Haryana

StateCommission

A/1460/2017

INDIA INFOLINE FINANCE LTD. - Complainant(s)

Versus

ANIL KUMAR - Opp.Party(s)

SUKHDEEP PARMAR

05 Jan 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                      First Appeal No.1460 of 2017

                                                 Date of Institution: 01.12.2017

                                                          Date of final hearing: 05.01.2023

Date of pronouncement: 13.02.2023

 

India Infoline Finance Ltd. (IIFL), Office at 101, 1^st Floor, Power Mega Mall, Subhash Chowk, Sonepat through its Authorized representative Sh. Atul Jain, Branch Manager.

…..Appellant

Versus

Anil Kumar S/o Ram Kumar, R/o 1122/31, Shashtri Colony, Gohana Road, Bye Pass Sonepat.

…..Respondent

CORAM:    S.P. Sood, Judicial  Member

                    Suresh Chander Kaushik, Member

                   

Present:-    Mr. R.K. Chaudhary proxy counsel for Mr. Sukhdeep Parmar, Advocate for the appellant.

                   Respondent already proceeded against ex-parte.

 

                                                 ORDER

S P SOOD, JUDICIAL MEMBER:

          The present appeal No.1460 of 2017 has been filed against the order dated 25.10.2017 of the District Consumer Disputes Redressal Forum, Sonepat (In short Now “District Commission”) in complaint case No.212 of 2017, which was allowed.

2.       The brief facts of the case are that on the request of complainant, opposite party sanctioned gold loan against golden articles. As per terms and conditions of the agreement, the interest amount was payable by the complainant every month. However due to some financial constraint, complainant could not pay the interest amount and thereafter requested OP to accept the entire loan amount of Rs.79952/- along with interest and to return the gold articles. But OP illegally avoided the same on one pretext to other. Faced with this situation, he got issued legal notice dated 05.04.2017 to the OP but to no avail. Thus, there being deficiency in service on the part of the O.P, hence the complaint.

3.      In its written version, OP raised preliminary objections of complainant having suppressed material facts and complaint being false and frivolous complaint.  Even status of complainant being not a consumer was also disputed. On merits, OP submitted that pledging of gold ornaments was a debtor-creditor relationship which do not come under the purview of Consumer Law. There were five other loans upon the complainant which were closed by him. At present  the complainant obtained three gold loan s which were as under:-

Sr. No.	Gold Loan NO.	Amount	Date	Due Date
1	6707017	27027	19.08.2016	18.02.2017
2	6720435	35500	23.08.2016	22.07.2017
3	6756642	19425	1.9.2016	31.07.2017

 

The complainant had to deposit the interest amount for gold loan No. 1 within six months and for Gold Loan No. 2 and 3 within 11 months but complainant did not pay the same regularly. OP called him many times but of no use.  The complainant did not pay the interest despite of having issued auction notices. After giving notice of auction of ornaments, OP auctioned the same for recovery of his loan amount as per terms and conditions of the gold loan policy. Thus, there being no deficiency in service on the part of the OP and requested to dismiss the complaint.

4.      After hearing both the parties, the learned District Commission, Sonepat allowed the complaint vide order dated 25.10.2017, which is as under:-

“Keeping in mind the above mentioned circumstances, this Forum well in this situation when everybody in public life is facing such type of difficulties, it becomes the duty of the court/forum to pass some effective, meaningful, relief giving and purposeful orders which should be based on equity and helpful for providing justice that is also natural justice. This Forum feel to pass orders as the situation demands and should not hesitate to come out a little out of the tight cordon of rules and procedure also if the situation so demands. It is not so difficult to decided a case but certainly it is not so easy to provide justice. Under the provisions of Consumer Protection Act, 1986,  it is purposely provided that provisions of the CPC and Indian Evidence Act shall not be strictly applicable in the proceedings of complaints under this Act and complaints shall be decided summarily. Accordingly we held the respondent to be deficient in their services and it is directed to the respondent to accept the loan amount along with agreed rate of interest only without claiming any penalty etc. from the complainant. The complainant is also directed to pay the loan amount alongwith agreed rate of interest to the respondent. It is also directed to the respondent to return the gold ornaments of the complainant after receiving their amount from the complainant. With these observations, findings and directions the present complaint stands allowed.”

5.      Feeling aggrieved therefrom, O.P-appellant has preferred this appeal.

6.      These arguments were advanced by Sh. R.K. Chaudhary proxy counsel for Mr. Sukhdeep Parmar, learned counsel for the appellant. With his kind assistance entire record of the appeal as well as the original record of the District Commission including whatever the evidence has been led on behalf of  both the parties has also been properly perused and examined.

7.      Learned counsel for the appellant argued that as per loan agreement complainant has not deposited the interest in all of his three loans, despite he was duly reminded of the interest becoming payable telephonically many times. Appellant vide notice/final demand notice dated 08.12.2016 and 15.12.2016 again sent intimation to complainant and thereafter appellant advertised the auction of gold ornaments of various loan cases including that of the gold loan cases of the complainant was conducted on 23.01.2017 as per agreement. Appellant also sent letter dated 09.02.2017 and complainant was informed that they have realized amount of Rs.1233/- in excess of loan amount which he can take by way of refund. Therefore now when as per loan agreement appellant has already auctioned the gold articles vide auction dated 23.01.2017 so now appellant cannot return the things which are not in its possession. So complainant was not entitled for the claim amount as prayed for.  He placed his reliance upon the authority of Tamil Nadu State Commission titled K.Rajasekaran Vs. Kumaran Jayavel, 2014(4) CPJ 68.

8.      It is admitted that complainant obtained gold loan from the opposite party.  It is also admitted that gold loan of Rs.33,500/- against chain weighing 17.40 gram , Rs.27027/-  against ring of 13.20 gram and Rs.19425/- against chain weighing 10.10 grams were raised and in this way in all golden ornaments total weighing 40.70 grams gold was pledged. The total gold loan amount of Rs.79,952/- was sanctioned against 40.70 grams of gold in favour of complainant. It is also not disputed that  as per agreement dated 1.09.2016, 19.08.2016 and 23.08.2016, the rate of interest was to be charged at 18.60%, 23.88%, 20.28% respectively and in case of default in installments, default interest @ 6% was also to be applicable. It is not disputed that the OP auctioned the  gold articles on 23.01.2017. The appellant has not led any evidence to prove  that the complainant has received the summons of auction notice. Since, complainant has not received the auction notice from the opposite parties, hence there was deficiency in service on the part of the OP.    The ratio relied upon by the appellant is not relevant because the facts and circumstances of the case are different from that of the present case.   

9.      In view of the above, since the ornaments were auctioned on 23.01.2017,  the impugned order of the District commission would never be complied with, therefore the relief allowed by it should be modified. The complainant-respondent is entitled to total 40.70 grams of gold’s  amount i.e. Rs.1,15,995/-  at the time of auction.  The appellants are directed to pay Rs.1,15,995/- minus Rs.79,952/-=36,043/- to the complainant alongwith interest @ 9% per annum from the date of auction till realization. The appellant is also directed to pay compensation of Rs.20,000/- (Twenty thousand only) on account of deficiency in service, harassment and mental agony suffered by the complainant-respondent by the  acts of the appellant alongwith Rs.20,000/- (Twenty Thousand only) as litigation expenses. This is how the impugned order is modified in terms as stated above.  In case, there is a breach in making payment within the stipulated period of 45 days, in that eventuality, the respondent would further be entitled to get the interest @ 12% per annum, for the defaulting period.   In view of the above modification, the appeal stands disposed of.

10.    A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

11.    Application(s), pending, if any, stands disposed off in terms of the aforesaid order.

12.    File be consigned to record room.

 

 

13^th February, 2023            Suresh Chander Kaushik            S. P. Sood                                                                Member                                             Judicial Member    

S.K

(Pvt. Secy.)