Complaint is filed on 18-6-2009
Compliant disposed on 19-4-2010
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM::AT:: KARIMNAGAR
PRESENT: HON’BLE SRI K. DEVI PRASAD, B.Sc., LL.B., PRESIDENT
SMT. E. LAXMI, M.A.,LL.M.,PGDCA (CONSUMER AWARENESS), MEMBER
SRI. K. CHANDRA MOHAN RAO, B.COM ., LL.B., MEMBER
MONDAY, THE TWENTYSIXTH DAY OF APRIL, TWO THOUSAND TEN
CONSUMER COMPLAINT NO. 96 OF 2009
Between:
Anumasu Malla Reddy, S/o. Kondal Reddy, Age 60 years, R/o. H.No.2-66, Gonevenkannapally village of Chigurumamidi mandal of Karimnagar district.
… Complainant
AND
The Manager, Karimnagar Co-Operative Urban Bank, Ltd., Karimnagar City.
…Opposite Party
This complaint is coming up before us for final hearing on 8-4-2010, in the presence of Sri Ch. Shiva Kumar Raju, Advocate for complainant and Sri Ch. Muthyam Rao and Ch.Venkateshwar Rao, Advocate for opposite party, and on perusing the material papers on record, and having stood over for consideration this day, the Forum passed the following:
:: ORDER::
1. The brief facts of the complaint are as under, the complainant obtained loan of Rs.20,000/- against the gold from opposite party on 15.4.2006 @ 16% per annum pledging two golden ornaments, one weighing four tulas (Chandraharam with diamond like stones) and the other weighing one tula (with latest carvings) under loan account no.8087 and Ledger Folio no.69/51. As per the terms the complainant paid Rs.6,452/- on 24.1.2008 towards the first installment. He could not pay remaining installments on account of adverse financial position and requested the opposite party to grant some time to clear the balance of loan which opposite party accepted. But subsequently the complainant on knowing that his pledged ornaments had been sold in auction without any notice, visited the opposite party in the first week of February 2009 and questioned him, pleading his sentimental attachment with those ornaments and their importance in the family. But opposite party answered recklessly at which the complainant sustained mental shock and agony. He was put to great loss to the property on account of arbitrary decision of opposite party.
2. Subsequently, the complainant got issued a Legal Notice to opposite party on 26.3.2009 followed by reminders on 30.5.2009 through his counsel demanding Rs.2,00,000/- towards mismanagement, mental agony with interest @ 24% per annum from the date of auction till the date of payment, after deducting the outstanding installment due as per the guidelines of RBI within one week from the date of receipt. The opposite party did not respond for settling the claim which amounts to deficiency of service.
3. Alternatively the complainant filed the complaint under Section 12 of C.P. Act, 1986 on 15.6.2009 praying for direction to opposite party to pay Rs.90,000/- under the loan account with interest @ 24% per annum, Rs.10,000/- against the miscellaneous expenses and costs.
4. Opposite party filed counter on 19.8.2009 alleging that the complainant failed to repay the said gold loan of Rs.20,000/- within a period of one year i.e. before 15.4.2007 in violation of the promissory note executed to the opposite party. He alleges that complainant had paid only one installment of Rs.6,452/- after the expiry of one year on 24.1.2008 which was adjusted towards interest. Opposite party denies that no request was made by the complainant for grant of time. He further adds that demand notice was sent to the complainant on 15.4.2006 to his address i.e. Village Seetharampur Mandal and District Karimnagar under registered post with acknowledgement due. It was received back by opposite party “unserved” on 16.4.2008. Opposite party further adds that in the above circumstances it was decided to sell the said ornaments in open public auction on 25.8.2008 and issued public notice through Eanadu Dt: 8.8.2008 of Karimnagar edition. Thus opposite party denies the allegation that the ornaments of the complainant were sold in open auction without notice. Opposite party further adds that notice was correctly sent to the address given by the complainant in the pronote signed by him. He says that no other address was given by the complainant. Opposite party further adds that he was not at fault in issuing the notice and published in News Paper on Karimnagar edition before selling the ornaments in open auction on 24.8.2008 along with other pledged articles. Opposite party further adds that the said ornaments of the complainant fetched Rs.49,500/- against Rs.40,000/- valued by the bank appraiser in the pledged letter Dt: 15.4.2006. Opposite party further adds that a sum of Rs.23,031/- was adjusted against the balance of loan payable by the complainant and the remaining amount of Rs.26,469/- was paid to the complainant on 18.5.2009 which was accepted by him without any protest. Opposite party further adds that he had sent reply on 19.6.2009 to the Advocate for the complainant in answer to the Legal Notice. Opposite party further contradicts that the complainant did not visit the bank in the first week of February 2009 and terms the allegation of reckless reply by opposite party as false. Opposite party concludes that there is no irregularity and deficiency of service as alleged.
5. Both the parties have filed their proof affidavits confirming the same allegations made in the complaint and counter and filed documents marked as Ex.A1 to A5 and on behalf of opposite party Ex.B1 to B6 are marked.
6. Ex.A1 is the attested copy of Gold Loan Account Pass Book. Ex.A2 is the attested copy of Identity Card of complainant issued by Election Commission. Ex.A3 is the Cash Receipt Dt: 24.1.2008 fo Rs.452/-. Ex.A4 is the Xerox copy of Loan sanction receipt Dt; 15.4.2006. Ex.A5 is the Legal Notice issued by counsel for complainant Dt: 30.5.2009.
7. Ex.B1 is the attested copy of Pledge of Jewellery or Ornaments as Security for Loan on Promissory Note Dt: 15.4.2006. Ex.B2 is the returned postal cover addressed to complainant. Ex.B3 is the reply notice Dt: 19.6.2009. Ex.B4 is the postal acknowledgement card. Ex.B5 is the letter from the Superintendent of Post Offices, Karimnagar division Dt: 13.7.2009 addressed to opposite party. Ex.B6 is the Paper Clippings of Eanadu Dt: 19.8.2009.
8. The point for consideration is whether there is any deficiency of service on the part of opposite party, if so, to what relief the complainant is entitled?
9. The arguments of the learned counsel for the opposite party is that the complaint has to be dismissed on two grounds i.e. on the merits and as well as on the lack of jurisdiction in view of the decision reported in 2000 (2) ALT 391.
10. There is no denial from the complainant on is the issue of publication in the Eanadu Paper on account of the return of the notice sent to the complainant by the opposite party before auctioning the gold ornaments in the open auction.
11. The opposite party has taken all the precautions that are required to be taken prior to conducting of auction of the gold ornaments. Therefore, though allegation of the complainant that without notice to the complainant the pledged gold ornaments were sold is auction not correct. The opposite party has taken steps to serve the notice on the complainant before conducting auction but due to the absence of the complainant notices were un-served and thereafter steps were taken to publish the notice in largely circulated paper “Eanadu”. Therefore, all the steps that are required to be taken by the opposite party were taken before conducting auction.
12. The important contention of the learned counsel for the opposite party is that, the Hon’ble High court in the decision reported in 2000 (2) ALT 391 held that Consumer Forum has no jurisdiction to entertain the complaint on the ground of deficiency in service only the party aggrieved has to exhaust remedies available under Societies Act.
13. In the said decision the case was that the loan was obtained from the Warangal Cooperative Central Bank Ltd., The Cooperative Bank constitute under the provisions of Andhra Pradesh Cooperative Societies Act 1964. Due to non payment of said loan, movable properties of the 2nd respondent were seized and against seized the 2nd respondent there in paid the amount and seized was property returned to him. There after the 2nd respondent filed complaint in the Consumer Forum, Warangal. While discussing the provisions of the Societies Act Sec 121, with respect to the bar of jurisdiction of the Court his lordship held that “no order passed or decision or action taken by any authority as provided under the Act including that of the Tribunal/Government or any office subordinate to them shall be called in question in any Court. Therefore, the jurisdiction of the Civil Court or any other Forum to entertain any dispute arising out of any order passed or decisions or action taken by any competent authority under the act including that of the Tribunal or the Government is specifically barred by sub-section (1) of Section 121 of the Act. Therefore, the action of the Consumer Forum in entertaining the complaint petition filed by the 2nd respondent is without jurisdiction and the petition is not maintainable before the Forum.”
14. In the present case also the opposite party has proceeded as per the law prescribed, as such this Court has no jurisdiction to entertain the matter.
15. Opposite party sold the gold ornaments of the complainant through open auction duly observing the rules i.e. issued notice to the complainant by register post acknowledgment due, to the address under Ex.B2 mentioned by him in the loan application form (pronote) notified the date of auction through publication in popular daily paper i.e. Eanadu marked under Ex.B6, sent reply to the Legal Notice marked under Ex.B3, denying all the allegations made there in and added that the balance of the proceeds of open auction of the gold ornaments was received by the complainant on 18.5.2009 after adjustment of Rs.23,031/- towards outstanding loan which all constitutes that opposite party was not deficient of service.
16. In the result the complaint is dismissed without costs.
Dictated to Stenographer and transcribed by her, after correction the orders pronounced by us in the open court this the 26th day of April, 2010.
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MEMBER MEMBER PRESIDENT
NO ORAL EVIDENCE HAS BEEN ADDUCED ON EITHER SIDE
FOR COMPLAINANT:
Ex.A1 is the attested copy of Gold Loan Account Pass Book.
Ex.A2 is the attested copy of Identity Card of complainant issued by Election Commission.
Ex.A3 is the Cash Receipt Dt: 24.1.2008 fo Rs.452/-.
Ex.A4 is the Xerox copy of Loan sanction receipt Dt; 15.4.2006.
Ex.A5 is the Legal Notice issued by counsel for complainant Dt: 30.5.2009.
FOR OPPOSITE PARTY:
Ex.B1 is the attested copy of Pledge of Jewellery or Ornaments as Security for Loan on Promissory Note Dt: 15.4.2006.
Ex.B2 is the returned postal cover addressed to complainant.
Ex.B3 is the reply notice Dt: 19.6.2009.
Ex.B4 is the postal acknowledgement card.
Ex.B5 is the letter from the Superintendent of Post Offices, Karimnagar division Dt: 13.7.2009 addressed to opposite party.
Ex.B6 is the Paper Clippings of Eanadu Dt: 19.8.2009.
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MEMBER MEMBER PRESIDENT
