IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
DATED THIS THE 17th DAY OF JANUARY 2022
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LLM. President
Smt.S.Sandhya Rani. Bsc, LLB ,Member
Sri.Stanly Harold, B.A.LLB, Member
CC.No.231/2020
Omanakuttan Kovoor(AIR), 50 years,
S/o Ponnappan Achary,
Parippallil Veedu,Arinalloor P.O.,
Kollam 690538. : Complainant
V/s
Gopala Pillai,
Kalluvilayil(Devaki Finance),
Kovoor, Arinalloor P.O. : Opposite party
ORDER
Smt.Sandhya Rani, B.Sc, LLB, Member
- This is a case based on a complaint filed U/s 12 of the Consumer Protection Act 1986.
- The averments in the complaint in short are as follows:-
On 19.08.2015 Ponnappan Achary, the father of the complainant Omanakuttan Kovoor(AIR) had availed a loan of Rs.51,000/- from Devaki Financiers, Kovoor, Arinelloor P.O. run by opposite party Gopalapillai by pledging 3 ½ sovereign of gold ornaments belong to his sister Sarala that he had remitted interest for the same till the death of Ponnappan Achary in the year 2019. Whenever received interest the opposite party was reluctant to issue fresh receipt but it was his usual practice to record the receipt of interest in the original loan card itself. But in January 2020 when the complainant approached the opposite party for releasing the said gold ornaments the opposite party informed that the pledged gold ornaments were sold in auction sale. According to the complainant he didn’t get any information regarding the auction sale of the pledged gold ornaments. Hence the complainant claims Rs.80,000/- as compensation after deducting the loan amount Rs.51,000/- and its interest since October 2019 being the market value of auctioned gold ornaments belonged to the sister of the complainant. Hence the complaint.
3. According to the opposite party the complainant is having no connection with him or his financial institution. As per loan No.3041/15 one Ponnappan Achary, Parippally, Kovoor had pledged 4 gold chains having 27.8 gm weight with his Finance institution named Devaki Financiers and availed Rs.65,000/-. On 17.03.2016 the said Ponnappan Achary had taken back one gold chain having 6.1 gm from the above 4 chains after remitting Rs.14,000/- along with interest Rs.9,100/- till that date. Thereafter on 18.02.2017 he had paid interest for the loan till that date and again paid Rs.5,000/- and Rs.2,000/- to opposite party by way of interest on 19.02.2018 and 21.11.2018 respectively that he used to issue new card whenever the Ponnappan Achary remitted interest. It was his usual practice to record the remitted amount and the date of remittance in the original card itself. The pawn card itself reveals the loan period, the date to which the interest is to be remitted etc. But the complainant had failed to pay any amount since 21.11.2018. Thereafter the opposite party had send registered notice directing the complainant to receive back the gold ornaments after remitting the loan amount and interest thereof. After receiving the notice the Ponnappan Achary had requested 6 months time for closing the said loan but he had failed to comply the same. Thereafter on 10.10.2018 and on 02.10.2019 he had sent registered letters to Ponnappan Achary by intimating him that if he is not taking back the pledged gold ornaments by paying the loan amount and its interest same would be sold within 15 days of that notice. The loan amount along with interest was greater than the then market value of pledged gold ornaments on 30, October 2019. Hence he sold the pledged gold ornaments but he sustained a loss of Rs.10034/- by way of interest. The sale of the pledged gold ornaments is after giving due notice to the loanee and hence the same legal and proper. The complainant or the legal heirs of the deceased Ponnappan Achary is not entitled to get back the said gold ornaments.
4. Thereafter the daughter of said Ponnappan Achary came to the house of opposite party and made troubles to his family by showering abusive words upon himself and his family members. Hence the opposite party has made an assurance to the said Sarala that if all the legal heirs of the deceased Ponnappan Achary would come together and make a request then he would be ready to give new gold ornaments instead of the auctioned gold ornaments pledged by the deceased Ponnappan Achary. Meanwhile the complainant had filed a complaint before Sasthamcotta police regarding the same matter.
5. In view of the above pleadings the points that arise for consideration are:-
- Whether the sale of pledged gold ornaments by the opposite party is legal and proper?
- Whether there is any deficiency in service or unfair trade practice on the part of opposite party in selling the gold ornaments pledged by the deceased Ponnappan Achary?
- Whether the complainant is entitled to get back the value of pledgd gold ornaments after deducting the loan amount and its interest till October 2019 and compensation from opposite party as prayed for?
- Reliefs and costs?
6. The case has been conducted personanny by the complainant and opposite party. Evidence on the side of the complainant consists of oral evidence of PW1 and PW2 and got marked Ext.P1 to P4 documents. There is no oral evidence on the side of opposite party but got marked Ext.D1, D2 series, D3 series and D4 documents.
7. Both the complainant and opposite party have filed notes of argument.
8. Heard both the parties.
Point 1 to 3
9. For avoiding repetition of discussion of materials these three points are considered together. The following are the admitted facts this case. Ponnappan Achary who is the father of the complainant Omanakuttan has pledged 3 ½ sovereign of gold ornaments belongs to the sister of the complainant with the Devaki Financiers, Kovoor, Arinelloor P.O. run by the opposite party Gopalakrishna Pillai. The said Ponnappan Achary died subsequently in the year 2019. During his life time the said Ponnappan Achary remitted interest for the gold loan till his death and whenever the opposite party received interest he used to record the same in Ext.P1 original loan card. However during the month of January 2020 when the complainant approached the opposite party for redeeming the pledged gold ornaments the opposite party refused to return the same and stated that the pledged gold ornaments were already sold. According to the complainant neither the deceased Ponnappan Achary nor himself has got any notice regarding the sale of the pledged gold ornaments and therefore the sale is illegal and he being the son and one of the legal heirs of the deceased Ponnappan Achary is entitled to get the present market value of the gold ornaments after deducting the loan amount and its interest since October 2019.
10. Ext.P1 is the original loan card issued by the opposite party being the proprietor of Devaki Financiers which would indicate the following facts:- gold loan number is 3041/2015. The amount of loan is Rs.51,000/-. The date of availing the gold loan is 19.08.2015, Weight of gold ornament is 21.7 gm. The name of the person who availed gold loan is Ponnappan Achary. The complainant has produced Ext.P2 Vivaha-nischaya karar issued by Akhila Kerala Viswakarma Mahasabha, H.O., Chengannoor containing the signature of the deceased K.Ponnappan Achary (being the father of the bridegroom of the proposed marriage) who availed the gold loan from the opposite party. Ext.P3 is the notice dated 01.10.2020 issued by Inspector(SHO) , Sasthamcotta Police station by intimating the complainant that the gold ornaments pledged by the complainant’s father was sold by the financier and in case the complainant is ready to pay the loan amount with interest and also producing a consent deed of other legal heirs of deceased Ponnappan Achary and in such event the opposite party is ready to give equivalent gold ornaments to the complainant. Ext.P4 is the original consent deed of the other legal heirs of the deceased Ponnappan Achary.
11. Ext.D1 is the terms and conditions of the gold loan wherein it is stated that originally gold ornaments weighing 29.8 gm was pledged. Subsequently it was seen scored off that weight and seen endorsed “ ame aq¶v, Hcp ame XncnsI sImSp-¯p”. The present weight is written as 21.07 gm after scoring the original weight 29.8 gram and it is also endorsed that out of the original loan amount of Rs.65,000/- an amount of Rs.14,000/- was paid and the remaining amount is Rs.51,000/-. It is also endorsed that interest was paid till 27.11.2018.
12. The oral evidence of PW1, PW2 coupled with Ext.P1, P3 and Ext.D1, D3 series documents would establish that deceased Ponnappan Achary who availed the loan has paid interest to the loan amount till 27.11.2018 and thereafter nobody has paid any interest towards the said loan account. It is to be pointed out that the opposite party himself has conducted the case and during cross examination of PW1 and PW2 it is brought out in evidence that the Sri.Ponnappan Achary the father of the complainant has pledged the gold ornaments at his institution and that the above gold ornaments belongs to PW2 Sarala who is none other than the sister of the complainant and the said Sarala along with the Ponnappan Achary had originally pledged the gold ornaments for Rs.65,000/- during the year 2015 on the next year the said Ponnappan Achary has renewed the loan for Rs.51,000/- after taking back one gold chain weighing 7.1 gm and the opposite party has issued Ext.P1 card evidencing the original pledge and also stating the details of the gold loan. It is also brought out in evidence that the gold ornaments were pledged for constructing a house building for PW2 Sarala.
13. PW2 Sarala was examined twice. Evidence of the witness shows that she is the daughter of deceased Ponnappan Achary who originally pledged the gold ornaments of her behalf as he is having more acquaintance with the opposite party as his neighbor and he used to meet the opposite party often and therefore the opposite party granted loan in favour of the deceased Ponnappan Achary though the gold ornaments belongs to herself. But the amount was given in her hands as the opposite party knows very well that the gold ornaments belongs to herself and that the father Ponnappan Achary was only a name lender as he is having close acquaintance with the opposite party.
14. The specific allegation in the complainant as well as when PW1 and 2 were in the witness box is that they are the son and daughter respectively of the deceased Ponnappan Achary that the opposite party has sold the gold ornaments without intimating them or their father. The opposite party would contend that he has sent registered notice and Ext.D2 series are the postal acknowledgement card and postal receipts but it is brought out in evidence that out of the two acknowledgment cards the signature contained in the postal acknowledgment card claiming the receipt of the purported final notice was not served on the deceased Ponnappan Achary though he was very much available at his residence as on those days. Ext.D2 series are the postal acknowledgement cards and two postal receipts out of which the first acknowledgment card would indicate that the notice was served on the addressee 10.01.2017. The signature of the recipient of the postal article seen in the 1st postal acknowledgment card is the signature similar to that of the signature of the deceased Ponnappan Achary as shown in Ext.D1 loan agreement and Ext.P2 Karar. But the signature contained in the second postal acknowledgement card inclined in Ext.D2 series to prove that the deceased Ponnappan Achary has received final notice on 02.10.2019 is not containing the signature of the deceased Ponnappan Achary. Therefore it is clear that the pledged gold ornaments have been sold by the opposite party without serving proper notice to the original complainant though he was alive as on those days. It is also clear from the available materials that the opposite party very well knew the fact that the gold ornaments pledged by the deceased Ponnappan Achary belongs to PW2 who is none other than the daughter of Ponnappan Achary.
15. However when PW2 was examined again on 10.12.2021 the opposite party would suggest that he is ready and willing to return the gold ornaments or in price if the principal amount with the interest is given and also if the consent of other legal heirs of the deceased Ponnappan Achary has been produced. It is also brought out in evidence that the complainant has filed a petition before the SHO, Sasthamcotta alleging that the opposite party has illegally sold the gold ornaments pledged by deceased father and his sister (PW2) together. While disposing of the petition SHO has issued Ext.P3 communication to the complainant stating that the opposite party has agreed to return the gold of the same weight in case the complainant and her sister pays the principal amount and interest and also produces a consent deed of other legal heirs of the deceased Ponnappan Achary. In view of the above materials on record it is crystal clear that the opposite party admitted that he is ready to return the gold equivalent to the same weight or its price in case principal amount and interest outstanding is paid and also produces a consent deed. Accordingly Ext.P4 consent deed has been produced by the complainant and a copy of the same has been given to the opposite party at the time of final hearing of the case and the opposite party admitted that Ext.P4 is sufficient document to prove that the other legal heirs have been consented to return gold ornaments pledged by their father to the complainant and their sister(PW2). In view of the materials discussed above we hold that the complainant is entitled to receive 21.07 (27.8-6.1) grams of gold ornaments or its market from the opposite party for and on behalf of his sister Sarala(PW2).
16. Admittedly the gold loan was renewed for Rs.51,000/- which is the principal amount due. Now it is to be considered what is interest to be paid and up to which date the complainant is expected to pay interest. The rate of interest or quantum of interest to be paid is nowhere stated in the written version nor in the document issued and produced by the opposite party. Ext.P1 is the original loan card issued by the opposite party indicating gold loan No.3041/15 amount Rs.51,000/- on 19.08.2015 weight 21.7 gm name of the loanee Ponnappan Achary etc. This is admittedly the only document handed over to the person who availed the loan (deceased Ponnappan Achary) wherein the date of interest is not shown. Admittedly Ext.P1 has been issued while renewing the loan which is on 19.08.2015. It is further admitted that even after renewing the loan the father of the complainant has paid interest till 19.02.2017 which has been endorsed by the opposite party in Ext.P1 document. It is further endorsed that interest Rs.5,000/- was paid on 18.08.2018 which is indicated in Ext.D1 loan agreement also. But in Ext.D1 also rate of interest is not shown though all other particulars are stated in P1 loan card and also seen endorsed the fact that Rs.9,100/- was paid as interest on 17.03.2016. Ext.D3 series is the extract loan ledger Form M (Rule 14) pledge book and column No.5 of loan ledger is specifically intended for indicating the rate of interest charged. But the opposite party has not shown any rate of interest against that column. In short what is the rate of interest agreed by the loanee or the rate of interest expected by the opposite party etc are not shown in any of the loan documents produced and got marked in this case by the opposite party.
17. The maximum rate of interest charged by the nationalized bank for gold loan is 10% . But opposite party being a moneylender on the security of gold ornaments as per R.B.I norms he can very well charge 2% in excess of the interest charge by the nationalized bank. Therefore the maximum rate of interest that can be charged by the opposite party is 12% for gold loan. In view of the endorsement shown in Ext.P1, D1 and D3 documents and also in view of the admission made in the argument note (para 4) filed by the opposite party it is stated that after renewing the loan the loanee has paid interest 18.02.2017 and thereafter the loanee has paid Rs.5,000/- on 19.02.2018 and Rs.2,000/- on 21.11.2018. Therefore it is clear that after renewing the loan the complainant fully paid interest till 18.02.2017 and thereafter paid Rs.7,000/- on two occasions during the year 2018. Even though it is stated that the loan was renewed on 19.08.2015 the opposite party would admit during cross examining of PW2 on the second time that on 17.03.2016 the loanee has got released 6.1 gm from the pledged ornaments. Therefore it is clear that the loan was renewed on 17.03.2016 and not on 19.08.2015 as stated in P1 loan card and D1 and D3 loan agreement and ledger account wherein the date shown is 19.08.2015 which is the date of originally availing the loan of Rs.65,000/- by pledging 27.8 gm gold ornaments. In view of the material discussed above it is crystal clear that the loanee has cleared the interest till 18.02.2017 and thereafter paid Rs.5,000/-+2,000=7,000/- toward interest till 21.11.2018.
18. However the opposite party has filed a statement of account along with his written version by calculating compound interest for Rs.51,000/- from 19.02.2017 till 30.10.2019 without specifying the rate of interest. The total of interest calculated by the opposite party as per Ext.D4 would come to Rs.38,714/-. The opposite party has also seen added charges for three notices @ Rs.50/- per notice and compound interest along with principal amount in Ext.D4 and claimed Rs.82,324/- as total amount due from the loanee without stipulating the interest rate and also not stating the fact that compound interest is liable to be paid while granting loan. It is highly unfair and unjust to demand and realize compound interest from the loanee without specify that fact in the loan agreement. There is no whisper in any of the loan records such as P1 loan card Ext.D1 loan agreement and D3 series loan ledger that the loanee is expected to pay compound interest nor indicated the rate of interest to be paid .
19. In view of the calculation of interest shown in Ext.D4 statement it is seen that the opposite party attempting to realize 24% compound interest which is highly unfair and unjust. If the opposite party insist for the same he is liable to be prosecuted under “Operation Kubera” for charging unconscionable rate of interest without specifying the same in the loan agreement. Therefore we are not inclined to accept Ext.D4 statement filed by the opposite party along with the version filed. Admittedly the opposite party sold the gold ornaments on 30.10.2019. The opposite party has not stated anywhere either in the written version or in the written notes of argument how much amount he obtained when he sold the gold ornaments pledged by the deceased. In view of the materials discussed above we hold that the opposite party is entitled only to realize simple interest @ 12% per annum for Rs.51,000/- for 984 days from 19.02.2017 till 30.10.2019. In short the complainant is liable to pay interest @ 12% per annum for Rs.51,000/- for 984 days which will be Rs.16,949/- out of which admittedly complainant and her sister has paid Rs.7,000/- on two occasions. Therefore the remaining interest to be paid is Rs.9,949/- along with the loan amount outstanding Rs.51,000/-. The opposite party is also entitled to get Rs.50+50 as charges for two notices out of the 3 claimed. Therefore the total amount due to the opposite party is Rs.51,000+9,949+100=61,049/- for getting released the pledged gold ornaments of 21.7 grams.
20. It is crystal clear from the available materials that the final notice claimed to have been sent as per Ext.D2 series postal receipt and postal acknowledgment card in the name of the loanee is not seen received by the loanee nor received by the complainant or his sister (PW2) who is the owner of the gold ornaments. Therefore neither the loanee nor his son or daughter has turned up and closed the loan by paying the principal amount and interest. It is also brought out in evidence during cross examination of PW2 that when she was offered principal amount and interest the opposite party was not willing to receive the same and also not willing to release the pledged gold ornaments. According to the complainant the opposite party failed to receive the principal amount and interest and to return the gold ornaments amounts to deficiency in service. This fact was also brought to the notice of the Chief Minister by filing petition and ultimately that petition was forward by the SHO, Sasthamcotta who in turn has disposed of the same and issued Ext.P3 communication to PW1 wherein also it is stated that the complainant and his sister was ready and willing to take back the pledged gold ornaments by paying the interest and principal amount and that the final notice claimed have been seen in the name of the loanee has not been served on him and therefore they could not appear in time and got released the gold ornaments. In the circumstances it is clear that the opposite party has sold the pledged gold ornaments without serving proper notice to the loanee or his legal heirs which also constitute deficiency in service on the part of the opposite party. Demanding 24% compound interest for gold loan without intimating that fact to the person who availed gold loan would definitely amounts to unfair trade practice. Therefore the complainant is entitled to get reasonable compensation for the deficiency in service and unfair trade practice on the part of the opposite party. The points answered accordingly.
Point No.4
In the result complaint stands allowed with modification in the following terms.
Opposite party is directed to return 21.7 gm of gold ornaments or the present market value of same weight of 22 carat gold ornaments at the rate of Rs.4,500/- per gram after receiving Rs.61,049/- less compensation and cost awarded from the complainant on behalf of PW2 (as all other legal heirs of the deceased Ponnappan Achary including the complainant has signed on Ext.P4 consent letter that they have no objection in releasing the gold ornaments to PW2) who is the actual owner of the pledged gold ornaments within 30 days from the date of receipt of a copy of this order.
The opposite party is further directed to pay Rs.5,000/- as compensation and Rs.3,000/- as costs of the proceedings to the complainant on behalf of PW2.
The opposite party has not complied with the above directions the complainant on behalf of PW2 is entitled to recover the then market value of the 21.7 grams 22 carat gold along with compensation and costs less Rs.61,049/- from the opposite party and his assets.
Dictated to the Confidential Assistant Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the Open Commission this the 17th day of January 2022.
S.SANDHYA RANI:Sd/-
E.M .MUHAMMED IBRAHIM:Sd/-
STANLY HAROLD:Sd/-
Forwarded/by Order
Senior superintendent
INDEX
Witnesses Examined for the Complainant:-
PW1 : Omanakuttan
PW2 : Sarala
Documents marked for the complainant
Ext.P1 : Original loan card issued by the opposite party being the proprietor is
Devaki Financiers
Ext.P2 : Vivahanischaya karar issued by Akhila Kerala Viswakarma Mahasabha, H.O.,
Chengannoor
Ext.P3 : Notice issued by Inspector(SHO) , Sasthamcotta Police station on 01.10.2020
Ext.P4 :Original consent deed of the other legal heirs of the deceased
Ponnappan Achary.
Witnesses Examined for the opposite party:-Nil
Documents marked for opposite party:-
Ext.D1 : Terms and conditions of the gold loan
Ext.D2 series : postal acknowledge card and two postal receipts
Ext.D3 series : Copy of Terms and conditions of the gold loan, copy of postal acknowledge
card and two postal receipts, copy of Interest statement and copy of
Form M (Rule 14) Pledge book
Ext.D4 : Interest Statement
