DATE OF FILING : 17.12.2013.
DATE OF S/R : 22.01.2014.
DATE OF FINAL ORDER : 06.01.2016.
Sri Rajesh Kumar Koley,
son of Sri Prasanta Kumar Koley,
residing at Ichapur Canal Side, Purbapara,
P.O. Santragachi, P.S. Jagacha,
District Howrah,
PIN 711104. .. ………………………………………………………… COMPLAINANT.
Branch Manager,
Muthoot Finance, Kadamtala Branch,
154, Narasinga Dutta Road ( 1st floor ),
besides Bantra P.S., Kadamtala,
Howrah – 711101… …………………………………………………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 : Smt. Jhumki Saha.
Hon’ble Member : Shri A.K. Pathak .
F I N A L O R D E R
- This is an application U/S 12 of the C.P. Act, 1986 filed by the petitioner, Rajesh Kumar Koley, against the o.p. Branch Manager, Muthoot Finance, Kadamtala Branch, praying before the Forum to direct the o.p. to settle the loan amount with the petitioner alternatively to allow the petitioner to make payment of the loan amount by diminishing the quantum of loan amount with minimum interest and by easy installment and to pay Rs. 80,000/- as compensation for physical and mental harassment and Rs. 10,000/- as litigation costs.
- The case of the petitioner is that he took a loan of Rs. 2,27,000/- from the o.p. and mortgaged gold ornaments weighing about 127 gms. He further states that on and from September, 2011 to July, 2013 he paid Rs. 70,000/- to the o.p. and since August, 2013 his financial condition gradually deteriorated and he was unable to pay the dues. On 29.11.2013 he received a notice from the o.p. to make payment of Rs. 2,33,122/- towards the loan account and failing to do so the o.p. would dispose of the pledged gold ornaments through auction. The petitioner rushed to the o.p. and told him to calculate the loan amount correctly but the o.p. did not do the same and told that if Rs. 2,33,122/- was not paid then the gold ornaments would be sold in auction. The o.p. continuously threatening to auction the gold ornaments even if there is no court order and on 21.11.2013 the o.p. sent one legal notice regarding sale of the gold ornaments even though they did not furnish any account of the loan transaction and the above facts compelled the petitioner to file this case.
- The o.p. contested the case by filing a written objection denying the allegations made against the o.p. and submitted that while disbursing the loan the o.p. and the petitioner executed one document which was a pledged form wherein the full details of the loan, gold ornaments details, amount of loan, rate of interest, date, time and terms of conditions of loan were given and after knowing fully well the terms and conditions the said loan was granted and disbursed. The o.p. handed over one such pledged form to the petitioner singed by the petitioner and the same should be produced at the time of closing the account. It is clearly mentioned in the pledged form that the period of loan was maximum 12 months and if the loan account is not closed down then the mortgage gold ornaments kept his collateral security would be auctioned on giving notice and will be adjusted against the outstanding dues. In the instant case, the petitioner / borrower could not pay the principal amount and agreed interest and the o.p. time and again informed him but the petitioner avoided and thus in usual course the auction notice was issued fixing date of auction if the outstanding dues was not paid before the date of auction. As the borrower did not comply the terms of the loan agreement and also did not pay the monthly interest and the loan amount arose to Rs. 2,33,122/- as mentioned in the agreement, so the petitioner filed this case to harass the o.ps. and the same be dismissed as the o.p. never threatened the petitioner of auctioning the gold ornaments. Rather the petitioner once consented before the o.p. to auction the ornaments and close the account within a year from the date of pending of the same. The o.p. did not do the same as it was unethical and against business principle. There was no deficiency in service and so the petitioner is not entitled to any compensation.
- Upon pleadings of parties the following points arose for determination :
- Whether the case is maintainable in its present form ?
- Whether the petitioner has any cause of action to file the case ?
- Whether there is any deficiency in service on the part of the O.P. ?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
- All the issues are taken up together for the sake of convenience and brevity for discussion and to skip of reiteration. In support of his case, the petitioner filed affidavit as well as documents and also the o.p. finance company filed certain documents wherefrom it is noticed that the petitioner being a borrower pledged 127 gms. of gold ornaments before the o.p. against the loan of Rs. 2,27,000/-. The loan shall be for a period of 12 months and the company would charge rate of interest from time to time and if the loan amount is not repaid with interest then after the stipulated period of 12 months and in case the outstanding exceeds the drawing power permitted, penal interest at 3% p.a. shall be charged extra from the date of availing the facility. The company also was authorized by the petitioner to dispose of the ornaments deposited by him in auction sale in the event of default of repayment of the loan amount and interest without notice to the borrower and the petitioner signed the documents accepting terms and conditions.
- This Forum heard the ld. Counsel for both sides and scrutinized papers being the petitioner and written version and also the points noted in the written argument and finds that in the instant case though the loan was taken on 21.9.2011 on condition that it was for a period of 12 months and the repayment not being made by the petitioner and simply he paid Rs. 70,000/- as is his case and the o.p. denying the case of the petitioner and submitting before the Forum that there was an agreement between the parties who are bound by the terms and conditions of such agreement and thus the outstanding amount also being Rs. 2,33,122/- as mentioned in the auction notice and the o.p. company submitting that there was no change of the pledged ornaments and the petitioner not making payment of the principal amount and up to date interest. The o.p. would have no other alternative but to auction the gold ornaments for releasing the outstanding gold ornaments. There was never any deficiency on the part of the o.p. and they never caused any harassment to any body and so the petitioner is not entitled to any compensation and the petitioner not making payment of the loan amount within the stipulated period and filing the case to settle the whole subject and the o.p. never compelled the petitioner to file the case and so no litigation costs be awarded in favour of the complainant / petitioner.
- On scrutiny of the documents it is crystal clear before the Forum that the complainant though took the loan for a period of 12 months yet he did not repay the same within the stipulated period which was over by the end of September, 2012 and the petitioner for the sake of saving the ornaments from auction filed this case which was against the terms and conditions of the loan document as submitted by the o.p. company.
- The documents being the Muthoot Personal Loan undertaking cum sanction letter and the Muthoot Gold Loan Form duly signed by the petitioner / borrower dated 21.09.2011 proved the fact that the petitioner took a loan of Rs. 2,27,000/- and pledged his gold ornaments weighing about 127 gms. But during the tenure of the loan he paid only Rs. 70,000/- out of Rs. 2,27,000/- and when the petitioner received a notice on 29.11.2013 from the o.p. that he has to pay Rs. 2,33,000/- i.d., the o.p. would disburse the pledged gold ornaments in auction, and then the petitioner filed this case on 17.12.2013. On close scrutiny of the documents filed by the parties nowhere it is clear that what was the rate of interest on the loan amount though there is clear mentioned that 127 gms. of gold was deposited as a collateral security. In their written version the o.p. submitted that there was no change of the pledged ornaments and the petitioner made no payments compelled them to issue auction notice as they got no other alternative.
- The petitioner filed this case U/S 12 of the C.P. Act, 1986 which is a benevolent legislation and the consumer here is a principal beneficiary of the legislation. In the instant case this Forum find no deficiency in service on the part of the o.p. and rather finds that the petitioner could not repay the loan during the period and now the petitioner filed this case with the prayers as he would repay the loan with interest and once to get back his deposited gold ornaments. Keeping in mind the principles of law laid down by our Supreme Court in the case of Lucknow Development Authority v. M.K. Gupta in III ( 1993 ) CPJ 7 wherein the Supreme Court held that the importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful business ….….…....” The C.P. Act is designed to protect the consumers from the exploitation.
In view of above in the instant case the petitioner wants to repay the loan with reasonable interest as there is no specific interest rate laid down in the loan agreement. So this Forum finds that it would be just and wise to direct the petitioner to repay the loan with 9% p.a. interest from the due date till recovery excluding Rs. 70,000/- from the total amount and he was entitled to get back the pledged gold ornaments.
In view of above the claim case succeeds.
Court fee paid is correct.
Hence,
O R D E R E D
That the C. C. Case No. 439 of 2013 ( HDF 439 of 2013 ) be and the same is allowed on contest but without costs against the o.p.
The petitioner is entitled to the main relief regarding settlement of loan account and no order is passed as to compensation and cost as discussed earlier.
The o.p. is directed to settle the loan account of the petitioner imposing 9% interest on the loan amount excluding Rs. 70,000/- already paid by the petitioner and the settlement of account be made within 30 days from the date of this order and after such settlement the petitioner is to pay the loan amount within three months and then the o.p. is directed to return the pledged ornaments to the petitioner when the total amount of loan is repaid.
Any of the parties not complying the order of the Forum, the other side would be at liberty to put the order in execution and also the petitioner not making the payment of loan, the o.ps. would be entitled to 9% interest after expiry of the stipulated period as mentioned in the final order.
Supply the copies of the order to the parties, free of costs.
DICTATED & CORRECTED
BY ME.
( B. D. Nanda )
President, C.D.R.F., Howrah.
