ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

1. The complainant has filed this complaint u/Sec. 35 of the C.P Act, 2019 alleging deficiency in service in not returning the gold jewelries weighing 140 gms deposited with OPPOSITE PARTY at the time of borrowing the loan, even though amount of Rs.5 lakh was paid towards the entire settlement of the said loan amount, for return of the pledged gold jewellaries  and for compensation of Rs.2 lakhs for causing mental harassment, mental strain, negligence and Rs.20,000/- towards litigation expenses, notice charges and for other reliefs as the Commission deems fit under the circumstances of the case

The brief facts of the complaint are:

2.    That OP is doing financial business and lending loans by keeping the gold ornaments as pledge.  That on 19.05.2020, 20.05.2020, 18.12.2020 and on 29.03.2021, complainant pledged gold ornaments weighing in all 140 gms and obtained a loan of Rs.4,09,927/- agreeing to pay the same with interest and get the gold ornaments released from the pledge. On 10.04.2021, he received a phone call from OP Bank informing that the tenure of the loan is over and if the amount is not paid, the gold ornaments would be auctioned in the public and the amount realized would be adjusted towards the loan and interest.  It was also informed that, a sum of Rs.5 lakh is due towards the loan and interest.  On 20.04.2021 at about 4-10 PM, he went to the OP office to settle the amount and to get the pledged jewels released. He paid Rs.5 lakh to the branch Manager Sri. Chandrashekar and requested him to issue NOC and to return the gold ornaments.  The said amount was paid in cash.  After receiving the said amount, the Manager informed him to come after 10 minutes to receive the receipt and gold ornaments as the server was not working.  Believing his words, he came after 10 minutes to receive the gold ornaments and receipts for having paid the amount.  Again Manager informed to come after 10 minutes.  When he again went to the Manager of the OP, again he requested to come after some time.   In spite of several visits, OP neither issued the receipt for having received the amount nor returned the gold ornaments, which amounts to unfair trade practice and deficiency in service and also a criminal offence for duping and cheating the public. He made a complaint to the J.P Nagar Police for fraud, cheating and criminal breach of trust on 05.05.2021 and the Police registered a criminal case under Crime No.74/2021 for the offence punishable U/Sec. 409 and 420 of the IPC and has filed a charge sheet against the Manager of the OP. A legal notice was issued to the OP demanding the receipt for having received the amount and also to return the gold ornaments. In spite of receiving the said notice, OP neither replied nor complied the demand.  He has been made to run from pillar to post and in spite of it, not handed over the gold ornaments.  Hence, which amounts to deficiency in service and unfair trade practice and prayed to allow the complaint.

3.    Upon the service of notice, OP No. 1 and 2 appeared before the Commission through their Advocate and filed the version contending that, complainant has to prove that, he is a consumer under the Consumer Protection Act.  It has admitted that, it is doing non-banking business by lending money by getting the gold ornaments pledged.   The complainant pledged the gold articles and obtained loan from them, whereas, he defaulted and was not regular in repaying the interest.  In view of the expiry of the loan period, gold loan account of the complainant was listed and after issuing the notice, the ornaments of the defaulted loan account holders would be auctioned in public by issuing notice to the account holders and also publishing the same in the News paper.     When the complainant has borrowed the money by pledging the gold ornaments how he adjusted Rs.5 lakhs within a short period is a doubtful situation and further as per the RBI guidelines only, person can make a cash transaction up to Rs.2 lakh only and over and above, has to be done through transfer of the amount from the Bank account.  The claim of the complainant that, the Manager of the branch received the entire loan amount and failed to give the NOC and the receipt for having paid the amount and further not handed over the gold ornaments is not true.  Since the complainant defaulted in paying the amount, now raising a false claim and making illegal claim.  

OP has denied the contention of the complainant that, its Manager Sri. Chandrashekar received Rs.5 lakh in cash and did not issue receipt and did not hand over the gold ornaments on the guise of the server down “in his office” and further went on postponing to issue the receipt and the gold jewelries.  The loan closure process of the company is an off-line process and the receipt of refund amount is done at Cashiers end.  The directions given by the staff to pay the amount to the Manager is against the established process of the company.  It has further denied the allegation that, the OP has cheated the complainant and further acted with breach of trust, unfair trade practice and deficiency of service. The complaint made by the complainant to the J.P Nagar Police against the Manager Sri. Chandrashekar is with ulterior motive which has to be proved by the complainant.    It has admitted receipt of the legal notice.  

It is contended that, the due date for settlement of the loan in respect of loan account No.13851 and 13857 fell on 19.02.2021 and 20.02.2021 and any settlement of pre-closure of the loan are giving concession shall be informed by writing and the cash settlement shall be through Bank only and not in cash.  The competence of pooling the large amount of Rs. 5 lakh in a short time is doubtful, when he is incapable of paying the interest from time to time.  The averments that he paid such a huge amount to the Manager is a knitted story and also lodging of the complaint to the Police is again concocted story to deceive OP and to get the ornaments without making the payment. There is no deficiency of service and no unfair trade practice and not liable to return the gold ornaments and Rs. 3 lakhs, and prayed the Commission to dismiss the complaint.

4.      In order to prove the case, both parties 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?

5.     Our answers to the above points are:-

POINT NO.1 AND 2 :Partly in the  Affirmative

                                        For the following.

REASONS

6.     POINT No.1:-

        Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the complainant pledged gold ornaments worth 140 grms and borrowed a sum of Rs. 4,09,927/-. 

        7.     It is the specific case of the complainant that, Chandrashekar, the Manager of the OP called him to pay Rs.5 lakh being the principal and interest towards the said loan on 10.04.2021 and on 20.04.2021 complainant, according to him arranged the amount went to the Branch at 4-10 PM and pad the amount to the Manager as the staff directed to pay the same to him. At that time, one Sri. Chandrashekar was the Manager who received the amount but, did not give NOC and receipt for having received the amount and did not return the gold ornaments and asked to come after 10 minutes as the server of his office was down.  It is also the case of the complainant that, when he went after 10 minutes, the same reason was repeated and asked to come after 10 minutes.  By the time he went to OP branch, by that time, the Manager of the OP was out of the office and hence, the receipt and NOC was not issued and the gold ornaments were not returned. Suspecting the bonafides of the Manager, gave a complaint to the J.P Nagar Police.

8.     Criminal case records have been produced in this case in Crime No.0074/2021 and a charge sheet has been filed against Sri.N.S Chandrashekar said to be the Manager of the OPs’ Branch.  The said criminal case has been initiated on the complaint made by this complainant only. 

9.     On perusing the charge sheet, it becomes clear that said Chandrshekar, the Manager of the OP has duped many persons in the same fashion as done to the complainant and took away the money and also the gold ornaments.

10.   The complainant has also produced the CD said to be the conversation with the said Chandrashekar, wherein he has admitted to repay the said amount and also sought for the copy of the FIR filed against him from this complainant. He has also undertaken to repay the amount.  In the said CD he has said “ºÀ¯ÉÆà ºÉý ¸Ágï FUÀ PÉý¸ÁÛ EzÁå,

ºÀÆA ¸Ágï, FUÀ PÉý¸ÁÛ EzÉ ºÉý.

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11.   When this is taken into consideration, the contention of the complainant that, he paid Rs. 5 lakh to the Manager Chandrashekar, who escaped with the said amount highly probabilises the contention of the complainant.  It is very well held by various decisions of the Hon’ble Supreme Court of India and various High Courts that, for the act of the servant, master to be held liable i.e., vicarious liability.  In view of this and further the OP has not at all placed any materials to show that the pledged gold ornaments have been auctioned and the amount has been realized and further not whispered about the criminal case against its Manager Chandrashekar and also no defense is taken in that respect, pre-supposes that OP is not coming forward with all facts and circumstances under which its Manger duped the complainant as well as other persons.  If it is only the case of the complainant, then we could have considered that the complainant has oven a story of paying the amount and not getting the receipt and the jewels in order to make unrighteous claim whereas, when the charge sheet is taken into consideration, the Manager of the OP has cheated many other persons in the same manner.  Hence, we are of the view that, the Manager of the OP has fled away with the money paid by the complainant in order to cheat the complainant by not issuing the receipt for having received the amount and also not returning the pledged gold ornaments, which is also clear from the conversion in the CD.  He has in the conversation stated that, “PÀA¥ÉèÃAmï PÉÆlÖgÉ zÀÄqÀÄØ §Azï ©qÀÄvÁÛ”, which amounts to deficiency in service, unfair trade practice.  Further OP has not placed any materials to show what action it has taken against the said Manager in recovering the said money.  Hence, we answer Point No.1 in the partly affirmative and in the result OP is liable to return the gold ornaments weighing 140 gms pledged with it immediately and also pay a compensation of Rs.50,000/- for causing mental agony and physical hardship and further liable to pay Rs.15,000/- towards litigation expenses and other incidental expenses.  Hence, we answer Point No.2 partly in affirmative and pass the following:  

ORDER

1.    Complaint is allowed in part with cost.

2.    The OPs are directed to return the gold ornaments pledged by the complainant while obtaining the loan weighing 140 gms of gold without insisting for any payment and also to pay Rs. 50,000/- for causing mental agony, stress and hardship and further Rs.15,000/- towards litigation and incidental charges.

3.   OPs are hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report on this Commission within 15 days thereafter.

4.   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 14^th DAY OF SEPTEMBER 2022)

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:

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

Copies of Documents produced on behalf of Opposite Party/s

MEMBER                 MEMBER                PRESIDENT

RHR*