By Smt. C.S. Sulekha Beevi, President,<br /> <br /> <br /> 1. In a nutshell the case of the complainant is as follows:-<br /> <br /> Complainant availed gold loan of Rs.6,000/- on 07-4-04 from first opposite party. He received demand notices to repay the loan which appeared to be sent by Muthoot Bankers and not by first opposite party. For this reason complainant did not respond to these notices. After he received a final notice on 05-02-05 complainant approached 1st opposite party to remit Rs.4,000/- towards the loan. Opposite party refused to accept the amount and demanded that complainant should either repay the entire loan with interest or he could opt to renew the loan for Rs.4,600/- by making payment of Rs.4,000/- since the total amount due as on that date was Rs,8,600/-. Complainant refused this. He offered his willingness to pay the whole interest upto date and demanded receipt for it. Opposite party did not heed to this offer. It is also alleged that complainant was asked to sign on a blank stamp paper of Rs.10/- which was not acceeded by him. Complainant had to suffer much abuse and ill treatment from the staff of first opposite party. He registered a complaint with customer case cell. Thereafter complainant sent a demand draft for Rs.2,250/- to 1st opposite party along with a letter dated, 16-02-05. After retaining this demand draft for about two months first opposite party send back the demand draft with letter stating that 1st opposite party is unable to accept the demand draft as it was in favour of Muthoot Bankers and not 1st opposite party. Complainant got the demand draft corrected in the name of 1st opposite party and approached 1st opposite party to make the remittance by demand draft. Though the demand draft was accepted by 1st opposite party, they refused to issue receipt. On insistance of complainant 1st opposite party issued on a white paper that the demand draft is received. Even on repeated requests opposite parties failed to disclose the rate of interest charged and details of accounts. Complainant alleges deficiency of service and hence the complaint.<br /> <br /> 2. Both opposite parties have filed a joint version. It is admitted that complainant availed a gold loan from 1st opposite party. It is stated that neither did complainant approach to remit Rs.4,000/- nor did opposite party refuse to accept it. That complainant availed the loan perfectly understanding the terms and conditions and has signed the loan agreement which contains the terms and conditions of loan. That complainant has defaulted in repayment of interest and principal. That demand notices were issued on behalf of 1st opposite party. The contention that demand notices were issued by Muthoot Bankers is not vital to the dispute in the complaint. The notice happened to be issued by Muthoot Bankers only as a software mistake. That opposite parties are not legally bound to issue any notice to complainant. That complainant is liable to repay the loan with interest. Since the loan is for a short term complainant is liable to pay penal interest also. That complaint is filed only on experimental basis and is to be dismissed.<br /> <br /> 3. Evidence consists of affidavits filed by both sides. Ext.A1 to Ext.A12 marked on the side of complainant. Exts.B1 and B2 marked on behalf of opposite parties.<br /> <br /> 4. The question whether opposite parties have committed any deficiency in service rests mainly on the analysation of two incidents. The first incident arises from the allegation that 1st opposite party refused to accept Rs.4,000/- as remittance to the loan account. Ext.A2 to A4 are notices dated, 12-10-04, 13-01-05 and 05-02-05 respectively. There are reminders to pay the interest immediately and thereby to avoid penal interest. What is the interest to be paid or the balance due is not stated in these notices. According to complainant prior to receiving Ext.A4 final notice, he approached 1st opposite party and offered to remit Rs.4,000/- to his loan. Complainant contends that opposite party refused to accept this part payment and insisted that complainant should either close the loan making full payment, or he could remit Rs.4,000/- and renew the loan for Rs.4,600/- since the balance outstanding on that date was Rs.8,600/-. Complainant was not ready to renew the loan. He informed 1st opposite party that he was ready to pay Rs.4,000/- towards loan for which receipt has to be issued or else he was ready to remit interest accrued till date. 1st opposite party refused this and it is also alleged that 1st opposite party asked him to sign on a blank stamp paper of Rs.10/-. It is contended that he had to suffer mental pain and embarrassment due to abuse and ill treatment met out by staff of 1st opposite party. This incident and connected allegations are totally denied by opposite parties. After this alleged unpleasant alteration with 1st opposite party complainant has send Rs.2,250/- by demand draft dated, 15-02-05 which is Ext.A5. This demand draft was send by registered post along with a letter which is Ext.A6. In Ext.A6 complainant narrates the above incident which is consistant with averments in complaint as well as the evidence tendered by affidavit. A copy of Ext.A6 letter was issued by complainant to customer care centre of opposite party. Ext.A7 is a letter by opposite parties to complainant. All these documents establish and prove the case of complainant. Except the bald denial, opposite parties have failed to adduce any cogent evidence to disprove the case put forward by complainant. We are therefore able to conclude that the case of the complainant, that he offered to remit to Rs.4,000/- to the loan and 1st opposite party refused to accept the same is probable and true. Now the question to be considered is whether 1st opposite party was justifiable in refusing to accept the remittance offered by complainant. As per Sec. 60 of Indian Contract Act when the debtor makes payment to the creditor and there is no stipulation for apportionment of the amount, the creditor is bound first to appropriate it towards interest and the balance alone can be apportioned towards principal. The remittance should be accepted and receipt should be issued as to how it has been apportioned. Thus when complainant in the present case offered to pay the amount of Rs.4,000/- or the whole interest till date 1st opposite party should not have refused the same. In our view, after availing loan when a person intends to make remittances or choses to preclose the loan there should not be a situation of non-acceptance of the amount from the consumer. We find that the refusal of opposite parties to accept the remittance of Rs.4,000/- is unjustifiable.<br /> <br /> 5. The second incident for analysis before us is the allegation by complainant that 1st opposite party retained Ext.A5 demand daft for two months and thereafter returned it stating that it is incorrectly drawn in favour of Muthoot Bankers, instead of Muthoot Finance Pvt. Ltd. We are able to infer that complainant obtained Ext.A5 demand draft for Rs.2,250/- in favour of Muthoot Bankers only because Ext.A2 to A4 notices were issued to him by Muthoot Bankers. Ext.A8 is the letter dated, 18-4-2005 issued to complainant by 1st opposite party informing that the demand draft is returned because it is incorrectly favoured. Admittedly complainant availed loan from Muthoot Finance Pvt. Ltd., Kottakkal. Ext.A2 to A4 demand notices were issued by Muthoot Bankers, Kottakkal. As per instruction of 1st opposite party which is stated in Ext.A8, complainant again obtained a demand draft in favour of 1st opposite party. Ext.A9 is the photocopy of the corrected demand draft in favour of Muthoot Finance Pvt. Ltd. Opposite parties defend their refusal to accept Ext.A5 demand draft contending that Ext.A2 to a4 notices happened to be issued on behalf of Muthoot Bankers due to mistake in software. We do not consider this defence as reasonable and probable. Both Muthoot Bankers and Muthoot Finance Pvt. Ltd are sister concerns with same address. When demand notices were continuously issued on behalf of Muthoot Bankers to the complainant opposite party should have accepted the demand draft drawn in favour of the same. We can reasonably infer that the refusal to accept Ext.A5 demand draft by 1st opposite party was only an outcome of the strained relationship between the parties. Further opposite party has committed inordinate delay in sending back the demand draft stating that it is defective. From the above discussions we find opposite parties are deficient in service.<br /> <br /> 6. Complainant is entitled to be compensated for the deficiency in service committed by opposite parties. Complainant is also liable to repay the loan with interest if any to opposite parties. At the time of hearing complainant, who litigated in person, submitted that he is unaware as to what is the interest rate charged by opposite parties. Actually one of the reliefs sought in the complaint is to disclose the interest rate and the details of accounts to the complainant. Opposite parties have abstained from making any disclosure in the version filed by them. The rate of interest as well as the calculation and balance due has been submitted by opposite parties in the counter affidavit filed by them on 16-4-08. As per the statement given in para 6 of the counter affidavit the balance due as on 14-02-08 is Rs.9,619/-. The rate of interest shown is 18% . Penal interest @ 9% is also charged. To prove the above statement of accounts opposite party relies upon Ext.B1. In the document list furnished by counsel for opposite party Ext.B1 is described as a receipt. It is purported to be executed by complainant on 07-04-04 at the time of availing the loan. The interest rate shown in Ext.B1 is 18% and there is no mention of penal interest. On perusal of Ext.B1 we find that it is not a receipt. The intention of the parties in Ext.B1 is to create an agreement of financial transaction. It is purported to be a pronote. An agreement or pronote should be sufficiently stamped. Ext.B1 is unstamped and therefore inadmissible in evidence. It is held in AIR 1966 SC 1457 Roman Catholic Mission Vs. State of Madras to Others, that “a document not admissible in evidence though brought on record has to be excluded from consideration”. We are therefore of the view that Ext.B1 cannot be considered by us and is totally unreliable. Admittedly complainant has repaid only Rs.2,250/- towards the loan of Rs.6,000/-. He is bound to pay the balance with interest. Since Ext.B1 is unacceptable and there is nothing left before us so as to consider what is the rate of interest applicable to the transaction. In our knowledge the rate of interest charged by scheduled banks for gold loan generally is @ 9%. We consider that complainant is entitled to the benefit of this lesser rate of interest. We therefore derive that complainant is liable to repay Rs.6,000/- along with interest @ 9% from 07-4-04 till date of complaint. The amount thus payable is Rs.6,862.40/-. Towards this complainant has already paid Rs.2,250/-. The balance therefore payable is rs.4,612.40/-. Complainant is entitled to be compensated for the hardships suffered due to deficiency of service on the part of opposite parties. Since the complainant is given the benefit of a lesser rate of interest, we consider that an amount of Rs.3,000/- as compensation would serve justice to complainant.<br /> <br /> 7. In the result, complaint allowed. We order the following:- <br /> (i) Opposite parties shall jointly and severally pay a sum of Rs.3,000/- <br /> (Rupees three thousand only) as compensation to complainant. <br /> (ii) Complainant shall pay Rs.4,612.40/- to 1st opposite party towards the <br /> loan of Rs.6,000/- dated, 07-4-04 which would be full satisfaction <br /> to the loan account whereby the pledged items shall be redeemed to <br /> complainant. <br /> (iii) The amount payable by 1st opposite party to complainant shall be <br /> adjusted to the amount due from complainant to 1st opposite party. <br /> (iv) Opposite parties shall discontinue the practice of using unstamped <br /> documents in financial transactions with customers. <br /> (v) The time limit fixed for compliance of this order is two months from<br /> the date of this order. <br /> (vi) We make no order as to costs. <br /> <br /> Dated this 15th day of May, 2008.<br /> <br /> <br /> <br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> E. AYISHAKUTTY, MEMBER<br /> <br /> <br /> <br /> APPENDIX<br /> <br /> <br /> Witness examined on the side of the complainant : Nil <br /> Documents marked on the side of the complainant : Ext.A1 to A12<br /> Ext.A1 : Gold loan receipt for Rs.6,000/- dated, 07-04-04 from<br /> 1st opposite party to complainant. <br /> Ext.A2 : Notice dated, 12-10-04 given by 1st opposite party to complainant. <br /> Ext.A3 : Notice dated, 13-01-05 given by 1st opposite party to complainant. <br /> Ext.A4 : Notice dated, 05-02-05 given by 1st opposite party to complainant. <br /> Ext.A5 : Photo copy of the demand draft dated, 15-02-05 for Rs.2,250/- taken <br /> from State Bank of Travancore, Kottakkal in favour of Muthoot Bankers. <br /> Ext.A6 : Photo copy of the notice dated, 16-02-05 sent by complainant<br /> to 1st opposite party.<br /> Ext.A7 : Reply notice dated, nil sent by 1st opposite party to complainant.<br /> Ext.A8 : Letter dated, 18-04-05 sent by 1st opposite party to complainant.<br /> Ext.A9 : Photo copy of the demand draft dated, 27-04-05 for Rs.2,250/- taken <br /> from State Bank of Travancore, Kottakkal in favour of 1st opposite party <br /> Ext.A10 : Receipt for Rs.2,250/- dated, 02-05-05 from 1st opposite party to complainant.<br /> Ext.A11 : Acknowledgement card dated, 18-02-05 received from 1st opposite party to complainant.<br /> Ext.A12 : Request received from complainant to this forum.<br /> Witness examined on the side of the opposite parties : Nil<br /> Documents marked on the side of the opposite parties : Ext.B1 and B2<br /> Ext.B1 : Gold loan receipt for Rs.6,000/- dated, 07-04-04 from<br /> 1st opposite party to complainant. <br /> Ext.B2 : Acknowledgement card dated, 8-02-05 received from complainant<br /> to first opposite party.<br /> <br /> <br /> <br /> <br /> <br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> <br /> E. AYISHAKUTTY, MEMBER<br />