FEDERAL BANK LTD. vs GAJANAN S.ALVA

THIS Revision Petition arises out of the order dated 30.9.94 of the Goa State Commission modifying the order of District Forum Panaji dated 21.10.93 and granting the complainant Rs. 80,000/- towards the value of his gold ornaments and Rs. 5000/- towards compensation and Rs. 500/- as costs.

THE complainant alleged in the complaint that with a view to obtain a loan from the Federal Bank Ltd., the opposite party, he had pledged gold ornaments weighing 160 grams on 17.3.92 and obtained a loan of Rs. 40,000/- after executing requisite documents. The loan was repayable by instalments and the cut out date for repayment was Rs. 17.3.93. The complainant further alleged that he received a letter dated 12.1.93 from the opposite party demanding an amount of Rs. 46,274/- outstanding against his name in the Gold A/c to be paid within 15 days failing which the Gold was likely to be put to auction. According to the complainant, he contacted opposite party on 11.3.93 for making payment of his dues, but was informed that the Gold in question was auctioned on 10.3.93 to realise the dues of the Bank. The complainant alleges that before the cut out date of 17.3.93, the gold ornaments were put to auction for a paltry sum of Rs. 51,000/- although the market value of his gold ornaments is Rs. 80,000/-. The complainant alleged deficiency in service of opposite party and negligence in putting gold ornaments to sale before the cut out date thus causing substantial loss to him. The opposite party in its version pleaded that the complainant signed the loan application on 17.2.92 when the loan was sanctioned and disbursed after execution of a demand promissory note dated 17.2.92 for Rs. 40,000/- by the complainant in favour of the Bank. The loan was repayable after 12 months, thus cut out date was 17.2.93 not 17.3.93. The stand is that the auction was held only after the due notice dated 12.1.93 to the complainant, on the expiry of the loan period i.e. after 17.2.93 and that a public announcement in ''Navhind Times'' dated 2.3.93 about an impending gold auction on 10.3.93 under Account No. 1560 held and maintained by the complainant was issued. The contention is that in the Pledge Notice due to a clerical mistake the due date of loan is given as 17.3.93 instead of 17.2.93. It is submitted that there is no negligence and no deficiency in service on the part of opposite party in putting to sale the gold ornaments which fetched a price of Rs. 55,491 /-.

THE District Forum after evaluating the evidence on record held the Bank guilty of negligence and deficiency in service as also the complainant being guilty of contributory negligence. The District Forum assessed the compensation to Rs. 5,000/-. In the two cross appeals by the parties before the State Commission, it reappraised the evidence and held that from the Pledge Token it is evident that the Bank auctioned the gold ornaments of the complainant with undue haste and before the due date of 17.3.93 and by taking the shelter of false plea of clerical mistake the Bank is trying to cover up its negligence. In view of the finding that the gold in question was auctioned before the due date, the State Commission held that negligence is referable to the Bank alone and there was no contributory negligence of the complainant. The State Commission stated that the market price of the gold as alleged by the complainant was Rs. 80,000/- and, therefore, the complainant lost Rs. 80,000/- and awarded this amount towards the value of the gold ornaments besides Rs. 5,000/- as compensation and Rs. 500/- as costs of the appeal.

THE learned Counsel for the Revision Petitioner attempted to take us to the loaning documents to contend that the cut out date was 17.2.93 and not 17.3.93 and thus the findings of the District Forum and State Commission are against the records not sustainable in law. In our view the finding of the State Commission is based on evidence of the Pledge Token in A/c No. 1560 wherein admittedly the due date of loan is given as 17.3.93 and does not call for any interference by us in the exercise of revisional jurisdiction. However, the market value of the gold ornaments of Rs. 80,000/- assessed by the State Commission is only based on the allegation of the complainant without there being any proof. It is the common case of the parties that the complainant had pledged his gold ornaments weighing 160 grams for Rs. 40,000/-, thus at the rate of Rs. 250 per gram. The Bank had placed on record of the District Forum that in the public auction held on 10.3.93 it was sold for Rs. 55,491/-thatis@Rs.349/-pergramfor realisation of the loan account outstanding with interest and other charges of Rs. 51,283/-. The account was closed and a balance of Rs. 4,208/- was payable to the pawner complainant. The Bank had also placed on record before the State Commission the market price per gram as shown in Business Today dated 22.3.93 (copy filed) which showed the market price of gold as Rs. 4093/- per 10 gram in February/March, 1993. The finding of the State Commission is vitiated as it has not taken into consideration a vital document as to the market value of gold during February/March, 1993. The market value of 160 grams of pure gold would thus come to Rs. 65,500/- but considering that the gold ornaments are generally of 22 caret, the value of 160 grams of gold ornaments would roughly be Rs. 60,000/-. The State Commission could not fix the market value of the gold ornaments merely on the allegation of the complainant without there being any cogent evidence, material or proof to fix the value of gold ornaments at Rs. 80,000/-. The fixing of the price by the State Commission of the gold ornaments is arbitrary and thus illegal. The impugned orders of the State Commission as well as of the District Forum are modified to the extent that the value of the gold ornaments is assessed at Rs. 60,000/- instead of Rs. 80,000/- and after adjusting the dues of the Bank of Rs. 51,283/-, only the balance amount of Rs. 8,717 shall be payable to the complainant besides Rs. 5,000/- towards compensation as assessed by the District Forum and upheld by the State Commission. The parties shall bear their own costs of this Revision Petition.