This complaint u/s 35 of C.P. Act., 2019 was initially filed against O.P., IIFL FINANCE , India Infoline Finance Limited(IIFL) ,Represented by The Branch Manager IIFL Finance .India Infoline Finance Limited (IIFL),Having its Branch Office at:- Rupashree Golden Complex ‘1^st Floor ,D.B.C Road ,Jalpaiguri Town , P.S – Kotwali, P.O and Dist –Jalpaiguri,Pin- 735101(west Bengal) who contested the case by filing Written Version.

The case of the complainant as per his complaint is as follows-

The complainant told in his plaint that on 27/11/2019 he borrowed a loan amount to the tune of Rs. 11,459/- (Rupees Eleven Thousand Four Hundred and Fifty nine) only from the Branch Office of O.P. located at  Rupashree Golden Complex, 1^st Floor, D.B.C. Road, P.S.- Kotwali, Post and Dist.- Jalpaiguri, by depositing certain gold ornaments i.e. “Gold Studd” worth 5.10 mg. (20 Carat) as collateral security against the said Gold Loan for a tenure of 26 (Twenty- six) months and subsequently , the Proforma O.P. -01 and the O.P.’s Branch Office, Jalpaiguri, bearing Branch Code- BM4661, had issued the Gold Deposit Receipt bearing Prospect Number GL13039558 DATED 27/11/2019 (Time 12:59:09 P.M.) to its Borrower (the complainant hereof) having A.No.530981308947 and bearing Unique Identity Number GL13039558.

The complainant also argued in his plaint that he had been paying the equal monthly interest @ Rs. 235/- (Rupees Two Hundred and Thirty Five) only for the aforesaid loan amount to the O.P.in a regular basis but during prolonged ‘Lock Down’ in the COVID 19 pandemic period he faced an acute financial crisis for which he was unable to pay the monthly interest against his aforesaid Gold Loan amount to the O.P. in a regular course for a period of 05 (Five) months, i.e., from October, 2021 to March, 2022. The complainant also told in his plaint that Loan against Gold Repayment by the complainant to the O.P. for the periods of 11/02/2020, 13/10/2020, 13/03/2021, 30/07/2021 and 26/10/2021. The complainant also argued that after obtaining the said Gold Loan on 27/11/2019 from the O.P. he started to pay the monthly interest accrued thereon from the year 2019 and lastly he paid Rs. 470/- (Rupees Four Hundred and Seventy) only to the O.P. on 26/10/2021.

The complainant also argued in his plaint that on 26/03/2022 the representative of O.P. called him and informed that the said gold items which was deposited as collateral security by him against his aforesaid Gold Loan, had been auctioned by the O.P. due to non- payment of the interest amount for a period of 05 (Five) months and after getting this information the complainant  verbally requested the O.P. to hold the said auction process till 2^nd April, 2022 and  also informed the O.P. that he would repay his outstanding interest amount before 2^nd April, 2022 but without giving any prior notice in black and white  to the complainant the O.P. auctioned the said gold items. Finally, finding no other alternative on 29/06/2022 the complainant filed a case against the O.P.        

The complainant therefore prays-

1. To give direction to the O.P. to return to the complainant his legitimately receivable gold ornaments i.e., ‘Gold Stud  d’ worth 5.10 mg. (20 Carat) that had been deposited by the complainant as collateral security with the O.P. against the said Gold Loan with further directions upon the O.P.to accept the 05 (Five) months due/ outstanding interest amount @ Rs. 235/- (Rupees Two Hundred and Thirty Five) only per month payable by the complainant to the O.P.  
2. To give direction to the O.P. to pay to the complainant Rs. 1,50,000/- (Rupees One Lakh and Fifty Thousand ) only as compensation against the constant tremendous mental stress and agony caused to him and his family members.
3. To give direction to pay to the complainant an amount of Rs. 50,000/ (Rupees Fifty Thousand) only for cost of litigation.
4. To give direction to the O.P. to pay the complainant a total claim amounting to the tune of ((Rs. 1,50,000/) + (Rs. 50,000/) = Rs. 2,00,000/) = Rs. 2,00,000/ (Rupees Two Lakhs) only.
5.  Any other relief, the Hon’ble Commission further pleased to award.

List of documents filed by the complainant-

1. Original Gold Deposit Receipts dated 27/11/2019 issued by the O.P. in favour of the complainant.
2. Original Loan against Gold Repayment Receipts issued by the Proforma O.P. No. (ii) in favour of the complainant dated 11/02/2020, 13/10/2020, 13/03/2021, 30/07/2021, 25/08/2021 and 26/10/2021. (06 sheets)
3. Original letter dated 05/04/2022 addressed to The Officer of Consumer Forum. [01 sheet].
4. Original proceeding initiated by the concerned Office of the Consumer Welfare Officer, Consumer Affiars & Fair Business Practices, Jalpaiguri Regional Office. [03 sheets].

The O.P., The India Infoline Finance Limited (IIFL), contested the case by filing Written Version (W.V.) and as per his W.V. the case is as follows

 The O.P. submitted in his W.V. that the instant complaint is not maintainable in its present form and manner, suppression of fact and this Commission has no jurisdiction to entertain the instant case and hence, they denied each and every statement and allegation of the complaint.

The O.P. argued in his W.V. that due to COVID- 19 Pandemic and the resultant lockdown no special financial package in the form of exemption and for remission of equated monthly installments was granted by the O.P. and/ or any other financial institutions subsequent to March, 2022. The O.P. also argued that the complainant deliberately and willfully failed and neglected to pay the equated monthly installments.

The O.P. also argued that due to outbreak of COVID-19 Pandemic and lockdown, no special financial package in form of exemption and remission of equated monthly installments were granted by the O.P. and/ or any other financial institution subsequent to March, 2022. The O.P. also added that the complainant deliberately and willfully failed and neglected to pay the equated monthly installments. The O.P. also argued that the auction of the mortgaged gold was done by serving of prior notice upon the complainant which was duly received and acknowledged by the complainant and the said notice was also published by the O.P. in a newspapers and subsequent to such public auction which was notified on 18/03/2022, the O.P. had proceeded with such auction and the amount collected by such auction was Rs. 21,139/- (Rupees Twenty One Thousand One Hundred and Thirty Nine) only whereas the total overdue amount stood at Rs. 13,903/- (Rupees Thirteen Thousand Nine Hundred and Three) only and accordingly, a balance amount of Rs. 7,236/- (Rupees Seven Thousand Two Hundred and Thirty Six) only was lying in the hands of the O.P. and the O.P. called the complainant by issuing a notice dated 19/04/2022 to visit O.P.’s office to collect the balance amount.

The O.P. also argued that they had acted in strict compliance of the terms and conditions of the loan agreement and such terms and conditions was agreed by the complainant at the time of availing the credit facility and hence, the complainant is not entitled to get any of the reliefs as claimed for in the complaint.           

The document filed by the O.P. is as follows -

1. Annex A- Photocopy of Account Statements.
2. Annex B- Original Letter dated 28^th February with one attachment.
3. Annex C- Track Report without postal receipt.
4. Annex D- Photocopy of Public Notice of Auction of Gold Ornaments published in Business Standard.
5. Annex E- Photocopy of Letter dated 19^th April.

Points for consideration

1. Whether the complainant consumer?
2. Whether the case is maintainable under the C.P. Act 2019?
3. Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?
4. Is the complainant is entitled to get any award and relief as prayed for?       

All the points are taken up together for consideration and decision.

Seen and perused the complaint petition and Written Version filed by the parties which are supported by the affidavit, documents filed by the parties. We are also heard arguments advanced by both parties in full length.

                It is very much clear from the evidence that the complainant is a borrower and he borrowed a loan amount to the tune of Rs. 11,459/ (Rupees Eleven Thousand Four Hundred and Fifty nine) only from the Branch Office of O.P. located at  Rupashree Golden Complex, 1^st Floor, D.B.C. Road, P.S.- Kotwali, Post and Dist.- Jalpaiguri, by depositing certain gold ornaments i.e. “Gold Studd” worth 5.10 mg. (20 Carat) as collateral security against the said Gold Loan for a tenure of 26 (Twenty- six) months. Thus, the Commission has no doubt that the complainant is a very much consumer as per the Consumer Protection Act- 2019 and also there is no doubt that this Commission has its jurisdiction to decide this case.

The complainant had filed this case within the limitation period and thus this case is very much maintainable under the C.P. Act 2019.

                It is very much clear from the evidence that the complainant is a borrower and he borrowed a loan amount to the tune of Rs. 11,459/- (Rupees Eleven Thousand Four Hundred and Fifty nine) only from the Branch Office of O.P. located at “Rupashree Golden Complex”, 1^st Floor, D.B.C. Road, P.S.- Kotwali, Post and Dist.- Jalpaiguri, by depositing certain gold ornaments i.e. “Gold Studd” worth 5.10 mg. (20 Carat) as collateral security against the said Gold Loan for a tenure of 26 (Twenty- six) months but during prolonged ‘Lock Down’ in the COVID 19 pandemic period he faced an acute financial crisis for which he was unable to pay the monthly interest against his aforesaid Gold Loan amount to the O.P. in a regular course for a period of 05 (Five) months, i.e., from October, 2021 to March, 2022.

In connection to this on 26/03/2022 the representative of O.P. called him and informed that the said gold items which was deposited as collateral security by him against his aforesaid Gold Loan, had been auctioned by the O.P. due to non- payment of the interest amount for a period of 05 (Five) months and after getting this information the complainant  verbally requested the O.P. to hold the said auction process till 2^nd April, 2022 and  also informed the O.P. that he would repay his outstanding interest amount before 2^nd April, 2022 but without giving any prior notice in ‘black and white’ to the complainant the O.P. auctioned the said gold items.

The O.P. stated in his W.V. that before auction the mortgaged gold he served prior notice to the complainant which was duly received and acknowledged by the complainant but the O.P. has failed to give sufficient documents to prove this fact. The said notice was also published by the O.P. in a newspaper and subsequent to such public auction which was notified on 18/03/2022, the O.P. had proceeded with such auction.

Here, this Commission follows the decision referred in “National Commission Disputes Redressal, Hdfc Bank Limited vs. Sharmila Das Gupta on 28 June, 2018” where it clearly stated - “It is significant to mention that in the entire record there is absolutely no documentary evidence filed by the Bank to establish the actual rate, on which the gold was sold; what was the market rate as on date of the auction; and, further the procedure that was followed during the auction process. A perusal of the record does not anywhere show that a notice was issued to the Complainant prior to the auction to have given an opportunity to her to exercise the option whether to participate in the auction or not. This is against the principles of natural justice and audi alteram partem. Hence, we are of the view that the conduct of the Bank in auctioning the gold without prior notice to the Complainant amounts to unfair trade practice.”

                Follows this judgment, this Commission has no doubt to hold that the The India Infoline Finance Limited (IIFL) has not followed all the rules and regulations before selling of said article.

                From all the documents and evidence it is clear that the complainant not accepted the balance amount from The India Infoline Finance Limited (IIFL) which clearly states the stands of the complainant that he is not accepting the deal.

The O.P. filed a paper publication and this Commission holds that it is not possible for a poor person who is a worker of a sweet shop read a daily English newspaper and find out his auction number from the publication. Hence, the view of the Commission is that it is not possible for a downtrodden person to find out his auction number from this advertisement even it is also difficult to a highly educated person to find out and understand the auction number from such type of advertisement. So, as per the above discussion it is very much clear that there was a deficiency of service from the part of the O.P.s.

In this case, from all the documents, it is established that there was no document to show the actual rate on which the gold was sold, what was the market rate as on the date of the auction and further the procedure that was followed during the auction process and the record does not anywhere show that a notice was issued to the complainant prior to the auction to have given an opportunity to her to exercise the option whether to participate in the auction or not. Thus, it is very much clear that there was a deficiency of service from the part of the O.P. 

Hence it is   

O R D E R E D

                That the Consumer Case No. 54/2022 be and same is allowed in contest against the O.P., The India Infoline Finance Limited (IIFL). This Commission, based on the evidence

 adduced by the parties, allowed the complainant in part, directing the The India Infoline Finance Limited (IIFL) to pay the amount of gold worth 5.10 mg. (20 Carat) at the present market price of gold to the complainant after deducting the amount due to the credit of The India Infoline Finance Limited (IIFL) on the date of sale of the deposited gold stud without imposing any delayed interest within 30 days from the date of this order failing which the complainant is entitled to get 6% p.a. simple interest from the date of filing of this case till the realization of the entire amount.

Further, the complainant is also entitled to get Rs. 3,000 /- (Rupees Three Thousand) only for compensation and Rs. 2,000 /- (Rupees Two Thousand) only for litigation cost.

Let a copy of this judgment be given to the parties directly or through their representative Ld. Advocate for compliance free of cost.