DATE OF FILING                    :     13.04.2016.

DATE OF S/R                            :      16.05.2016.

DATE OF  ORDER                  :      27.04.2017.

Rina Roy,  

daughter  of late  Tinkari Mondal,

residing at 6/9, Netaji Subhas Road,

flat no. 5C, 5^th floor, Roy Bhawan,

P.O. & P.S. & District Howrah,

PIN  711101.. ……………..…………………………….…………… COMPLAINANT.

• Versus   -

The Branch Manager,

Muthoot Finance Ltd., 

Ramrajatala Branch, Ramrajatala,

Howrah 711 104.……………………………………………………...OPPOSITE PARTY.

P    R    E     S    E    N     T

Hon’ble President  :   Shri  B. D.  Nanda,  M.A. ( double ), L.L.M., WBHJS.

Hon’ble Member : Shri A.K. Pathak.

F  I   N   A    L       O   R   D    E     R

1. This is an application U/S 12 of the C. P. Act, 1986 filed by the petitioner, Smt. Rina Roy, against the o.p., Muthoot Finance Ltd.,  praying for a  direction upon the o.p. not to auction the gold ornaments and to  pay Rs. 5 lakhs as compensation caused to the petitioner   mental pain and agony and costs of the proceedings.  

2. The case of the petitioner is that she is a business woman  residing at 6/9, Netaji Subhas Road, flat no. 5C, 5^th floor, Roy Bhawan, P.O., P.S. & District Howrah, PIN 711 101. The petitioner  took three gold loans viz. 1^st  loan of Rs. 4,60,800/-, 2^nd loan of Rs. 12,000/- & 3^rd loan of Rs. 17,000/-  from o.p. company  against her  pledged gold ornaments as a collateral security weighing 202.4 gms., 8.800 gms. & 8.5 gms. respectively.   Since 2010 – 2011 the petitioner had been paying interest to the o.p. company  but trouble arose when the petitioner received a notice dated 01.02.2016 with the caption ‘Third Notice’  wherein the petitioner was intimated to pay the total outstanding dues of Rs. 5,92,935/- within a period of seven days failing the o.p. will be constrained to sell / auction / dispose of the ornaments pledged by the petitioner before the o.p. company.  After receiving the notice, the petitioner went to the o.p. and requested them to stay the auction sale and the same would be deficiency in service on their part as well as unfair trade practice. The o.p. did not pay heed to the words of the petitioner compelling him to file the case.   

3.         The o.p. filed written version denying the allegations made in the complaint petition and stating that the complainant took three  loans from the o.p. by pledging her  gold ornaments as a collateral security and  as per terms of the loan agreement, the complainant failed to repay the loan amount. With a view to recover the loan amount, the o.p. issued demand notice to the petitioner  but the petitioner did not respond. Thereafter the o.p. was constrained to issue legal notice  dated 21.01.2016   to the complainant through counsel to collect the outstanding dues but again petitioner did not pay any heed. In the legal notice, it was mentioned that if the applicant did not make the payment on or before 13^th  February, 2016  then the o.p. shall be constrained to sell / auction / dispose of the pledged ornaments in the public auction which would be   conducted on 15.02.2016 even if the complainant after receiving the notice failed to pay the dues. The relationship between the petitioner and the o.p. is a ‘Pawnor’ and ‘Pawnee’. The petitioner pledged the gold ornaments as collateral security for the purpose of securing the repayment of a loan availed of by him from the o.p. company, which is a non banking finance company, registered under the Reserve Bank of India under Section 176 of The Indian Contract Act, 1872 which provides  as under “176. Pawnee’s right where pawnor makes default. If the pawnor makes default in payment of the debt, or performance; at the stipulated time or the promise, in respect of which the goods were pledged the pawnee may bring a suit against the pawnor upon the debt or promise, and retain the goods pledged as collateral security; or he may sell the things pledged, on giving the pawnor reasonable notice of the sale.”  So the case against them be dismissed.  

4.         Upon pleadings of  parties the following  points arose for determination :

1. Is the case maintainable in its present form ?
2. Whether the petitioner has any cause of action to file the case ?
3. Whether  there is  any deficiency in service on the part of the O.P. ?
4. Whether the complainant is   entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

5.         In support of her case the petitioner, Rina Roy, filed affidavit as well as documents  and the o.p., Muthoot Finance Ltd., also files documents showing such loan in favour of the petitioner on 5^th December, 2014.  From the terms and conditions of the agreement,  it is noticed that the loan amount along with interest is payable on demand made by the company and even if no demand is made then the loan is to be repaid with interest.  In case of value of gold ornaments as collateral security comes down the borrower has to repay immediately the amount demanded by the company as noticed from the terms and conditions. From the terms and conditions it is further noticed that in case the loan amount together with interest is not repaid within the due date or earlier as demanded by the company, the company has the right to initiate legal proceeding and sell the gold ornaments in auction with prior notice to the petitioner and set off the amount so received towards the loan amount, interest and other charges. If the amount thus recovered is insufficient to cover the amount, the shortfall would be recovered from the borrower personally or from his other personal assets. It is also noticed from terms and conditions mentioned in the agreement  that the company shall be entitled to retain the gold ornaments as a bonafide holder of the said ornaments till the borrower has not performed his promise to repay the loan amount. In the loan agreement there is signature of both the branch managers as well as this petitioner, Rina Roy. Thus keeping in mind the terms and conditions of the loan agreement as laid down in the body of the said agreement this Forum finds that within 13.02.2016 the petitioner ought to have repaid the loan with interest and to get back the gold ornaments given as collateral security or he would have paid interest for renewal of the loan period. But he failed to do so. Thus, in the instant case if the petitioner had repaid the loan with interest within the time mentioned then there was no question for o.p. to send legal notice. However, this Consumer Protection Act, 1986 being a legislation looking after the interest of the consumers providing better protection of their interest and thus in the instant case this consumer though has not made even a single payment of installments yet the Consumer Forum cannot dismiss his case without directing him or rather giving him a chance to repay the loan with interest as per terms and conditions of the agreement between this consumer and the service provider. So the petitioner would be entitled to the relief as prayed for. In the instant case, the petitioner prayed for a direction upon the o.p. to return the gold ornaments pledged by the petitioner as collateral security and also prayed for determination of the interest as per law payable by the petitioner to the o.p. and compensation and costs. The petitioner succeeds in proving the case and he would pay the loan with interest as would be determined by the o.ps. as per terms of the loan agreement.         

In the result, the application succeeds.   

            Court fee paid is correct.

      Hence,     

           O     R     D      E      R      E        D   

       That the C. C. Case No. 144  of 2016 ( HDF 144 of 2016 )  be  and the same is allowed on contest without cost  against the o.ps. considering the facts and  circumstances of the case.

       The petitioner is entitled to the other relief as prayed for and the o.p., Muthoot Finance Ltd.,  is directed to determine the amount of loan with interest due from the petitioner after deduction of the payment if at all  made by the petitioner and the o.p. is to do the same within one month from the date of this order  and the petitioner would repay the amount within another four  months from the date of such determination of loan amount with interest. On payment of the total loan with interest the petitioner would get back his pledged ornaments from the o.p., who would deliver the said ornaments to the petitioner within seven days from the date of full payment of loan with interest as determined by the o.p. within 30 days from the date of this final order.

   Considering the circumstances of the case no order is passed as to compensation.

  If any of the parties fail to comply,  the final order then the other party would have liberty to put this final order in execution after the expiry of the stipulated period mentioned in the final order.

         Supply the copies of the order to the petitioner, free of costs.

DICTATED  &    CORRECTED

BY   ME.  

  (    B. D.  Nanda   )                                              

  President,  C.D.R.F., Howrah.