Karnataka

Kolar

CC/26/2015

Syed Inayathulla - Complainant(s)

Versus

THe Manager, ICICI Bank - Opp.Party(s)

Sri.Pattabhiram

09 Jun 2016

ORDER

Date of Filing: 06/08/2015

Date of Order: 09/06/2016

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

 

Dated: 09^th DAY OF JUNE 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 :: 26 OF 2015

Sri. Syed Inayathulla,

S/o. Syed Hafeeze,

Aged About 45 years,

R/at: No.948, 1^st Cross,

Cottonpet, Kolar-563 101.

 

(Rep. by Sriyuth.Pattabhiram.J, Advocate)                   ….  Complainant.

 

- V/s -

The Manager,

ICICI Bank,

Sri. Gowri Nilaya, M.G.Road,

Cottonpet, Kolar-563 101.

(Rep. by Sriyuth.C.Kodandappa, Advocate

And Associates)                                                        …. Opposite Party.

-: ORDER:-

BY SRI. N.B. KULKARNI, PRESIDENT

01.   The complainant having submitted this complaint as contemplated Under Section 12 of the Consumer Protection Act, 1986 has sought relief of issuance of directions to the OP to return gold ornaments of 211.12 grams being in the form of 10 gold bangles and one hallow chain dollar after receiving the balance amount and also for compensation of Rs.1,00,000/- towards mental agony and harassment and litigation expenses.

 

02.   The facts in brief:-

(a)    It is contention of the complainant that, he has I.D. No.529058399 and current account bearing No.185205000015 as issued by the OP Bank.  And that by depositing the said gold ornaments as security with the OP on 28.08.2012 he availed loan of Rs.4,00,000/- which stood renewed on 03.10.2013 for the period of 01 year vide Annexures A and B.  And that his son by name Syed Zani Mohammed was/is nominee.  And that he repaid interest regularly to the OP from 28.08.2012 to 31.12.2014.  And that such payments were to the tune of Rs.1,65,000/-, whereas, he has receipts with regard to payment of Rs.65,000/- on 26.12.2014 and 31.12.2014 vide Annexure - C & D.  And that with regard to payment of Rs.1,00,000/- the documents have been misplaced.

 

(b)    Further it is contended that, to his shocking, the officials of the OP orally stated in the first week of January-2015 that, the pledged gold ornaments were being auctioned. 

 

(c)    Further it is contended that, neither himself nor the nominee was served with notice with regard to the contended default of money towards interest and principal amount.  And that he got the notice issued vide Annexure-E and the postal receipt is vide Annexure-F and the acknowledgment is vide Annexure-G.  Further it is contended that, the OP issued a letter stating that, the said gold ornaments were sold in auction for sum of Rs.4,64,244/- and the outstanding dues to the tune of Rs.4,10,681/- were cleared and balance of Rs.53,563/- has been credited to his said current account.  And that copy of the same is vide Annexure-H.  So contending, the complainant has come up with this complaint on hand seeking the above set out reliefs.

 

(d) Along with the complaint with list dated: 06.08.2015 the complainant has submitted following 08 documents being the said Annexures - A to H:-

i) Annexure-A: Copy of the Token Card along with Acknowledgement.

ii) Annexure-B: Copy of the Renewal letter

iii) Annexure-C: Copy of the Receipt dated: 26.12.2014

iv) Annexure-D: Copy of the receipt dated: 31.12.2014.

v) Annexure-E: Copy of the legal notice dated: 02.02.2015.

vi) Annexure-F: Copy of the Postal Receipt.

vii) Annexure-G: Copy of the postal acknowledgement.

viii) Annexure-H: Copy of the letter.

 

03.   The OP has submitted written version on 04.12.2015 and subsequently additional objections on 18.01.2016 resisting the claim of the complainant in toto:-

 

(a)    It is contended that, the complainant was sanctioned gold loan of Rs.4,00,000/- on 28.08.2012 vide said current account.  And it is conceded that the gold ornaments weighing 211.12 gms came to be pledged by the complainant with it.  And that repayment was bound to be made by 02.10.2014 as per the credit facility application vide Annexure-R1.  It is also contended that, as the complainant failed to comply a demand notice dated: 14.11.2014 came to be issued, copy of which is vide Annexure-R.2.  And that loan recall notice dated: 29.11.2014 came to be issued, copy of which is vide Annexure-R.3.  Further it is contended that, notice of enforcement of security came to be issued on 22.12.2014 copy of which is vide Annexure-R.4.  And that there was paper publication in English and Kannada newspaper (to be taken read as 09.01.2015 as per records in Prajavani and Deccan Herald Kannada and English daily newspapers) the copies of which are vide Annexures-R.5 and R.6. 

 

(b)    There is denial of contended repayment to the tune of Rs.1,65,000/- up to 31.12.2014.  However it is conceded that, repayment was made by the complainant to the tune of Rs.65,000/- and hence the entire outstanding dues were not cleared.  And that under the circumstances it acted in terms of the facility and hence there was no violation of law. 

 

(c)    Even in the additional written version the same contentions are reiterated, however specifically contending that, the sale proceeds dated: 19.01.2015 were in sum of Rs.4,64,244/- and after adjusting the dues the residuary amount of Rs.53,563/- that has remained shall be refunded to the complainant.  So contending, dismissal of the complaint with exemplary costs has been sought.

 

04.   With list dated: 04.12.2015 the OP has submitted following 06 documents:-

(i) The copy of the credit facility application form submitted by the complainant.

(ii) Demand Notice dated: 14.11.2014 both in English and Kannada

(iii) Loan Recall Notice dated: 29.11.2014 both in English and Kannada.

(vi) Notice for Enforcement of Security dated: 22.12.2014 both in English and Kannada,

(v) Paper Publication in English,

(vi) Paper publication in Kannada.

 

05.   With list dated: 18.01.2016 the OP has submitted following 10 documents:-

(i) Demand Notice dated: 11.03.2013 both in English & Kannada,

(ii) Loan Recall Notice dated: 26.03.2013 both in English & Kannada

(iii) Return cover of Demand notice & Received acknowledgement of post,

(iv) Demand Notice dated: 12.09.2013 both in English and Kannada

(v) Loan Recall Notice dated: 27.09.2013 both in English and Kannada.

(vi) Renewal Application Form and Declaration dated: 05.04.2013,

(vii) Letter of Amendment dated: 05.04.2013,

(viii) Renewal Application Form and Declaration dated: 03.10.2013,

(ix) Letter of Amendment dated: 03.10.2013,

(x) Statement of Account.

 

06.   Both the parties have submitted their respective affidavit evidence and also the written arguments.

 

07.   On 07.06.2016 the learned counsel appearing for the complainant has submitted Memo giving particulars on the strength of the summary of the account as maintained by the very OP itself to disclose that the total repayment came to Rs.1,27,171/- from 28.08.2012 to 31.12.2014.  the particulars which cannot be denied with regard to said repayments as per this Memo are as given below:-

i) By way of cash          Rs.33,991/-         dt: 05.04.2013.

ii) By way of cash        Rs.28,180/-         dt: 03.10.2013.

iii) By way of cash       Rs.25,000/-         dt: 26.12.2014.

iv) By way of cash        Rs.40,000/-         dt: 31.12.2014.

                                      ============

          TOTAL                  RS.1,27,171/-

============================================

 

08.   Heard the oral arguments as advanced by the learned counsel appearing for both sides.

 

09.   And at this juncture it is worth to note that on 07.06.2016 at the time of hearing of oral arguments the learned counsel appearing for the OP submitted a Memo indicating that, the said publications with regard to proposed auction sale of the complainant among others were in Prajavani and Deccan Herald Kannada and English daily news papers respectively.

 

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

1. Whether the OP is guilty of deficiency in service?

 

2. If so, whether the complainant is entitled to the relief sought for?

 

3.  What order?       

 

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

POINT 1:-        In the Affirmative

 

POINT 2:-        In the Affirmative

 

 

POINT 3:-        As per the final order

                        for the following:-

 

 

REASONS

POINT Nos.1 & 2:-

12. 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)    Before entering in to discussion with regard to the merits of the case, we deem it essential to state at this juncture certain indisputable aspects involved in the case.  It is a fact that on pleadging of the said quantum of gold ornaments of the said descriptions on 28.08.2012 the OP sanctioned said loan of Rs.4,00,000/- to the complainant which stood again renewed on 03.10.2013 for a period of one year i.e., 02.10.2014.  Equally it is also a fact that the OP conducted auction of the said gold ornaments on 19.01.2015 after the said publication of the notice on 09.01.2015 in Prajavani and Deccan Herald being Kannada and English daily news papers respectively.  It is also a fact that auction proceeds dated: 19.01.2015 were to the tune of Rs.4,64,244/-.

 

(b)    Now we shall have to enter in to the discussion with regard to the merits involved in the case.  As far as, this complaint is concerned in the said background as noted above, the complainant is very specific in contending that, he did not receive either the notice dated: 14.11.2014 or loan recall notice dated: 29.11.2014 or notice of enforcement of security dated: 22.12.2014 nor he was aware of the said paper publications dated: 09.01.2015 even when the distance between the OP bank and his residence is within a distance of pelting of a stone.  Thus he to contend that for no fault of him on 19.01.2015 the OP proceeded ahead with contended auction sale of the said gold ornaments that resulted in realization of the said sum of Rs.4,64,244/-.    The complainant is to contend that this act of the OP was a deficient in service besides being unjust and unfair conduct on the part of the OP in as much as the OP did not bother to verify as to whether the said contended notices so issued were received by the complainant or not.

 

(c)    As rightly pointed out by the learned counsel appearing for the complainant there is no shred of evidence to believe that the complainant did receive the said notice dated: 14.11.2014, loan recall notice dated: 29.11.2014, notice of enforcement of security dated: 22.12.2014.  Further there is no iota of evidence to come to the conclusion that, the complainant was in receipt of such paper publication of auction in the said daily newspapers dated: 09.01.2015. 

 

(d)    It is a fact that as per the said Memo dated: 07.06.2016 which is based on the summary of account as maintained by the OP itself the complainant did pay on 05.04.2013 Rs.33,991/-, on 03.10.2013 Rs.28,180/- (on this date the said loan stood renewed), on 26.12.2014 he did repay Rs.25,000/- and on 31.12.2014 he did repay sum of Rs.40,000/-, i.e., total sum of Rs.1,27,171/-.  For our crucial purpose the notice dated: 22.12.2014 with regard to Enforcement of Security is the most important.  After issuance of this contended notice dated: 22.12.2014, on 26.12.2014 and on 31.12.2014 the OP did receive from the complainant the said sum of Rs.25,000/- and Rs.40,000/- respectively.  This acceptance is bound to be viewed that, the said notice of enforcement of security dated: 22.12.2014 stood explicitly withdrawn. 

 

(e)    Therefore the act of the OP in causing publication of auction in said daily newspapers dated: 09.01.2015 and conducted auction on 19.01.2015 was nothing but gross negligence.  At any rate we repeat that in the absence of evidence to indicate that the notice dated: 14.11.2014, loan recall notice dated: 29.11.2014 and contended notice of enforcement of security dated: 22.12.2014, were received by the complainant, the act of proceeding to conduct auction of the gold ornaments of this complainant who is very much the neighbor is the most objectionable.  The OP has acted unmindfully and in a very mechanical manner even when the complainant repaid to the extent of said sum of Rs.1,27,171/- quite after renewal of the said loan on 03.10.2013.

 

(f)     Hence we are of the opinion that, the Op wrongly arrived at the conclusion that, as on 19.01.2015 the complainant was in arrears in a sum of Rs.4,10,681/-, for, admittedly this balance is utterly in negligence of the said repayments dated: 05.04.2013, 03.10.2013, 26.12.2014 and 31.12.2014, which came to total sum of Rs.1,27,171/-.  Besides, the OP cannot afford to maintain before us that the auction conducted by it with regard to the said gold ornaments of the complainant was and is in accordance with law.  We are totally at failure because of the very OP itself as to what legal provisions the OP resorted to before proceeding to conduct the said auction dated: 19.01.2015. 

 

(g)    Under the circumstances, we redirect the OP to calculate the dues as on 19.01.2015 by taking specifically in to account the said repayments dated: 05.04.2013 in a sum of Rs.33,991/-, 03.10.2013 in sum of Rs.28,180/-, 26.12.2014 in a sum of Rs.25,000/- and on 31.12.2014 in a sum of Rs.40,000/-, i.e., total sum of Rs.1,27,171/-. 

 

(h)    We give time of two months to the complainant from receipt of the copy of this order to repay the dues in balance and on receipt of the same the OP shall handover 10 gold bangles and 01 hallow chain dollar weighing 211.12 gms after getting the same reprepared and tested and certified by a recognized and approved appraiser or in the alternatively liberty is kept open to the complainant to receive the equivalent value in money for the gold weighing 211.12 gms as on the date on which the OP has been made accountable to return the said golden ornaments.  And this deemed date shall be on 19.01.2015.  [If for the alternative option the OP to fail to comply then that amount so valued shall carry interest at the rate of 9% per annum from said deemed date till realization for being recovered from the OP.]

 

(i)     Because of the undue negligence on the part of the OP the complainant suffered, we direct the OP to give compensation of Rs.25,000/- to the complainant together with interest at the rate of 9% per annum from 06.08.2015 being the date of the complaint till realization. 

 

POINT 3:-

13.   We proceed to pass the following:-

ORDER

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

 

(a)    On receipt of the copy of the order by the complainant and the OP within a period of two months the OP shall accept the dues in balance after re-calculating the liability by taking in to account the said repayments dated: 05.04.2013 in a sum of Rs.33,991/-, 03.10.2013 in a sum of Rs.28,180/-, 26.12.2014 in a sum of Rs.25,000/- and 31.12.2014 in a sum of Rs.40,000/-, thus total sum of Rs.1,27,171/-, for the dues as on 19.01.2015 and in-turn handover 10 gold bangles and 01 hallow chain dollar totally weighing 211.12 gms to the complainant by getting the same reprepared and certified by a recognized and approved appraiser and alternatively if the complainant to opt to receive the money as a value for the said quantum of gold to pay the said value in terms of money as per the existing market value on the said deemed date being 19.01.2015.  If on any account the OP to fail to comply then the said sum shall carry interest at the rate of 9% per annum from said deemed date till realization.

 

(b)    Besides, the OP shall pay compensation of Rs.25,000/- together with interest at the rate of 9% per annum from 06.08.2015 being the date of the complaint till realization.

 

(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 09^th DAY OF JUNE 2016)

 

 

 

MEMBER                           MEMBER                  PRESIDENT