Andhra Pradesh

Nellore

CC/47/2013

D.Venkateswarulu - Complainant(s)

Versus

1.Manager,Mananpuram Finance ltd - Opp.Party(s)

C.P.Suresh

31 Aug 2015

ORDER

                                                             Date of filing       :  20-03-2013

                                                             Date of disposal  :   31-08-2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Monday, this the   31st  day of AUGUST, 2015.

 

          PRESENT:  Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.        

                                      President(FAC)& Member

 

                                      Sri N.S.Kumara Swamy, B.Sc., LL.B., Member

                             

      

                                 C.C.No.47/2013

 

D.Venkateswarulu, S/o.Rosaiah,

Aged 53 years,

R/o.12/43, Narayana Raopet,

Nagamma Quarters,

Near Old Municipal Office, Nellore.                         …         Complainant

 

                      Vs.

                                                                            

1. The Manager,

Manipuram Finance Ltd.,

Valapad, Trichur – 680567.

 

2. The Branch Manager,

Mannapuram Finance,

Subedarpet, Nellore.                                 …            Opposite parties

 

This matter coming on  25-08-2015  before us for final hearing in the presence of Sri C.P.Suresh, Advocate for the complainant and  Sri N.Sudheer Reddy,             

Advocate for the  opposite parties and having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                          (BY SRI M.SUBBARAYUDU NAIDU, PRESIDENT (FAC) ON BEHALF OF THE BENCH)

 

   This consumer case is filed by the complainant against the opposite parties 1 and 2 to direct them either to return back the gold ornaments with the same weight and to his satisfaction  or the opposite parties have to pay the present value of Rs.1,54,000/- gold ornaments which are namely 1.gold sarudu having a weight of 19.4 grams (2) gold Kammalu having weight of ¾ sovereign; and (3) gold chain which is having a weight of 3 ½ sovereign; after collecting Rs.90,000/- towards the loan amount; to pay compensation of Rs.2,00,000/- to him on account of the harassment towards him, in not return back gold ornaments since more than one year, to pay costs of Rs.5,000/- to him and  pass such other relief or reliefs as the Hon’ble Forum may deem it fit and proper in the interests of justice.

 

 

Factual matrix leading to filing of this Consumer case is as stated as hereunder:

 

(a) It is the case of the complainant that he took a loan from the 2^nd opposite party by pledging his gold ornaments, having loan A/c.No.0101550700723440.

(b)It is also further submitted by the complainant in paras 4 and 5 of his complaint that his gold ornaments which are pledged with the 2^nd opposite party at the time of availing loan, (1) gold sarudu which is having a weight of 19.4 grams; (2) gold Kammalu which is having a weight of ¾  sovereign and (3) gold chain which is having a weight of 3 ½  sovereign.  The 2^nd opposite party had provided a loan of Rs.26,000/-; Rs.18,000/- and Rs.36,000/- to the complainant towards the above said gold ornaments and the reset date is 08-09-2011.  In this regard, he had paid Rs.20,000/- towards interest to the 2^nd opposite party on 22-11-2012.  While so, when the complainant had approached the 2^nd opposite party to take back his gold ornaments by paying the full loan amount to 2^nd opposite party, the officials of Manapuram Finance had negligently told him that they sold away the said gold ornaments.

(c) It is also further submitted by the complainant that in paras 8 to 12 of his complaint that the 2^nd opposite party shall either to return back the said gold ornaments or pay the present value of them and to pay a compensation of Rs.2,00,000/- to him. Further, the complainant had submitted that the 2^nd opposite party, without giving notice to him, illegally sold away the said gold ornaments.  The action of the said 2^nd opposite party is nothing but not only deficiency in service but also dereliction of its duty.  The complainant/consumer is a beneficiary.  He had kept his said gold ornaments into 2^nd opposite party’s custody and it is their mandatory duty on the part of it to kept them in a safe condition until the payment of loan.

(d) There are causes of action to file this complaint.  It is therefore prayed the Hon’ble Forum may please to allow the complaint as prayed for.  Hence, the complaint.

 

II DEFENCE:

   The opposite parties 1 and 2 were resisted the complaint and denied the allegations of the complainant.

(i)It is submitted by the opposite parties in paras 1 and 2 of their written version that the complainant had taken a loan from the 2^nd opposite party by pledging gold ornaments as a security for the same under a contract agreeing to the terms and conditions thereof and the relationship between the complainant and the 2^nd opposite party is one that of the debtor and creditor.  The transaction does not fall within the purview of C.P.Act, 1986 since the case of the complainant is pertaining to accounts and its legal consequences on the basis of an agreement, the same will not fall within the purview of this Hon’ble Forum.  The Forum constituted under the Consumer Protection Act is not the proper Forum for considering accounts and deciding the amount due to any of the parties consequent to a contract which is to be done by the regular Court of Competent jurisdiction. 

 

(ii) It is also further submitted by the opposite parties in paras 3 to 6 of their written version that the opposite parties, is a non-banking financial company (NBFC) registered with the Reserve Bank of India under the provisions of Chapter III B of Reserve Bank of India Act 1934 and it is licensed to conduct financial business as per the provisions of the said Act.  The Registered/Administrative office of the Company is situated at “Manappuram House”, P.O. Valapad, Thrissur, Kerala, PIN – 680567 and it is having more than 3400 branches all over India.  The 2^nd opposite party is admitted that the complainant approached this opposite party and availed loan for pledging the  jewellery as follows:  

         

Sl.No.	Pledge No.	Pledge Date	Pledge Amount     Rs.
1.	0101550700722215	05/01/2011	18,000=00
2.	0101550700722686	31/01/2011	36,000=00
3.	0101550700723440	13/03/2011	26,000=00
4.	0101550700728621	12/11/2011	20,300=00

 

  In fact, the complainant had availed the gold loans after executing the loan agreements.  All the terms and conditions of the loan agreement and the different schemes etc were explained to the complainant and the complainant had agreed for the same.  A pawn ticket containing the terms and conditions like pledge number, date, loan amount, rate of interest, penal interest, reset date, the items of gold pledged, tenure of the loan etc was issued to the complainant bearing his signature and the signature of the 2^nd opposite party.  The complainant has to pay the interest within the reset period to avoid penal interest and should settle the pledges within 1 year, which is clearly mentioned in the terms and conditions of the loan agreement.  Since the loan period of pledge Nos.0101550700722686 and 010550700728621, is lapsed, the company intimated the expiry of the loan term and requested the complainant to release the pledged articles and also sent auction intimation notices.  Thereafter, the complainant came to the opposite party branch office and paid a total sum of Rs.20,000/- and re-pledged the same as pledge No.0101550700735227 & 0101550700735228 for avoiding auction of the pledged gold.  At the time of re-pledging the above pledges, the opposite party had informed the complainant regarding the expiry of the loan tenure of pledge No.0101550700723440 and requested to release the gold but the complainant had not made any attempts to release the gold.  The tenure of the loan account vide pledge Nos.0101550700735227 & 0101550700735228 will expires on 21-10-2013.  As per the terms and conditions of the loan agreements, the complainant has to close both the loan accounts on or before 21-10-2013 by remitting the outstanding dues.  The both accounts are under live accounts.

(iii) It is also further submitted by the opposite parties that in para 6 of their written version that the loan under pledge no.:0101550700723440 was availed by the complainant on 13-03-2011 and the reset period of the said loan was 6 months and the tenure of the loan was one year.  The complainant has to renew the same by paying interest within 6 months and to get live of the same, failing which the increased rate of interest is applicable.  But even after lapse of 6 months, the complainant has not paid any amount towards the said pledge account.  After the due date, the opposite party issued notice to the complainant requesting the repayment of the loan amount with up to date interest and the same was received by the complainant on 28-11-2011. But the complainant had not paid any amount towards his loan account.  The 2^nd opposite party submits that as per clause No.3 of the terms and conditions of the loan agreement, if full repayment is not made within 12 months from the date thereof, the company shall have the right to sell the ornaments, all the risk of the borrower either by public auction or by private agreement at any time after 2 weeks from the date of notice of sale to the borrower and adjust from the net proceeds of such sale all amounts due to the company in respect of the loan.  If there is any surplus on such sale the company shall have the right to and shall appropriate such surplus towards any other liability by the borrower by himself or jointly with others on any account whatsoever to the company in any of its office. 

(iv) It is also further submitted by the opposite parties that in para-7 of their written version that since the complainant did not release the pledge within one year irrespective of sending periodic notices, registered auction notice was issued to him on 20/04/2012 and he was informed that if he does not settle the pledge within 14 days of the receipt for the same, the gold will be auctioned as per the company rules to realize the amount due to the company.  But the same was returned as door locked for the 1^st visit and in the 2^nd visit no such addressee in the door number and returned the same on 10-05-2012.  The complainant did not furnish the fresh address if he shifts from the original address furnished to this opposite party.  As per clause No.6 of the terms and conditions of the loan agreement executed by the complainant, the address for all communication shall be the one furnished in the application form unless intimated to the company regarding any subsequent change of address in writing and under acknowledgement from the company.  The complainant has not informed his subsequent change of his address so far.  The list of the pledges, which would be sent to auction, had also been displayed in the notice board in the branch.  In spite of the best efforts of the opposite party, complainant did not come forward to pay any amount either towards the principal amount or towards the accrued interest.  As on 16-10-2012 the complainant was liable to pay a sum of Rs.40,360/- towards the principal and interest accrued thereon.  Having left with no other remedy, the 2^nd opposite party had auctioned the gold ornaments in auction on 16-10-2012 as per the terms and conditions of the loan agreement, for a sum of Rs.48,226/-.  As such an amount of Rs.7,866/- is left as auction surplus amount.  It is respectfully submits that the gold was auctioned at a sale price of Rs.2,762/- per gram.  The auction was conducted due to the inaction of the complainant in repaying the loan amount within the agreed loan tenure.  Even though, the tenure of the loan was one year, the opposite party auctioned the gold after 7 months after the expiry of the loan tenure.

(v) It is also further submitted by the opposite parties that in paras 8 to 10 of their written version that as per the terms and conditions of the loan agreement, the company shall have the right to and shall appropriate such surplus towards any other liability by the borrower by himself or jointly with others on any account whatsoever to the company in any of its office.  As such the opposite party had adjusted the surplus amount of Rs.7,866/- towards the due amount in pledge No.0101550700735227 on 12/11/2012.

 

          The 2nd opposite party submits that if there is any violation in conditions as accepted by the complainant, there is no deficiency of service on the part of opposite party and further the auction was also intimated to the complainant and the complainant did not receive the same as he was not residing in the address given to this opposite party.  Due to raise and fall of prices in bullion market and fluctuation in day to day market it is forced to conduct auction of Sarudu in pledge account No.0101550700723440 and adjust the same to the pledge loan account of the complainant.  The suppressing the fact of receipt of the notice on 28-11-2011 and also left without instructions, and changed the mobile number of the complainant filed this complaint vexatiously by showing other accounts in his claim to cause suffer 2nd opposite party from the regular course of business.  There is no iota of evidence is placed before the Hon’ble Forum and the complainant had failed to perform with the obligation in respect of pledged gold or auction of gold and adjust the same to the account of the complainant.

(vi) There is no cause of action to file this complaint.  The opposite parties have not committed any deficiency in service.  The complainant had wantonly knowing the fact well of mortgage and reliefs of jewellary of several occasions and sanctity of the opposite parties, filed this vexations complaint before this  Hon’ble Forum.  In the said circumstances of the case,  the Hon’ble Forum may be pleased to dismiss the complaint with exemplary costs.

III.  The complainant has filed his affidavit evidence on 22-04-2014 and the documents which are marked on his behalf  as Exs.A1 to A3; whereas the 2^nd opposite party has also filed affidavit  evidence through the branch head Mr.C.Varaprasad on 15-07-2014 and marked the documents Exs.B1 to B8.  The complainant has also filed his written arguments in support of his case on 12-08-2015.

IV. Basing on the pleadings available on record such as complaint, written version and documents of both parties, the points for determination of the case are namely:

 

(a)Is there any deficiency in service on the part of the opposite

    parties towards the complainant?

(b)Whether the complainant is entitled to get the reliefs as

    prayed for, if it is so, to what extent?

                   (c) To what relief?

V. Points Nos.1 and 2:    In view of these two points are inter-related with each other, we have taken up for discussion and determination.

 

       Sri C.P.Suresh, the learned counsel for the complainant has vehemently argued that the complaint, an affidavit and written arguments may be read as part and parcel of his oral arguments.  He has also further contended that reiterating the facts of the case once again and referred the decision of Hon’ble National Commission, New Delhi which is reported in the journal i.e., IV(2014) CPJ452 NC  held that in the absence of public notice proposed auction did not get adequate publicity and therefore tractor did not fetch prevailing market price in auction, deficiency in service on the part of the bank proved. 

 

 

        The said learned counsel for the complainant has further contended that the opposite parties are not at all issued a notice before auction of gold ornaments which are pledged by him to the opposite parties.  There is a deficiency in service and negligence of the opposite parties towards the complainant.  The complainant is entitled to get the compensation of Rs.2,00,000/- from the opposite parties.  Finally, he has prayed that the Hon’ble Forum may be pleased to allow the complaint with costs.

    On the other hand Sri N.Sudheer Reddy, the learned counsel for opposite parties has also vehemently argued that the written version, affidavits and documentary evidence may be read as part and parcel of his oral arguments.  He has also further contended that everything is done by the opposite parties accordingly by advancing the loan on pledge of gold ornaments and the complainant himself did not turn up to pay interest to the opposite parties and thereafter auction is held as per the terms and conditions of loan agreement.  He has also argued that the documents which are marked on behalf of opposite parties Exs.B1 to B8 will prove his contentions of them.  The complainant has not at all evinced any interest to release the gold ornaments inspite of several remainders to him.  It is the duty and obligation of the complainant to pay interest for every six months from the date of obtaining the loan and furnish correct address and phone contact numbers correctly.  The complainant had shown his deaf ear and now he is making so many allegations against the opposite parties which are false and against principles of law. Finally, the said learned counsel for the opposite parties has prayed that the Hon’ble Forum that there are no merits in the complaint and it is liable to be dismissed with exemplary costs.

                        Forum’s Findings and observations

     Heard, the said learned counsel for both parties and perused their record very carefully.  Parties led their evidence by way of filing their affidavits and the documents will prove the contentions of them.

 

    Now, the point is that whether the opposite parties have legitimately acted upon as per the procedure adopted by them against the complainant or not?  To answer the point, we have observed that the written version is well detailed one and the complainant himself did not evince any interest to pay interest to the opposite parties and not turn up to answer the opposite parties at any time and is irregular in payments of amounts to the opposite parties.  The documents of the opposite parties proved that they have taken steps to bring notice of complainant about all the events.  The complainant did not furnished his correct address and contract phone number.  The decision is referred by the counsel for the complainant did not help him and  the facts and circumstances of the case are different.  One who seeks equity must approach the Forum with clean hands.  Initially and primarily the fault lies with the complainant and he is defaulter in payment of interest inpsite of several remainders to him. The complainant has forgotten knowingly or unknowingly did not approach the opposite parties for the reliefs within the loan agreement tenure period for the reasons best known to him.

 

   There is no deficiency in service and negligence on the part of the opposite parties towards the complainant.  We have considered the rival submissions of the parties.  There is no substance in the complaint.  We are convinced with the arguments of the said opposite parties counsel.  Much discussion on those said aspects will not bear any fruit.  The complainant is unmoved from his side after availing loan from the opposite parties.  The burden of proof of the allegations of the complainant is definitely on him and they must be proved.  In these said facts and circumstances, of the case, we are of the opinion that the complaint is a fit case for dismissal as the approach of the complainant himself is against the procedure of law.  Hence, these two points are held in favour of the opposite parties and against the complainant.

 

POINT NO.3:  In the result, the complaint is dismissed without costs.

 

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 31st day of August, 2015.    

 

 

              Sd/-                                                                           Sd/-

         MEMBER                                                                 PRESIDENT(FAC)

 

  APPENDIX OF EVIDENCE

 WITNESSES EXAMINED FOR COMPLAINANT:

 

PW1

22-04-2014

:

D.Venkateswarulu, S/o.Rosaiah, Hindu, aged 53 years, R/o.12/43, Narayana Raopet, Nagamma Quarters, Near Old Municipal office, Nellore.

 

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

 

RW1

15-07-2014

:

C.Vara Prasad, S/o.Varalaiah, aged about 26 years, working in opposite party company as branch head at Subedarpet, Nellore branch, Nellore.

      

                                                                       

EXHIBITS MARKED FOR COMPLAINANT:

 

Ex.A1	15-02-2013	:	Photostat copy of legal notice sent to the opposite parties.
Ex.A2	08-09-2011	:	Photostat copy of the document which shows the details of the ornaments.
Ex.A3	15-02-2013	:	Postal receipt and acknowledgement.

 

EXHIBITS MARKED FOR OPPOSITE PARTIES:                      

 

Ex.B1	13-03-2011	:	DPN cum-Application along with terms and conditions along with pledge gold slip.
Ex.B2   Ex.B3   Ex.B4     Ex.B5   Ex.B6   Ex.B7   Ex.B8	13-03-2011            -            -     14-03-2013            -   30-07-2013   30-07-2013	:   :   :     :   :   :   :	Office copy of PAWN Ticket for Rs.26,000/-.   Postal acknowledgement card served to complainant.   Auction intimation letter along with acknowledgement.   Photostat copy of reply notice.   Served postal acknowledgement card   Statement of Auction details.   Account statement of pledge No.0101550700735227.

 

         Id/-                                                                                          PRESIDENT(FAC)

 

Copies to:

 

1. Sri C.P.Suresh, Advocate,

27-5-42, 19^th cross road, Balajinagar, Nellore.

 

2. Sri N.Sudheer Reddy, Advocate, Nellore.

          

 

Date when order copies are issued: