SMT. SAHANA AHMED BASU, MEMBER      

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

            The case of the complainant in brief is that he obtained gold loan of Rs. 2,04,750/- from the OP by liening gold  ornaments on different dates and he had lien total 111.10 gm of hallmark gold ornaments. Subsequently the complainant released a gold ring wt 3.90 gm (22 carat) which was lien on 13.08.2016 after making full payment of the principal amount including interest to the OP. Therefore, the loan amount of the complainant was reduced to Rs. 1,96,539/- and the amount of hallmark gold lien with the OP was 107.20 gm. On 23.02.2017 the complainant received the information through newspaper and television that a burglary was committed at the branch office of the OP. Immediately the complainant went to the branch office of the OP to know the actual fact. The complainant enquired about the said gold ornaments and requested the officials of the OPs as to how the complainant would get back the ornaments.  Officials of the OP told the complainant to submit in writing the details of gold ornaments which were lien with the OP. When the complainant went to Branch Office of the OP to submit the written information, the Branch Office of the OP refused to accept the same and did not issue any receipt copy of the said written information. Thereafter, on 18.07.2017 the complainant was informed by the officials of the Branch Office of the OP that OP would return money as per the rate of gold loan as on the date of burglary which was Rs. 2694/- per gm and Rs. 250/- per gm as making charge of the gold ornaments to the complainant and said amount would be paid through Insurance Company. But as per submission by the complainant, the rate of 22 carat hallmark gold on the date of burglary i.e. 23.02.2017 was Rs. 2,941/- and the making charge of hallmark gold ornaments was Rs. 500/- per gm. Therefore, the total claim amount of the complainant from the OP is Rs. 3,68,875/-. The complainant made several representation of the office of the OP and issued letters on 19.7.2017 and 27.07.2017 to OP for getting the claim amount but the OP did not turn up. Therefore, the complainant approached before the Ld. Forum to get back the amount of the said gold including making charges along with 12  percent interest on the same amount on and from 23.02.2017 till actual payment. The complainant also prayed for Rs. 1,00,000/- for harassment and mental pain and agony as Rs. 10,000/- as litigation cost.

            OP contested the case by filing W.V. The case of the OP is that the complainant is not a consumer within the meaning of the C.P. Act. The complainant had approached the OP company on the pretext of availing the loan facility against the pledge of gold articles and in view thereof, complainant had deposited the gold with IIFL and thereafter the complainant had filled up loan application, and also signed the terms and conditions governing gold loan facility and DPN which were mentioned in the overleaf of the loan facility. After due valuation of gold articles, based on the then prevalent market rate of the gold ornaments the complainant had taken the loan facility more particularly mentioned in the schedule and the same was required to be repay  to the OP within time period mentioned therein, after the date of execution of the terms and conditions of the loan application. It is also as per the terms and conditions of the gold loan agreement, the OP company can auction the pledge gold in case the loan or interest is not realized in full , as per RBI norms. On 23.07.2017 the IIFL brand at 82, Park Street faced a notorious incident of burglary, where in all the vault gold amounting to Rs. 3 crore was taken on gun point by the culprits and this also inclined the complainants gold ornaments too. Subsequently FIR was filled. However, the OP company had already insured the gold and subsequently the insurer after valuation provided the claim, as per which it was evaluated by the insurer that the complainant is to get Rs. 105536.18/- which the OP is ready to pay but the complainant is not ready to realize the same. OP had never followed any unfair trade practice, for instance that the OP had not asked for any interest against those loan accounts from 23.02.2017. The valuation was made by the insurer and the OP had nothing to do with it. The rate of gold is evaluated by insurer as Rs. 2694.00/- gram for 22 carats and Rs. 2206.00/- gram for 18 carats and the OP had no hand in it. However, the rate mentioned by the complainant is not correct. The bullion market in India follows the rate of Bombay bullion association and that is different from the complainant. The OP further submitted that the complainant is guided by pledger- pledgee contract, and not a subject matter of C. P. Act, 1986. Therefore, the OP prayed before the LD Forum to dismiss the case.

On pleading of the parties following questions are taken up for the determination.

Point for Decision

1)         Is the complaint maintainable in its present form and in law?

2)         Is the OP indulged in unfair trade practice and deficient in service?

3)         Is the complainant entitled to get relief / reliefs as prayed for?

Decision with Reasons

Points 1 to 3 :

            All the points are taken up together for the sake of convenience and brevity in discussion.

            The complainant has tendered evidence through affidavit and replied to the questionnaires set forth by the OP. The OP failed to file any evidence through affidavit. Therefore, we have to rely upon the documents on record furnished by  parties.

On perusal of the documents on record, we find that the complainant  availed  gold loans of Rs.2,04,750/- on several dates i.e. from April,2015 to July,2016 by depositing 111.1 gm of Hallmark gold ornaments with the OP. It is also admitted that the complainant released a deposited gold ring Wt.3.90 gm (27 Carat) after making  full payment of the principal amount including interest to the OP. Therefore, the loan amount of the complainant was reduced to Rs.1,90,539/-. The fact remains that on 23.02.2017 a burglary was committed at the Park Street Branch of the OP where the ornaments of the complainant was deposited. Thereafter, on 18.07.2017 the complainant was informed that the OP would return money as per the rate of gold as on the date of burglary which was Rs.2,694/- per gm and Rs.250/- per gm as making charge of the ornaments. The OP did not charge any interest since 23.02.2017 when the said burglary took place.

The OPs has challenged the maintainability of the complaint on  the ground that the terms and conditions annexed with the loan application duly signed  and submitted by  the Opposite Party, it contains a clause in respect of arbitration proceedings which read as:

‘Any dispute arising out of or in connection with the present loan transaction/ agreement shall be referred to and resolved  by the process of Arbitration in accordance with the Arbitration and Conciliation Act, 1996 and / or any statutory amendment thereof and  the same shall be referred to Sole Arbitrator who shall be appointed by IIFL.  The venue of the Arbitration shall be decided by IIFL’.

Ld. Advocate for the OP has submitted that the necessary evidence were annexed to the proceedings. But we do not find  such document on record. Even The complainant also did not furnish the said document.

The Ld. Advocate for the OP further argued that as per C.P. Act, 1986 the complainant is not consumer as the complainant pledged the assets in question to the OP and the OP gave loan to him on deposit of gold ornaments against interest .

In the instant case the matter is not referred to the Arbitrator and no award is passed. The parties to the complaint did not avail any remedy under Arbitration and conciliation Act, 1996. Therefore, there is no bar to file consumer complaint as alternative remedy. Thus, the complaint is maintainable in its present form and in law. As such, the argument advanced by the Ld. Advocate for the OP has no leg to stand.

            The Ld. Advocate for the complainant has argued that the complainant has already released  a gold ring Wt. 3.90 gm (22 Carat) which was lien on 13.08.2016 after making full payment of the principal amount including interest to the OP, and the loan amount reduced to Rs.1,96,389/-. But no such evidence was furnished by the complainant to that effect . But the OP did not deny the said submission, therefore, we are relying upon the submission made on behalf of the complainant.

            On perusal of the documents of loan accounts and valuation report made by insurer, we find no discrepancy. They expressed their intention to refund the value of the gold in question as per their calculation. Therefore, allegation of unfair trade practice does not stand.

            The Ld. Advocate for the complainant has argued that market rate and making charge rate of the gold ornaments on the 23.02.2018 as per OP is not correct.  Ld. Advocate for the OP has argued that the gold market of the India follows the rate of Bombay Bullion Association and the rate was fixed by the insurer.  But we do not find any  documents in this regard. The complainant furnished a net copy of GoldPrice India.Com which shows that at the end of the day of 23.02.2018 gold price was Rs.2,941/-. In reply to the questionnaire of the OP the complainant stated that he  collected the data from jewellary shop. Wherever the making charge of the gold ornament on that day is not mentioned in the said data. Therefore, we find the argument made by the Ld. Advocate for complainant regarding the price of the gold ornaments in question is legitimate. Moreover the OP is liable to the complainant, not insurer. The submission regarding the making charge of the ornaments in question does not stand.

The complainant sent two letters dated 19.07.2017 & 29.07.2017 to the OP, but such letters were unattended. Therefore, there is surely demonstration of deficiency in service on the part of the OP.

             Being a defaulter  the complainant cannot get refund the total value of the gold ornaments in question. The complainant has to pay the interest of the said loan amount  prior to the date of burglary as per contract amount.

            Thus, all the points under determination  answered in affirmative.

            In result, the case is succeed in part .

            Hence,

Ordered

The complaint case be and same is allowed on contest against the OP in part without any cost.

The OP is directed to release the amount of the said 107.20 gm gold ornament  at the rate of rate of Rs. 2941/- with making charge  at the rate of rate of Rs. 250/- after deducting the interest prior to the date of burglary.

Dictated & Corrected