Karnataka

Kolar

CC/41/2018

Smt.Pushpalatha w/o Majunath Dixit - Complainant(s)

Versus

The Manager,ICICI Bank Limited - Opp.Party(s)

B.Sadashivachari

09 Oct 2018

ORDER

Date of Filing: 04/05/2018

Date of Order: 09/10/2018

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

 

Dated: 09^th DAY OF OCTOBER 2018

PRESENT

SRI. K.N. LAKSHMINARAYANA, B.Sc., LLB., PRESIDENT

SMT. A.C. LALITHA, BAL, LLB.,  ……  LADY MEMBER

 

CONSUMER COMPLAINT NO. 41 OF 2018

Smt. Pushpa Latha,

W/o. Manjunatha Dixit,

Aged About 40 Years,

Behind Dharmaraya Temple,

Karanjikatte, Khadripura Main Road,

Kolar City.                                                  

(Rep. by Sri. B.Sadasivachari, Advocate)                                ….  COMPLAINANT.

 

- V/s –

The Manager,

ICICI Bank Limited,

Kolar Branch, Kolar.

(Rep. by Sri. K.N. Arvinda Navada, Advocate)                     …. OPPOSITE PARTY.

 

-: ORDER:-

BY SRI. K.N. LAKSHMINARAYANA, PRESIDENT,

01.   The complainant has filed this complaint against the opposite party Under Section 12 of the Consumer Protection Act, 1986 and prays to direct the OP to return the Golden ornaments which were pledged against the gold loan by receiving loan amount with interest at 4% from the date of loan till return of gold ornaments or in the alternative to pay price of gold ornaments along with compensatory cost of Rs.50,000/- towards mental agony and hardship suffered by her.

 

02.   The brief facts of the complainant’s case is that, on 04.06.2016 she borrowed gold loan facility by pleadging golden ornaments worth of Rs.2,68,700/- and agreed to pay interest at 4% per annum for the purpose of maintenance of dairy by purchasing of cows and buffalos.  On 04.06.2017 the complainant visited the Bank and requested for repayment of loan and accrued interest, but the OP official advised that her repayment tenure is extended for another one more year and within 03.06.2018 she has to pay the loan amount with interest.  On 05.03.2018 the complainant visited the OP-Bank to clear the loan amount and release the pledged golden ornaments of first loan of Rs.2,68,716/- and second gold loan of Rs.1,26,244/- with respect to pledging of golden ornaments as stated in Para-3 of the complaint.  The OP without giving any notice in respect of non-clearance of loan or non-payment of interest and failed to intimate the complainant about the public auction and no prior notice of public auction, though there were mode of communication like telephone contacts, SMS or manual communication or paper publication and the OP has cheated the complainant without returning the golden ornaments and failed to furnish details of public auction.  The complainant was ready to get back ornaments by clearing the out-standing loan amount, if at all there were any information to the complainant at right time.  But the OP has not provided any opportunity prior to public auction.  The OP-Bank officials not replied to the legal notice dated: 28.03.2018 though notice was served on 03.04.2018.  The OP-Bank officials were neglected which amounts to deficiency in service and filed this complaint for the relief as contended by the complainant.  Hence this complaint.

 

03.   The complainant has submitted below mentioned 04 documents along with her complaint:-

(i) Copy of Inventory cum appraiser’s certificate in account No.185205000617.

(ii) Copy of Gold Loan Sanction Letter account No.185205000760.

(iv) Office copy of legal notice dated: 28.03.2018

(v) Postal acknowledgment with receipt

 

04.   In response to the notice issued from this Forum, OP appeared through the counsel and filed its version contending that, the complainant is not maintainable and the complainant is not a Consumer as per the provisions of Consumer Protection Act, as the transaction between the complainant and OP is a borrower and financier relations and the complainant does not come Under Section 2(d) of the Consumer Protection Act 1986 and the said complaint deserves to be dismissed. 

 

(a)    The OP further contends that, the complainant had approached this OP on two occasions and avail gold loan by pleadging golden ornaments.  In the first instance, The complainant deposited 76.190 grams, net weight of 73.00 grams i.e., 4 plain bangles of 22 carat which is valued at Rs.1,743/- per gram, 02 plain hangings, 2 chain and 01 dollar of 22 carat which is valued at Rs.1,664/- per gram and the total value of the above golden ornaments was Rs.1,26,844/- and on 05.01.2016 the OP sanctioned loan of Rs.1,26,500/-, the complainant agreed to repay the same by 05.01.2017 under the gold loan agreement/account bearing No.185205000617.  The complainant again approached the OP seeking gold loan by pleadging golden ornaments weighing 149.91 grams, net weighted gold ornaments of 139.00 grams, i.e., 01 Necklace of 21 carat valued at Rs.1,916/- per gram, 04 rings of 21 carat valued at Rs.1,916/- per gram, 02 ear rings of 21 carat valued at Rs.1,916/- per gram, 01 chain of 22 carat valued at Rs.2,008/- per gram, 01 Bracelet of 21 carat valued at Rs.1,916/- per gram and the OP has sanctioned loan of Rs.2,68,716/- on 04.06.2016 under the gold loan agreement / account bearing No.185205000760, the complainant agreed to terminate the said loan by 04.06.2017.

 

(b)    The OP further contended that, the first loan was matured on 05.01.2017 and the second loan was matured on 04.06.2017, the complainant did not approach the OP to clear the due amount.  The OP issued legal notice and loan recall notice and in spite of that, the complainant did not come forward to settle the above said loan amount.  The OP has also issued notice for enforcement of security to the complainant stating auctioning of the golden ornaments by fixing the date for auction and so also published auction sale notification in the daily news papers namely “Vijayavani” and also in “Deccan Chronicle” and in spite of that also the complainant did not turn up and the said two gold ornaments pertaining to the said two loans were auctioned by the OP.

 

(c)    Further the OP has contended that, the complainant was due Rs.1,43,795/- towards gold loan account No.185205000617 and the OP has received Rs.1,81,565/- in auctioning the golden ornaments and the same was adjusted to complainant’s loan account and after deducting auction charges and processing charges there was residuary amount of Rs.28,819/- in the hands of the OP and this OP is ready to refund the said amount to the complainant before the Hon’ble Forum.  And pertaining to the 2^nd loan bearing gold account No.185205000760 the complainant was due of Rs.3,06,421/- and the OP has received Rs.3,27,591/- in the auctioning the gold ornaments and after adjusting the same to the complainant’s loan account by deducting auction processing charges the balance residuary amount of Rs.7,269/- was in the hands of this OP the OP is ready to refund the same to the complainant before this Hon’ble Forum.  OP has relied Hon’ble National Commission judgment reported in 1993 O CPJ (NC) 143 dated: 07.12.1992 between Janak M Chandan Vs. Ahmednagar Sahakari Bank Limited at Para-5 and another citation of Hon’ble State Commission of Tamil Nadu reported in 2005 1 CPJ 609 dated: 20.02.2004 between Canara Bank (Shree Ramapura Branch, Dindigul) Vs. M. Chandran at Para-3.

 

(d)    Further the OP contended that, it had given enough opportunity to the complainant to repay the outstanding loan amounts and so also to take part in the above said auctions, but the complainant has failed to do so.  The OP has exhausted all the remedies available before auctioning of the pledged golden ornaments.  The complainant with an intention to harass the OP has initiated the present proceedings for unlawful gain.  The OP has prayed for dismissal of the complaint with exemplary costs.

 

(e)    Along with the objections the OP-Bank has submitted following documents with respect to the above two loans::-

With respect to 1^st Gold Loan:-

 

(i) Xerox copy of Inventory cum appraiser’s certificate dated: 05.01.2016.

(ii) Xerox copy of Approval of winning bid pertaining to gold loan account No.185205000617.

(iii) Xerox copy of Approval of Winning bid daed: 20.03.2017.

(iv) Xerox copy of Demand Notice in Annexure 2(a) dt. 20.01.2017 both in English and kannada language

(v) Xerox copy of Loan Recall Notice in Annexure-3 dt.04.02.2017 both in English and kannada language

(vi) Xerox copy of Notice for enforcement of security in Annexure-4 dt. 23.02.2017

(vii) Xerox copy of paper publication Vijayavani dated: 10.03.2017 and Deccan Chronicle dated: 10.03.2017.

(viii) Xerox copies of un-served postal covers and acknowledgments for dispatched through Vashi Post Office, Navi Mumbai, 06 in numbers.

 

With respect to 2^nd Gold Loan:-

(i) Xerox copy of Inventory cum appraiser’s certificate dated: 04.06.2016, pertaining to gold loan account No.185205000760.

(ii) Xerox copy of Sanction Letter (Bank Copy) dated: 04.06.2016

(iii) Xerox copy of Application Form

(iv) Xerox copy of Approval of winning bid pertaining to loan account No.185205000760, dated: 09.01.2017.

(v) Xerox copy of Approval of Winning bid dated: 20.03.2017.

(vi) Xerox copy of Demand Notice in Annexure 2(a) dt. 21.06.2017 both in English and kannada language

(vii) Xerox copy of Loan Recall Notice in Annexure-3 dt.06.07.2017 both in English and kannada language

(viii) Xerox copy of Notice for enforcement of security in Annexure-4 dt. 11.08.2017

(ix) Xerox copy of paper publication Vijayavani dated: 18.08.2017 and Deccan Chronicle dated: 19.08.2017.

(x) Xerox copies of un-served postal covers and acknowledgments for dispatched through Vashi Post Office, Navi Mumbai, 04 in numbers.

 

05.   On 07.08.2018 the learned counsel appearing for complainant has filed affidavit evidence of complainant by way of examination-in-chief.  On 14.08.2018 the learned counsel appearing for OP has filed affidavit evidence of one Sri. Amar Jinde, S/o. Rajshekar, Legal Manager, on behalf of OP by way of examination-in-chief. 

 

06.   Heard arguments on both sides.  The counsel for OP has also filed their written arguments and so also relied citations reported in  2000 (1) PCJ 308 (Ker), 1997 (3) PCJ (3) (NC).

 

07.   Now the points that do arise for our consideration are that:-

POINT NO.1:-   Whether the complainant is a “Consumer” under Section 2(1)(d) of the Consumer Protection Act 1986?

 

POINT NO.2:-   Whether this Forum has got jurisdiction to entertain the complaint?

 

POINT NO.3:- Whether the complainant is entitled for the relief as prayed by him in the complaint?

 

POINT NO.4:-   What order?

 

08.   Our findings on the above points are that:-

POINT NO.1:-          In the Negative

POINT NO.2 & 3:-    Are in the Negative

POINT NO.4:-   As per the final order

                                        for the following:-

REASONS

09.   POINT NO.1:-          The OP has contended that, the complainant is not a consumer as per Section 2(1)(d) of the Consumer Protection Act, 1986 and the complaint is liable to be dismissed in limine as the relationship between the parties is borrower and financier.  It is relevant to state here that, the relationship between the OP and the complainant being of creditor and debtor and there could be no hiring of service of the bank by the complainant.  In this regard we rely judgment of Orissa Cuhok State Commission reported in 2008 CTJ 1116 (CP), wherein their lordship have held that, a person taking loan from a Bank against pleadging golden ornaments does not hire the service of the Bank and therefore the relationship between him and the Bank is not of a Consumer and service provider but of debtor and creditor.    

 

10.   Further the complainant in her complaint has stated that, on 04.06.2018 she availed gold loan by pledging golden ornaments to the tune of Rs.2,68,700/- for the purpose of maintenance of dairy by purchasing cows and buffalos’.  The said fact clearly goes to show that, the complainant had availed the said two loans from the OP-Bank for the purpose of purchasing of cows and buffalos for maintaining dairy which is nothing but commercial transaction for earning money.  The transaction for commercial purpose is excluded from the definition of Consumer.  The complainant has not at all stated anywhere in her complaint nor in her affidavit evidence that, she has availed the said loans for maintaining dairy by purchasing cows and buffalos for her livelihood as self-employment, such being the case, the complainant is not a Consumer as per Section 2(1)(d)(ii) of Consumer Protection Act of 2002 effect from 2003.  In this regard the Hon’ble Apex Court has also discussed the matter with reference to Section 2(1)(d)(ii) of the Consumer Protection Act as amended postulates that, “if the service of the carrier is availed for any commercial purpose, the person availing the same is not a ‘Consumer’ and consequently this complaint will not be maintainable before the Forums” as reported in CTJ 2010 Page 362 (SC).  Hence as discussed above, the complainant is not a ‘Consumer’ as per Section 2(1)(d)(ii) of the Consumer Protection Act, 1986.  Hence we answer this point is in the Negative.

 

11.   POINT NOs.2 & 3:-   These points are taken up together for discussion to avoid repetition of facts and reasonings.  At the outset it is relevant to state here that, the complainant has issued legal notice dated: 28.03.2018 to the OP after auctioning the said two pleadged golden ornaments of the complainant hence the said legal notice is goes in vain.       It is an undisputed fact that, the complainant has availed two gold loans from the OP-Bank.  In the first gold loan dated: 05.01.2016 she had pleadged 73.00 grams of different types of golden ornaments with respect to loan account No.185205000617 of Rs.1,26,500/- and she agreed to repay the same on 06.01.2017.  On 04.06.2016 she availed second gold loan by pleadged 139.00 grams of different types of golden ornaments with respect to gold loan account No.185205000760 of Rs.2,68,700/- and she agreed to repay the same on 04.06.2017.  In that regard the complainant has produced Xerox copy of the Inventory-cum-appraiser’s certificate with respect to loan account No.185205000617 and also she has produced sanction letter with respect to second loan account No.185205000760.

 

12.   The complainant has specifically taken up the contention that, the OP has not at all given any notice to her nor given notice before auctioning the above said two gold loans by the OP before paper publication for auctioning of the pleadged golden ornaments and the OP has not provided any opportunity to the public auction and there is a deficiency of service on the part of the OP-Bank.  On the other hand, the OP-Bank has denied the above said allegation of the complainant and specifically contended that, it had given enough opportunity to the complainant to repay the outstanding loan account and so also to take part in the above said auctions, but the complainant has failed to do so.  The OP exhausted all the remedies available before auctioning of the pleadged golden ornaments and the complainant has filed this complaint only to harass the OP to get unlawful gain.  To support the above contention the OP has stated the said facts in its version at Para-5 to 7 and produced documents along with version.

 

13.   In this regard it is relevant to state here that, the complainant has not at all repaid any amount pertaining to the above said two gold loans and there is no deficiency of service.  The question of deficiency in rendering service to the complainant by the Bank would have arisen only when the complainant had made repayment of the loan and the Bank had not returned the pleadged golden ornaments.  In this regard the counsel for the OP has relied judgment of the Hon’ble National Commission reported in 1993 CPJ (NC) 143 in between Janak M. Chandan V/s Ahmednagar Sahakari Bank Limited. The principles of the said citation is fully attracted to the above said facts and circumstances of the case on hand.

 

14.   The complainant wants to question the right of the OP about auctioning of the pleadged golden ornaments pertaining to above two gold loans without issuing of proper notice prior to auctioning of the above said two gold loans but she has to choose before the Civil Court and question of deficiency of service on the part of the OP-Bank does not arise as the complainant has not at all repaid any amount with respect to about two gold loans and the Forum has no jurisdiction to entertain the legality of the auction sale.  In this regard the learned counsel for OP has relied citation reported in (1997) III CPJ Page 3 (NC).  In that citation their lordship has held that, “since the relationship of the complainant and the OP is that of creditor and debtor, in the light of the decision of the Hon’ble National Commission, we are of the view that, this matter had to be entertained only by a Civil Court”.  The principles of the said citation is fully attracted to the facts and circumstances of the case on hand. 

 

15.   The counsel for the OP has also relayed another citation reported in 2005 (I) CPJ Page 609.  The above said citation is attracted to the facts and circumstances of the case on hand that, loan availed on pleadging of jewels and loan not returned or re-paid before date of undertaking, the OP auctioned out the jewels, utilized sale proceeds towards loan amount and held that no deficiency in service proved and the complainant if wants to challenge the Ops right, the Civil Court is the appropriate remedy.  The principle of the said citation is fully attracted to the facts and circumstances of the case on hand and so also the citation relied by us reported in CTJ 2008 Page 1050 (SC) (CP).  Hence as discussed above we answer these points are in the Negative.

 

16.   As per the contention of the OP-Bank, with respect to gold loan account No.185205000617, the golden ornaments were auctioned for Rs.1,81,565/- as against outstanding loan amount of Rs.1,43,795/- and by deducting the auction and processing charges the residuary amount of Rs.28,819/- is in the hand of the OP-Bank and with respect to 2^nd loan account No.185205000760, the complainant was due of Rs.3,06,421/- and the OP has received an amount of Rs.3,27,591/- while auctioning the golden ornaments and the after adjusting the same to the complainant’s loan account by deducting auction and processing charges the residuary amount of Rs.7,269/- is in the hands of this OP-Bank and the OP is ready to refund the said two residuary amounts to the complainant.  The complainant is entitled for the said amounts with respect to above two gold loan accounts with interest as the Bank has not send the above said amount to the complainant after auctioning of the golden ornaments. If the said amounts were kept in the Bank, the complainant would have been getting interest on the said amounts.  Hence the complainant is entitled for the interest on the said amounts.

 

17.   POINT No.4:-    In view of the above discussions on Point (1) to (3) and the discussion made thereon, we proceed to pass the following:-

ORDER

01.   The complaint filed by the complainant is dismissed.

 

02. The OP-Bank is directed to pay the residuary amount of Rs.28,819/- with respect to gold loan account No.185205000617 and a sum of Rs.7,269/- with respect to gold loan account No.185205000760 along with interest at 8% per annum from the date of filing of this complaint till the date of pronouncement of this order within 30 days from the date of this order. 

 

03.   Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 09^th DAY OF OCTOBER 2018)

 

 

 

LADY MEMBER                                PRESIDENT