DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 4th day of October, 2017
C.D.Case No.47 of 2015
Sri Jagabandhu Panigrahi
S/o: Late Rabindra Panigrahi
Vill/Po: Guamal, Ps: Tihidi
Dist: Bhadrak
……………………. Complainant
(Versus
Branch Manager
India Infoline Finance Ltd.
At: Gupta Complex, Bypass
Dist: Bhadrak
…………………………..Opp. Parties
For the Complainant: Adv Sri A Chand & Others
For the Opp.Parties : Adv Sri P Verma & Others
Date of hearing : 05.10.2016
Date of order : 04.10.2017
SRI RAGHUNATH KAR,PRESIDENT
The complainant has filed this complaint against the OP with the regard to the deficiency of service in respect of gold loans are to effect that:-
That the complainant has incurred two no’s of gold loans from the OP. The first loan was on 09.07.2013. The complainant mortgaged the gold weighed about 27.70 gm vide ornaments stated in the schedule below. The OP had paid Rs 55,000/- against this ornaments to the complainant. The complainant had also incurred a second gold loan on 25.09.2013 from the OP due to his poverty. The complainant has received Rs 18.000/- from the OP. The ornaments of the second loan has been described in the schedule below of this complaint. All the gold, mortgaged are in the category of 24 carets & valued at Rs 1,80,000/-. Subsequently the OP has threatened to the complainant that all his mortgaged gold would be auctioned. Then the complainant repaid Rs 9,000/- in two occasions. On 16.04.2015 some unwanted persons threatened to the complainant that all his mortgaged gold ornaments would be auctioned if he failed to repay the amount which is Rs 1,80,000/-. Then the complainant arranged, with much difficulties, Rs 4,000/- only & paid the OP who assured to issue money receipt from the office. The complainant went to the office as per the assurance of the OP, but instated of issuing the cash memo the OP threatened him to auction all his gold on 18.04.2015.
That when the complainant asked for the statement of accounts the OP instated of issuing the same they charged interest more than at the rate of S.B.I. The OP does not maintain the true & fair account. After the complainant filing cases in this Forum, the R.B.I, (The OP) did not provide the money receipt. The complainant had also asked for to submit the documents but the OP denied to issue the same. He also charged interest beyond the R.B.I guideline. The demand of money again & again in coming under the unfair trade practice & deficiency of service. The cause of action in the case accrued on 16.04.2015. When the OP did not provide the receipt & threatening. Hence the complainant sought for the reliefs as follows:-
(1) The Hon’ble Forum be pleased to direct the OP to render & fair account.
(2) The D.C.D.R.F shall have to declare the exact amount to be paid.
(3) The demand of Rs 1,80,000/- be declared illegal.
(4) The auction be stayed.
(5) The sum of Rs 3,000/- & the cost of the litigation Rs 5,000/- & the mental agony shall be imposed upon the OP.
(6) The learned Forum shall fix the installments for repayment.
(7) The coercive action of the OP shall be stopped.
(8) The learned Forum shall decide of any other relief what thinks fit.
SCHEDULE
Particulars of Articles Gross Weight Net Weight Value
One Chain 27.70 25.09 40,144.00/-
Others 17.30 15.54 24,864.00/-
Chain 8.90 7.60 14,440.00/-
Others 2.00 1.88 3,572.00/-
The complainant has filed some documents on behalf of him to strength then his stands as follows:-
(i) Sanctioned letter on 09.07.2013 gold loan account No. GL2944312 (Xerox copy)
(ii) Sanction letter on 25.09.2013 vide account No. GL3225705 (Xerox copy)
(iii) Receipt No. RGUPT5228211 account No. GL2944312 on 06.08.2014 (2 sheets)
(iv) Acknowledgement receipt on 05.08.2014 loan account No. GL2944312 (Xerox copy)
The complainant has also filed an interim petition u/s 12 (3) (B) of C.P Act, but he has not served any copy upon the OP. It is further to say that the said petition has not been hard till the date of passing of the order. Hence the said petition has been rejected being not pressed.
On the other hand the OP has appeared in the Forum through his advocate & filed the written version such as the OP has challenged the maintainability of this case in this Forum. The complainant has filed this petition with a malafied intention to harass & defame the OP. The complainant deliberatively filed the present complaint to abuse the process of law. The complainant has suppressed the materials. He had failed to repay the principal loan amount with reference to the gold loan agreement No. GL2944312 of Rs 65,000/- along with the interest amount of Rs 19,736/- & with reference to the gold loan agreement No. GI3225705, the complainant has failed to repay the loan amount of Rs 18,000/- along with the interest amount of Rs 5,305/- as on 03.06.2015, but the complainant neither repaid said principal loan amount nor paid the interest amount which was calculated to an amount of Rs 1,08,041/- as on dt. 03.06.2015.
It also submitted by the OP that as there is a an arbitration clause in the gold loan agreement which has been agreed by the complainant in case of any dispute arising out of or connection with the present loan transaction, the parties shall be abided this process of arbitration. There is a specific and special law governing the present dispute as per the settled laws, this Forum has no jurisdiction to entertain this complaint as the same is barred by law. A jurisdiction of consumer Court shall be barred in case of presence of arbitration agreement between the parties.
The complaint an interest amount is liable to dismissed as being not bona fide, proper & legal and this Forum is not the proper Court to file this present complaint. Hence present complaint & being misconceived, groundless and unsustainable in law is liable to be dismissed.
The OP has denied the contains of other paragraphs in toto. He has filed an affidavit denying all the allegations made against him. The OP has also filed the total amount of loan and accrued interest there on mentioning in the tabular form which has been clearly manifested in the No. 5 paragraph of the written version. The OP has also filed a piece of document which is “INDIA INFOLINE FINANCE Ltd.” This is only document the OP has filed to support his stands.
ISSUES
(1) Whether the complainant is a consumer.
(2) Whether the OP has caused any deficiency of service to the complainant.
(3) Whether the OP has been authorized to sanction loan, mortgaging the gold.
(4) Whether a agreement for loan has been signed by both the parties.
(5) Whether the OP has obtained any permission for the RBI to land money.
(6) Whether the OP has sent any demand notice before auctioning the said gold.
OBSERVATION
We have already gone through the facts of the complaint & the written version as well as the documents filed by both the parties. Here we have framed some issues in which the answers are essentially to be inserted during the course of passing the order. Coming to the issue No. 1 we are to reply that the complainant is certainly a consumer. He has pledged the gold ornaments with the OP for which he has been paying the interest for that. As the OP has negated that the complainant is not a consumer, he is forgetting that the complaint is paying interest to the OP. When the subject matter is involved with interest, so the OP is a profit making company. Hence the complainant is a consumer definitely.
The OP is a money lender & he has mortgaged some gold ornaments from the complainant & receiving interest from him. First of all the OP has to obtain a permission from the RBI (Reserve Bank of India), which is called as “MONEY LENDING LICENCE”. Unless & until the said permission has not been obtained by the OP from RBI, under no circumstance the OP is entitled to mortgage gold & to credit loan. The OP has to weigh the gold ornaments first & to examine those gold ornaments by a recognized gold smith. According to the banking rules the OP should have prepared list of mortgaged articles, a copy of the said list should have been handed over to the complainant. If the gold ornaments which have been mortgaged, the denomination of the caret should have been marked there. At the advent of the mortgaging procedure the OP should have directed to the complainant to upon an SB account in the OP office. If the OP is not a banking authority then he should have prepare a pass book & maintained the details of the transaction there. It is first & foremost duty of the OP to prepare loan agreement between the parties. It is also mandatory that the details of the loan amount, rate of interest, tenure of loan, details of weight & caret of the ornaments should have been mentioned there. The particulars of the gold ornaments or mortgaged articles should have been mentioned there. The loan agreement is essentially required for mortgaging of the loan & advancing money, but it is primafacie case that both the parties have not endorsed in any agreement. Both the parties have not executed any agreement which is purported for gold loan. Without making any agreement between the parties no loan having mortgaged & the loan shall be enforced. So in absence of execution of a loan agreement by both the parties is obviously is a primafacie case of deficiency of service. If the complainant has failed to repay the loan amount within the stipulated time or he has become a defaulter of casual repayment of loan on installments basic, then the OP should have issued demand notice to the complainant. The OP should have calculated the total amount of loan, how much the amount the complainant has repaid out of the loan amount, what is the rate of interest etc. The OP has defaulted to do so. So it is a clear primafacie case of deficiency of service.
Replying the issue No. 3 of this observation we are to say that the OP has neither been authorized or empower or permitted by RBI to lend money being mortgaged the gold ornaments. Advancing loan to anybody by the money lender on basic of mortgaging gold etc. is illegal.
Coming to the issue No. 4 of this observation we are replying that the execution of loan agreement is a cardinal part the loan. If any agreement has been executed by the parties, the OP should have filed the same in the Forum for better observation and adjudication & to reach at the conclusion. The OP has defaulted to do so.
Coming to the issue No. 5 of this observation we are replying that unless & until the money lender obtains any permission and license from the RBI he should have not made transaction with the customers mortgaging any valuable articles and lending loan and subsequently collecting lump sum amount as interest which is quite illegal is the eyes of law. The OP has adopted a wrong procedure of transaction of money with the complainant which is illegal, unlawful & punishable. The OP has neither obtained any money lender licenses or permission from the RBI to commence such transaction.
Coming to the issue No. 6 of this observation we are replying that it is the settled principle of law that the OP should have sent demand notice to the complainant if the complainant has become a defaulter of such loan & to release such gold ornaments. If the complainant has become lethargic & indifferent for repayment of loan the OP should have issued demand notice or notices to the complainant for recovery & auction of the gold ornaments. The OP has neither established his case defending himself any respect of the auction of the gold ornaments. He has not yet issued any demand notice to the complainant. The OP has defaulted to perform all the norms of the gold loan credited by him, and he has also adopted wrong procedure for such transaction.
We are here by adjudicating the case & pronouncing the last findings of this case is that the jurisdiction of this Forum is wide & independent. Any case of complainants in respect of deficiency of service and defective goods, dishonest practice of business transaction is maintainable within the jurisdiction of the District Forum of the consumer’s case. The dimension of this forum is so wide no one can challenge the maintainability of C.D Cases in respect of the jurisdiction. The territorial jurisdiction & the pecuniary jurisdiction is very vast. So the defense plea of the OP is not sustainable in the eyes of law. So un authorized threatening to the complainant to auction the gold ornaments is illegal and ab-initio. Hence it is ordered;
ORDER
The complaint is & the same be allowed on part the OP is here by directed to render true & fair account and furnish the exact amount to be paid by to the complainant. The OP is further directed that he should give proper opportunity to the complainant by issuing demand notices time to time before commencement of the auction & he should be restrained from auctioning the gold ornaments till last stipulated time of repayment.
This order is pronounced in the open Forum on this day of 4th October, 2017 under my hand and seal of the Forum.
(Sri Raghunath Kar)
President
(Sri Basanta Kumar Mallick)
Member
Typed to my dictation & corrected by me
(Sri Raghunath Kar)
(Apsara Begam) President
Member
