BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 2nd December 2016
PRESENT
SRI. VISHWESHWARA BHAT D : HONBLE PRESIDENT
SRI. T.C. RAJASHEKAR : HONBLE MEMBER
ORDER IN
C.C.No.231/2013
(Admitted on 04.09.2013)
Mr. Moideen Kunhi,
S/o Ibrahim Haji,
Aged about 38 years,
Perimogaru House,
Assigoli Post, Manjanadi village,
Mangalore Taluk.
….. COMPLAINANT
(Advocate for the Complainant: Sri MRK)
VERSUS
The Manager,
The Catholic Syrian Bank Ltd.,
1st Floor, Vittal Darshan Building,
Falnir Road, Opp.Mothi Mahal,
Mangalore 575 002.
….........OPPOSITE PARTY
(Advocate for the Opposite Party No.1: Sri. BSN)
ORDER DELIVERED BY HON’BLE MEMBER
SRI. T.C. RAJASHEKAR:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain relief opposite party to return the gold ornaments such as necles 1, Bracelet 1, Golden Chain worth Rs.3,00,000/ along with 18% interest p.a. from 25.09.2012 till the date of payment with cost of this complaint.
2. In support of the above complainant Mr. Moideen Kunhi filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked as Ex.C1 to C4 detailed in the annexure here below. On behalf of the opposite party Mr. Kurian Joseph (Rw1) Branch Manager also filed affidavit evidence and answered the interrogatories served on him and produced documents.
The brief facts of the case are as under:
We perused the complaint and the version averments. The dispute as we understood is the complainant had availed a gold loan from the opposite party and the opposite party have sold the gold on default of payment. The complaint’s case is he has requested the Opposite party for furnishing details of balance in the loan account but the Opposite party did not furnish details and when I was ready to make payment the bank is not returning the gold pledged. And alleges deficiency in service. The opposite party contention on the ground that the complainant is defaulter and loan A/C has become NPA and as such by giving notice to the borrower/complainant they have auctioned the gold with due process of law after following auction procedure as per law. There is no deficiency in service from this Opposite party.
POINTS FOR ADJUDICATION
On traversing through the case materials, the admitted facts we found are the borrowing of gold loan by pledging the gold with Opposite party for a period of 6 months and the default in payment by the borrower, the bank auctioned the gold after three months of loan becoming due for payment. The denied facts are the serving notice to the borrower before sale and the legality of the procedure of auction followed by the Opposite party. Opposite party also denies the complainant as a consumer in general terms without elaborating the contention. From the above we find the only the key stone point of dispute is the procedure adopted in conducting of auction. As such we consider the following points for adjudication in resolving this dispute.
- Whether the complainant is a consumer under the Consumer Protection Act 1986?
- Whether the Opposite party proved the auction sale procedure adopted is as per law?
- Whether the complainant is entitled for the relief prayed for?
- What order?
After keen observation of the provision of law and the documents produced before us we adjudicated the above points and answered below:
- In the affirmative.
- In the negative.
- In the affirmative.
- As per delivered order.
REASON
POINT NO 1: It is admitted fact that the complainant herein is the borrower of the Opposite party and he had pledged his gold and availed loan (6010)with Loan Account no 009360 with few other gold loans also. Even though the other gold loan cleared the subject loan is still not settled undisputedly. Hence the complainant herein is the Loan Account holder in the Opposite party bank and obtained the service of the Opposite party. Hence there is relation of consumer and the service provider between the complainant and the opposite party which deserves to hold the point no 1 in the affirmative.
POINT NO 2: As we observed earlier whether the bank followed due process of law in auctioning and selling of the gold pledged with them on borrowing. The opposite party contends the complainant is the defaulter in repaying the loan. The Opposite party had issued notice to the complainant/borrower and they have taken a paper publication also. Apart from that number of times over phone informed the complainant to repay the loan otherwise they will sell the gold. The only contention of the complainant is he is not served with the notice before sale and he in spite of asking for the details of the loan balance the opposite party not provided the details before sale. The only specific question to be decided is whether the Opposite party served notice as stated in the law. We engrossed section 176 and section 177 of the contract Act which prescribes the rights and duties of the Pawner and the pawnee.
176. Pawnee's right where pawnor makes default. If the pawnor makes default in payment of the debt, or performance ; at the stipulated time or the promise, in respect of which the good were pledged, the pawnee may bring a suit against the pawnor upon the debtor or promise, and retain the goods pledged as a collateral security; or he may sell the thing pledged, on giving the pawnor reasonable notice of the sale. If the proceeds of such sale are less than the amount due in respect of the debt or promise, the pawnor is still liable to pay the balance. If the proceeds of the sale are greater than the amount so due, the pawnee shall pay over the surplus to the pawnor. 177. Defaulting pawnor s right to redeem. If a time is stipulated for the payment of the debt, or performance of the promise, for which the pledge is made, and the pawnor makes default in payment of the debt or performance of the promise at the stipulated time, he may redeem the goods pledged at any subsequent time before the actual sale of them, but he must, in that case, pay, in addition, any expenses which have arisen from his default.
As per section 176 the one of the rights available to the Opposite party is to sell the gold in an auction. But section made it mandatory to give notice reasonable notice of sale to the pawner before the sale. In the version Para 8 the opposite party admits that the notice not served to him by saying O.P. has issued a registered notice...on 27.05.2013 calling upon him to clear the loan amont. Even though the said notice sent to the given address of the complainant, the same was returned, but this Opposite party personally requested the complainant on phone several occasions the Opposite party also produced the unserved envelope which said to be notice of demand for payment. It is clear that the notice is not issued to the complainant/borrower before the sale. The other contention is over telephone number of occasion the Opposite party had informed the complainant. Nothing on record either documentary or the corroborative to show the complainant is called over phone and the matter related to sale of gold or payment for loan is being discussed. We brush aside both the contention of notice being served before auction sale. the Opposite party also produce a paper publication which is given on 22.06.2013 advertising that an auction will be conducted on 27.06.2013 where in among the list of defaulters 72 customers the complainant’s loan A/c No. 9360 is mentioned(Sr. no 34) published. This cannot be said as sufficient of reasonable notice as contemplated in the provision of law on two grounds. First there is no reasonable time for the complainant to Act and pay the dues. There is only three days gap between the notice day and the auction day. Secondly it is a general Auction list of information to public in general for particularly bidder participants of the auction and not specific to the particular borrower. Hence in our view the proper notice as specified by the law is not followed.
The importance notice is envisaged in Section 177 of the Act. We have seen above it is the right of the Pawner and an opportunity to redeem the pledged gold before sale. As ascribed by law the Pawner may pay the dues at any time before the sale concluded and get his pledge discharged. In view of this we hold the Opposite party has proved as in the point no 2 above and we answered the point no 2 in the negative.
POINT NO 3: As per discussion above the Opposite party is liable for deficiency in service and liable for the complainant. The complainant is entitled for return of the gold pledged by the opposite party. We presume since the gold ornaments already been sold in the auction we consider the complainant is entitled to the same value of the gold at present market rate or the same weight of the gold pledged. The Opposite party is entitled to recover the loan balance standing on the date of auction. Since we allowed the present market value we have not considered any interest on the amount. There is negligence on the part of the Opposite party in spite of knowing the notice not served on the complainant adventure to break the law prescribed in auctioning the pledge, we also considered an amount of Rs. 40000/ towards compensation and litigation expenses of Rs. 10000/
POINT NO 4: In the light of above adjudication of points we pass the following
ORDER
The complaint is partly allowed. The Opposite party is directed to hand over the same weight of gold or equivalent money in present market value to the complainant on receiving their dues in respect of loan balance standing as on the date of auction and an amount of Rs. 40000/ towards the compensation and an amount of Rs. 10000/ towards litigation expenses within 30 days copy of this of the order received. Failure to comply the Opposite party shall pay a penal interest at the rate of 9 % per annum from the date of order till the date of payment on the total awarded amount.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 9 directly typed by member revised and pronounced in the open court on this the 2nd December 2016)
MEMBER (SRI. T.C. RAJASHEKAR) D.K. District Consumer Forum Additional Bench Mangalore. | | PRESIDENT (SRI.VISHWESHWARA BHAT D) D.K. District Consumer Forum Additional Bench Mangalore. |
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Modieen Kunhi
Documents marked on behalf of the Complainant:
ExC1: 25.09.2012 : Original Gold Loan Token issued by The respondent
ExC2: 30.07.2013 : Office copy of legal notice with
ExC3: 30.07.2013 : Postal Receipt
Ex.C4: 08.08.2013 : Reply Notice sent by the opposite party
Witnesses examined on behalf of the Opposite Party:
RW1: Mr. Kurian Joseph , Branch Manager.
Documents produced on behalf of the Opposite Party:
No.1: 25.09.2012 : Gold loan ledger
No.2: : Statement of account
No.3:25.09.2012 : True copy of the notice sent by the Opposite party to the complainant
No.4: : unserved notice along with envelop
No.5: 22.06.2013 : Paper publication report, reported in Karavali ale publishing the auction of the gold ornaments.
Dated: 02.12.2016 MEMBER
