dismissal of the complaint case with cost.

Ld Advocate for the Complainant has submitted that no notice was duly served upon the complainant before conducting auction of the pledged jewelries; the op has not complied with the requirements of the different clauses of the agreement. The act of the op certainly amounts to deficiency in service. The complaint case should be allowed.

Per Contra: Ld. Counsel for the op contented that op has duly  issued a notice for Enforcement  of Security dated 13.03.2018  wherein the complainant was informed that for his failure to make payment of the outstanding dues the OP would initiate necessary auction of the pledged gold jewelries by April 7, 2018. Then the OP published the matter of auction    in the Millennium Post and the Ganasakti Bangla on March, 28 2018 relating to the auction.  Thereafter the OP auctioned the gold   through online auction to realize Rs.1,71,962/- and the surplus amount was kept with the Op bank as the bank failed to contact with the complainant in the given address. AS there was nodeficiency in service.

         The points that arise for Determination are as follows:

I. Is the Complaint case maintainable in its present form?

II. Is the Complainant get the reliefs as prayed for?

DECISION WITH REASONS

In Re:- points No. I & II

Both the points being inter related we are inclined to address both the points simultaneously in order to avoid repetition of facts and evidence.

 We have given thoughtful consideration to the rival contentions.

Having regards had to the evidence and other materials on record, it appears that complainant is a consumer and the op banker acted as service provider,as such the instant case is maintainable in its present form. It is evident that indisputably complainant pledged jewelries with the op bank. It is also clear from the undisputed facts the complainant failed to get renewed the loan account or to make payment of loan amount in scheduled time. Notice to complainant about auction in default of payment was duly sent to at the registered address in the concern loan account form by speed post. However, in the meantime complainant changed his address for correspondence without informing the same to the op; the cause title of the complaint delineates the same. Still the op got the notice served by publication through newspaper to ensure that it is going to act as per the laid procedure. Then the op exercised its right to conduct auction sale in terms of clause 49 of the standard terms and conditions. Therefore, we do not find any deficiency in service upto reaching to the point of auction. However,it is clear that the op has not taken any positive step to refund the balance amount of the sale proceeds to the complainant;for which the complainant has come before this forum seeking reliefs to that extent it is a deficiency in service. The complaint case should succeed in part the complainant is entitled to get the balance amount after deducting of the loan amount from the sale proceeds ( Rs. 1,71,962/- minus Rs.1,18,178/- =53784/-) along with interest in addition to compensation amounting to Rs.10,000/- and litigation costs of Rs.5,000/-

In the result the complaint case succeeds in part.

Both the points are answered accordingly.          

           Hence, it is

O R D E R E D

That the Consumer Case No.  357 of 2018 be and the same is allowed in part on contest against the OP.

 The OP is directed to pay to the complainant the balance amount after deducting of the due loan amount from the sale proceeds (Rs.1,71,962/- minus Rs.1,18,178/- = Rs. 53784/-) i.e.Rs. 53,784/- in addition to compensation amounting to Rs.5,000/- and litigation costs of Rs.5,000/-

The complainant is also entitled to get interest @ 14% (the rate of interest the op used to collect from the complainant) on Rs. 53,784/-from the date of filing of this case till realization.

The OP is directed to issue a bank draft /bankers’ cheque for the said amount within 30 days from date of this order.

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