Orissa

Dhenkanal

CC/19/2018

Birendra Sahoo - Complainant(s)

Versus

The Managing Director , ICICI Bank Ltd. ICICI Tower And others - Opp.Party(s)

04 Jan 2019

ORDER

BEFORE THE DIST. CONSUMER DISPUTES REDRESSAL FORUM, DHENKANAL

                                                     C.C.Case No. 19 of 2018

 

Birendra Sahoo, aged about 40 years

S/o late Meghanada Sahoo

Vill: Deoan, PO: Kapilash,

Via/PS: Gondia, Dist: Dhenkanal                      ……………Complainant

                                                                Versus

1. ICICI Bank Limited, represented by

Its Managing Director, ICICI Bank Towers,

South Tower West Wing, 2^nd Floor,

Bandra Kurla Complex, Mumbai-400051

2. Branch Manager, ICICI Bank Limited,

Jawahar Chowk, Infront of Dwarika Prasad

& Jagadish Prasad, At/Po: Dhenkanal

Dist: Dhenkanal-759001, Odisha………….Opp. Parties

 

Present: Sri Badal Bihari Pattanaik, President

                               Miss Bijayalaxmi Satapathy, Member

Sri Purna Chandra Mishra, Member

 

Counsel: For the complainant: Satyajit Mahapatra & Associates

For the Opp. Parties:Nalini Kanta Dash & Associates

 

Date of hearing argument: 26.12.2018

Date of order: 04.01.2019

 

                                                JUDGMENT

Sri Badal Bihari Pattanaik, President

                In the matter of an application U/s 12 of Consumer Protection Act, 1986 filed by the complainant alleging deficiency in service on the part of the Opp. Parties.

             1)Very briefly, the case of the complainant stated are that    the complainant has availed a gold loan  of Rs. 17,000/- from the O.P. No.2 Bank on 18.6.2014 which carries interest @ 13% per annum by pledging one pair of bangles (Chudi), one garland (necklace), one pair ear rings and one ring total weight of the ornaments was 25.42 grams.  At the time of sanctioning the loan the O.P.No.2 through his officials took signatures of the complainant in some printed forms without giving any opportunity of going through the contents.  The complainant has been paying interest regularly and there was no outstanding interest on him.  On 15.3.2018 the complainant had been to the O.P.No.2 Bank and asked the officials to receive the entire amount and to return his gold ornaments which were pledged  on 18.6.2014 but the  officials denied to receive the cash and replied that the gold ornaments have already been auctioned in the month of April-2017.  It is alleged that the O.Ps have never issued any pre-auction or post auction notice to the complainant  and auctioned the ornaments illegally without the knowledge of the complainant.  The total value of the pledged gold ornaments was Rs. 60,000/-  and the complainant has received only a sum of Rs. 17,000/- in the year 2014  and the interest due was paid timely.  Due to the arbitrary action of the Opp. Parties the complainant sustained loss of Rs. 43,000/-.  Therefore, the complainant has come up before this Forum seeking for a direction to the Opp. Parties to return a sum of Rs. 43,000/- along with interest from April-2017 till the date of payment .  Besides, the complainant claims compensation and cost of the litigation of Rs. 30,000/-.  The contents of the petition are supported by affidavit.

          2)          The Opp. Parties appeared and filed their written version.  It is in the version of the Opp. Parties  that the complaint is not maintainable .  The Forum does not have jurisdiction to entertain  the case.  As per the clause  enshrined in “ Rights  and Remedies of ICICI Bank” one of the condition of ICICI Bank Limited (All India) standard terms and conditions for  facilities for purchase of/against products the Courts/Tribunals at Mumbai shall have exclusive jurisdiction in respect of any matter, claim, legal action or proceeding arising out of in connection  with the loan terms.  There is no cause of action arises within the jurisdiction of this Forum.  The case is also not maintainable because it involves dispute of question of facts and accounts which cannot be a subject matter of dispute in a summary proceeding under the C.P.Act.  The present matter is purely contractual in nature for which the present dispute is not maintainable.  The complainant is not a consumer .  The relationship between the complainant and the O.P.Bank is that of debtor and creditor respectively  and not that of consumer and service provider. The complainant has not honoured terms and conditions of the Loan Agreement as he has not made payment on respective due dates.  He has not paid entire agreed loan amount with interest thereon.  The complainant has acted against the policy and agreement . The complainant has not approached the Forum with clean hands and has suppressed material facts.  There is no deficiency in service on the part of the O.P.Bank.  It is further stated that  in the year 2014 the complainant approached the O.P.Bank and submitted application to avail financial/ credit facility upon pledge of gold ornaments.  In pursuance to the said application the O.P.Bank agreed to grant credit facility to him upon pledge of gold ornaments with the O.P.Bank.  Accordingly, the O.P.Bank disbursed credit facility of Rs. 17,000/-  on July 18,2014 vide Credit/Loan Facility Account No. 077505003760 upon execution of credit facility application form and other necessary documents, wherein it was agreed and undertook by the complainant that he shall punctually repay Principal amount of Rs. 17,000/- along with interest thereon at 13%  per annum.  The complainant also had agreed and undertook as well as promised to abide by the terms and conditions contained  in the said credit facility.  The complainant  had also agreed to make timely payment of entire dues on or before June 18,2015 without committing any default  but he failed to do so.  It is further stated that as per loan terms tenure of the loan account was expired on June 18,2015 and inspite of repeated  reminders and demands the complainant failed to close the loan account by paying entire dues for which the loan account remained overdue and the O.P.Bank was constrained to issue Demand Notice dated July 11,2015 to the complainant followed by Loan Recall Notice dated July 27,2015 by Regd. post with A.D calling upon the complainant to pay entire dues.   The complainant on July 30,2015 renewed the loan facility for a year with over all limit of Rs. 17,000/- and date of maturity of July 30,2016 with interest @ 12%.  Inspite of expiry of the extended renewal period the complainant failed to repay/renew the loan facility for which the O.P.Bank constrained to issue Demand Notice on 8.8.2016 claiming Rs. 17,500/-.  But the complainant failed to repay the outstanding amounts  for which the O.P.Bank recalled the loan facility and issued Loan Recall Notice dated August 23,2016 by Regd. Post with A.D..  Since the complainant did not turn up  the O.P.Bank issued notice for enforcement of security  on 10.2.2017. As the complainant did not take any steps to repay the loan dues the O.P. Bank constrained to enforce its security interest by way of selling the gold ornaments through auction to be held on March 8,2017  to recover total outstanding amount of Rs. 17,500 as on February 9,2017.  Still then the complainant did not take any steps towards closure/renewal of the said loan account for which  the O.P.Bank published Gold Auction cum Invitation Notice in the local dailies vide “The Orissa Today” and “The Prajatantra” on February  25,2017.  The O.P.Bank never rendered any deficient service  and acted as per the terms of the loan agreement.  Despite receipt of various demand notices, the complainant did not respond at all  and did not take  any steps for closure of the loan account. Therefore, the O.P.Bank was constrained to sell  said gold ornaments through an auction in order to recover outstanding dues, as the loan agreement executed between the parties authorizes the Opp. Party Bank to invoke clause-32/48 of Standard  Terms and conditions for facilities against gold ornaments facility application form .  It is further submitted that on 8.5.2014 the complainant had approached and was sanctioned the gold loan for an amount of Rs. 17,000/- against pledging of 18 carat gold of gross weight 25.42 grams having net weight of 11 grams being valued at Rs. 17,688/-.  Accordingly, it is pleaded to dismiss the complaint. The contents of the written version is supported by affidavit.

3)              In support of the allegations the complainant has filed affidavit dated 21.8.2018, copy of acknowledgement No. 2471377 , copy of Token Card dated   18.6.2014 and copies of deposit slips. The Opp. Parties in support of their stands have filed certain documents like Credit facility application form  for loan against Gold Ornaments  vide appl. No. JL 2471377 dated 18.6.2014, Inventory cum appraiser’s certificate dated 18.5.2014, form of declaration of use of funds for Agricultural purpose dated 18.6.2014,  Identity Card of the complainant, Demand notice dated July 11,2015,, Loan Recall notice dated July 27,2015, Renewal letter  dated 30.7.2015, Demand Notice dated August 8,2016, Loan Recall Notice dated August 23,2016, Notice for Enforcement of Security dated February 10,2017 and  copy of paper publication.  

4)         On the aforesaid  pleadings of the respective parties the following issues are framed for determination.

1. Whether the case is maintainable?
2. Whether the Forum is having jurisdiction?
3. Whether the Opp. Parties are in deficiency of service?
4. To what relief, if any,  the complainant is entitled?

 

 

    5)Issue No.1 & 2

                             Since both the issues are very much linked up with each other those are taken up jointly for discussion and findings. Admittedly, the complainant has availed  of Rs. 17,000/- in the month of June 18,2014 vide Credit/ Loan Facility Account No.077505003760 upon execution of credity facility application form and other necessary documents by  pledging  gold ornaments whose weight was 25.42 grams   and admittedly the rate of interest was fixed at 13% per annum.   Opp. Parties pleaded vehemently that the complainant is not a consumer under the provisions of C.P.Act.   Since the complainant has availed loan and promised to pay interest  to the O.P.Bank and admittedly the Opp. Party Bank provides banking service, hence  the relationship of consumer and service provider exists between the complainant and the Opp. Party Bank.  Therefore, in our opinion the complainant is a consumer and the case is maintainable before this Forum.   Besides,  it is  pleaded by  the Opp. Parties  that this Forum has no jurisdiction to entertain or determine the complaint as per the clause enshrined in “Rights and Remedies of ICICI Bank” .  As per the condition of ICICI Bank Limited standard terms and conditions for  facilities for purchase of/against products the  Courts/Tribunals at Mumbai shall have exclusive jurisdiction in respect of any matter, claim, legal action or proceeding arising out of in connection with the loan terms.  The  learned counsel appearing on behalf of the complainant vehemently opposed to this stand of the Opp. Parties on the ground that  provisions  in  any agreement limiting the jurisdiction is invalid and not sustainable.  In this regard we are fortified by a decision of the Hon’ble National Consumer Disputes Redressal Commission reported in 1986-2005 Consumer page 9054 in case of Smt. Shanti versus M/s Ansal Housing and Construction Ltd, wherein it has been held that provision in agreement limiting the jurisdiction is invalid.  Any provision of an agreement which oust the jurisdiction of Consumer Forum is invalid and not binding.  Now taking into consideration of the factual aspects and the case law as referred to above  we are of the view that both the issues are answered in favour of the complainant.

6)Issue No.3

        It is not disputed that the complainant has availed loan  of Rs. 17,000/- by mortgaging his gold ornaments  of 25.42 grms  and he has paid towards the interest of the said loan amount from time to time  and it is also not disputed that there was an outstanding of Rs. 17,500/-  as on 10.2.2017  as is evident from  Annexure-F dated 10.2.2017 filed by the Opp. Parties.  It is also an admitted fact that the said gold was auctioned for an amount of Rs. 23.080/- on 14.3.2017 by E-Auction.  The specific allegation of the complainant that  there was no pre-auction notice or post auction notice  issued by the Opp. Parties to the complainant.   Learned counsel for the complainant argued that the Opp. Parties have not served any notice on the complainant before the auction of the said gold ornaments . On our perusal of the documents we find that the complainant has paid a sum of Rs. 1,000/- on 14.3.2017 on the date of auction and accordingly it is submitted  if there was any auction on the said date the O.Ps could have intimated the facts of auction and  the O.Ps should  not have received  Rs. 1,000/- from the complainant on the date of action.  Thus it is argued  without any proper intimation to the complainant the Opp. Parties  had auctioned the said gold ornaments  which amounts to deficiency in service.  He further argued  after auction the Opp. Parties have never intimated the sale price of the  pledged gold ornaments and have not yet returned the surplus amount after auction which amounts to unfair trade practice also.  It is also argued by the learned counsel for the complainant that on the date of auction of pledged gold ornaments the price of the gold per 10 gram was Rs. 24,000/- which has not been denied by the Opp. Parties in their written version and as such the sale proceeds of the pledged ornaments comes to  near about Rs. 60,000/-, but the Opp. Parties sold the pledged ornaments with a much lesser price  which also amounts to unfair trade practice .   In the written version  it is stated that they have issued repeated demand notice to the complainant to clear up the dues  and they have also issued demand notice prior to auction .  They have filed copy of notice and copy of computerized statement showing issuance of notice to the  complainant and others, but there is no iota of evidence as regards to service of notice on the complainant.   On our perusal of the written version and the documents filed by the Opp. Parties we noticed that the Opp. Parties have not filed any documents or pleaded as regards to the what is the value of gold  on the date of auction  and what was the highest bidding price and how many bidders participated in the auction.   There is also no such document after the auction the Opp. Parties intimated the complainant regarding the  sale price of the said auction and returned the surplus price.  The Opp. Parties also have not have claimed any shortfall amount after action, so it can be said from the sale price of the pledged gold ornaments there was no shortfall and the Opp. Parties should have returned the surplus amount after auction which has not been done so far.  Now taking into account the above aspects into consideration we are of the view that the Opp. Parties have adopted unfair trade practice and committed deficiency in service  for which the complainant compelled to suffer loss.   In this regard we are fortified by  one unreported decision of  Hon’ble State Consumer Disputes Redressal Commission UT Chandigarh  in the case of M/s Muthoot Finance Limited Vs. Snjiv Kumar  in First Appeal No. 554 of 2013 decided on 1.1.2014. 

7) Issue No.4

        On the above findings we come to a conclusion that the Opp. Parties have auctioned the pledged gold ornaments of the complainant at a much  lesser price    than the market price on the date of auction.  As per the complainant the price of the gold ornaments on the date of auction was Rs. 24,000/- per 10 grams which is not disputed by the Opp. Parties and the total cost of the gold ornaments of the complainant comes to Rs. 60,000/-.   Admittedly, the dues of the complainant  till the date of auction was Rs. 17,500/- and on the date of auction the complainant has made payment of Rs. 1000/- as such the total outstanding on the date of auction was Rs. 16,500/-.   Therefore, in our opinion the complainant has sustained loss of Rs. 43,500/- only for the deficient service and unfair trade practice of the Opp. Parties which is to be  paid to the complainant by the Opp. Parties.    Besides, the Opp. Parties are liable to pay compensation  towards unfair trade practice and deficiency in service  along with cost of the litigation. Hence ordered.

                                                                        ORDER

        The complaint is allowed on contest in the light of the above observation.  The Opp. Parties are directed to pay a sum of Rs. 43,500/-       (Rupees forty three thousand five hundred) towards loss  to the complainant along with interest @ 13% per annum from the date of auction  14.3.2017 till payment. .  Besides, the Opp. Parties are directed to pay compensation  of Rs. 5,000/- (Rupees five thousand ) along with  cost of litigation of Rs. 2,000/- (Rupees two thousand) only to the complainant.  The compliance of the order shall be made within a period of one month from the date of receipt of this order.

 

     (Sri Purna Chandra Mishra)  (Miss Bijayalaxmi Satapathy)  (Sri Badal Bihari Pattanaik)

                Member                                Member                                   President