State Consumer Disputes Redressal Commission
Icici Bank vs Parveen Kumar Sardana on 25 September, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA First Appeal No : 287 of 2016 Date of Institution: 06.04.2016 Date of Decision : 25.09.2017 1. ICICI Bank, near Adarsh Nagar, Dhand Road, Kaithal. 2. ICICI Bank, Tower Bandra Kurla Complex, Bandra East, Mumbai-400051 through its General Manager. Appellants-Opposite parties Versus Parveen Kumar Sardana s/o Sh. Fateh Chand Sardana, Opposite Police Station, Village Siwan, Tehsil and District Kaithal. Respondent-Complainant CORAM: Hon'ble Mr. Justice Nawab Singh, President. Mr. Balbir Singh, Judicial Member.
Argued by: Shri Sandeep Suri, Advocate for appellants. Shri Tanmoy Gupta, Advocate for respondent. O R D E R BALBIR SINGH, JUDICIAL MEMBER
This Opposite Parties' appeal is directed against the order dated January 25th, 2016 passed by District Consumer Disputes Redressal Forum, Kaithal (for short 'the District Forum') in Complaint No.141 of 2014.
2. Parveen Kumar Sardana-complainant (respondent herein) was provided loan by ICICI Bank-Opposite Party No.1 (appellant herein) under Gold Loan account No.086105000195 against 62.5 Tolas of gold in physical. The above mentioned 62.5 Tolas gold was handed over to the bank before sanction of the loan amount. The complainant paid an amount of Rs.9.00 lacs to one Ms.Renu Gupta w/o Sh. Sunil Kumar Gupta, Resident of House No.1903, Sector-45, Gurgaon to deposit the above mentioned amount and to clear his loan account. The payment of the above mentioned amount was received by the complainant by selling a flat in KLJ Group, Gurgaon. Instead of clearing the loan account, Smt. Renu Gupta in collusion with Branch Manager of ICICI Bank - Opposite Party No1 took away 62.5 Tolas gold belonging to the complainant on January 24th, 2013. The complainant had made payment of the above mentioned amount to Renu Gupta because the complainant had gone to Bangkok where he stayed from January 21st, 2013 up to February 02nd, 2013. Renu Gupta in collusion with Branch Manager of opposite party No.1 committed fraud with the complainant and took away gold ornaments belonging to him.
3. The complainant came to know regarding this fraudulent act in the month of October, 2013 when he visited the office of the opposite party No.1. The complainant filed criminal complaint against Renu Gupta and opposite party No.1 in Police Station Civil Line, Kaithal but the officials of the Police Station refused to register a case against Renu Gupta and the opposite party No.1. On December 03th, 2013, the complainant filed a criminal complaint regarding this occurrence before Superintendent of Police, Kaithal and on the basis of the direction of Superintendent of Police, a criminal case under Section 406, 420 of the Indian Penal Code was registered at Police Station, Civil Line, Kaithal under First Information Report (FIR) No.14 ON March 22nd, 2014 against Renu Gupta and the opposite party No.1. Renu Gupta is also facing a criminal case already registered against her at Civil Line Police Station, Bilaspur (Chhattisgarh) under Section 420 of the Indian Penal Code under F.I.R. No.515 of 2008. In this way, the opposite parties are liable to return 62.5 Tolas gold valuing Rs.28,000/- per 10 grams. The complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 with a prayer that the opposite parties be directed to hand over 62.5 Tolas gold or to pay cost of 62.5 Tolas gold at the prevailing market price which was Rs.28,000/- per 10 grams at the time the gold was deposited with the opposite parties; to pay an amount of Rs.2.00 lacs as compensation on account of un-necessary harassment and mental agony and an amount of Rs.21,000/- as litigation expenses.
4. The Opposite Party No.1 - ICICI Bank in its written version has taken plea that the complaint is not maintainable in the present form; that the complaint is bad on the ground of non-joinder of necessary parties as Smt. Renu Gupta has not been impleaded as party in the proceedings of this complaint and that the complainant is not covered under the definition of 'consumer' as provided under the Consumer Protection Act. It is admitted fact that the opposite party No.1 - ICICI Bank sanctioned loan under gold loan scheme to the complainant under account No.086105000195 against deposit of gold ornaments weighing 632.720 grams in the month of October, 2011. It is also admitted fact that after making payment of the loan amount by Ms. Renu Gupta, the gold loan account was transferred in her new account No.086105000544 on January 24th, 2013. After clearance of the loan amount, the gold ornaments deposited were handed over to Mrs. Renu Gupta. When the total loan amount Rs.8,22,119/- due towards the complainant's account was deposited, his loan account was closed. As per version of the opposite parties, the complainant himself admitted that he handed over Rs.9.00 lacs to Ms. Renu Gupta for clearing his loan account after selling his flat at Gurgaon, which shows good relations in between the complainant and Ms. Renu Gupta.
5. On January 10th, 2014 Ms. Renu Gupta also lodged a complaint against the complainant under Sections 323,376,506 of the Indian Penal Code at Police Station, Sector-40, Gurgaon under F.I.R. No.09. In the proceedings of that criminal case she has specifically stated that the gold ornaments used for obtaining loan by the complainant belong to her and later on the complainant himself submitted stamp papers and a letter bearing his signatures for transfer of gold loan account in the name of Renu Gupta. Any officer or official of the opposite parties bank committed no mistake. It is denied that the Branch Manager or any employee of the bank remained involved in an act of fraud in collusion with Renu Gupta. It is pleaded that the opposite parties are not liable to hand over 62.5 Tolas gold or to pay the market price of the gold with interest or any other amount as claimed in the complaint, to the complainant. It is prayed that the complaint filed by the complainant be dismissed with cost.
6. The parties adduced evidence in support of their respective claims before the District Forum.
7. After hearing arguments, vide impugned order dated January 25th, 2016 passed by the learned District Forum, the complaint filed by the complainant was allowed directing the opposite parties to return 632.720 grams gold which was deposited with the opposite parties as mentioned in Exhibit RB and to pay an amount of Rs.3,000/- as compensation on account of un-necessary harassment and mental agony. The opposite parties were also given liberty to recover the above mentioned amount from the employees who may be held responsible for wrongfully transferring the gold loan account and thereafter wrongfully releasing the gold to Renu Gupta, if they so desire. The opposite parties shall be jointly and severally liable to return the above mentioned gold ornaments to the complainant.
8. Aggrieved with the impugned order dated January 25th, 2016 passed by the learned District Forum, the appellants-opposite parties have filed the instant appeal bearing No.287 dated 6.4.2016 with a prayer to set aside the impugned order dated January 25th, 2016 and to dismiss the complaint filed by the complainant. The appellants-opposite parties have also taken plea that the net weight of the gold ornaments is 606.020 gms and not 632.720 gms. as has been mentioned in the impugned order. The appellants-opposite parties have prayed that the appeal be allowed.
9. We have heard learned counsel for the parties and perused the case file.
10. It is admitted fact that the opposite party No.1 in the month of October, 2013 sanctioned a loan in favour of the complainant under gold loan scheme and sanctioned loan amount was paid to the complainant after the complainant deposited gold ornaments weighing 632.720 grams having net weight 606.020 grams as mentioned in document Exhibit RB. Admittedly, the payment of the loan amount was made on behalf of the complainant by Renu Gupta wife of late Sunil Kumar and after depositing that amount, a new gold loan account was opened in the name of Renu Gupta bearing account No.086105000544. The gold loan account was transferred in the name of Renu Gupta and loan account No.086105000195 of the complainant was closed. The opposite party transferred the gold ornaments in the account of Renu Gupta on the basis of authority letter dated January 02nd, 2013 (Exhibit RC). In this letter, the complainant has mentioned that Renu Gupta will visit the bank for deposit of the total loan amount. The complainant desired that after closing his loan account, transfer the gold loan account in the name of Renu Gupta. As per version of the opposite parties as the total loan amount was deposited by Renu Gupta considering request of the complainant vide letter Exhibit RC along with an affidavit on stamp paper, the gold loan account was transferred in the name of Renu Gupta on January 24th, 2013. The above mentioned affidavit has not been adduced in evidence in this case.
11. During the course of arguments, there was no controversy of any type that after the gold ornaments were transferred in the account of Renu Gupta on August 06th, 2013, those gold ornaments were handed over to Renu Gupta after she closed her loan account after depositing the entire payment. As per version of the complainant in his complaint, he handed over an amount of Rs.9.00 lacs to Renu Gupta to clear his loan account as he was to remain in Bangkok from January 21st, 2013 to February 02nd, 2013. It is evident from the copies of the entries in the passport of the complainant (Exhibit C/3) that the complainant remained in Bangkok from January 21st, 2013 up to February 02nd, 2013. As per version of the complainant he had not authorised Smt. Renu Gupta to get transferred the gold ornaments from his loan account to her own loan account. As per version of the complainant, he managed the payment of an amount of Rs.9.00 lacs by selling his flat at Gurgaon.
12. Version of the opposite parties in this case is that the loan account of the complainant was cleared by making payment of the balance amount by Renu Gupta on January 24th, 2013 and on the same date, considering request in letter Exhibit RC, the gold ornaments were transferred in gold loan account of Renu Gupta in good faith and there was no foul play or fraud on the part of Branch Manager or any other employee of the bank. On the other hand, version of the complainant is that his gold ornaments have been taken away by Renu Gupta after committing fraud in collusion with the Branch Manager of the opposite parties bank.
13. From the documents and pleadings on the file it clearly appears that the complainant Renu Gupta was living in Live-in-Relationship with the complainant from the year 2008 till the year 2013 when dispute arose between Renu Gupta and the complainant. Renu Gupta got registered a criminal case on January 10th, 2014 under Sections 323,376,506 of the Indian Penal Code at Police Station Sector-40, Gurgaon against complainant-Parveen Sardana. It is evident from the copy of the F.I.R. (Exhibit C-6) and copy of the judgment dated January 30th, 2015 (Exhibit C-8) passed by the learned Additional Sessions Judge, Gurgaon that Renu Gupta had levelled allegations against the complainant that during ill health of her husband, the complainant started living in their house and developed illicit relations. As per statement of Renu Gupta, after death of her husband, the complainant assured to get married with her and developed sexual relations with her. Thereafter, she was subjected to maltreatment by the complainant. The complainant has mentioned in her statement before the Police as mentioned in the copy of F.I.R. Exhibit C-6 that the complainant used to torture and beat her as well as her children. She has also mentioned in her statement that at the time of obtaining gold loan, the complainant deposited the gold ornaments belonging to her and the amount for clearance of the loan account of the complainant was also deposited by her. She admitted that after getting the loan transferred, she obtained gold ornaments from the bank in the month of August, 2013. In criminal case under F.I.R. No.9 dated January 10th, 2014 (Exhibit C-6) under Sections 323,376,506 of the Indian Penal Code, accused Parveen Kumar was acquitted mentioning that sexual relation in between the complainant and the prosecutrix were with consent of each other.
14. It is evident from the copy of judgment dated July 28th, 2014 passed by learned Judicial Magistrate Ist Clas, Kaithal in Criminal Case No.33 of 2012 titled as State vs. Parveen Sardana, under Sections 323, 498-A, 506, of the Indian Penal Code (Exhibit RF) that Smt. Sudha Sardana wife of complainant-Parveen Sardana had also levelled allegations against her husband that the complainant was living in adultery with Renu Gupta since long time. It is also alleged that Smt.Sudha Sardana and her children were time and again maltreated, beaten and tortured by Parveen Sardana, her husband. It is also alleged that the complainant since many years is living with Renu Gupta. In that criminal case accused-Parveen Sardana was held guilty and convicted for the offences under Sections 323,498-A I.P.C. For the commission of offence under Section 498-A I.PC., Parveen Sardana was sentenced to undergo rigorous imprisonment for a period of two years and to pay an amount of Rs.2,000/-as fine. Parveen Kumar Sardana was held guilty and sentenced under Section 323 I.P.C. also.
15. It will also be pertinent to mention here that regarding the dispute of gold loan transaction in this complaint case, Parveen Kumar Sardana, got registered a criminal case under F.I.R. No.14 dated January 22nd, 2014, under Sections 406, 420 I.P.C. at Police Station Police Line, Kaithal against Renu Gupta as well as Branch Manager of the opposite parties bank. Except copy of F.I.R. Exhibit C-7, no other document regarding the above mentioned criminal case has been placed on the file regarding further proceedings. At the time of hearing arguments, the opposite parties have placed on the file copy of order dated August 09th, 2016 passed by Judicial Magistrate Ist Class, Kaithal and statement of complainant Parveen Sardana recorded on the same date mentioning that the complainant Parveen Sardana has compromised with accused-Renu Gupta. Considering statement of Parveen Sardana, Renu Gupta was allowed to be admitted on bail vide order dated August 09th, 2016.
16. Apart from it, record on the file shows that Parveen Sardana and Renu Gupta remained at Bilaspur, Chhattisgarh in connection with certain business transactions and purchasing agricultural land. At that place also, criminal cases were registered against Renu Gupta as well as the complainant. Much discussion is not needed of those criminal cases in this order. The circumstances mentioned above clearly indicate that the complainant and Renu Gupta were living in Live-in-Relationship and used to live in the same house together from the year 2008 onwards. Husband of Renu Gupta was not enjoying good health and after his death in the year 2010, as per allegations the complainant and Renu Gupta started living together in Live-in-Relationship. Allegations of Renu Gupta as well as wife of the complainant Parveen Gupta are there in two criminal cases that the complainant and Renu Gupta were living in adultery together since long, more particularly from the year 2010 onwards. It also appears to be strange that after the relief was granted to the complainant by the learned District Forum, the complainant compromised with Renu Gupta so that she may get bail easily from the court.
17. It appears that the complainant do not want to recover the gold ornaments from Renu Gupta and wants that the opposite parties bank should be burdened to deliver to the complainant the gold ornaments of the same weight or market price of the ornaments to the complainant.
18. At per discussions above in detail, situation is clear that it is the version of the complainant himself that fraud has been committed by Smt. Renu Gupta in collusion with the Branch Manager and other officials of the opposite parties. As per version of the complainant himself Renu Gupta has been successful in taking delivery of gold ornaments deposited by him with the opposite parties bank under gold loan scheme. So, it is clear that gold ornaments regarding which the complainant has filed the present complaint have been taken away by Renu Gupta and the gold ornaments are neither with the bank nor have been given to the Branch Manager or any other official of the bank. It is strange that the complainant has filed the present complaint against the opposite parties bank alone knowing fully well that gold ornaments have already been delivered to Renu Gupta. This fact creates more suspicion as in the beginning the complainant did not implead Renu Gupta as party to the proceedings of this case and when the opposite parties filed an application for impleading Renu Gupta as party to the proceedings of this case, the complainant strongly opposed that application which was dismissed by the learned District Forum vide order dated January 16th, 2016.
19. Version of the complainant is that he had paid Rs.9.00 lacs to Renu Gupta to clear his bank loan account under gold loan scheme. The complainant has not taken plea that he has given any other application or written request authorizing Renu Gupta to deposit the amount in his account except the letter Exhibit RC. The complainant in his complaint has nowhere denied regarding issuance of authorization letter Exhibit RC by putting his signature in his complaint. It is the version of the opposite parties that the authority letter Exhibit RC was issued by the complainant by putting his signatures. It is also not the version of the complainant that his signatures were ever obtained by Renu Gupta on plain papers and those signatures were used for preparation of authority letter Exhibit RC. At this stage, findings also cannot be given that Renu Gupta got forged signatures of the complainant on letter Exhibit RC. If Renu Gupta was to forge signatures of the complainants, then she would have done so very carefully and would have minimized the space in between the signatures of the complainant and the written portion on the authority letter Exhibit RC. It appears that all it happened due to collusion in between the complainant and Renu Gupta. Possibilities also cannot be ruled out that the space in between the written portion and signatures of the complainant might have been increased so that lateron version of the complainant may be believed. It is also true that Renu Gupta is neither family member of the complainant nor she is having any blood relation with the complainant.
20. The complainant has placed on the file a letter addressed to the Investigating Officer Crime Branch, Kaithal (Exhibit C-4) attached with a letter dated August 21st, 2014 containing guidelines regarding Overdraft Facility against gold coins and gold ornaments, account, account servicing and closure, accounts etc. In this letter, it is mentioned that in case customer is not able to visit the bank for closure of the facility due to work assignment in defence or not in the country or on grounds of self medical emergency, the ornaments can be released to the family members of the borrower based on customer's authorization, token card and relationship documents. Certainly Renu Gupta is not covered under the family members and blood relatives as mentioned in letter dated August 21st, 2014. On the basis of that letter, learned District Forum has given findings in favour of the complainant observing that the delivery of gold ornaments could be possible due to faults of the opposite parties or because the officials of the opposite parties helped Renu Gupta to take away the gold ornaments. It will be pertinent to mention here that gold ornaments were delivered to Renu Gupta on August 07th, 2013 and the above mentioned letter was issued on August 21st, 2014. No other rules, instructions or guidelines in this regard have been placed on the file. We feel findings of the learned District Forum on the basis of the above mentioned letter are not justified in case it is proved that Renu Gupta was authorised by the complainant by writing the authority letter Exhibit RC to get transferred the gold loan account and thereafter to take the delivery of gold ornaments.
21. Moreover, even if it be considered that there is such guidelines, even then there are possibilities that the delivery of gold ornaments to the complainant and transfer of the gold loan account may be due to bonafide mistake on the part of Branch Manager or other officials of the bank. We feel that personal interest of any type of the Branch Manager or Mr. Karan Aggarwal or any other official of the bank, was not involved in this transaction. It is not the version of the complainant that Karan Aggarwal or any other officer of the bank received bribe from Renu Gupta in connection with this transaction. It is also not the version of the complainant that Karan Aggarwal or any other officer of the bank is related to Renu Gupta. It is common case of both the parties that gold ornaments have been taken away by Renu Gupta. No other person appears to be beneficiary in this transaction except Renu Gupta. It is strage that the complainant knowing fully that the gold ornaments have been delivered to Renu Gupta, did not prefer to file civil suit against Renu Gupta, rather preferred to file the present complaint only against the opposite parties-ICICI Bank. Although the complainant got registered a criminal case against Renu Gupta and Branch Manager of the bank under Sections 406, 420 I.P.C. under F.I.R. No.14 on March 22nd, 2014 in Police Station Civil Line, Kaithal, but it is strange that as and when the impugned order was passed by the learned District Forum, the complainant has made statement before the learned Judicial Magistrate Ist Class, Kaithal that he has compromised with Renu Gupta. On the basis of his statement, Renu Gupta was allowed bail easily. It is strange that still the complainant has a very soft corner towards Renu Gupta knowing fully well that she has obtained delivery of the gold ornaments from the bank.
22. Keeping in mind all these circumstances, interest of justice requires that directions should not be given to the opposite parties-ICICI Bank to make payment of the market price of gold ornaments weighing 632.720 grams gold and other relief as granted by the learned District Forum in favour of the complainant. The gold ornaments are with Renu Gupta and in this situation findings regarding return of gold ornaments or price of the gold ornaments are not justified. Although in absence of Renu Gupta, findings cannot be given but there may be possibilities of a collusion in between the complainant and Renu Gupta to grab huge money in the shape of gold ornaments from the bank playing clever tactics keeping in mind the past conduct, behavior and relationship in between the complainant and Renu Gupta. Resultantly, findings are given that the opposite parties are not liable to pay any amount to the complainant as claimed in the complaint or awarded while passing the impugned order and the same is liable to be set aside.
23. As a result, as per discussions above in detail, the appeal is accepted, the impugned order is set aside and the complaint stands dismissed. The complaint, if willing, can seek remedy against Renu Gupta in the Civil Court or any other appropriate authority if provision of law still permits him to do so.
24. The statutory amount of Rs.1500/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.
Announced:
25.09.2017 (Balbir Singh) Judicial Member (Nawab Singh) President CL