The case of the complainant in a nutshell is that he has a savings bank account being no.0870053000000045 of South Indian Bank, Hatibagan Branch. According to the complainant he has been working as a gold appraiser under opposite party no.2 and performing his duty at his level best to identify the quality of gold as per his knowledge. It is alleged by the complainant that the opposite party no.2 in connivance with the other opposite parties locked his savings account, fixed deposits and recurring in deposit amount about Rs.30,00,000/- (Rupees thirty lakhs) only on a charge of misappropriation in connection of several gold loans in which the complainant worked as gold appraiser. The complainant states that he neither obtained any loan nor he is a guarantor of the loans in question. The opposite party illegally and wrongfully claimed the loan money from the complainant. It is the further case of the complainant that he is not the sole gold appraiser of the bank opposite parties. There are other two gold appraisers of the opposite parties. According to the norms of the bank the valuation and the quality of the gold would be determined by the second and third appraisers within statutory period before the remit of the loans. Therefore, the responsibility of determination of valuation and quality of the gold do not repose upon complainant. If any negligence is found, the complainant is not responsible for the same. It is the liability of the second and third gold appraiser and the Branch Manager/opposite party no.2 of the South Indian Bank. It is duty of the bank to recover the loan amount from the principal borrowers or through guarantors and the complainant in no way has any responsibility to repay the loans. The opposite parties wrongfully created lien of his savings account and fixed deposits which is deficiency in service and harassment to the complainant. The complainant sent legal notices dated 08/01/2020 and 04/07/2020 to the opposite party to withdraw the lien but to no effect. Hence this case.
All three opposite parties appeared in the case and filed written version. The opposite parties state that the complainant Ranjan Kumar Paul was empanelled and appointed as gold appraiser of Hatibagan and Bidhannagar Branch of South Indian Bank on certain terms and conditions. In persuasion to such empanelment the complainant executed an indemnity bond on 10/04/2019 in favour of the South Indian Bank Ltd. and equivocally undertaken that he shall discharge his contractual obligations for appreciation and valuation of ornaments/jewels and immediately handing over it to the bank. He also undertaken to weigh, test the genuineness of the gold ornaments/jewels, its purity and its carat worthiness and also whether the said gold ornaments/jewels are counterfeit one etc. exclusively it his/her own responsibility after taking very good care, caution, circumspection and skill expected from him. He also indemnified to make good the loss sustained by the bank until the indemnifier his discharged on termination of his engagement.
It is the specific case of the opposite parties that the complainant Ranjan Paul had certified spurious gold as 22 carat gold and has given certificates to that effect. Based on such certificates gold loans were granted to 14 (fourteen) borrowers named below :-
- Naresh Verma.
- Khussboo Verma
- Pankaj verma.
- Roshni Verma.
- Priyam Verma.
- Muskan Verma.
- Chandni Verma.
- Chandra Sekher Verma
- Neelam Verma.
- Prince Verma.
- Rajani Devi Toshawar.
- Vijay Kumar.
- Sajal Burman.
- Tarash Tudu.
The total fourteen loan amounts to the tune of Rs.4.09 Crore was disbursed on the basis of the appraiser’s report. Later, the gold deposited by the said loaness detected to be spurious and the bank suffered loss to the tune of 4.09 Crore. As the bank suffered huge pecuniary loss, in terms of indemnity bond, the opposite parties did not allow further operation in the complainant’s joint accounts with his wife Sonia Paul. According to the opposite parties the bank has every right to forfeit the right to claim, the return of the money lying under any kind of accounts including the joint account of the complainant in the event of loss to the bank. The opposite party has not demanded any amount of loan but has demanded the amount of loss which the Bank suffered due to his false report. There is no deficiency in service as such the complaint case is liable to be dismissed.
Points for determination
On the basis of the rival pleadings the following points are framed for determination :-
- Is the case maintainable in law and its present form?
- Is the case barred by limitation?
- Is the complainant entitled to any relief/reliefs as claimed for?
Decision with reason
In order to proof the case, the complainant filed affidavit in chief and the opposite parties cross examined the complainant by filing questionnaire. Though reply of the questionnaire had been filed by the complainant but it cannot be treated as evidence as the same has not been submitted on solemn affirmation on oath in compliance with Section 38(6) and Section 38(9)(c) of the Consumer Protection Act,2019. Photo copies of the documents filed along with affidavit in chief by the complainant are marked as Document No.1 to Document No.7 series.
The opposite parties also filed evidence on affidavit. The opposite parties also not filed their reply on solemn affirmation to the questionnaire of the complainant as such the same cannot be treated as evidence.
Point No.1
This point is taken up- for consideration and discussion.
On perusal of the material on record it appears that the sole complainant Ranjan Kumar Paul filed the instant complaint case on 08/10/2020 against the opposite parties.
From document 7 series we find that the savings account and all fixed deposits stands in the name of Ranjan Kumar Paul and his wife Sonia Paul but Sonia Paul is not a party to this case either as complainant or as proforma opposite party through she is necessary party of this case.
It is needless to mention that when there are one or more consumers having same interest may file a case with the permission of the District Commission on behalf of, or for the benefit of, all consumers so interested in view of Section 35(c) of the Consumer Protection Act, 2019.
It is evident from the record that at the time of filing of the case, the sole complainant Ranjan Kumar Paul has not prayed and/or obtained any permission of the Commission to file the case on behalf of or for the benefit of his wife Sonia Paul so interested.
As Sonia Paul is joint holder of the savings account as well as fixed deposits (document 7 series), she is a necessary party to this case.
It is apparent on the face of the record that the case is barred U/S 35(c) of the Consumer Protection Act, 2019.
Therefore, this point is decided against the complainant.
Point No.2
On scrutiny of the evidence of both sides we find the following facts are admitted by the parties.
- The complainant has savings account as well as fixed deposits with the South Indian Bank, Hati Bagan Branch jointly with his wife Sonia Paul.
- The complainant is gold appraiser of Hatibagan and Bidhannagar Branch of the South Indian Bank.
The opposite parties have stated in their evidence that in pursuant to such empanelment as gold appraiser the complainant had executed an Indemnity Bond on 10.04.2019, in favour of South Indian Bank Ltd. and he had equivocally undertaken that he shall faithfully discharge his contractual obligation for appraising and valuing gold ornaments/jewels and immediately hand over to the bank. He had also undertaken that he will handle, weigh, test the genuineness of the gold ornaments/jewels its purity, its carat worthiness and also whether the said gold ornaments/jewels are counterfeit once etc. exclusively at his own responsibility after taking very good care, caution, circumspection and skill expected from his engagement and if however, such loss or damage has been sustained by the bank after until the indemnifier is discharged on termination of his engagement and if however, such loss or damage has been sustained by the bank after his discharge the loss the damage etc. being not detected at the time of the discharge of the indemnifier from out of his asset worth movable or immovable. The complainant has further undertaken personally that he shall also be liable to indemnify all other incidental expenditure, the bank has to incur in connection to such action of the indemnifier. He also undertook that he will have no right to claim the return of any security that he has for or on any other account or he may thereafter make or any assets of funds belonging to him or any money lying to his credit, under any kind of account with the indemnified except upon full payment and satisfaction of all and every kind of claim, loss or liability be the nature of the same secure or otherwise present or remove, future or continent or circumscribed by any limitation whatsoever.
According to the opposite parties the said Ranjan Kumar Paul complainant certified spurious gold as 22 carat gold and had given certificates to that effect. Based on such certificates gold loan were granted to 14 borrowers named below :-
- Naresh Verma.
- Khussboo Verma
- Pankaj verma.
- Roshni Verma.
- Priyam Verma.
- Muskan Verma.
- Chandni Verma.
- Chandra Sekher Verma
- Neelam Verma.
- Prince Verma.
- Rajani Devi Toshawar.
- Vijay Kumar.
- Sajal Burman.
- Tarash Tudu.
The total loan amount that the appraiser complainant had certified was to the tune of Rs.4.09 Crore. Later on it was detected that the gold mortgaged by the above named borrowers were spurious and the bank suffered loss to the tune of Rs.4.09 Crore. Since, the bank had suffered substantial loss on account of the defective valuation, the bank did not allow further operations in appraiser’s/ complainant’s accounts maintained with the Bank, including the accounts wherein the complainant is a joint holder with Sonia Paul for the entire balance amount available in the said SB/FD/KND/RD accounts. By virtue of paragraph no.7 of the Indemnity Bond executed in favour of the Bank, the complainant/Indemnifier forfeits the right to claim the return of the security under any kind of accounts in the event of loss to the Bank and the said clause admits the rights of the Bank to hold the available balance in the accounts including joint accounts. Moreover, by virtue of the Indemnity Bond the complainant/Indemnifier had further agreed to not to challenge any of the said action of Bank in any Court of law.
The opposite parties categorically stated in evidence that in above mentioned 14 gold loan accounts, complainant failed to identify the spurious nature of gold.
The complainant did not care to rebut the above piece of evidence of the opposite parties in cross examination by way of filing questionnaires. It also appears that the complainant has not denied the same in his evidence.
Therefore, it is apparent of the face of the record that the above referred piece of evidence of the opposite parties remained un-rebutted and unchallenged in this case. The complainant has not denied that the South Indian Bank has suffered pecuniary loss to the tune of Rs.4.09 Crore persuasion in consequence of the certificates issued by the complainant certifying spurious gold as 22 carat gold.
Having considered the facts discussed above we are of the opinion that the opposite parties have rightly stopped operations in the savings accounts and fixed deposits which stands in the name of the complainant jointly with his wife Sonia Paul. We do not find any deficiency in service on the part of the opposite parties.
In view of the above discussion, the complainant is not entitled to get any relief as prayed for.
Thus, the Point No.2 is also decided against the complainant.
Therefore, the case fails.
Fees paid correct.
Hence, it is
O R D E R E D
that the complaint case be and the same is dismissed on contest with cost.
Dictated by
…................
President
