Date of filing: 18.08.2017 Date of disposal: 08.01.2019
Complainant: Soumen Kr. Das, S/o. Dr. Swapan Kr. Das, residing at Hiru Bati (Bakultala), Radhaballavpur, Bonpas Kamar Para, PS: Bhatar, Dist: Burdwan, PIN – 713 127.
- V E R S U S -
Opposite Party: India Infoline Finance Limited, Burdwan G. T. Road Branch, represented by Branch Manager, having its office at: 63 G. T. Road, Haldar Market, Near H.D.F.C. Bank, Burdwan – 713 101, having its present office at: Bhiringi Benachity, Nachan Road, 1st Floor, Durgapur -13.
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Smt. Nivedita Ghosh.
Hon’ble Member: Dr. Tapan Kumar Tripathy.
Appeared for the Complainant: Ld. Advocate, Chayan Bhatttacharyay.
Appeared for the Opposite Party: None (ex parte).
J U D G E M E N T
The present application u/S. 12 of C. P. Act, filed by the complainant Soumen Kr. Das against the OP for compensation of Rs. 65,000=00 along with other reliefs.
The complainant came to know from his friends that OP is a money lender and after pledging gold and ornaments he sanction loan and accordingly in the year 2013 due to his needs of some money for her family members he went to the office of OP and thereafter came to know from the Branch Manager regarding the gold loan and accordingly on 14.02.2013 he went to the office of OP at Burdwan G.T. Road Branch as per advice of Branch Manager with some documents as well as ornaments for loan.
The complainant alleged that he pledged ornaments wroth 20.50 gms to the OP and OP also issued a loan of Rs. 38,000=00 on the same date and also issued a sanction letter and also issued gold loan A/c. no. being no. GL 2492187 Identity no. F965663E in the name of complainant and as per T&C, complainant agreed to pay installment or EMI for the gold loan time to time and also agreed to discharge his other liabilities as per direction of OP till the OP shifted their Branch Office from Burdwan G.T. Road Branch to Burdwan, Durgapur Branch and also issued repayment receipt in favour of the complainant.
The complainant alleged that without any notice the OP shifted their office and for that complainant was unable to furnish installment amount as per terms and condition of the OP and had no knowledge regarding the present address of the OP and thereafter from 2nd November, 2015 he got a letter from the Kolkata office and then only he came to know about the present address of the OP and also the present position of his gold loan account and after knowing the same he went to the office of OP i.e. new shifted Durgapur Branch Office on 06.11.2015 and also told before the Branch Manager about the actual cause for which he was unable to pay the installment or EMI and at that time the Branch Manager assured him that he can further continue the said gold loan account and permitted to pay EMI with some penal charges and he further came to know that as his ornaments were not reach at the stage of auction, as the loan period also was not expired, and at that time the Branch Manager advised him by saying that he can release all the pledged ornaments if he furnish the balance amount.
Accordingly on 06.11.2015 the complainant furnished some amount of Rs. 10,000=00 with penal charges of 1,000=00 in favour of Op and OP issued a repayment receipt in favour of the complainant and at that time a conversation was held in between himself and the Branch Manager regarding the release of pledged ornaments and the complainant further requested not to auction the gold ornaments without giving any prior notice. Thereafter on 24.11.2015 as per conversation complainant went to the office of OP with balance amount to take back the said gold ornaments. At that time he only came to know that the ornaments had already been auctioned without any prior notice.
The complainant further alleged that when he asked before the Branch Manager regarding the illegal auction matter without his permission or without any prior notice, then the Branch Manager advised him to ‘go for legal’ and as such the complainant sent a request before the Branch Manager for justice through mail to the official email address and also to customer care office and he only got reply from Customer Care Office and thereafter he visited the office of OP for several times at Durgapur and also in Kolkata.
So finding no other alternative the complainant compelled to lodge the present complaint against the OP as the OP have committed deficiency in service by selling the pledged gold ornaments through auction without taking his permission or giving him any prior notice and such attitude of the OP comes under purview of the unfair trade practice and also negligence to provide the service.
The cause of action arose on and from 24.11.2015 when the complainant first time came to know that the pledged ornaments had already auctioned without giving him prior notice.
The OP, India Information Finance Ltd. (IIFL) contested the present application by filing written version where denied all the allegation or alleged by the complainant by saying that the present claim application is not maintainable as the relation in between the complainant and the OP is a borrower and lender and as such the complainant is not within the meaning of consumer, rather the complainant is a customer and failed to make legitimate dues of the OP and as such the relationship in between themselves as debtor and creditor and accordingly the OP have every right to sell gold ornaments through auction in terms of Section 176 of the Indian Contract Act, 1872.
OP further stated that the complainant is not a consumer according to C.P. Act. Moreover the issue of rejection of alleged claim is purely civil in nature and the present Forum Court has no right to proceed the present application and also stated that in the usual course of business the OP was approached by the complainant for the purpose of availing loan against pledging gold ornaments and as such the OP has disbursed total sum of Rs. 38,000=00 against total value of various gold ornaments mortgaged by the complainant.
Op further stated that as per T&C of gold loan agreement, the total tenure of each of the gold loan was for 12 months and further stated that the agreement further stipulated that in case of monthly installment along with accrued rate of interest are not paid by the complainant within time, then the complainant will have to pay extra charges being the delayed payment charges and accordingly when the complainant signed that agreement then he agreed to each of the terms and conditions of the agreement and therefore bound by the terms of the agreement.
The Op further stated that they have issued loan recall notice to the complainant on 17.10.2015 to inform that the complainant only paid a part and the complainant also not informed in writing that the remaining will be cleared within 24.11.2015 and for that the OP taken the step for sell the same through auction and the said auction was advertised in local newspaper including the daily newspaper ‘Business Standard’ and in the Bengali newspaper ’Duronto Barta’ on 05.11.2015. Op further stated that as the relation with the complainant is nothing but borrower and lender and so that the complainant is not entitled to get any relief as per definition of C. P. Act and required to be adjudicated before the competent Civil Court.
OP also stated that the prayer of the complaint is unjust, fanciful, vexatious, baseless, false and frivolous. On considering the claim application the following issues have considered and framed.
- Whether the claim application is maintainable in its present position?
- Whether the present complaint case filed by the complainant within the proper jurisdiction or not?
- Whether the complainant is entitled to get any relief as prayed for?
Decision with reasons:
Now it appears that though the OP files written version but ultimately failed to proceed the case by filing evidence and as such the present case is taken up for hearing as ex parte.
Issue No. 1:
Regarding the issue the Forum Court is duty bound to prove that complainant is a consumer as a consumer is only entitled to file such type of claim application. Here in the instant case there is no dispute that the complainant received loan amount of Rs. 38,000=00 from the OP against gold with some terms and condition and it is also not disputed that during the period of repayment of loan amount, the OP sold the said gold through auction without any notice to the complainant and as such the behaviour of Op shows that their activities is /was nothing but malpractice as well as unfair trade practice towards the complainant and for that the complainant is compelled to lodge the present claim application against the OP and the OP also not denied the incidence by giving their written version.
So on considering such circumstances it is clear that the complainant is able to prove that he is a consumer against the Ops according to C.P. Act and the present Forum has no hesitation to accept him as a legal consumer. Accordingly this issue is disposed of.
Issue No. 2:
Regarding this issue it appears that the complainant has filed the present claim application against the Op to return or deliver all the said pledged gold ornaments for which the complainant took a loan amount of Rs. 38,000=00 from the OP. The pecuniary jurisdiction of this forum is Rs. 20 lacs and the present claim amount of the complainant is also within Rs. 20 lacs.
It further appears that the office of the OP is at Burdwan G.T. Road Branch and also at Bhiringi, Benachity, Nachan Road, Durgapur. Therefore there is no hesitation to hold that the claim application has been filed within proper jurisdiction, i.e. territorial and pecuniary jurisdiction. Accordingly, this issue is disposed of.
Issue No. 3:
Regarding this issue it appears that the complainant took gold loan amount of Rs. 38,000=00 from OP by mortgaging his ornaments net weight : 17.17 gms, Gross weight: 20.50 gms against proper receipt issued by the OP which is known as borrower slip. After taking this the complainant started paying his loan and repaid his loan up to July, 2015 and thereafter he was compelled to stop payment due to sudden changes of office address of Op without any information, being a helpless condition complaint tried to find out his whereabouts but failed. After that on 2nd November, 2015 complainant got a letter from where he first time came to know the exact Branch Office of OP and the present position of his gold loan account. Knowing the same the complainant rushed to the new shifted Durgapur branch on 06.11.2015 and paid the installment amount with penal charges i.e. Rs.10, 000=00 and Rs. 1,000=00 total amount of Rs. 11,000=00 and Op also issued a receipt being No. RDURG4198809 in favour of him and at the same time OP informed him the present position of his gold loan.
Thereafter complainant promised to pay the rest of the amount within 24.11.2015 and as such when he went there on fixed date for giving the balance amount then Op informed him that the said ornaments had already been auctioned.
Now the question arises on what basis the Op auctioned the said ornaments without informing him when the complainant had already paid Rs. 27,500=00 out of Rs 38,000=00 as per direction of OP and further when the complainant also fixed the date on 24.11.2015 to pay the balance amount to release his gold ornaments.
On the other hand, Op stated in their written version that before auction they advertised it in a local newspaper ’Business Standard’ and ‘Duronto Barta’ on 05.11.2015 and the copy also attached with written version as annexure AR-2 and Annexture AR3, but on perusing the record it is found that no such type of papers as Annexure AR2 & AR3 has been submitted by the Op to prove the fact. Even OP is unable to show the actual date of auction. Therefore, on considering the facts and circumstances it comes in our mind if OP advertised the news of auction on 05.11.2015 then how did they take the loan amount on 06.11.2015 with penal charges. So it is clearly example of unfair trade practice done by the OP as OP did not give them any prior information before auction the pledged ornaments.
According to T&C of IIFL, OP should inform the party by giving 10 days prior notice before auction but Op violates these rules after taking the amount with penal charges on 06.11.2015 when they are stating that they had already advertised this auction information on 05.11.2015.
Now as it appears that no such documents produced by the OP to show that actually notice was given for auction for the knowledge of the complainant and according to laws Op is duty bound to produce the said documents before this Forum. So without giving any documents from the OP, the present Forum has no hesitation to hold that actually OP has not informed the auction sell through newspaper and for that the complainant was not aware regarding the date of auction sell of his gold ornaments which is nothing but malpractice done by the OP towards the complainant.
On the contrary the complainant is able to produce all the documents to show that he had pay EMI amount to the OP as per T&C of gold loan agreement and Op also issued receipt against the said amount (Annex. B1 – B5).
Furthermore the attitude of the Op towards the complainant clearly shows that there is deficiency in service on the part of the OP as the OP received Rs. 10,000=00 along with Rs. 1,000=00 as penal charges without informing him that the auction sell was already over.
After hearing argument of complaint this Forum finds that complainant has been able to prove his case that OP has done unfair trade practice and the complainant is entitled to get relief.
Hence, it is
O r d e r e d
that the Consumer Complaint being No. 136/2017 be and the same is allowed ex parte against the OP with cost directing the OP to return or deliver the pledged gold ornaments worth 20.50 gms (gross weight) i.e. 17.17 gms (net weight) to the complainant or to pay the market value of gold pledged by the complainant before the OP as on 14.02.2013 along with interest @9% per annum since 14.02.2013 till the date of payment to the complainant after deducting the loan value and interest which is due to OP as agreed by both parties in the proposal form within 45 (forty five) days from the date of passing of this judgment, in default, it will carry a penal interest @12% per annum for the default period. The OP is also directed to pay Rs. 20,000=00 (Rs. Twenty thousand) only as compensation for mental pain, agony and harassment and Rs. 2,000=00 (Rs. Two thousand) only for cost of the proceeding to the complainant within 45 (forty five) days from the date of passing of this order, in default; the complainant is at liberty to put the entire order in execution as per provisions of law. With the abovementioned observation the complaint is thus disposed of accordingly.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me (Jayanti Maitra (Ray)
President
(Nivedita Ghosh) DCDRF, Burdwan
Member
DCDRF, Burdwan
(Tapan Kumar Tripathy) (Nivedita Ghosh)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
