Sri Partha Kumar Basu, Hon’ble Member

The complaint is filed by the Complainant against the OPs under the Consumer Protection Act for the deficiency in service. The complainant prays before this commission to direct the OPs and prayed for refund of the actual value of the gold ornaments along with an interest of @10% for delay in payment by the OP. The complainant further prayed for a compensation of Rs.90000/-.

The case of the complainant as averred by her is that being of urgent requirement of money, she took loan of Rs.76725/- on 24.02.2021 from the OP financial institution against depositing her gold ornaments weighing about 23.40 gm. with a repayment schedule of 11 months as per loan agreement. But due to financial crisis arisen out of lock down they are unable to repay the loan. The OP on 31.07.2021 asked the complainant to pay the interest of Rs.8115/- out of which the complainant made payment of only Rs.3000/- along with a time prayer to repay the balance amount. In November, 2021 the complainant went to OP’s office when she came to now that her deposited got auctioned for Rs.84397.76/-. The complainant contested the OP stating that the auction was conducted during validity of the agreement period which was valid till 24.01.2022. The complainant also contested that no prior intimation was sent to her before selling out her ornaments which she could have recovered having a lot of memory attached to it.  But the OP did not refund the ornaments and demanded extra unaccounted money from the complainant. Under such circumstances she is undergoing mental pain, sufferings, harassment and financial loss and approached the CA & FBP Local Office but without any respite.  Hence, this case with a prayer to return her ornaments by the OP which were taken as deposit for extending gold loan. The complainant also prayed for refund of the actual value of the gold ornaments along with an interest of 10% for delay in payment by the OP. The complainant further prayed for a compensation of Rs.90000/-.

In the W/V the OP contested that being a reputed Bank registered under the Companies Act, 1954 and being listed in the stock exchange of BSE and NSE are empowered to do business duly enlisted by RBI. The OP contended that the complainant is not a consumer as she has taken loan facility on payment of monthly interest by pledging gold ornaments. The complainant is admittedly a loan defaulter as the nature of complaint is purely civil in nature.  Hence, the same is not maintainable before this Consumer Court. Further the OP contended in the W/V that in the loan application, as per terms and conditions of the same, any dispute arising out shall be reserved to the process of arbitration and conciliation and hence the instant case is not maintainable before the Commission.

The OP further contested that on 24.02.2021 complainant availed loan facility against pledging her gold articles. After due valuation of the gold articles, Rs.76725/- was extended as loan to the complainant with a condition for repayment within 11 months i.e. by 24.01.2022. The complainant was found irresponsible in timely repayment and ultimately failed to repay the loan for consecutive 3 months, both in principal and interest. The OP stated that as per RBI’s Regulation a loan if not repaid consecutively for 3 months then the assets become NPA. As on 31.10.2021 the outstanding amount works out to be Rs.84,451.47/- including interest, for this NPA. Meanwhile, the complainant repaid only Rs.3000/- on a single occasion on 31.07.2021 when the loan turned to be NPA due to non-recovery of the dues. The OPs had no other way out but to inform the complainant by sending digital notice dated 30.08.2021 at her registered mobile no. with a delivery status showing as delivered’ for renewal of her loan tenure as the OP would have been compelled to auction the pledged ornaments.  But no steps were found taken by the complainant. Accordingly, OP had to hold an auction for selling the pledged gold ornaments that was held on 31.10.2021 with intimation through paper publication at two local dailies on 21.10.2021.  After the auction a sum of Rs. 84397.76/- could be recovered by OP Company with a balance unrecovered amount of Rs. 3813.74/- till date. The OP Company contested that the loan account reflected as NPA in the Company’s Book wherein OPs have acted as per terms and conditions printed over the agreement and the prevailing RBI Guidelines and Circulars. But the complainant did not honour her liabilities.

During final hearing on 07.12.2023`the Ld. Lawyer of both sides were present who advanced their argument along with filing of BNA.  Heard the arguments in full. 

Since providing loan service to the complainant by the Company is a matter of service so the complainant, hence she is a consumer as defined in the act. The complainant annexed some documents as exhibits like Statement of Loan Account, Notice dated 25.08.2021 prior to sell paper publication copy, Loan Agreement etc. which carries impeccable evidentiary value to that effect.

An arbitration clause in an agreement does not bar the jurisdiction of the consumer forum to entertain a consumer complaint. There are a catena of Judgements available in that respect and one to cite about is that which was held in the matter of Emaar MGF Land Ltd. v Aftab Singh, wherein the Apex Court after dealing with the issue in detail held so.

Hence the complainant is a consumer under the scopes and meaning of the Consumer Protection Act 2019 in all respect.

From the Account Statement the amount of loan disbursed is established which is admitted fact by the complainant as well. The complainant has also failed to provide any document that proves repayment anything beyond Rs.3000/- (on 31.07.2021) against the loan. The notice dated 25.08.2021 and 24.11.2021 in vernacular is also exhibited. The OP also filed exhibits from which the loan dated 24.02.2021 along with borrowers’ photo including photo of the jewellery and the list of pledged articles for a quantity of 23.40 gm. (22 carat) is also came on record.  Secondly, terms and conditions of the said gold loan facility is also available in the loan application dated 24.02.2022 for a period of 11 months which supports the contention of the OP. In the question-reply also, no fresh point came out which are contrary to the above facts.  It is a fact that both the parties are bound by the terms and agreement wherein the complainant failed to repay the principal amount as well as interest within due time frame for consecutively three months. In such circumstances, as the loan amount was treated as NPA, the pledged gold articles were auctioned.  So from the materials on record, it appears that as per agreement, the complainant read the terms and conditions and signed therein.  Moreover, as per said terms and conditions, in the event of borrower failed to repay loan amount, the financer would have the right to auction the pledged article.  It is the settled law that performance of contract are bound by terms and agreement of it and it is the admitted fact that the complainant did not repay the amount towards the principal or interest except a meager amount of Rs.3000/-. The complainant is also not in a position to claim having not received any message specially after observing the due process of notice through paper publication by the OP Company. The complainant being a party to the loan application/agreement has subscribed her signature and supposed to be aware of her obligations, but has failed to comply repayment as per schedule.  So the complainant being a loan defaulter is not entitled to get any relief in this case. 

The complainant has failed to make out a case prima facie and as such she is not entitled to get any relief as prayed for. The case has no legs to stand upon. It is a fit case for dismissal.

Hence, it is ordered that :-

                                                             Order

That  the complaint case could not be established and as such it is dismissed on contest

Let a plain copy of this Order be provided to both the parties free of cost as per CPR.