Date of filing: 30.3.2013.
Date of disposal:12.7.2013.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM - II:
VIJAYAWADA, KRISHNA DISTRICT
Present: SRI A. M. L. NARASIMHA RAO, B.SC., B. L., PRESIDENT
SMT N. TRIPURA SUNDARI, B. COM., B. L., MEMBER.
SRI S.SREERAM, B.COM., B.A., B.L., MEMBER
FRIDAY, THE 12TH DAY OF JULY, 2013
C.C.No.49 of 2013
Between:
Pallepogu Nirmala Rao, S/o Lazarus, R/o Mokkapati Nagar, Near Water Tank, Nandigama, Krishna District.
. … Complainant.
AND
Indian Bank, Rep., by its Branch Manager, Nandigama Branch, Nandigama, Krishna District.
.… Opposite Party.
This complaint coming on before the Forum for final hearing on 5.7.2013 in the presence of Sri K.Kishore Kumar, Counsel for complainant and Sri D.Satyanarayana, Counsel for opposite party and upon perusing the material available on record, this Forum delivers the following:
O R D E R
(Delivered by Hon’ble Member Smt N.Tripura Sundari)
This complaint is filed under Section 12 of the Consumer Protection Act, 1986.
1. The averments of the complainant are in brief:
The complainant is having SB account with the opposite party bank he availed gold loan of Rs.35,000/- by pledging his gold ornaments weighing of 23.400 grams Nanuthadu on 10.4.2012. Subsequently he discharged the entire gold loan along with interest as per the norms of the opposite party bank on 30.1.2013 and requested the opposite party to return the pledged gold ornament. The opposite party informed that the gold ornament will be returned later due to pressure of work. Later the complainant approached the opposite party bank on several times, but the opposite party failed to return the gold ornament till to-day. Therefore the complainant got issued a legal notice demanding the opposite party to return the gold nament. The opposite party received the said notice and kept quiet which amounts to deficiency in service. Hence the complainant is constrained to file this complaint against the opposite party praying the Forum to direct the opposite party to return the gold ornaments, to pay compensation of is.35,000/- and to pay costs to the complainant.
2. The version of the opposite party is in brief:
The opposite party denied all the allegations fo the complainant and submitted that one Mrs.Shaik Meerabi obtained a loan and for the said loan amount the complainant stood as guarantor for repayment of the said loan amount. Mrs.Shaik Meerabi has not paid the instalments regularly and committed default. The bank gave several reminders orally and also in writing to the said Shaik Meerabi and the complainant who stood as surety. But they have not paid any amount towards discharge of the said loan which is still pending. In fact the guarantor i.e., the complainant is also not paying any amount to the loan of the Shaik Meerabi. The opposite party gave legal notice through its advocate on 14.5.2010 and after receiving the said notice he approached the opposite party and denied his signature in the guarantee agreement. Mrs.Shaik Meerabi obtained loan of Rs.50,000/- on 5.9.2006 for her business purpose. The opposite party kept the A/c as non performing asset. The complainant who gave guarantee on 16.4.2012 to said Meerabi gave a letter admitting that the signature in the agreement relates to him only. The complainant approached the opposite party and asked for return of gold ornament and the opposite party demanded to discharge the debt of Mrs.Shaik Meerabi account also. The said Shaik Meerabi is not known to the opposite party and she had not paid any amount under the said loan. So the gold ornament pledge by the complainant is secured to the loan account of the shaik Meerabi. After receipt of the notice of the complainant on 16.2.2013, a reply notice was sent on 22.3.2013 with all facts. The necessary legal proceedings have been taken before the court at Nandigama in G.L.No.797/2013 for recovery of the loan given to Shaik Meerabi against her and her guarantor i.e., the complainant for not discharging the obtained loan. The main borrower and the guarantor both jointly and severally are liable to pay the said loan amount with interest thereon and costs. There is no deficiency in service on the part of opposite party and prayed to dismiss the complaint with costs.
3. On behalf of the complainant he gave his affidavit and got marked Ex.A.1 to Ex.A.5 and on behalf of the opposite party Mr.Marella Venkateswarlu, Branch Manager gave his affidavit and got marked Ex.B.1 to Ex.B.6.
4. Heard and perused.
5. Now the points that arise for consideration in this complaint are:
1. Whether there is any deficiency in service or unfair trade practice on the part of opposite party in not releasing the gold ornament of the complainant even though he discharged his gold loan?
2. If so is the complainant entitled for any relief?
3. To what relief the complainant is entitled?
POINTS 1 AND 2:-
6. On perusing the material on hand the complainant having his S.B. A/c under Ex.A.1 with the opposite party, availed gold loan under Ex.A.2 on 10.4.2012 for Rs.35,000/- by pledging his gold ornament Nanuthadu weighing 23.400 net weight of 20 grams. The complainant says that later he discharged the said loan with interest under Ex.A.3 on 30.1.2013 and asked the opposite party to release his gold ornament. But the opposite party told the complainant that as he was pressure with his work, to come after next day. The complainant approached the opposite party on several times to get back his gold ornament but the opposite party is postponing the same to release the gold ornament. As the opposite party did not release his gold ornament he got issued a legal notice Ex.A.4 dated 16.3.2013 through his advocate demanding the opposite party to release his gold ornament immediately otherwise he would proceed for legal actions against the complainant. The opposite party received the same under Ex.A.5.
7. The opposite party says that he gave reply under Ex.B.4 dated 22.3.2013 stating that it was true that the complainant having his S.B. A/c with the opposite party from 2008 he availed gold loan for Rs.35,000/- by pledging gold ornament and discharge the same on 30.1.2013, but he stood as a guarantor on 5.9.2006 for the loan taken by Shaik Meerabi for an amount of Rs.50,000/- and she did not pay any amount towards the said loan. The opposite party gave legal notice Ex.B.1 dated 14.5.2010 to the principal borrower and the guarantor i.e., the complainant. In return the complainant got issued a legal notice Ex.B.2 dated 31.1.2011 through his advocate denying the signature on guarantee agreement that the signature was not related to him and the said signature was forged by someone. Later the complainant came to the opposite party bank and gave a letter Ex.B.3 on 16.4.2012 admitting his signature on guarantee agreement for the loan of Shaik Meerabi. The necessary legal proceeding have been taken against the borrower and the guarantor (complainant) by filing a suit in the court at Nandigama G.L.No.797/2013 under Ex.B.5. Ex.B.6 dated 10.4.2012 is application for gold loan taken by the complainant. We, the Forum noticed in Ex.B.6 dated 10.4.2012 that the bank shall have lien on the ornament(s) pledged in respect of any other sum or sums of money which the borrower(s) may be liable to pay to the bank either solely or jointly with other person or persons at any office of the bank. Therefore we hold that there is no deficiency in service on the part of opposite party towards the complainant in not releasing the gold ornament of him even though he discharged the gold loan as he is the guarantor of the loan taken by Mrs.Shaik Meerabi and the bank has right to retain the gold ornament till discharge of the loan of Shaik Meerabi.
8. The opposite party relied upon a decision of National Consumer Disputes Redressal Commission, New Delhi in Branch Manager, Union Bank of India & Anr Vs. Tele Surya Rao in Revision Petition No.336 of 1996 decided on 17th April, 1997 wherein the National Commission observed that “a lien is a right of defence, not a right of action, and consequently can be claimed in respect of a time barred debt. Where the customer deposited its security with a bank, the bank is given a general lien over all the securities, except in cases where the deposit was for a larger purpose or where there was an agreement or contract in consistent with the lien. The banker’s lien give the bank a right on all the moneys of the constituent in its hand so that they may be transferred to whatever account the Bank chooses, to set-off or liquidate the debt”.
POINT No.3:-
9. In the result, the complaint is dismissed without costs. Typewritten by Stenographer K.Sivaram Prasad, corrected by me and pronounced by us in the open Forum, this the 12th day of July, 2013.
PRESIDENT MEMBER MEMBER
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the complainant: For the opposite parties:-
P.W.1 P.Nirmala Rao D.W.1 M.Venkateswarlu,
Complainant Branch Manager of the
(by affidavit) opposite party
(by affidavit)
DOCUMENTS MARKED
On behalf of the complainant:
Ex.A.1 . . Photocopy of Savings bank pass book issued by the
opposite party in the name of complainant.
Ex.A.2 10.04.2012 Photocopy of gold pledge identify card.
Ex.A.3 30.01.2013 Photocopy of common pay in clip of opposite party for
Rs.38,330/-.
Ex.A.4 16.03.2013 Office copy of legal notice.
Ex.A.5 . . Postal acknowledgement.
For the opposite parties:
Ex.B.1 14.05.2010 True copy of legal notice issued by the opposite party.
Ex.B.2 31.01.2011 True copy of reply notice issued by the complainant.
Ex.B.3 16.04.2012 True copy of letter from the complainant to the oppositeparty.
Ex.B.4 22.03.2013 True copy of reply from the opposite party to the counsel for complainant.
Ex.B.5 . . Photocopies of plaint filed under Section 26 Order IV, rule 1 of the CPC, Statement filed under Order VI, Rule 14-A, of CPC and plaint (mortgaged) schedule filed by the plaintiff before the Prl. Junior Civil Judge, Nandigama.
Ex.B.6 10.04.2012 Copy of Application for loan/overdraft against pledge of gold ornaments.
PRESIDENT
