Andhra Pradesh

Chittoor-II at triputi

CC/18/2017

B.Mahendra Reddy, S/o Chandrasekhar Reddy - Complainant(s)

Versus

ICICI Bank Limited, Represented by its Branch Manager - Opp.Party(s)

Mohan Thammisetty

06 Dec 2018

ORDER

                                                                                                          Filing Date: 18-03-2017                                                                                                           Order Date: 06-12-2018

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, CHITTOOR AT TIRUPATI.

 

Present:-  Sri. T.Anand, President (FAC)

      Smt.T.Anitha, Member

 

THURSDAY THE SIXTH DAY OF DECEMBER, TWO THOUSAND AND EIGHTEEN

 

C.C.No.18/2017

Between

B. Mahendra Reddy, S/o. Chandrasekhar Reddy,

Hindu, aged about 45 years,

Residing at Chennareddigaripalli Village, 

H/o.Kotabailu, Chinnagottigallu Mandal,

Chittoor District.                                                                          … Complainant

 

And

ICICI Bank Limited,

Represented by its Branch Manager,

Tilak Road Branch, Tirupati Town,

Chittoor District.                                                                         … Opposite Party

 

         This complaint coming on before us for final hearing on 31.10.2018 and upon perusing the complaint and other relevant material papers on record and on hearing of Sri. Mohan Thammisetty, counsel for the complainant and Sri. G. Rajesh Babu, counsel for the opposite party having stood over till this day for consideration, the Forum made the following.

ORDER

DELIVERED BY SRI. T.ANAND, PRESIDENT (FAC)

ON BEHALF OF THE BENCH

         This complaint is filed by the complainant under section 12 of the Consumer Protection Act 1986, seeking direction to the opposite party to return gold ornaments pledged by the complainant for availing loan account No. 630905030023 on 07.10.2014 failing which direction to pay cost of the gold ornaments on present market value after deducting the principal and interest on yearly rests till September, 2016 and pay the difference amount to the complainant, to pay compensation of Rs. 1,00,000/- towards deficiency of service  and to pay costs of the complaint.

         2. The facts in brief are as follows:-   the complainant is an agriculturist and availed gold loan of Rs.91,000/- from the opposite party bank by pledging gold ornaments of 59 grams under Facility application No.JL00236709 with loan account No. 630905030023 on 07.10.2014. As per the token card issued by the opposite party, the repayment date for the loan amount is 07.10.2015. The complainant could not repay the loan within stipulated time due to drought conditions prevailing in their village and sustained loss in agriculture.

         The opposite party bank assured complainant that they will renew the repayment date keeping in view of drought condition and will communicate to the complainant to his address about renewal of loan date or for releasing the gold. In the month of September 2016, complainant approached the opposite party bank for getting release of gold ornaments by offering to pay principal and interest on the loan.  The opposite party was not inclined to receive the loan as the gold ornaments pledged by him were already auction by opposite party and auctioned amount was adjusted to the loan amount due by the complainant. But the opposite party never received any notice of prior to the auction of gold ornaments. The opposite party is under obligation to intimate complainant about the auction of gold ornaments. The complainant lost opportunity to release the gold ornaments as he was not intimated about auction. The opposite party also failed to furnish the particulars of the auction and the surplus amount if any retained by the opposite party after conducting auction. The RBI guidelines are violated by opposite party in not following the procedure to conduct auction of gold ornaments. In spite of his repeated personal approaches and requests, the opposite party bank did not furnish the auction particulars and gave evasive replies. The complainant suffered mental agony due to attitude of the opposite party. The market value of gold ornaments is more than 1,75,000/-. The complainant issued legal notice dt: 26.11.2016 calling upon the opposite party to return the gold ornaments pledged by him. But having acknowledged notice, they failed to comply the demands of the complainant. Hence the complaint.

        3. The opposite party filed written version contending as follows:-  At the outset the complaint averments are denied. It is alleged that complainant approached the Forum with unclean hands. It is admitted that complainant approached the opposite party bank with a request to grant jewel loan and Rs.91,000/-  was sanctioned towards jewel loan vide account No. 630905030023 on 07.10.2014 by securing gold jewels weighing 59.60 grams as security for loan. The said loan has to be repaid on or before 07.10.2015 as per agreed terms. The complainant is fully aware of the rate of interest, tenure of loan and other details relating to the jewel loan and accordingly executed loan agreement. The complainant thereafter signed and executed loan agreement against pledge of gold ornaments vide agreement No. 630905030023 in favour of the opposite party, after being fully satisfied about its contents. In case of any default in payment of loan, the opposite party has a first charge on the loan jewel. Regular and timely payment is essence of the contract and therefore as per the terms and conditions contained in the agreements the complainant is bound to pay the loan amount by 07.10.2015. The opposite party bank has got right authority and power to issue notices and demand its lawful dues  and may sell gold jewel by way of auction for recovering the loan amount under the Facility Agreement. In spite of reminders, the complainant failed to pay the amount. The outstanding due amount is Rs.91,000/- with accrued interest as on 10.10.2015. The opposite party denies all the averments in Para No.5 of the complaint.

         The specific denial is with regard to complainant approaching opposite party for renewal of loan and the opposite party assuring him that they will send notice to him before conducting auction of gold ornaments. The complainant never approached opposite party for payment of dues within the stipulated time. The opposite party issued registered and UCP demand notice dt: 19.10.2015 to complainant calling upon him to discharge the gold loans with accrued interest. But the complainant did not comply the demand of the opposite party bank. The opposite party again issued demand notice        dt: 03.11.2015 to the complainant calling upon him to comply the demands, again the opposite party issued register demand notice dt: 14.12.2015 to the complainant making similar request and cautioned the complainant that the bank will be compel to invoke the clause 32/48  of the Facility Agreement. Since complainant did not comply the request of bank, the opposite party has no other alternative except to publish auction notice in newspaper Andhra Jyothi & Decan Chronicle dt: 29.12.2015 fixing the date of auction on 08.01.2016. After auctioning the gold, the balance amount was kept in complainant’s account. The opposite party called upon the complainant to prove that gold was auctioning unilaterally without issuing prior notice to the complainant. There is no question of deficiency of service on part of the opposite party as alleged by the complainant hence it is prayed to dismiss the complaint.

        4.  The complainant filed chief evidence affidavit as PW-1 and got marked      Ex:A1 to A5. On opposite party side, one Rama Mohan, Branch Manager of opposite party bank filed chief evidence affidavit as RW-1 and got marked Ex: B1 to B7.

       5.  Now the Point for consideration is:-

         Whether there is deficiency of service on part of opposite party bank in conducting gold auction without issuing notice to complainant? If so, to what extent, the complainant is entitled for the reliefs sought in the complaint?

         6.Point:-   There is no dispute with regard to Ex:A1. Ex:A1, A2, A4 and A5. Similarly there is no dispute with regard to Ex:B1 which is true copy of agreement executed by complainant under gold loan No. 630905030023. Ex:A1 is the token card issued by opposite party bank to the complainant dt: 07.10.2014 i.e. on the date of sanctioning gold loan. Ex:A2 is office copy of legal notice issued by the complainant to the opposite party dt: 26.11.2016. Ex:A3 is cancelled cheque issued by complainant to opposite party bearing No. 163250. Ex:A4 is original copy of token card issued by opposite party to the complainant dt: 07.10.2014. Ex:A5 is the true copy of bank statement pertaining the gold loan for the period from 01.06.2013 to 31.08.2013.

         Ex:B1 is the loan agreement pertaining  the gold loan. Ex:B2 is the opposite party issued demand notice dt: 19.10.2015 to complainant stating that the facility has matured  on 07.10.2015 an amount of Rs.1,03,775/-, being principal and interest thereof is due and payable by the complainant as on 17.10.2015 and further they requested the complainant to visit the branch within 15 days from the date of issue of this notice, with the token card for either renewal of the facility or redeeming gold ornaments by paying the amount due and further it is made clear in Ex:B2 that if complainant fails to renew the facility or redeem the gold ornaments by  clearing loan amount, appropriate action will be initiated. Further it is made clear in Ex:B2 that one GENPACT INDIA is authorized to handle the gold loan amount of complainant. Ex:B3 is also similar demand notice dt: 03.11.2015 addressed to the complainant. Ex:B4 is office copy of notice for enforcement of security issued by opposite party dt: 14.12.2015. Wherein it is stated that since complainant failed to make payment of amount due under the Facility despite serving notices and issuing reminders, the opposite party is constrained to enforce its security interest by way of selling the pledged gold ornaments through online auction being conducted at complainant’s risk to recover the outstanding amount and if any surplus amount remains after adjusting loan amount; the same will be refunded to complainant. Ex:B5 is true copy of return cover with acknowledgment due. Ex:B6 is publication of auction notice with regard to auction of gold ornaments pertaining to the loan of complainant which was publish in Andhra Jyothi District Edition dt: 29.12.2015. Ex:B7 is reply notice issued by opposite party bank dt: 16.12.2016 to the complainant.

         7.  The contention of counsel for complainant is that, no prior notice was served to the complainant with regard to conducting auction of gold ornaments and as such the auction if any conducted by the opposite party is legal and as such the complainant is entitled for the gold ornaments or amount equivalent to gold ornaments as per market value. The address of complainant given in the complaint is “Chennareddigaripalli Village, H/o.Kotabailu, Chinnagottigallu Mandal, Chittoor”. Ex:A3 and A4 were  sent to the same address to the complainant under certificate of posting. It is to be presumed that original of Ex:A2, A3 and A5 were received by complainant. As per Ex:B1, the complainant is liable to clear gold loan of Rs.91,000/- within the stipulated time of one year i.e. which will expire on 07.10.2015. It is an admitted fact that the complainant had not clear the dues within the stipulated time. The complainant says that, he visited the opposite party bank and requested to renew the payment schedule beyond one year since he suffered loss in the agricultural due to drought conditions prevailing in their village. Except the oral testimony of PW-1 no documentary proof is filed to show that the complainant approached opposite party bank within one year of taking gold loan for extending the payment date. The documents filed by the opposite party shows that the complainant had agreed to terms and conditions of gold loan by signing Ex:B1 and thereafter failed to repay the gold loan within stipulated time of one year i.e. 07.10.2015. The opposite party bank put the complainant on notice by publishing in Ex:B6 daily newspaper district edition dt: 29.12.2015 to the effect that the pledged gold ornaments pertaining to the loan of the PW-1will be put to online auction on 02.01.2016 between 12.30 to 03.30Pm. The online website is also mentioned in the said notice. So, in view of Ex:B6 it cannot be said that no prior notice was issued to the complainant before auctioning the gold ornaments. It is for the complainant to show that, he did not receive Ex:B2, B3,B4 as the notices were addressed to the complainant to the address mentioned in the loan agreement.

         8. It is not the case of complainant that, his address is changed. Even if the address is changed, it is the responsibility of complainant to intimate the present address to opposite party bank.Therefore it is to be presumed that the complainant is having knowledge about the Ex:A2, A3 and A4. Hence we hold that there is no deficiency of service on part of the opposite party bank in auctioning the gold ornaments. It is the submission of opposite party bank that, after adjusting to the due amount under loan the balance amount of Rs.10,573/- remained and credited in the loan amount of complainant. We therefore held that the opposite party is not entitled to seek return of gold ornaments which were auctioned by the opposite party bank and further the complainant is also not entitled for any compensation towards deficiency of service but the complainant is entitled to receive the Rs.10,573/-  lying in his loan account. 

         In the result, complaint is therefore dismissed with direction to the opposite party to return the Rs.10,573/- (Rupees ten thousand five hundred and seventy three only) within six (6) weeks from the date of receipt of copy of this order to the complainant.            

        Dictated to the stenographer, transcribed and typed by her, corrected and pronounced by me in the Open Forum this the 06^th day of December, 2018.

            Sd/-                                                                                                            Sd/-

   Lady Member                                                                                          President (FAC)

 

APPENDIX OF EVIDENCE

Witnesses Examined on behalf of Complainant/s.

 

PW-1: B. Mahendra Reddy (Chief Affidavit filed).

Witnesses Examined on behalf of Opposite PartY/S.

RW-1: K. Rama Mohan (Chief Affidavit filed).

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

Exhibits (Ex.A)	Description of Documents
	Photo copy of Token Card (ICICI Bank Limited) issued by the opposite party to the complainant. Dt: 07.10.2014.
	Office copy of the Legal Notice issued by the Complainant to the Opposite Party with Postal Receipt. Dt: 26.11.2016.
	ICICI Bank Limited, Tirupati Branch Cancelled Cheque in Original issued by the complainant to the Opposite Party bearing No.163250.
	Original copy of Token Card (ICICI Bank Limited) issued by the opposite party to the complainant. Dt: 07.10.2014.
	True copy of ICICI Bank Limited Statement of Account for the period from 01.06.2013 to 31.08.2013 filed by the Complainant.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

Exhibits (Ex.B)	Description of Documents
	True copy of Loan Agreement executed by complainant under Gold Loan A/c. No.630905030023 along with Aadhar Card. Dt: 07.10.2014.
	Office copy of Demand Notice issued by the Opposite Party. Dt: 19.10.2015.
	Office copy of Loan Recall Notice issued by the Opposite Party. Dt: 03.11.2015.
	Office copy of Notice for Enforcement of Security issued by the Opposite Party with Bulk Booking Receipt filed by the O.P. Dt: 14.12.2015.
	True photo copy of Return Cover with Acknowledgement Due filed by the O.P. Dt: 14.12.2015.
	Scan photo copy of Paper Publication Andhra Jyothy Chittoor Edition filed by the Opposite Party. Dt: 29.12.2015.
	Reply Notice issued by the Opposite Party. Dt: 16.12.2016.

 

 

                                                                                                                         Sd/-

                                             President (FAC)

 

// TRUE COPY //

// BY ORDER //

 

 

 

Head Clerk/Sheristadar,

Dist. Consumer Forum-II, Tirupati.

 

Copies to:  1) The Complainant, 

                   2) The Opposite party.