Per Shri A.Z.Khwaja, Hon’ble Presiding Member.
1. The appellant/Federal Bank Limited has preferred the present appeal challenging the order passed by the District Consumer Commission of Nagpur, in Consumer Complaint No.130/2016, whereby the complaint filed by the respondent came to be partly allowed.
(The appellant and respondent shall be referred by their original nomenclature).
2. Facts leading to the filing of the complaint may be stated in brief as under :-
3. The complainant/respondent Chandrakant Bhurkunde is resident of Ramnagar and was in need of amount and so he had taken loan of Rs.70,000/- from the O.P/Federal Bank Ltd. on 05/02/2014 by placing on mortgage the gold bangles weighing 42 grams. Complainant was under obligation to repay the loan on or before 05/02/2015, but he was unable to pay the loan on 05/02/2015 within stipulated period. Complainant has further contended that on 08/04/2015 he received the notice from O.P./Federal Bank demanding amount of Rs.82,403/- within a period of three days. Complainant received the notice sent by the O.P. on 17/04/2015 and he expressed his readiness to pay the loan amount. Complainant also met the officer of Federal bank and also expressed his willingness to pay back the loan amount. Subsequently complainant came to know that without waiting for the complainant to pay the loan amount taken from the Federal bank, the Federal bank sold 42 grams of gold bangles, which was kept by way of mortgage by private auction. O.P. had issued notice on 22/06/2015 and within 7 days completed the process of auction. Complainant was not given any notice of the auction conduct by Federal bank and amount received in auction came to be deposited with the bank. Complainant has contended that the O.P. namely Federal bank had indulged in deficiency in service by not giving due notice to the complainant before selling the gold of the complainant by auction. Complainant then filed the Consumer Complaint under section 12 of the Consumer Protection Act 1986.
4) O.P. namely Federal bank has resisted the complaint by filing written statement. O.P. has admitted that the complainant had availed loan of Rs.70,000/- by keeping two bangles weighing 42 grams by way of mortgage. O.P. has denied that the Federal bank had conducted the auction in irregular or improper manner by not giving due notice to the complainant. O.P. has contended that the complaint itself was not tenable in law and so deserves to be dismissed with cost. O.P. has also contended that the bank had spent amount of Rs15,840/- for giving public sale notice for sale of gold in Times of India on 23/06/2015. O.P. has also denied that it is necessary to give advertisement of public auction in two local news papers. For the forgoing reasons O.P. has contended that complaint filed by the complainant is not tenable in law and deserves to be dismissed with cost.
5) The complainant has led his evidence by filing evidence affidavit. Similarly the opposite party has also led its evidence and also placed reliance upon documentary evidence. Both complainant and opposite party also submitted their brief written notes of argument on record. Learned District Consumer Forum, Nagpur, thereafter heard the counsels and after going through the evidence adduced on record, passed order on 11/07/2018 and thereby allowed the complaint.
6) I have heard Shri Gadkari learned advocate for the appellant and Shri Awachat, learned advocate for respondent. At the out set it is submitted by the learned advocate for the appellant that the learned District Consumer Commission has not appreciated the documents and evidence in a proper perspective and has given findings which were perverse in nature. It is submitted by the learned advocate Shri Gadkari that the learned District Consumer Commission have not taken in to consideration the fact that after taking the credit facility from the appellant/bank the present respondent/complainant had him self given authorization to the O.P./bank to recover the loan amount by selling of mortgage ornaments if he does not repay the entire loan amount along with interest. In this connection Shri Gadkari, learned advocate for the appellant has drawn my attention to the copy of letter addressed by the respondent/complainant to the Manager Federal bank where in the respondent had authorized the bank to disposed of the above gold ornaments by private sale at such price as may be deemed reasonable. Further Shri Gadkari, learned advocate for the appellant has also submitted that the appellant bank was not under any mandatory duty to issue the notice to the complainant regarding private auction conducting by the bank, but these aspects were not taken in to consideration by the learned District Consumer Commission and the learned District Consumer Commission had wrongly observed that no intimation was given to the complainant. According to Shri Gadkari, learned advocate for the appellant there was no requirement to issue any notice to the respondent/complainant as it was not public auction. Shri Gadkari has also assailed the other findings given by the learned District Consumer Commission. I have heard Shri Awchat, learned advocate for respondent on these aspects. Shri Awchat learned advocate has strongly rebutted these contentions advanced by the learned advocate of the appellant. Firstly it is submitted by Shri Awachat learned advocate that the appellant/bank had acted in great haste in holding an auction. Shri Awchat, learned advocate for the respondent has submitted that the respondent had approached the Federal bank with an amount of Rs.82,000/- on 13/06/2015. Respondent/complainant had also demanded the details of the auction as well as statement of loan account, but the same was not provided and instead of accepting the amount of Rs.82,000/- the
appellant bank proceeded to hold auction on 30/06/2015. In this regard Shri Awchat, learned advocate for respondent/complainant has also drawn my attention to the copy of representation made to the Manager Federal bank on 30/09/2015. If we go through this representation/letter addressed to Manager Federal bank, complainant has clearly stated in para No.5 that he made the necessary arrangement of Rs.82,000/- and also visited the bank on 30/06/2015 for making payment for outstanding amount. But despite this, auction came to be conducted and the gold owned by the complainant came to be sold. Shri Awachat, learned advocate for the respondent has also submitted before me that in case notice or intimation was given to the respondent then it was easily possible to the respondent to take part in the auction and also purchase the gold which was being sold for recovering the amount. I do find considerable force in this contention of learned advocate for the respondent. It is quite true that the respondent/complainant had given an authorization to the appellant bank to dispose of the Gold Ornaments in case of any default in repaying the loan amount on or before 05/02/2015. But in my view that situation would have arisen in case the respondent who was the borrower was not at all in position to repay the loan availed. But in the present case before us the respondent has clearly contended that he was not only ready with the sum of Rs.82,000/- but had also visited the bank on 13/06/2015 but no cognizance of the same was taken of this fact and the appellant/bank proceeded in a haste to continue with auction of gold bangles which had came to be mortgaged. During the course of argument Shri Gadkari learned advocate for the appellant has also drawn my attention to the copy of Gold loan sale notice which also mentioned name of the present complainant Chandrakant Bhurkunde Shri Gadkari, learned advocate for the appellant has submitted that the auction conducted by the appellant/bank was not at all public auction and therefore no notice was required to be given. But the appellant/bank has itself placed on record one letter Dt.03/10/2015 addressed to respondent. In this letter it is clearly mentioned that the gold ornaments were privately sold but the details were published in a news paper. In my view even though the appellant/bank was within its right to sale the gold ornaments by way of private sell even then it was necessary for the appellant/bank to given due intimation to the respondent/complainant mentioning that the gold ornaments were going to be sold on the given date of auction. But admittedly, no such notice or intimation came to be given to the present complainant. Merely because the respondent/complainant had given authorization to the appellant to sell gold ornaments, no such inference can be drawn that the respondent was not going to pay the loan amount at all. I therefore feel that the learned District Consumer Commission was quite right in holding that no proper intimation came to be given to the respondent/complainant regarding the private sale of gold ornaments and there by he was deprived of taking part in the auction of his own gold ornaments. As such I do not see any error in these findings of the District Consumer Commission Nagpur.
6) During the course of argument, the learned advocate for the appellant has also placed reliance upon one judgment of Hon’ble National Commission in the case of Janak M.Chandan……V/s…… Ahmednagar Sahakari Bank Ltd, reported in CDJ 1992 (Cons) Case No.064. I have gone through this judgment and I find that the facts were quite similar. In that matter also the question was whether bank had made haste in putting the gold ornaments in auction. But in that case the Hon’ble National Commission had observed that the matter could have been decided only by Co-operative Court under the Maharashtra Co-operative Societies Act as the respondent was Co-operative Bank. As such I feel that the judgment rendered by the Hon’ble National Commission will not go help the appellant.
7) In the light of the aforesaid discussion I am unable to accept the contentions advanced by the learned advocate for the appellant that the learned District Consumer Commission has committed any error in giving findings while deciding the complaint. On the other hand the learned District Consumer Commission has given reasons which are cogent and satisfactory and so I pass the following order.
// ORDER //
- Appeal is dismissed.
- No order as to costs.
- Copy of the order be furnished to both parties free of cost.
