Orissa

Cuttak

CC/112/2021

Pramod Kumar Behera - Complainant(s)

Versus

Bajaj Finance Limited - Opp.Party(s)

P K Kanungo & associates

02 Sep 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

                                                       C.C.No.112/2021

Pramod Kumar Behera,

S/O:Late Gobardhan Behera,

Vill:Damodarpur,P.O:Lendura Bhagawanpur,

P.S:Nemalo,Dist:Cuttack.                                              ... Complainant.

 

                                    Vrs.

1.       The Branch Manager,

Bajaj Finance Limited,Salipur Branch,

                    1^st floor,Hiramayi Market Complex,

Main Road,Balisahi,Near State Bank of India Salipur,

                   Po/Ps-Salipur,Dist-Cuttack,Odisha-754002

 

2.      The Chair Person

Registered Office,Bajaj Finance Limited,

Mumbai-Pune Road,Akuri,Pune-411035,Maharashtra,India..

 

3.      The Chair Person

Corporate Office,Bajaj Finance Limited,

                 4^th floor,Bajaj Finserve Corporate Office,

Off Pune-Ahmeddnagar Road,

Viman Nagar,Pune-411014,

                 Maharastra,India

 

Present:           Sri Debasish Nayak,President.

                        Sri Sibananda Mohanty,Member.

 

Date of filing:    30.07.2021

Date of Order:   02.09.2022

 

For the complainant:          Mr. P.K.Kanungo,Adv. & Associates.

For the O.Ps.               :      Mr. R.C.Panigrahy,Adv. & Associates.     

 

Sri Sibananda Mohanty,Member               

            The case of the complainant in short is that he had applied for a gold loan before the O.Ps and had availed the loan of Rs.2,04,443/- by mortgaging gold ornaments weighing about 59.15gms.(gross weight) and 57.95 gms.(net weight).  The O.Ps had supplied gold deposit receipt to the complainant vide application ID No.396657,LAN.PW08GOL1871937.  The loan was sanctioned by the O.Ps on 26.8.20 as per the terms and conditions stipulated by the O.Ps.  The said loan period was for 12 months i.e., from 26.8.20 to 26.8.21.  It is admitted by the complainant that due to pandemic situation of Covid-19, he was not able to pay the instalments regularly but the O.Ps during the said period had auctioned the mortgaged gold ornaments without noticing him. According to the complainant this action of O.Ps is a great loss to him for which he sustained mental agony.  It is further stated by the complainant that due to pandemic covid situation the entire National was paralyzed from March,20 till filing of this case  i.e 30.7.21 and for that situation the Hon’ble Supreme Court and High Court of Odisha had passed the  orders not to take any coercive measures, if anybody defaults in payment of loan instalments.    It is further stated that the R.B.I also had issued some guidelines for repayment of loan in that period.  It is stated by the complainant that being ignorant about auction of his ornaments on 6.6.21, he had gone to the O.P No.2 to clear up all his loan dues but he was informed by the O.P No.2 that his mortgaged gold ornaments had already been auctioned and auction amount had already been adjusted towards his loan account and his loan account has been closed on 2.4.21.   The complainant being harassed by such activities of O.Ps sent a legal notice on 7.7.21 to the O.Ps through registered post,  as the O.Ps without following due course of law had auctioned his gold ornaments.  But the O.Ps remained silent.  Hence, the complainant has filed the present case on the ground of deficiency in service on the part of O.Ps alleging therein that he has sustained loss of Rs.5,00,000/- and so also has claimed Rs.1,50,000/- towards compensation for mental agony as well as  litigation cost.

            The complainant has filed xerox copies of some documents to establish his case.

2.         The O.Ps have filed their written version wherein they have taken the plea of maintainability of the complaint case as well as on the merit of the case.  It is stated by them that the dispute pertaining to accounts is not maintainable before this Commission.  The O.Ps also have relied some decisions of Hon’ble National Commission as well as of Hon’ble State Commission and had stated that the present complaint case is not maintainable.  The O.Ps admitted about the gold loan availed by the complainant.  It is stated by the O.Ps that the complainant had agreed to abide by the condition of the loan agreement.  It is further stated that in order to avail the benefit of moratorium as per the R.B.I guidelines, the complainant had to opt for the same but he had not opted the same.  Hence, he is not entitled to get the benefits of R.B.I guidelines.  It is also stated by the O.Ps that the complainant was a regular defaulter and as per the terms and conditions of the agreement, the O.Ps reserve its rights to enforce the gold security by selling the gold in the open market by auction, after giving the borrower a reasonable notice.   It is alleged by the O.Ps that they had given notice to the complainant by way of various communications through SMS/notice and phone calls to deposit the outstanding amount but there was no response from the complainant.  Hence the O.Ps had issued notice on 28.1.21 requesting the complainant to pay the outstanding amount of Rs.2,36,508/-  within 3 days but the complainant did not make payment of the same.  Hence, the O.Ps had issued notice again on 1.2.21 requesting the complainant to clear up the outstanding dues, failure to do so; they would proceed for auction of the pledged gold ornaments at any time after expiry of 10-15 days from the date of notice. It is further alleged by the O.Ps that although the complainant had received the above notice, but he had not reverted to any of the notices.  Therefore, the O.Ps had auctioned the gold ornaments and received a sum of Rs.2,26,370/- by auctioning the gold ornaments.   The outstanding dues of the complainant was Rs.2,36,508/- and the differential amount of Rs.10,138/- was waived out towards the interest and the loan account was closed.  The O.Ps have stated that they have acted as per the applicable law and regulation.  In view of the same, it is stated by the O.Ps that the complaint case is not maintainable and is liable to be dismissed with cost.

            The O.Ps have filed xerox copies of some documents to establish their case.

3.         Keeping in mind the averments as made in the complaint petition and the contents in the written version, this Commission is of a view to settle the following issues in order to adjudicate the present case in hand.

i.          Whether the case of the complainant is maintainable?

            ii.         Whether there was any deficiency in service on the part of O.Ps?

            iii.        Whether the O.Ps had adopted any unfair trade practice?

            iv.        Whether the complainant is entitled to the reliefs as claimed?

Issue no.i.

            The complainant had availed gold loan by mortgaging his gold ornaments and an agreement was executed in that respect.  Hence, the complainant is a consumer and the complaint case is maintainable.  The O.Ps have relied upon some decisions of Hon’ble National Commission as well as of Hon’ble State Commission, which is not applicable in the present facts and circumstances of the case.

Issue no.ii & iii.

            It is admitted fact that the complainant had availed the gold loan by mortgaging his gold ornaments.  Due to pandemic covid-19 situation, the Hon’ble Supreme Court as well as Hon’ble High Court of Odisha had relaxed the loanee in payment of outstanding dues.  The R.B.I also had framed guidelines for payment of loan in that period.  The O.Ps have alleged that they have issued demand notice dt.28.1.21, requesting the complainant to pay outstanding amount of Rs.2,36,508/- so, also alleged that they have issued auction sale notice dt.1.2.21.  The specific case of the complainant is that he was not issued any notice before auction of her gold ornaments.  The O.Ps although has taken plea that they have issued demand notice as well as auction sale notice to the complainant but they have not filed any supporting evidence to the effect that the said notice was actually delivered to the complainant.  Hence, the stand taken by the O.Ps to the effect that they have noticed the complainant before auctioning his gold ornaments is baseless being not proved.  The O.Ps have also not filed the alleged agreement as stated by them before this Commission to substantiate their claim.   The O.Ps without following due procedure of law  and without paper publication had auctioned the gold ornaments,  which is bad in the eye of law.    Be that as it may, during covid-19 pandemic situation, the Hon’ble High Court of Orissa in a P.I.L bearing W.P(C) no.9095/2020 vide its order dt.5.5.2020 has directed all the Bank and Financial Institutions not to take any action for auction in respect of any property of any citizen or person or party.  This order of Hon’ble High Court was in force till 17.2.2021.  The said order is binding upon the O.Ps.  But the O.Ps violating the order of Hon’ble High Court had given the alleged demand notice on 28.1.21 to the complainant and thereafter had auctioned the gold ornaments of the complainant.  Moreover, the O.Ps also has not followed the guidelines of R.B.I in collecting the loan instalments, which fact is admitted by the O.Ps.  Hence, it is crystal clear that the O.Ps have committed deficiency in service as well as have adopted unfair trade practice.

Issue no.iv.

            The complainants gold ornaments has been auctioned by the O.Ps without giving opportunity to him for which he must have suffered mental agony and for that he is entitled to get the reliefs.  Hence it is so ordered;

                                                            ORDER

            The case is decreed on contest against the O.Ps.  The O.Ps are found to be jointly and severally liable here in this case.  The O.Ps are therefore directed to pay the complainant a sum of Rs.1,00,000/- as compensation for mental agony and harassment as caused by them.  The O.Ps are further directed to pay a sum of Rs.20,000/- towards the litigation cost.  This order is to be carried out within a period of 30 days from the date of receipt of copy of this order.

Order pronounced in the open court on the 2^nd day of September,2022 under the seal and signature of this Commission.                      

                                                                                                                            

                                                                                                Sri Sibananda Mohanty

                                                                                                      Member.

                                                                                                                                                       

 

 

                    Sri Debasish Nayak

                                                                                                             President