Order-19.
Date-02/09/2016.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant, in short, is that the complainant had taken loan from the OPs by depositing her gold ornaments and the same was issued in respect of loan reference no.MFL/FBL-81KOLKATA JADAVPUR – 11131 FEB-16/6558 and the loan amount is Rs.3,22,000/-. The complainant was to pay back the loan to the OP within stipulated time and get refund of her gold ornaments from the OPs. The complainant, in the mean time suffered lots of financial crisis due to the family’s treatment purpose and as such, she was unable to pay few EMIs in respect of her loan liability. The complainant approached the OP for two months time for repayment of her entire unpaid EMI amount but the OP is not ready to give any time to the complainant. Suddenly OPs informed the complainant that the deposited gold will appear on auction on 15-02-2016 or on 19-02-2016 at the address of Camac Street Branch of OP Company. The complainant sent a message to the OP praying for one month time. It is submitted by the complainant that unless an order is passed by this Forum directing the OP to stay of auction procedure in respect of gold ornaments of the complainant she will suffer irreparable loss and injury. Hence, this case.
OP has contested the case in filing written version contending, inter alia, that the case is not maintainable either in fact or in law. It is stated that the applicant had availed one from the OP Company being loan account No.FBL – 8 Dated 24-10-2014. As per the terms of the said loan the complainant had pledged gold ornaments in respect of the said loan as and by way of collateral security thereby securing the repayment of the said loan. The complainant had failed/avoided/neglected to repay the said loan and had committed defaults. It is stated that the complainant has not approached the Hon’ble Forum with clean hands and has suppressed material facts. This OP has accordingly prayed for dismissal of the case.
Point for Decision
- Whether the OP is guilty of unfair trade practice or deficiency of service?
- Whether the complainant is entitled to get any relief as prayed for?
Decision with Reasons
We have perused the petition of complaint, written version and other materials on record including the legal notice from the side of the OP to the complainant.
It appears that the complainant availed loan from the OP Company being loan account no. MFL/FBL-81KOLKATA JADAVPUR – 11131 FEB-16/6558 of Rs.3,22,000/- and as per the terms of the said loan the applicant had pledged the gold ornaments in respect of the said loan a and by way of collateral security thereby securing the repayment of the said loan. It also appears that the complainant has failed to repay the said loan and has committed defaults. Legal notice dated 21-01-2016 was also served upon the complainant calling upon the complainant to repay the said loan. We find that the relationship between the complainant and the OP is that of a ‘pawnor’ and a ‘pawnee’. The complainant has pledged gold ornaments as collateral security for the purposes of securing the repayment of loan availed by her from the OP. It also appears that the complainant has admitted that she is a defaulter and that she has received a notice regarding intended auction of the pledged ornaments. However, we also give anxious thought over the pecuniary distress of the complainant.
Considering the facts and circumstances and having regard to the financial crisis of the complainant. We feel inclined to pass the order as follows .
Hence,
Ordered
That the instant case be and the same is allowed on contest in part against the OP.
Complainant is directed to liquidate the loan amount involved in this case along with accrued interest at the agreed rate within one month from the date of this order.
The OP is directed to return the pledged gold ornaments to the complainant on refund of the loan amount along with interests by the complainant.
The OP is restrained from sell/auction the pledged ornaments for the purposes of recovering its dues till the said period.
In the facts and circumstances of the case we make no order as to cost.
Failure to comply with the order will entitle either of the parties to put the order into execution u/s.25 read with Section 27 of the C.P. Act.
