Date of Filing : 04.05.2012
Date of Order : 07.07.2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR
Dated 7th JULY 2012
PRESENT
Sri. H.V. RAMACHANDRA RAO, B.Sc., BL, ……. PRESIDENT
Sri. T.NAGARAJA, B.Sc., LLB. …….. MEMBER
Smt. K.G.SHANTALA …….. MEMBER
CC No. 54 / 2012
Muniraju, S/o. Narayanappa,
Masjid Road, Sugatur Village & Post,
Kolar Taluk.
(By Sri. G. Jayarama, Adv.) ……. Complainant
V/s.
Sri. B.V. Devendra, Pawn Broker,
Ammavarpet,
Kolar.
(By Sri. K.V. Srinivasa, Adv.) …… Opposite Party
ORDER
By Sri. T. NAGARAJA, MEMBER
The brief antecedents that led to the filing of the complaint u/s. 12 of the Consumer Protection Act, seeking direction to OP to release Gold ornaments weighing 125 Grams or to pay market value of the Gold and to pay compensation of Rs.50,000/- are necessary:-
On 26.12.2005 Complainant pledged 125 Grams of Gold Studs with the OP and borrowed Rs.65,000/-. Complainant approached OP several times with the amount, but OP failed to return the Gold. Complainant has paid interest upto date. The Gold is valued more than Rs.3,00,000/-. Complainant has issued notice to the OP and the same was not replied by the OP. Hence the Complaint.
2. In brief the version of OP are:-
Pledging of 125 Grams of Gold and taking loan of Rs.65,000/- by the Complainant on 26.12.2005 is admitted. Complainant has not paid any interest. He has gone against the terms of the contract. OP has issued notice to the Complainant. Even then, Complainant did not turn up. As per Rule 20(7) of the Karnataka Pawn Brokers’ Act, 1961, if Pawn Tickets produced after 3 years shall not be entertained.
3. To substantiate their respective cases, parties have filed their respective affidavits. Arguments were heard.
4. Points that arise for our consideration are:
(A) Whether there is deficiency in service?
(B) What order ?
5. Our answers for the above points are as under:
(A) Positive
(B) As per detailed order for the following reasons
REASONS
6. Reading the pleadings in conjunction with the affidavits and the documents on record, it is an admitted fact that the Complainant had pledged Gold ornaments weighing 125 Grams with the OP and taken loan of Rs.65,000/- on 26.12.2005. Neither the Gold loan has been cleared nor the Gold has been returned to the Complainant till date, nor it has been auctioned by the OP. That means, loan is subsisting and the Gold is now in the custody / possession of the OP.
7. Complainant stated that he has paid the interest which has been denied by the OP. There is no proof to show that Complainant has paid any interest at any point of time to the OP. Complainant never stated what is the rate of interest that he had agreed? What is the interest that he has paid? When he has paid? Who received it & when? What is the amount he has paid? This is very bald. That means, no interest has been paid.
8. According to the Pawn Ticket, Complainant is bound to pay the interest @ 21% P.A. and she has to pay it. That means, from 26.12.2005 upto 07.07.2012 Complainant is liable to pay Rs.65,000/- towards principal and Rs.88,725/- towards interest. This amount Complainant never paid. That means, Complainant is due to the OP Rs.1,53,725/-. The value of the Gold comes to Rs.3,83,750/-. The amount due to the OP after deducting the loan with interest comes to Rs.2,30,025/-.
9. OP has contended that as per Rule 20(7), Pawn Ticket is produced after 3 years by the Pawnee shall not be entertained. This is with respect to Pawn Brokers’ Act, 1961. It does not say that person who has pledged his articles he is debarred from seeking recovery of the Gold that is due from him. Pawn Brokers’ Act envisages not to forfeit the Gold or Articles by the person who received the Articles and paid the money. The said Pawner has to issue notice to the Pawnee and then Pawner has to sell the Articles in public auction; market value of the Gold has to be assessed and then difference has to be paid to the Pawner. If that is not done, that amounts to deficiency in service. That has not been done in this case. When the OP has issued notice to the Complainant? Where is the acknowledgement? and when it has appropriated the Gold is not whispered. Hence, Sec. 3 of the C.P. Act also permits consumer to file Complaint against the trader though there is other remedy available in any other Law. This is a special legislation intended for the benefits of the consumers. Hence, OP cannot say that it can forfeit the Gold or it can use the Gold for his purposes. Complainant has issued notice to the OP and OP has failed to reply even much less comply.
10. It was further contended that this is not a case of consumer dispute. How it is not a consumer dispute is not explained. Here the Complainant has pledged Gold articles and obtained money and interest is service charges that has been paid by the Complainant and it is for the OP to have returned the Gold, that has not been done. Hence, this is nothing but deficiency in service and unfair trade practice.
11. Further it was contended that Pawn Brokers’ Act alone applies and Consumer Protection Act does not apply. C.P. Act is a special statute which prevails over any other statute. Sec. 3 of the C.P. Act does not debar the Application of the C.P. Act if there is deficiency in service or unfair trade practice to a consumer. Here action of the OP is nothing but deficiency in service. OP merely alleging that it has sold the articles pledged cannot be believed. There is no document that has been produced to show how and when the Gold has been sold. This has been discussed supra.
12. Hence, under these circumstances, we hold the above points accordingly and we pass the following order:
ORDER
1. Complaint is allowed in part.
2. OP is directed to pay to the Complainant Rs.2,30,025/- within 30 days from the date of this Order.
3. OP is also directed to pay Rs.2,000/- as costs of this litigation to the Complainant.
4. OP is directed to send the amount as ordered at (2) & (3) above to the Complainant by Demand Draft through RPAD and submit this Forum the compliance report with necessary documents within 45 days.
5. Send copy of this Order to the parties free of costs.
6. Return extra sets to the parties concerned under the Regulation 20(3) of the Consumer Protection Regulations 2005.
(Dictated to the Stenographer, got it transcribed and corrected and pronounced in the open Forum on this the 7th of July 2012)
T. NAGARAJA K.G.SHANTALA H.V.RAMACHANDRA RAO
Member Member President
SSS
