Andhra Pradesh

Nellore

CC/96/2015

Pathapati Lakshminarayana,alliyas Pathapati Venkata Lakshminarayana, S/o Lt. Bhasker Rao - Complainant(s)

Versus

1.The Chairman,India Infoline Finance Ltd.(IIFL) - Opp.Party(s)

Inperson

21 Sep 2017

ORDER

 

Date of Filing     :05-10-2015

                                                                             Date of Disposal:21-09-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Thursday, this the  21^st day of   SEPTEMBER, 2017

 

          Present: Sri Sk.Mohd.Ismail, M.A., LL.B., President

                         Sri K. Umamaheswara Rao, M.A., B.L., Member

 

C.C.No.96/2015

 

Pathapati Lakshminarayana 

  @  Pathapati Venkata Lakshminarayana,

S/o.Late Bhasker Rao,

Aged about 40 years,

Mutyalapadu Village,

Lingasamudram Mandalam,

Prakasam District.                                                                  ..… Complainant 

 

                                                             Vs.

 

1.	The Chairman, India Infoline Finance Limited (IIFL), Registered Office 2A-10, 13th Floor, Parinee Cresenzo, C-38 and 39, G-Block, Behind MCA, BKC, Bandra East, Mumbai-400051.
2.	India Infoline Finance Limited (IIFL), Branch  Manager, Opposite to  Government Hospital, Trunk road, Kavali Town, S.P.S.R.Nellore District.                                                ..…Opposite parties

                                                             .

          This complaint coming on 13-09-2017  before us for hearing in the presence of   complainant appeared in person and Sri T. Kotaiah, advocate for the opposite parties 1 and 2 and having stood over for consideration till this day and this Forum made the following:

 

ORDER

                     (ORDER BY  Sri.Sk.MOHD.ISMAIL, PRESIDENT)

 

The complainant filed this complaint against   the opposite parties 1 and 2 seeking relief  to handover the  gold ornaments by receiving  the loan due amount as per records, Rs.2,00,000/- towards  mental agony and costs of the complaint.

 

2.   The  brief averments of the complaint are as follows that:-  the complainant   approached  the opposite party No.2 to obtain gold loan by attracting to advertisement and its orally assured customer benefit  oriented offers.  The second opposite party  received gold  ornaments and gave loan of Rs.1,61,000/- on                  27-03-2013 after obtaining  several signatures on several printed papers at his office.  The entire  loan process  completed within  30 minutes  and total weight of  gold ornaments pledged is 0.73 grams i.e., chain and solid  items (0.75g).

  The complainant states that due to some unexpected financial problems he could not pay the instalments as stated by opposite parties.  There after the complainant approached opposite party No.2 and explained his financial problems and requested some time to clear the loan due.  But the Branch Manager, who is opposite party No.2 clearly  stated that the matter is not in his  purview but under control of Registered  Office, Mumbai (1^st opposite party).

The complainant submits that the opposite parties 1 and 2 did not intimate to him any particulars  about the auction  of his gold  ornaments pledged in their bank for loan purpose to full fill his urgent financial needs. The opposite parties 1 and 2 did not informed about the particulars of the  auction of the gold ornaments  belongs to the complainant.

The opposite party No.1 sent one legal notice  to the complainant                     dated 18-07-2015 demanding Rs.33,881/-as the deficient loan after recovering the loan amount through action and also intimated to him that if the complainant failed to pay the deficient loan amount  the same will be recovered either by attaching his  properties or salary amount.  The  same is  received and sent  a reply legal notice dated 18-08-2015 by mention real facts and requesting the information pertaining to the alleged  auction and also stated  that the complainant  is ready to clear the loan   debt up to the date of legal notice got it  issued by the opposite parties.  The opposite parties 1 and 2 did not sent any reply to the complainant. 

The opposite party No.2 acted un accountably in negligent way when the complainant approached   him several  times  to know about the position of  his gold loan and both the opposite parties committed gross mistake   and intentionally forgot about  forgot the most fundamental  principle of the welfare   of the consumer within the fair and affordable terms  and conditions.  The opposite party No.1 without  intimating  the date, place and time of auction to the complainant now stating that they  have conducted auction and demanding the deficient amount  in arbitrary way.

The complainant submits that if the opposite parties intimated to him about the total gold loan due  and other particulars  of the  final stage of the loan he would have paid the same and get back   his ornaments.  But due to opposite parties deceitful service and deficiency in service, negligent  dealing with the complaint, he lost  the  gold items  even though his financial position was  rectified.

The complainant submits that he is ready  to pay the entire loan due at the date of unknown alleged date of auction.

The complainant submits that  the opposite parties behaved very negligently and resorted  unfair business policies to get wrongful gain and to develop their finance business.  Due to their deficient service the complainant lost  the gold articles which he derived from his elders even though  he had financial capacity at the date of lawyer  notice dated 18-07-2015 and by that the complainant and his  family members subjected to mental agony and felt shame among their relatives and neighbours.

3.  The opposite parties 1 and 2 filed written version / counter with the following averments that:- The opposite parties  submits   that  the India Infoline Finance Limited Company is a Nationwide based company transacting the business with terms and conditions with the customers and rendering financial support with cheaper interest without causing any trouble to the borrowers of loan. There  is no  occasion where any borrower of loan made adverse remarks against the opposite parties.

The opposite parties says that the  complainant  in this  case unnecessarily throw mud on the opposite parties in order to escape   to pay the due amount to the opposite parties companies after a belated stage of conducting  auction of the pledged articles and when particularly the opposite parties demanded to pay the deficient amounts due  by the complainant.  Therefore the complainant is not having any jurisdiction to file this complaint in any  Forum or Court for the following reasons:

The complainant pledged four items   of gold ornaments i.e., (1) 4-Bangles, (2)  3-Rings and (3) One chain total 0.75 grams and received  Rs.1,61,000/- on          27-03-2013.

As per the terms and conditions   of the agreement   entered into with the opposite parties the complainant should have  to pay monthly  interest of Rs.3,059/-  per month @ 1.90%.  The  opposite parties  submit that the complainant should renew the amount within 12  months as per the terms and conditions of the agreement entered into with the opposite parties, otherwise auction will be conducted.

As the complainant failed to comply the terms and conditions and also not paying any amount of interest even the opposite parties have given legal  notice date 07-01-2014 demanding to pay Rs.1,89,763/- including   the principal amount and the interest.  The complainant paid interest Rs.4,000/- on 24-03-2014 and  again paid interest of Rs.5,000/- on 02-06-2014.  Eversince he did not turn up to the opposite party No.2 and gave any reply to opposite party No.2 with regard to the amount received by him by pledging the gold ornaments.  The opposite parties have mode several attempts to collect the due amount from the complainant but in vain.  Therefore   they are constrained to give paper notices informed conducting of auctions of the pledged ornaments and the publications were made in Hans India, a English news paper dated 04-11-2014 and the news was published at page No.2 of Vijaywada edition. Again the opposite parties 1 and 2 gave notice of auction in Prajasakthi daily news paper, dated 04-11-2014 inviting the bidders to participate in the auction being held on 05-11-2014.  There is no response from the complainant even for the legal notice issued dated 07-01-2014 demanding to pay Rs.1,89,763/-  and also after publication of notices in the news papers.  Therefore opposite parties 1 and 2 have conducted auction 05-11-2014 and closed the account.

The opposite parties  have issued legal notice dated  18-07-2015 to the complainant for recovery of the due amount from the complainant.  But after  lapse of one month i.e., on 18-08-2015 he got issued reply notice stating that as if he is ready to pay the loan amount including the interest and also made several allegations against the opposite parties for deficiency in service and also negligent in conducting business etc., are all creations  of the complainant in order to evade payment of due arrears to the opposite parties.

The opposite parties submit that when the auction of the articles pledged were auctioned on 05-11-2014 with due publication of the issue of auction in news papers and  after a year that too when the opposite parties demanded the complainant to pay deficient amount, the  complainant is not expected to make unnecessary   allegations against   the opposite parties and he is not entitled for filing of any complaint in any court of law for the reason that the efforts of the complainant clearly indicating the evasion of deficient amount  due to the opposite parties  and submits  for dismissal of the complaint against the  opposite parties 1 and 2 with costs.

4.  On behalf of complainant,  the affidavit of P.W.1 filed and Exs.A1 to A4  marked.

5.  On behalf of  opposite parties 1 and 2, no evidence was adduced and no documents were marked.  

6.  Ex.A1 is the office copy of legal notice dated 18-08-2015, Ex.A2 are served postal acknowledgement of opposite parties 1 and 2, Ex.A3 is the reply                  dated 18-07-2015 and Ex.A4 is the  details of pledged ornaments.

7.  On behalf of the complainant written arguments filed.

8.   On behalf of the  opposite parties 1 and 2, no written arguments  filed.

9.  Arguments on behalf of  complainant heard.

10. Perused  the records, written version / counter filed on behalf  of  opposite parties  1 and 2.

11. Now the points for consideration are:

         (1)Whether  the complaint  filed by the complainant  against the opposite

               parties 1 and 2 under Section-12 of Consumer Protection Act, 1986 is

               maintainable?

         (2)  To what relief, the complainant is entitled?

 

        12.  POINT No.1:The learned counsel for the complainant submits by filing a written arguments  that the  complainant borrowed a sum of Rs.1,61,000/- on              27-03-2013 pledging 0.75 of grams  of gold  in opposite party  No.2 branch office and the opposite parties without issuing any notices to the complainant conducted auction which is  against  law and as the opposite parties 1 and 2 sold the gold ornaments without following the procedure and without issuing notice to the complainant demanding him for payment of due amount for filing the gold ornaments.  Hence he submits to allow the complaint by  directing the opposite parties 1 and 2 to  return the  pledged gold  after calculation of the due amount with interest  and submits  to allow the complaint by awarding  damages and costs.                 

          Opposite parties did not adduce any evidence  and no arguments  were advanced on behalf of  opposite parties 1 and 2 inspite of sufficient time.  Hence it is treated that the opposite parties side arguments treated as heard.   

           As seen from the records, the contention of the  complainant is on                 27-07-2013, the  complainant  borrowed a sum of Rs.1,61,000/- by  pledging            0.75 grams  of gold  and without issuing  any notice to the complainant, the opposite parties 1 and 2 sold the gold ornaments.

            On the  other hand, the contention of the opposite  parties 1 and 2 shows that  after publication in Hansa India English Paper dated  04-11-2014 and in Praja Shakthi Daily Paper dated 04-11-2014, the opposite parties 1 and 2 sold   the gold items which was pledged by the complainant after following the  procedure and hence the complainant filed the complaint against the opposite  parties 1 and 2 is not maintainable and submits  for dismissal of the complaint against  the opposite parties  1 and 2. 

           The contention of the opposite parties at para-4 in counter it reads as follows: “As the complainant failed to comply the terms and conditions and also not paying any amount of interest even the opposite parties have given legal  notice                       date 07-01-2014 demanding to pay Rs.1,89,763/- including   the principal amount and the interest.  The complainant paid interest Rs.4,000/- on 24-03-2014 and  again paid interest of Rs.5,000/- on 02-06-2014.  Eversince he did not turn up to the opposite party No.2 and gave any reply to opposite party No.2 with regard to the amount received by him by pledging the gold ornaments.  The opposite parties have mode several attempts to collect the due amount from the complainant but in vain.  Therefore   they are constrained to give paper notices informed conducting of auctions of the pledged ornaments and the publications were made in Hans India, a English news paper dated 04-11-2014 and the news was published at page No.2 of Vijaywada edition. Again the opposite parties 1 and 2 gave notice of auction in Prajasakthi daily news paper, dated 04-11-2014 inviting the bidders to participate in the auction being held on 05-11-2014.  There is no response from the complainant even for the legal notice issued dated 07-01-2014 demanding to pay Rs.1,89,763/-  and also after publication of notices in the news papers.  Therefore opposite parties 1 and 2 have conducted auction 05-11-2014 and closed the account.”

The contention of the opposite parties 1 and 2 shows  that  on 07-01-2014, the opposite parties 1 and 2 issued notice to the complainant  demanding him for the payment of Rs.1,89,763/- towards the  principal and interest due   on Rs.1,61,000/- and after receiving   of the said notice on 24-03-2014,  the complainant paid a sum of Rs.4,000/-  and on 02-06-2014, the complainant  paid a sum of Rs.5,000/-  as the complainant  did not  discharge the entire amount  to the  opposite parties 1 and 2, sold the gold   and as there was   due, the opposite party No.1 issued legal notice demanding him for the payment of the due  amount, the complainant  did not issue legal notice after  02-06-2014  and even prior   to  the conducting of  the auction on 05-11-2014.  The opposite parties   did not issue any notice to the  complainant demanding  him for the  payment of the due amount under the loan  account borrowed by the complainant after pledging the gold ornaments in favour of   opposite parties.  Thus the opposite parties 1 and 2  violated  the rules   and they  failed  to give or issue any notice to the complainant demanding for the payment  of due amount after 02-06-2014 and before                           05-11-2014.  The opposite parties 1 and 2 without issuing any  notice either on              02-06-2014 or before 05-11-2014,  the opposite parties  conducted  gold auction  and collect the amount   towards the  due amount of the complainant and demanded  for the payment of the balance  amount.  In view of the above said facts as the opposite parties failed to issue  any notice to the complainant  demanding him for the payment of the due amount. The conducting of auction for  the sale of the gold is against  law  and thus the act of the opposite parties is amounts to deficiency of service.  In

 

	N. Sudheesan Vs. Md. Muthoot Nidhi Kerala Limited  III (2014)  CPJ  4B (Kerala) (CN)
	Nandakumar Vs.  K.V. Jayanand reported in                    IV (2010) CPJ 368 (Kerala)

 

         Wherein  it is held  that  “ when the gold  was sold without notice, the opposite parties are liable  to pay  the  value of the gold ornaments at current market value.”  Following the  above decisions,  we are of the opinion that as the opposite parties 1 and 2 failed to  issue notices to the complainant before  conducting of  auction of the gold, hence the complaint filed by the complainant against     the opposite  parties 1 and 2 has to be  allowed as there is deficiency of service on the part of  the opposite parties 1 and 2.

         By relying  upon the above decisions, we are of the opinion that the opposite parties 1 and 2 are directed to pay value  of the   pledged  gold ornaments at current market rate after reduction of loan amount with interest borrowed by the complainant. 

      By relying upon the above  decisions and discussion above, we answered this point  in favour of the complainant  and  against  the opposite parties 1 and 2.

 

      13.  POINT No.2:In view of our answering on point  No.1 in favour of the complainant  and  against the opposite parties 1 and 2, the complaint filed by the complainant  has to be  allowed.

         In the result,  the complaint is allowed partly.

         Opposite Parties  1 and 2 are directed to pay value of the pledged gold ornaments  at current market rate after deducting the  balance of due amount with interest. 

         Since the complainant  committed default in payment of the  instalments amounts.  The complainant is not entitled for damages and costs.

         The  opposite parties are directed to comply  the award  within 30 days from the date of  communication of  the order.

          Dictated to Stenographer, transcribed by her corrected  and pronounced by us in the open  Forum, this the  21^st day of  SEPTEMBER, 2017.

 

          Sd/-                                                                                      Sd/-

      MEMBER                                                                        PRESIDENT

 

                                      APPENDIX OF EVIDENCE

 

Witnesses Examined for the complainant

 

P.W.1  -

02-05-2016

Sri Pathapati Lakshmi Narayana @  Venkata LakshmiNarayana, S/o.Late Bhashkar Rao, Prakasam District (Affidavit field)

 

Witnesses Examined for the opposite parties

-Nil-

 

 

 

                           EXHIBITS MARKED FOR THE COMPLAINANT

 

Ex.A1  -	18-08-2015	Legal notice from complainant’s advocate K. Chakrapani, Nellore District to the  Padmanabh D Pise, Advocate, Maharastra.
Ex.A2  -	-	Two served postal acknowledgement and registered post receipts.
Ex.A3  -	18-07-2015	Photostat copy of  legal notice from Padmanabh D Pise Bombay  to the complainant.
Ex.A4  -	27-03-2013	Photostat copy of  Sanction letter e-mail copy in favour of complainant.

 

                         EXHIBITS MARKED FOR THE OPPOSITE PARTIES

-Nil-

 

 

                                                                                                                 Id/-

                                                                                                      PRESIDENT

Copies to:

 

1.	Sri Pathapati Lakshminarayana  @  Pathapati Venkata Lakshminarayana, S/o.Late Bhasker Rao, Mutyalapadu Village, Lingasamudram Mandalam, Prakasam District.
2.	Sri T.Kotaiah, Advocate, Karnala Street, Nellore-524 001.

Date when free copy was issued: