Punjab

Fatehgarh Sahib

CC/6/2019

Karamjeet Kaur - Complainant(s)

Versus

India Infoline Finanace Ltd. - Opp.Party(s)

In person

23 Sep 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.

                                                                   Consumer Complaint No. 06 of 2019

                                                                   Date of Institution:-25.02.2019

                                                                   Date of Decision:-  23.09.2019

Karamjeet Kaur aged about 40 years wife of Sh. Satvir Singh, resident of Village Gidarpur Chudiala Sudan, District SAS Nagar, Mohali 140307.

                                                                             ……………Complainant

                                      Versus

1. India Infoline Finance Ltd., having its registered office at 12A-10, 13th Floor, Parinee Crescenzo, C-38, and C-39, G Block, Behind MCA, Bandra Kurla Complex, Bandra East Mumbai East 400051 through its Chairman/authorized signatory.
2. India Infoline Finance Ltd., having its branch office at Jassar Complex, above ING Bank Ltd., Bassi-Sirhind road, Near Jyoti Sarup Gurudwara Turn, Fatehgarh Sahib Tehsil and District Fatehgarh Sahib, through its Branch Manager.

………….Opposite Parties

          Complaint U/S 12 to 14 of the Consumer Protection Act.

          Quorum

Sh. Amrinder Singh Sidhu, President.

Sh.Y.S.Matta, Member

Present : None for the Complainant .

                   Sh.Gurpreet Singh Saini, Counsel for the opposite parties.

ORDER

By AMRINDER SINGH SIDHU, President

1. The complainant filed the present complaint pleading that she was in  need of money to fulfill her domestic needs and approached opposite party no.2 in April 2018 for taking loan against gold. She handed over all the required documents for the sanction of loan and thereafter opposite party sanctioned loan amount of Rs.10,060/- vide loan account no.GL-9266163 after she pledged her gold ornaments weighting 15 gm with O.P.No.2. Then the opposite party no.2 issued the policy no. GL-9266163 dated 30.04.2018. At the time of sanctioning the loan, it was settled that complainant has to pay interest @ of 21.96 % per annum on the said amount.  It was also settled that interest would be paid every month failing which late fee will be charged and complainant had to return the said loan amount by 30^th of March 2019 and opposite party would not sell her gold till 30^th March 2019.

After sanctioning of the said loan, the complainant went to opposite party no.2 to deposit the installment of interest but official of O.P.No.2 told her that 'computer system' was not working and he told her that she could deposit the amount of installment in next month. In June, 2018 she again went to deposit the installment with O.P.No.2 but Manager of O.P.No.2 refused to get it deposited on the ground that she had not deposited any previous month installment and therefore, he told her that she might get her pledged gold returned after depositing the entire amount along with interest in the month of January, 2019. When she went to get her gold redeemed by paying the entire amount along with interest in the month of January, 2019 then she was shocked to know that O.P.No.2 has sold her gold in September 2018 i.e. before 30^th March 2019 which was last date for redeeming the gold by paying the due amount to the opposite party. Thereafter, the complainant visited the office of the O.P.s for getting her gold redeemed from the opposite party no.2 but Opposite Party No.2 did not resolve the matter and lastly, Manager of O.P.No.2 refused to return her gold which they alleged to had been sold before the last day i.e. 30^th of March 2019 fixed for the payment of entire amount along with interest and return of gold to the complainant. Hence, O.P.s wrongly and illegally either retained the gold or sold it out without the consent and knowledge of the complainant. Thus she alleged deficiency in service on the part of the opposite party for selling out her gold before the last date i.e. 30^th of March 2019 of submission of amount along with interest. She alleged that her gold of 15 gram is worth more than Rs.45000/- whereas the loan amount was only of  Rs.10060/-. Hence, complainant alleged that it was not only deficiency in providing service but also unfair trade practice adopted by the opposite parties. Lastly, the complainant prayed for return of her gold weighting 15 grams and also for award of compensation to the tune of rupess four lacs on account of mental tension and physical harassment or any other relief which this Forum may deem fit and proper in this present complaint.

2. After the service of notice upon the opposite parties, the opposite parties appeared through counsel and filed written version to the complaint denying all the allegations made against them. It is admitted that complainant approached opposite parties for sanction of loan against pledging of her gold on 30^th of April 2018 and she signed the application form and pledged her gold weighting 15 grams in which 5.3 gram was gold and 9 gram was thread and stones and opposite parties sanctioned loan of Rs.10060/- to the complainant i.e. 80% of the total value of the pledged gold. The opposite parties denied that opposite party refused to deposit the installment on the ground that their computer system was not working and O.P.No.2 also denied that she was asked to deposit the amount on the next month. The opposite party alleged that complainant had failed to pay the installments on the respective dates and other delayed/contractual charges. Thereafter, the O.P.s issued notice dated 23 August, 2018 to the complainant and recalled the entire amount of Rs.10774/- stating that failing which O.P.s shall initiate sale procedure of the pledged gold through the public auction as per terms and conditions for the recovery thereof. Thereafter, O.P.s issued another notice dated 09^th October, 2018 to the complainant to make payment within 15 days from the date of receipt of the notice failing which opposite party will initiate legal action against the complainant. Ultimately, opposite party published a news item regarding auction of gold pledged by the complainant with the O.P.s and after publishing the same and on failure of the complainant to deposit the said amount with the O.P.s, the opposite parties auctioned the said gold of the complainant. Even after the said auction of the pledged gold, the amount of Rs.654/- is still due and recoverable from the complainant. So, there is no deficiency on the part of the opposite parties as alleged by the complainant and opposite parties have not sold gold illegally or wrongly or without the knowledge and consent of the complainant. Lastly, opposite parties prayed for the dismissal of the complaint with cost.

3. In order to prove her case, complainant has tendered her affidavit as Ex. CW1/A along with documents as Ex.C-1.

4. Opposite Parties have tendered affidavit of Kartar Singh as Ex. OP1/1, copy of letter of authority as OP1/2, copy of Express entry-LAG application as OP1/3, Express entry-LAG application as OP1/4, copy of resolution dated 28.08.2018 as OP1/5, copy of borrower copy as OP1/6, copy of STAT CARD as OP1/7, copy of letter card as Ex.OP1/8, copy of notice dated 23.08.2018, copy of demand notice dated 09.10.2018, copy of net tracking report of postal authority as Ex. OP1/11 to Ex. OP1/12, copy of inland letter card dated 27.08.2018 as Ex. C-13, copy of auction notice as Ex. OP1/14 to Ex. OP1/15& copy of ledger printed on 18.03.2019as Ex.OP1/16.

5. In the present complaint, the complainant was in the need of money for her domestic  needs  and therefore she approached OP No. 2  in the month of April, 2018 in order to seek loan against gold . She handed over all the required documents for the purpose of sanction of loan amount by the opposite party no. 2. After pledging her gold weighing 15 gram,   OP. no. 2 sanctioned the loan amount of Rs. 10060/- vide loan account no. GL-9266163 and issued the policy bearing the same policy No. dated 30/4/2018. It was agreed between the parties that complainant had to pay interest at the rate of  21.96 % per annum  on the said loan amount and it was further agreed that complainant had to pay interest every month for 11 months regularly failing which she would have to pay late fee charges. It was further agreed between parties that complainant had to return the loan amount along with interest by 30^th March, 2019 and opposite parties would not sell her gold till 30^th March, 2019.

6. The complainant alleged in Para No.06 of the complaint that when she went to the office of Opposite party no. 2 to deposit the installment of interest then official of the O.P.No.2 told her that their "computer system" was not working and she could deposit the amount in next month. The opposite parties in there reply denied that  officials of opposite parties told the complainant that their "computer system" was not working and she could deposit the installment in next month. Apparently, it appears that opposite parties are right  for the simple reason that Money lender/Financier  will not refuse to accept the amount of installment but surprisingly, when we went through the citation filed by opposite party titled as "Kancharana Krishnarao, Son of late Vasudev, aged 56 years, Cultivation, residing at Badagam Village, Nandigam Mandal, Srikakulam District Versus The Branch Manager, India Infoline Finance Limited, KT Road, Kasibugga Town and Municipality, Srikakulam District and another bearing C.C.No. 49 of 2016 decided by District Consumer Forum, ShriKakulam, in para no.2 of the order it is stated, " The opposite party stated to the complainant that the computer is not working"  comparison of the present complaint and the above referred complaint reveals  that it is the common Modus Operandi of the opposite party that they are habitual of putting lame excuse that their 'computer system was not working' in order to defeat the purpose of the complainant of depositing installment so that complainant’s pledged gold might be confiscated by the O.P.s on the pretext that the loanee failed to deposit the amount of installment of the interest in time. It is worth mentioning that opposite party in present complaint and the complaint referred to in the above paragraph is the same opposite party i.e. India Info line Finance Limited. The one complainant is residing in the state of Punjab whereas other complainant is residing  at ShriKakulam in the State of Andhra Pradesh but both are making the same allegations on the opposite party that opposite party refused to entertain the request of the complainant on the lame excuse that their 'computer system was not working' in order to bar the consumer to deposit the installment so that their gold may be retained for a very less amount advanced to the consumer in lieu of its pledged gold. So, it can easily be understood that the complainant is stating truth that opposite party refused to entertain the requests of the consumers on the lame excuse that their 'computer system was not working' in order to debar her from depositing the installment/interest and thereafter refused the complainant to return its pledged gold for not depositing the installment amount in time and thereafter  sold the gold for nominal amount which was advanced as loan amount.

7. Further, in the present complaint, the material date of payment of amount along with interest and other charges is 30^th April, 2019. The "IIFL" document containing terms and conditions which is Exhibited by both the parties reveals that tenure for paying installments was 11 months as mentioned in the documents i.e. Exhibited as C-1 tendered in evidence by the complainant & Ex. OP1/6 tendered in evidence by the opposite party  no. 2. So, when the last date for the deposit of installments by the complainant was  30^th March 2019 then selling out the pledged gold before the due date  i.e. 30^th March 2019  amounts to unfair trade practice adopted by opposite party.

8. Further, there is no proof that the notices alleged to be issued to the complainant by the opposite party were ever served upon the complainant. Moreover, in their reply, the O.P.s did not mention the receipt no. of the registered letters of the alleged notices. Further, the opposite parties in para no.7 of their reply simply mentioned that they got published a news item regarding auction of gold, pledged by the complainant with the O.P.s and after publishing the same they auctioned the said gold of the complainant. The O.P. neither mentioned news paper's name nor date of its publication. Opposite parties placed on record letter addressed to the complainant dated 23.08.2018 vide which the opposite party recalled the loan and gave a pre-sale notice to the complainant. Opposite parties have themselves filed Exhibited OP1/11 which is the proof of the tracking consignment by the India postal Authority which reveals that it was not delivered due to insufficient address. Further, O.P.No.1/13 also  proves that the post card  sent by O.P.s to the complainant was not received by her and concerned postman has reported to that effect. Thereafter, opposite party filed public notices of auction of gold ornaments vide Exhibit OP1/14 & OP1/15 but the same are quite illegible due to its small printing. So, it cannot be said that complainant was served upon proper notice providing her opportunity of being heard before the sale of the pledged gold of the complainant.  Further, O.P. filed statement of balance of due amount from the complainant which reveals that Rs.12659.70 paisa is due towards complainant on 30.09.2018. However, the opposite party did not file the proof of actual auction alleged to have taken place on 30.09.2018 or any other date vide which they have auctioned the gold ornaments of the complainant.

9. The Hon'ble Suprement Court of India in Lucknow Development Authority Vs. M.K.Gupta decided on 05 November, 1993 observed, "To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, 'to provide for the protection of the interest of the consumers'. Use of words 'protection' furnishes key to the mind of makers of the Act. Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in the light without departing from the settled view that a preamble cannot control otherwise plain meaning of a provision. In fact the law meets the long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law is an illusory. Various legislations and regulations permitting the state to intervene and protect interests of the consumers have become a haven for unscrupulous ones as the enforcement machinery either does not move or it moves ineffectively, ineffectively and for the reason which are not necessary to be stated the importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against power full business, described as, 'a network of racket' or a society in which, 'producers have secured the power ' to ' rob the rest' and the might of  public bodies which are degenerating into store house of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked. The malady is becoming rampant, wide spread and deep that the society instead of bothering, complaining and fighting against it, is accepting it as a part of life. The enactment in these unbelievable get harsh realities appears to be a silver lining, which may in the course of time succeed  in checking the rot."

10. The opposite party relied upon order of the District Consumer Forum at Shrikakulam  titled as "Kancharana Krishnarao Versus  The Branch Manager, India Infoline Finance Limited,  in CC No.49 of 2016 vide which District Consumer Forum dismissed the complaint of the complainant mentioning the order of the Hon'ble National Commission reported in (1) III (1997) CPJ 3 (2) 1996 (2) CPR 44 (3) 1997 NCJ 289 (4) 1996 NCJ 289 wherein the Hon'ble National Commission held that District Forum do not have jurisdiction to adjudicate upon the matter in dispute. However, it is observed that Hon'ble National Consumer Commission in Lathika C. Vs. Branch Manager, Muthoot Finance Ltd. on 04^th  July, 2016 (Revision Petition No.166 of 2016, 2016 (3) CPR 155 (NC) held that District Forum has jurisdiction to hold the opposite parties liable for the deficiencies and unfair trade practice in this type of  disputed subject matter. So, it can safely be held that this Forum has jurisdiction to adjudicate upon the disputed subject matter. In the present complaint, the opposite parties failed to prove on record that actual sale of gold ornaments took place and they have sold it out in the open auction after giving opportunity to the complainant or being heard before such alleged auction. O.P.s have not even placed on record the name and address of the successful bidder in the alleged auction.

11. Further, when it is settled between the parties that complainant will pay eleven installments i.e. till March 2019 then the opposite parties were legally duty bound to wait till that date, failing which they would be legally entitled to start the auction proceedings but in the present case, the opposite parties auctioned the pledged gold in the month of September 2018 in an arbitrary manner without the knowledge and consent of the complainant. Thus, selling out the pledged gold ornaments of a poor woman (complainant) before the due date i.e. 30^th March, 2019 amounts not only to unfair trade practice but also deceptive trade practice.

12. The opposite party alleged that the gold pledged with the opposite parties is of  total weight of 15 grams in which 9 grams weight is of threads and stones but they themselves placed on record Exhibit OP1/6 duly signed by complainant which clearly states that the total weight of gold is of 15 grams. When they themselves have mentioned that total weight of gold ornaments is of 15 grams and it is duly signed by the complainant namely Karamjeet Kaur (Ex.OP1/6) then they cannot say that the actual weight of gold is only 5.3 grams. Moreover they have not placed any signed document of the complainant where actual weight of gold was 5.3 grams and the remaining weight was of thread and stones. Such stand of O.P.s is not sustainable in the eyes of laws because it is taken only to get undue benefit from the situation creating financial loss to the complainant by wrongfully enriching themselves. It is observed that when a poor lady like complainant needs to pledge her gold ornaments before the money lenders/financers then it is but obvious that she is in the dire need of the money for her domestic needs etc. and the money lenders and financers should not take undue advantage of such situation and they should be fair in their dealings with their consumers.

13. It is the height of the unfair trade practice that when a poor lady failed to deposit installment then the opposite parties instead of waiting till the last date of the return of the amount along with interest i.e. 30^th of March, 2019 alleged that her ornaments of gold were sold out in September 2018 and that too for a nominal price of Rs.12005/- towards total due amount of Rs.12659/-. As the opposite parties failed to return the pledged gold necklace of 15 grams to the poor consumer and alleged that they auctioned it for Rs.12005/- without waiting the month fixed for payment of last installment i.e. March 2019 so they are not only deficient in providing service to the complainant but also guilty of adopting unfair trade practice. In such situation the opposite parties must pay the current value of the gold ornaments pledged with the O.P.s which is ascertain Rs.58,500/-(current value of gold i.e. on 17.09.2019 is Rs.39,000/- per 10 gram, hence price of 15 gram is Rs.58,500/-), Therefore, opposite parties are directed to pay Rs.46,841/-(current value of 15 gram gold is equal to 58,500/- minus the amount due towards complainant along with interest is Rs.12659/- = 46,841/-) i.e. after adjusting the principal amount along with interest lent to the complainant. Hence, opposite parties are directed to return that excess price of the value of gold ornaments which is Rs.46,841/-within period of 30 days from the date of order failing which O.P.s will be liable to pay interest @ 12% per annum to the complainant. Copies of the order be issued to the parties free of cost and thereafter file be consigned to the record room.

The complaint could not be decided within the prescribed period of time as provided under 3^rd Proviso of Section 13 (3A) of Consumer Protection Act, 1986, because the post of  President of this Forum remained vacant since 16.09.2018 and the undersigned President is now doing the additional duty for performing quasi judicial duties only for two days a week.

Pronounced: 23.09.2019                                              (Amrinder Singh Sidhu)

                                                                                        President

                                                                                        (Y.S.Matta)

                                                                                          Member

 

 

                                                                                          

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