ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Party (herein referred to as OP) under section 35 of the Consumer Protection Act 2019 for the deficiency in service in not returning the gold jewelries pledged at the time of borrowing money and for return of the same and further for a compensation of Rs.1,00,000/- for causing him mental agony and Rs.50,000/- towards litigation expenses  and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; OP is a banking company doing business in Banking and lending money by getting the gold ornaments pledged.

3.     Complainant by pledging a gold necklace, gold chain, gold ring and gold ear rings in weighing totally 84.900 grams borrowed a sum of Rs.1,40,900/- on 1.10.2015 to meet his family necessities. He was paying the interest and other charges regularly. Only due to pandemic 2019 he could not pay the interest for a period of one year. On 23.09.2019 OP-1 issued a notice regarding auctioning of the gold ornaments for non-payment of the dues. At that time he went to OP’s office, requested him not to auction the same and that he would pay the amount due. Inspite of it, OP for one or the other reason, postponed the return of the gold ornaments and not ready to return the same and ultimately he was intimated that the said gold ornaments was already auctioned and the amount realized adjusted to the loan amount. He was asked to make a complaint in writing.  He filed a complaint in writing and also through email requesting to close the gold account and return the gold jewelries.  Inspite of the complainant issuing a legal notice demanding return of the gold ornaments, OP though received the notice neither replied nor return the gold ornament.  Not returning the gold ornaments inspite of the complainant being ready and willing to pay the loan, amounts to deficiency in service and unfair trade practice which has caused him mental agony and loss of peace of mind and also financial loss, OP-1 and 2 have acted in a more negligent way. On 26.11.2020, the bank provided him copies of the notice but were not ready to show him  acknowledging for having the complainant receiving the said notice. 

4.     On 09.11.2020 he contacted the customer care of OP who confirmed that the loan account has been closed whereas the gold ornaments were not auctioned. When the Complainant has paid the entire interest portion, there was no need for OP to auction the gold or declare the gold loan account as NPA and hence the act of Op amounts to deficiency in service and unfair trade practice and prayed to allow the complaint as prayed. 

5.     Upon the service of notice, OP-1 and 2 appeared before the commission through their advocate and filed version. Whereas notice sent to OP-3 though served  remained absent and hence placed exparte. 

6.     In the version filed by OP-1 and 2, it is contended that the complainant by pledging the gold ornaments borrowed a sum of Rs.1,40,900/- for a period of 24 months and the EMI to commence from  01.11.2015 to 01.10.2017 . Since the complainant was unable to pay the amount due and on his request the loan was being renewed from time to time.  It has denied that the complainant was regular in paying the installment and during COVID 19 period he remained defaulted.  The complainant was given notice on 23.09.2019 regarding non-payment of the amount and intention of the OP to auction the said jewelries in public auction.  Whereas, complainant did not receive the same though it was sent to the address given by the complainant which is also the address mentioned in the complaint.  Complainant has agreed at the time of executing the loan documents,  that, the notice sent to the address mentioned in the application form and in case any incorrect or improper address is given, we agree that we shall be solely and absolutely liable for the same and the consequences of non-delivery of notice/communication addressed to me by the bank at the aforesaid address email ID, Phone or mobile numbers. 

7.     Complainant is put to strict proof of fact that he approached the OP bank and informed that he would be paying the amount due and not to auction the gold ornaments.  It has specifically denied having received any letter by the complainant on 26.11.2020.  The same has not been given to them.  On 09.09 .2019 they issued a notice to the complainant recalling the loan and demanding the complainant to pay the amount due towards the said borrowing within 7 days from the receipt of notice. Further on 23.08.2018 itself it had issued a notice intimating the default committed by the complainant. It is mentioned in clause 23 of the loan agreement, that the complainant has agreed for recalling the loan by the OP in case of default.  OP has every right to sell the gold ornaments pledged in case complainant did  not pay the amount due within 7 days from the date of recalling the loan. Having left with no other alternate, published the auction sale notice on 19.11.2019 intimating the complainant that the gold ornaments would be auctioned in public on 28.11.2019. 

8.     The same was auctioned on 28.11.2019 and M/s Balaji Jewelries, No.275/1, 1^st floor Raja Market Avenue Road, Bangalore purchased the said jewells are for Rs.2,77,290/- and adjusted Rs.1,47,199/- towards the gold loan dues, and the remaining Rs.1,27,014.19 was adjusted towards the dues payable towards the credit card NO.0000101350900001594236 and further OP has a right of lien to adjust the amount towards the other loan.  During November-2019 the rate of the gold per gram was Rs.3,840/- and the same geometrically increased. Because of the increase of the rate, to make wrongful gain.  Though the complainant was aware that the gold jewelries were auction 28.11.2019, he kept quite all the time and after a period of one year,  has filed the present complaint. There is no dereliction of duty, negligence or deficiency in service on their part. 

9.     The allegation that they were not ready to show the acknowledge for having sent the notice, is all false and further the complainant speaking to customer care and customer care informing that the gold jewelries were not auctioned are all concocted.  Since the complainant did not pay the interest for one year the said loan account become NPA. In view of the above, prayed to dismiss the complaint by denying all the allegations made against in each and every para of the complaint.

10.   In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

11.   Our answers to the above points are:-

POINT NO.1 & 2 :    IN THE NEGATIVE

                                For the following.

REASONS

POINT No.1 & 2:-

12.   On perusing the complaint, version, documents, evidence filed by  both the parties, it becomes clear that, the complainant borrowed a sum of Rs.1,40,900/- on 01.10.2015 by pledging gold ornaments weighing 84.900 grams  to be repaid within two years. Complainant himself admitted that he could not pay the interest and the EMI’s in the year 2019 due to COVID 19.  It is the case of the OP that they issued a notice informing the default in the month of August 2019 and September 2019 whereas the complainant did not pay the amount and get the pledged gold jewelries released in his favour.  OP has produced copies of the notice and also the paper publication to show that it has followed the due procedure in respect of the defaulter in paying the loan amount obtained by them by pledging the gold ornaments. Even the paper publication regarding holding the public auction of the gold jewelries pledged by the complainant is also produced. Hence we cannot find any fault in that procedure that Op has followed in bringing the said gold jewelries to auction, to recover the amount due from the compliant.

13.   OP has also produced the details for how much of amount the said jewelries were sold to M/s Balaji Jewelries. The gold ornaments were sold to Balaji Jewelries in the auction for Rs.3,431.81 per gram and totally 84.900 grams jewels were sold by taking into consideration its net weight at 80.800 grams and realized a sum of Rs.2,77,290/-. This is on 28.11.2019 and the Op after adjusting the dues towards the gold loan i.e. Rs.1,47,199/- the remaining amount Rs.1,22,014.59 has adjusted towards the credit card dues. When this is taken into consideration, we find no deficiency in service on the part of OP as, OP has every right to auction the gold jewelries pledged to recover the same and also the general lien to adjust the surplus amount to recover other dues by the borrower. Hence we answer POINT NO.1 IN THE NEGATIVE, and in the result complainant is not entitle for any of the relief claimed in the complaint and we answer POINT NO.2 ALSO IN THE NEGATIVE and pass the following :

ORDER

1. The complaint is dismissed. No order as to cost.

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

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 12^th day of SEPTEMBER 2021)

MEMBER         MEMBER       PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the List of gold ornaments issued by OP-1

Ex P2: Copy of the loan sanction order dt:01.10.2015.

Ex. P3: Copy of the Gold loan application.

Ex P4: Copy of the loan sanction order dt:23.011.2017.

Ex P5: Copy of the Loan renewal sanction order.

Ex P6: Copy of the Loan sanction order.

Ex P7: Copy of the Loan sanction order.

Ex P8: Copy of the payment challan dt:14.05.2019.

Ex P9: Copy of the notice for sale of pledged gold.

Ex P10: copy of the notice issued by OP.

Ex P11: Copy of the written complaint.

Ex P12: Copy of the acknowledge having receipt of the written complaint through email issued by the complainant.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri B.Niranjan, Legal Manager of HDFC Bank

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Gold loan application form.

Ex R2: Copy of the credit card brochure cum application form.

Ex R3: Copy of the statement of accounts.

Ex R4 to R6: Copy of the three copies of the notices  dt:23.08.2019, 23.09.2019 and 14.11.2019.

Ex R7: Copy of the auction sale notice publication.

Ex R8: Copy of the letter to successful bidder dt:28.11.2019.

Ex R9: Copy of the post sale notice dt:04.12.2019.

MEMBER         MEMBER       PRESIDENT

RAK*