SRI BIJAYA KUMAR DAS,PRESIDENT:-
Deficiency in service and unfair trade practice in respect of illegal auction of pledged gold ornaments of the complainant are the allegation arrayed against the Opp.Parties.
2. Complaint, nutshell reveals that complainant availed a gold loan amounting of Rs.11,000/- by pledging gold ornaments of 4.83 gms from the office of the OP No.1 by executing an agreement on dtd.06.07.2014. As per complaint interest on the said gold loan was paid regularly and an amount of Rs.1255/- was paid against G/L A/C No.0114570700009852 as an interest amount of the gold loan vide M.R.No.1457 from the month of dtd.06.07.2014 to dtd.31.12.2014. It is alleged that in the May,2015 when complainant met Branch Manager of OP No.1 to release his gold loan as per the terms and conditions, the Branch Manager replied that the gold ornaments of the said gold loan accounts has put into auction. It is further alleged that without proper notice/intimation OP –Finance Company auctioned the gold ornaments. Complainant lodged complaint of illegal auction to the customer care section of Ops in the toll free No. bearing complaint Number 18004202233 dtd. 31.05.2015. Such illegal auction of gold ornaments gave emotional mental agony to the complainant for which the complaint before the Forum. The cause of action of the instant case arose on dtd.31.05.2015 when the head office of Ops denied to hear the grievance of the complainant. Complainant prays before this Forum to get back his gold ornaments of some weight which were pledged before the OP-finance company and an amount of Rs.50,000/- may be paid as compensation amount for financial loss and mental agony.
3. On receipt of the ‘Notice’ OP-Finance Company appeared through their Ld. Counsel Mr. M.R,Barik and filed written version into the dispute denying the allegations and submitting the facts of the dispute it is stated that OP-Company is a non-banking finance company registered with Reserve Bank of India having license to operate financial business to lend money against securing of the gold ornaments on its branches. OP No.1 is the Branch Office located at Kendrapara and OP No.2 is the Regional Office at Bhubaneswar. It is averred that on dtd.05.07.2014 complainant availed a gold loan amounting of Rs.11,000/- with 25 per cent interest per annum by pledging 5.88 mg of gold ornaments according to the terms and conditions of the company and by executing the pawn ticket. It is also averred that as per terms and conditions the interest will be paid on monthly basis, if the same is not paid within stipulated period. Interest will be counted on compound rate, and as per the terms and conditions the complainant failed to pay the interest since dtd.09.12.2014, for the default on payment company issued a notice to complainant on dtd.01.02.2015 to pay the principal amount along with interest. It is further averred that the said gold loan was sanctioned on dtd. 05.07.2014 for a term of 180 days i.e. till dtd. 31.12.2014 and the gold loan is to be cleared/released on or before dtd. 31.12.2014, when the complainant-loanee failed to release the gold ornaments and as per the terms and rights the OP-company is empowered to disposed of the gold at the risk of the complainant. When the complainant did not response the letter dtd. 01.02.2015 the gold ornaments were put into auction as per the terms conditions of the pawn ticket and D.P.Note. The OP-finance has tried their best to intimate the complainant by issuing letter, telephonic message as well as newspaper publication in the’The Sambad’ and in the Indian Express” on dtd. 05.03.2015. In the written version it is stated that as the Ops have acted lawfully and as per the terms and condition executed between the complainant and OP-Finance Company, the complaint may be dismissed with cost.
4. Heard the Ld. Counsels appearing for the parties, gone through the documents filed into the case. It is an admitted fact that complainant availed a gold loan amounting of Rs.11,000/- from the OP-finance company on dtd. 5/6.07.2014 and the gold ornaments which were pledged has been auctioned. It is also admitted that an amount was paid on dtd. 09.12.2014.
As per the allegation of the complainant it is to be decided by this Forum that whether the OP-finance company have acted lawfully by auctioning the gold ornaments of the complainant or not ? It is alleged that without any ‘Notice’ or prior intimation to the complainant the gold ornaments were put into auction. On the other hand OP-finance company submitted that as the complainant did not releasae the pledged gold ornament within the stipulated period i.e. from six months of sanctioned of gold loan and as per the terms and conditions executed between OP-finance company and the complainant-loanee and as per the conditions of the pawn ticket, the Demand Note(DN) and letters issued on dtd.01.02.2015 and the paper publication of auction the OP-company have after completion of all legal formalities auctioned the gold ornaments of the complainant-loanee. We examined the documents filed by the parties to ascertained the facts. The attested photo copies of terms and conditions, pawn ticket and Demand Note(DN) are presented before this Forum by Ops on list of documents. On perusal of clause 12 of the conditions which are written in Odia language signed by the complainant-loanee discloses that if any amount in respect of the gold loan is pending and are not cleared as per the time limit given in the Pawn ticket the pledged gold ornaments will be put into auction. Before going to the auction the OP-company will intimate to the loanee through Regd. Letter, courier, telephone, personal meet etc. and the date and place of auction, will be displayed in the branch offices notice board, website of the OP-company and the Regulatory Authorities. We, also examined the attested photo copy of Pawn ticket and Demand Note(DN) which are signed by the complainant-loanee discloses and repeat the conditions written in clause 12 of the promissory note(PN). But the last clause of the Demand Note(DN) speaks that if the pledged gold ornaments are not released within six months or the accrued interest on the said gold loan is not paid within the stipulated period the company has right to auction the pledged gold ornaments. It appears to us that the clause 12 of the terms and conditions of the promissory note(PN) and the last clause of the Demand Note(DN) are contradictory to each other. In the clause 12 of the terms and conditions loanee authorizes the OP-company to go for the auction of the pledge gold ornaments in case of any default of payment, but on the interpretation of last clause of Demand Note it does not authorizes the OP-finance company to go for auction of the gold ornaments, if the accrued interests are paid within the stipulated period of six months. In the case in hand, the complainant-loanee filed an attested photo copy of money receipt dtd. 09.12.2014, where it is reflected that complainant-loanee has paid Rs.1260/- ( Rs.1255.00 + Rs.5/-) as payment towards interest and principal against the said pledged gold loan account. Though the OP-finance company in their written version admits the transactions dtd. 09.12.2014, but did not speak a single sentence regarding details of the transaction dtd. 09.12.2014. The Demand Note(DN) issued by the OP-Finance is a part of the contract/agreement which is a unilateral mistake committed by the OP-finance company and makes an error on the expression of the agreement/contract by confusing the complainant like loanee and their customers. In the present dispute complainant does not challenge the violation of the terms and condition of the gold loan in his complaint petition rather challenges the procedure of auction of gold loan. Complainant alleges that no notice or intimation was given to him prior to the auction of the gold loan. Ops to counter the allegations filed attested photo copies of Excel data produced by Department of Posts reflected the name of the complainant with address, date of delivery as dtd. 05.01.2015 which can not be disbelieved. In addition to that Ops filed attested photo copy of the advertisement published in the daily newspaper ‘The Sambad’ and ‘The New India Express”. The publication of the daily newspapers are not legible and it is difficult to ascertain the details regarding auction of the pledged gold ornaments.
The complainant disputes the receipt of any intimation or ‘Notice’ but in our findings it is clear that Ops have intimated the complainant by delivery the letter on dtd. 05.01.2015, though the Ops in their written version remain silent about particular date of auction, only hammered in the point that as per the terms conditions when the complainant-loanee was a defaulter Ops auctioned the gold ornaments of the complainant-loanee. Complainant-loanee has prayed this Forum to get back his gold ornaments which pledged before the OP-Finance Company. In this aspect we are of the opinion that when Ops have served the registered letter and published in the daily newspaper accordingly the complainant has not acted on or not responded, we can not liable the OP-Finance company, that the auction of the gold loan was in violation of the terms and conditions. But so far the Demand Note(DN),pawn ticket and terms and conditions executed between the parties, the OP-Finance company has certainly violated and created confusion and ambiguity among the loanees which according to us is a unfair trade practice adopted by the OP-finance company. The Ops in their written version raised the question of maintainability on the ground of clause of Arbitration in the agreement. But there is no bar to file a consumer complaint before this Forum U/S-3 of the C.P.Act,1986. In spite of clause of Arbitration in the terms and conditions.
Having observations reflected above, it is directed that Ops shall pay an amount of Rs.5,000/-(Rupees Five thousand as compensation to the complainant for unilateral mistake of contract/agreement. The amount is to be paid within one month of receipt of this order, failing which action will be initiated as per the provisions of C.P.Act,1986.
The complaint is allowed in part without any cost.
Pronounced in the open Court, this the 29th day of June,2016.
