This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that she being a senior citizen and old widow lady for some financial urgency applied to OP for sanctioning Gold Loan and on 18-09-2012 OP sanctioned Gold Loan vide sanctioned letter No.1465781 dated 18-09-2012 and a sum of Rs.1,78,300/- was sanctioned against which complainant pledged her ornaments weighing approx 97 grams valued at Rs.3 lakhs against Gold Loan Account No.G11763902 and payment of interest terms is as per the choice of the borrower according to norms of the OP Company and complainant after getting loan has been paying the interest as per norms of the company.

          Subsequently, after receiving the sale notice dated 06-05-2013 complainant deposited interest on 18-06-2013 in the OP Company at Paikpara Branch and receipt was duly issued by the OP1 on 18-06-2013.  On 05-07-2013 one notice was issued by the OP Company recalling the loan and sale of pledge articles which was received by the complainant on 11-07-2013 but it was surprising to the complainant that even after payment of the interest how the OP Company issued such notice dated 05-07-2013.  After receiving the said notice complainant went to OP’s Shyambazar Branch office on 15-07-2013 to deposit the interest but from the said branch complainant came to know that the aforesaid Gold Loan Account has already been closed by the Company as such Shyambazar Branch was unable to receive that due interest.  Thereafter, complainant went to Airport Branch from where she got the aforesaid loan wherein she was instructed to meet the Shakespeare Sarani Branch which is the authority to disclose about the status of Gold Loan of the complainant and after getting instruction, though complainant is a senior citizen widow lady rushed to Shakespeare Sarani Branch of the OP and came to know that her gold was sold by the OPs’ Company through auction.  Fact remains without any information and even after proper payment of interest such sort of illegal auction has been done and by that act OP has adopted unfair trade practice and caused mental pain and sufferings and it is also deficient manner of service on the part of the OP and finding no other alternative complainant sent a notice through her Ld. Lawyer on 19-076-2013 through speed post with A/D which was duly served to the OP but they did not reply and in the above situation complainant was compelled to file this complaint for redressal for refunding or returning the entire gold or value of Rs.3 lakhs and for causing harassment and inconvenience and agony, mental pain she has prayed for compensation with litigation cost.

          On the other hand, OPs1 to 5 by filing written statement submitted that no doubt complainant is a Loanee Member against Gold Loan Agreement No.GL1736902 and OP drew Rs.1,78,300/- pledging gold ornaments the said loan period was scheduled to expire on September, 2013 as the principle due was on 17-09-2013 whereas the agreement was made on 18-09-2012.  It is further submitted that on 06-05-2013 OP sent a notice at the address of the complainant as per KYC form  and it was stated that the total outstanding was Rs.2,03,361/- what the complainant shall have to pay along with interest and by that notice it was also informed that within 10 days the same shall be paid and several phone calls were made and truth is that she turned down the said notice and did not receive it and practically on 05-07-2013 another notice was sent to give the opportunity to the complainant for dishonouring the previous letter but again she turned down, she did not receive it and by that notice it was reported to the complainant if the balance amount would not be paid in that case the ornament should be auctioned and accordingly said auction was held on 26-09-2013 after giving an advertisement in a daily newspaper published in Kolkata where it is specifically stated that she is the defaulter account holder along with price and details of the gold is there, address of the complainant is also there and total procedure was adopted and practically that was sold and thereafter, complainant filed this complaint for which the present complaint is not maintainable and the forum has no jurisdiction to decide the same.

          It is further submitted that the complainant intentionally failed and neglected to make the payment of loan amount and failed to pay the interest on regular basis but only she paid Rs.5,000/- on 18-06-2013 but neglected to pay balance dues and since she has failed and neglected to regularize the loan account and to repay the loan and interest, by a notice dated 05-07-2013 OP recalled the entire outstanding dues inclusive the principal and interest as the tenure of the said loan had expired as per agreement.  Fact remains that said notice was duly received by the complainant but she failed and neglected to comply it for which it was sold.  So, at this stage the present complaint is not maintainable and the allegation against the OPs is completely false and fabricated for which the complaint should be dismissed.

Decision with Reasons

On indepth study of the complaint, written version and also considering the date of filing of the complaint it is clear that complainant filed this complaint on 08-08-2013 and the present complaint was admitted for further proceeding on 29-08-2013.  On 31-10-2013 OP appeared by filing vakalatnama.  But after hearing the Ld. Lawyer for the complainant and also the complainant including the OP’s Ld. Lawyer, it is clear that some Gold was sold on 26-09-2013, but not the present disputed gold, by the OP.  Fact remains, India Infoline Finance Ltd. made publication for selling some gold not in any widely circulated publication but one unknown publication at Kolkata but in the said publication there is no note that gold of the complainant would be sold, there was no such note that what was the total weight of the Gold etc.   So, Ld. Lawyer for the complainant submitted that the publication was made for the selling of the present gold is completely false in view of the fact that the copy of the publication as submitted by the OP does not support that auction in respect of the present gold was published and name of the complainant was not there, outstanding loan amount was not there and total weight of the gold was also not there, fact is nothing was there.  So, such a publication does not confer any right to the OP to sell the disputed gold and said auction in respect of the particular gold is not made as per RBI Regulation and as per Auction Rules Act in respect of the publication for auction the name of the Loanee Member, Account Number of the Loanee Member, outstanding of the Loanee Member and details of the property of the Loanee Member and expected value of the goods or property shall be there but nothing was there but that publication was made by the OP in such a manner and no doubt the OP is guided by the RBI Rules and OP’s Ld. Lawyer admitted that they are guided by RBI Rules and a copy of RBI Rules is submitted but fact remains that as per OP, OP has failed to prove to whom the gold of the complainant was sold but a conjoined receipt in respect of the sale of gold is filed but that does not support that this gold was sold along with the gold of the complainant.  At the same time it is found that OP has tried to say that gold was sold in auction on 16-09-2013 after due publication in a daily newspaper Sambad Pratidin and another paper cutting classified clearly suggests that sale of gold was published in Times of India on 23-09-2013.  An auction was held on 26-09-2013 as stated by the OP.  no doubt written version was filed by the OP on 03-12-2013 whereas from the said disputed publication it was mentioned some gold shall be sold but there is no details of the of the Loanee Member, Account Number, weight of the gold, expected value of the gold or outstanding dues of the loan so, in all respects we have gathered that that publication for auction sale does not justify the gold of the complainant was sold as per Auction Rules as specified in the Act and it is mandatory provision of law that if any auction is required to made by any financier or bank as RBI Rule it shall be published with details of the Loanee Member, his or her address, amount of loan outstanding, Loan Account Number, details of the property to be sold in auction and expected value required in auction etc. but nothing is there, so, under any circumstances OP has failed to prove that complainant’s gold was sold and fact remains that such sort of financiers have adopted unfair trade practice in so many manner and in this case it is proved that no statement of auction has been filed by the OP to prove what was the dues and what was the interest when it is a gold loan as per RBI Rules.  Moreover Nationalized Bank Authority can impose interest up to 13 percentand in case of private institutions non-banking institution or financier may impose interest not more than 14.5%.  in this case OP has failed to produce what is the actual interest, which was found outstanding.  Truth is that loan period was for one year which has been admitted by the OP and that is for the period from 18-09-2012 to 17-09-2013.  Further OP has failed to produce any document to show the notice of auction which was served upon the complainant or any previous notice was served upon her.  At the same time OPs have not stated what is the actual interest assessed over the said loan amount and complainant is not aware of that even this Forum is not aware of the actual interest rate of the loan amount as granted in favour of the complainant.  So, considering all the above facts we are convinced to hold that OP has miserably failed to prove by any cogent documentary evidence that what is the outstanding dues of the complainant and what is the interest rate in respect of the gold loan and in the agreement copy there is no such averment what is the actual rate of interest.  So, considering all the above facts and circumstances and also considering the documents and RBI’s rate of interest we are convinced to hold that under any circumstances, OP cannot assess more than 14 percentinterest over the said gold loan by any means whatsoever, and the total loan as granted is admittedly Rs.1,78,300/- and when the said loan was closed in the meantime then it was completely an illegal act on the part of the OP and in the above circumstances, we find that OP shall have to assess interest over the said amount for one year when he has closed the loan account after assessing  at the rate14%p.a. and submit an outstanding statement of account to the complainant as on 17-09-2013 and give the complainant a chance to deposit her the entire amount and if complainant would be able to deposit the said amount in that case OP shall return the entire gold as pledged, to the complainant and if complainant fails to pay in that case the said gold shall be sold at the present price to the Government authorized purchaser as per market rate of the date of sale and no doubt the entire defence as made by the OP is false, fabricated, vexatious and they have adopted unfair trade practice.  In fact, the widow, senior citizen lady has been deprived by the OP and no doubt she has been harassed by the OP and in the above circumstances, complaint succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest with a cost of Rs.10,000/- against the OPs jointly and severally.

          OPs are directed to submit the outstanding loan statement after assessing 14 percentinterest over the same for the period 18-09-2012 to 17-09-2013 after deducting the amount what has been paid by the complainant and after submission of the same before this Forum complainant shall get a chance to deposit the said amount to the OPs wherefrom she took loan within two months from the date of receipt of which such statement of account filed by the OP and if complainant fails to pay it within stipulated two months as per order in that case for realization of the total amount OP shall have to sell the total pledged gold weighing about 97 gms to the Government authorized purchaser of gold at the market rate on the date of sale of gold and out of that as per statement of account and as per order said amount shall be deducted and balance amount shall be paid to the complainant.

          For adopting unfair trade practice by the OP and to deceive the complainant in such a manner and for taking such a false defence OPs are imposed a penalty of Rs.50,000/- and it is imposed for checking such sort of non-banking institution and to save the consumer from the hands of such sort of exploiters, non-banking financial institution like OPs and the said amount shall be deposited to this Forum within one month from the date of this order.

          OPs are directed to comply the order very strictly failing which for dis-obeyance and non-compliance of the said order they shall be prosecuted u/s.27 of the C.P. Act after lapse of 65 days from the date of this order.