Date of filing: 16.01.2018 Date of disposal: 15.03.2019
Complainant: Sk. Kamrul Hossain, S/o. Sk. Md. Unus, resident of Village: Koria, Post Office: Baikunthapur, Police Station: Burdwan Sadar, District: Burdwan, Pin.-713 104
- V E R S U S –
Opposite Party: 1. Muthoot Finance Limited, having its branch office at 1st Floor, 75, G. T. Road, Opposite of Town Hall, PO. & PS: Burdwan, Dist: Purba Bardhaman, PIN – 713 102, represented by its Branch Manager.
2. The Chairman, Muthoot Finance Limited, registered office at Muthoot Finance Ltd., 2nd Floor, Muthoot Chambers, Banerji Road, Kochi, Kerala, Pin – 682 018.
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Smt. Nivedita Ghosh.
Hon’ble Member: Dr. Tapan Kumar Tripathy.
Appeared for the Complainant: Ld. Advocate, Debdas Rudra.
Appeared for the Opposite Party Nos. 1 & 2: None (ex parte).
J U D G E M E N T
The present application u/S. 12 of the C. P. Act, 1986 filed by the complainant Kamrul Hossain against the Ops for compensation of Rs. 1,00,000=00 along with other reliefs.
The case of the complainant is that he availed a loan of Rs. 3, 51,200=00 after pledging gold ornaments weighing 107.800 gms on 30.09.2015 bearing loan No. 01114/MRS/000001 from the Ops having its Branch Office at 1st Floor, 75, G.T. Road, Opposite Town Hall, Burdwan – 713 101, WB, under some terms and conditions as stipulated in the loan sanction letter/loan agreement.
The complainant alleged that in the sanctioned letter it was not categorically explained about the repayment of the said loan amount, only written in the period of loan is 29.12.2015. But the complainant then requested OP-1 to extend the period for further nine months i.e. total period for one year and the complainant assured OP-1 that he will repay the said loan amount along with interest as per terms and condition. OP-1 also agreed with the proposal and accordingly directed the complainant to repay the said loan within one year i.e. 29.09.2016 but did not give document towards the extension of the loan period.
After that all of a sudden the complainant received a legal notice dated 08.07.2016 from a Solicitor Farm, namely, Kohli & Sobti stating that as he did not repay the said loan, as such the total dues stood to the tune of Rs. 4, 28,899=00 up to the date of 04.07.2016 and asked the complainant to pay the said amount within 06.08.2016 failing which Ops were compelled to sell the said pledged ornaments on public auction dated 08.08.2016 at 11.00 a.m. at 1st Floor, 75, G.T. Road, Opposite Town Hall, Burdwan, West Bengal – 713 101 without any prior notice to the complainant.
After receiving the said legal notice the complainant sent a reply through Ld. Advocate dated 01.08.2016 where he requested to stop to sell the pledged ornaments in the public auction on 08.08.2016 and further requested to grant him 3 or 4 months’ time to repay the said loan amount and thereafter again sent another letter dated 22.08.2016 through his Ld. Advocate to the OP-1 and further requested to settle the loan amount after waving the interests and also wants opportunity so that he can able to repay the loan amount at a time and again requested not to sell the pledged ornaments and thereafter the OP-1 sent a reply vide letter dated 25.08.2016 where stated to the complainant that they are not in a position to waive the interest or to grant any further opportunity to the complainant. The OP-1 also requested the complainant to pay the entire outstanding dues without any further delay and also stated if the complainant failed to repay the outstanding dues then they will be constrained to auction the pledged gold ornaments.
The complainant further stated that again he sent a letter dated 19.09.2016 through his Advocate stating that the complainant is ready to repay the outstanding dues of the said loan with a very short time with further request to stop the auction of pledged ornaments.
The complainant further alleged that he somehow able to collect the money from his relatives and went to the office of the OP-1 on 2nd week of November 2016 when OP-1 told the complainant that the Branch Manager was not present at that time and accordingly asked him to visit the said office on next week for repayment. Thereafter the Ops sent another notice dated 18.11.2016 to the complainant through their legal farm, namely, Kohli & Sobti and informed that they had already sold the said pledged ornaments to the tune of Rs. 2,69,386=00 by auction when the outstanding dues stood to this time of Rs. 4,49,550=00 and as such the OP also demanded (through the said notice) Rs. 1,80,164=00 from the complainant for remaining dues and after receiving the said notice the complainant came to learn that his pledged ornaments had already been sold by OP by public auction without any prior notice and for that the complainant has been compelled to file this present claim application against the OP due to deficiency in service and unfair trade practice on the part of the Ops and further he has been suffering great mental pain, agony and harassment, as he was ready to repay the actual outstanding dues for the period from 30.09.2015 to 29.09.2016 as per terms and condition of the loan sanctioned letter.
The complainant further stated that he is entitled to get back his pledged ornaments weighting 107.800 gms along with Rs. 1,00,000=00 as compensation towards mental pain, agony and harassment and also Rs. 25,000=00 as litigation cost.
The cause of action first arose on and from 30.09.2015 and finally on 25.08.2016 which is continued till the date of filing the present claim application.
Now it appears that after filing the present complaint, the complainant take steps against the Ops by filing proper requisition and it also appears that both the Ops have received the notice but failed to appear within time by filing written version, accordingly the case fixed for ex parte hearing against both Ops.
Now points for consideration are:
(1) Whether there is any deficiency in service or unfair trade practice committed by the Ops against the complainant and
(2) Whether the complainant is at all entitled to get any relief or not?
Decision with reasons:-
To prove the claim application complainant is able to produce all the letters to show that he repeatedly informed the Ops for not selling the pledged ornaments and also informed that he is ready and willing to pay the entire loan amount to the Ops as per terms and condition. Complainant also filed his evidence through affidavit along with some documents, i.e., Xerox copy of judgement dated 30.08.2017 in connection with CC/185/2016 and Xerox copy of judgement dated 11.12.2018 in connection with A/1301/2017 passed by Hon’ble SCDRC, WB.
Let us consider both issues at a time for consideration.
There is no dispute that the complainant is a bonafide consumer of the Ops and it is also not disputed that the loan sanction letter dated 30.09.2015 executed between the parties prior to taking loan which was valid up to 29.12.2015, duly signed by the complainant.
According to Section 12 of the C. P. Act as the complainant is able to prove his bonafide consumer right so the present Forum Court has no hesitation to hold that the claim petition is well maintainable according to law and the present Forum Court has jurisdiction (pecuniary and territorial) to try the claim application.
So at this stage only point for consideration whether the complainant is entitled to get any relief as prayed for?
Here in the instant case the complainant admitted the terms and conditions by signing when the same was executed between himself as well as Ops at the time of taking loan amount of Rs. 3,51,000=00 on 30.09.2015 against ornaments measuring 107.800 gms, when complainant agreed to repay the said loan amount within 29.12.2015. Thereafter complainant stated before the Court through his ld. Lawyer that he prayed before the OP for extension of time for repayment of loan amount and accordingly the OP also allowed the prayer of the complainant, though the complainant is not able to produce any documents to show that as per prayer, the time for repayment of loan amount extended for one year.
But for the argument sake the present Forum Court has no hesitation to hold that the complainant will repay the loan amount to the OP within 12 months, without fail.
It further appears that till the date of filing the present complaint, the complainant is not paid any amount as per terms and condition, when the Ops sent a notice through Ld. Advocate dated 08.07.2016 with information that when the complainant failed to repay the loan amount of Rs. 3, 71,200=00 as per terms and condition dated 30.09.2015. So they are going to sell through auction the pledged ornaments on 08.08.2016 at Burdwan with a request to repay the said loan amount on 06.08.2016 and further informed if the said auction sell failed then it will be on 10.08.2016 at 5th Floor, 7/B Middleton Street, Bardhan Market, Kolkata, WB without any further notice and after receiving the said information the complainant then informed the Ops through letter dated 01.08.2016 issued by Ld. Advocate where it was mentioned that due to acute financial problem complainant is not able to pay the loan amount though he wants to pay the same and prayed further extension for three to four months more to repay the said loan and at that time he also prayed not to sell or not to disposed of pledged ornaments in the public auction, again it appears that the complainant sent another letter through Ld. Advocate on 22.08.2016 and again informed that due to financial problem he was not in a position to repay the entire loan amount at a time and further prayed for waving the entire interest so that the complainant can be able to repay the principal loan amount at a time with a prayer that if the complainant is not allow further time as per his statement there is every chance to suffer irreparable loss.
Thereafter again the OPs sent a notice through Ld. Advocate dated 25.08.2016 where straightway stated that they have no right to waive the interest as per prayer of the complainant with a further direction that the complainant should repay the entire loan amount within time, failing which they have no other alternative but to take steps for auction/sell.
Thereafter again the complainant sent a notice dated 19.09.2016 through Ld. Lawyer to the Ops with same prayer i.e. for further time so that he can repay the said loan amount. Thereafter the Ops sent a letter dated 18.11.2016 where informed that the pledged ornaments have already sold through auction.
So it is clear from the attitude of both parties though the time limit for repayment was for three months but Ops allowed the same by taking steps in the month of July through a letter dated 08.07.2016 and it is also clear that the complainant failed to pay any amount as repayment loan though he stated before the Ops several times that he is willing to repay the entire loan amount at a time but ultimately never paid any amount. The conduct of the complainant shows his real intention, i.e., not to repay the loan amount as it appears that the complainant never stated before the Ops at the time of taking loan against gold ornaments that he is not financially strong enough to pay the amount within three months but when the amount became a big amount along with interest then he prayed for waiving the interest because of his financial condition and further prayed for giving him more time to pay the loan amount.
It also appears that the complainant never tried to repay the loan amount to the Ops knowing fully well that he was duty bound to repay the entire amount within 3 months and such conduct of the complainant is proving that he never came with clean hands before the Forum Court which is not acceptable according to law.
At the same time the Forum Court is also duty bound to consider regarding the unfair trade practice as well as deficiency in service by the Ops upon the complainant was at all happened or not, as it appears that Ops have already sold out gold ornaments through auction/sell inspite of repeated requests by the complainant.
At the time of consideration this point the present Forum Court found that according to terms and condition executed between the parties, i.e., complainant should repay the loan amount within time and if failed then OP take steps for auction/sell after serving proper notice.
Accordingly the present circumstances it appears that the OP informed the complainant about auction/sell by letter for more than one time where clearly stated that if the complainant failed to comply their instruction for repayment the loan then auction/sell will be held without further notice, even OP also informed regarding the place where they wants to held auction/sell.
So the attitude of the Ops are very clear for the procedure of auction/sell and their intention also shows that they never try to commit any unfair trade practice as well as deficiency in service towards the complainant.
So under such circumstances it is clear that complainant himself failed to comply the terms and condition as per loan sanction letter. So he is not entitled to get any relief as prayed for.
Hence, it is
O r d e r e d
that the present Consumer Complaint being No. 07/2018 be and the same is dismissed ex parte against the Ops without any cost.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me: (Jayanti Maitra (Ray)
President
(Nivedita Ghosh) DCDRF, Burdwan
President
DCDRF, Burdwan
(Tapan Kumar Tripathy) (Nivedita Ghosh)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
