Haryana

Kaithal

CC/21/2022

Smt.Kavita Rani - Complainant(s)

Versus

INDIA INFOLINE FINANCE LTD - Opp.Party(s)

Dinesh Tyagi

24 May 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL

 

                                                               Complaint Case No. 21 of 2022.

                                                               Date of institution:   24.01.2022.

                                                               Date of decision:      24.05.2024.

 

1. Kavita Rani widow of Shri Shamsher Singh, d/o Shri Dharampal,
2. Khushi daughter of late Shri Shamsher Singh,
3. Manisha Rani daughter of late Shri Shamsher Singh, both minor through her mother Kavita being natural guardian.

All residents of near Khera, Ward No.3, Cheeka, District Kaithal, now resident of village Kithana, District Kaithal.

                                                                                      …Complainants.

                                                     Versus

 

1. India Infoline Finance Limited (IIFL), Regd. & Corporate Office No.802, 8^th Floor, Hubtown Solars, Prof. N.S. Phadke Marg, Vijay Nagar, Andheri (East), Mumbai-400069.
2. India Infoline Finance Limited (IIFL), near Union Bank, Ground Floor, near Easy Day, Cheeka-Kaithal Road, Cheeka, District Kaithal, through its Branch Manager.

...Opposite Parties.

 

          Complaint under Section 35 of the Consumer Protection Act

 

 

CORAM:   SMT. NEELAM KASHYAP, PRESIDENT.

                   SMT. SUMAN RANA, MEMBER.

                   SHRI SUNIL MOHAN TRIKHA, MEMBER.

                  

Present:       Shri Dinesh Tyagi, Advocate for the complainants.   

                   Shri Vipul Singla, Advocate for the Opposite Parties.

                  

ORDER  -  NEELAM KASHYAP, PRESIDENT:

          Complainants have filed this complaint under Section 35 of Consumer Protection Act, 2019, against the OPs.

2.                In the complaint, complainants alleged that deceased husband of complainant No.1 namely Shamsher Singh, during his lifetime took loan against the security of gold ornaments from OP No.2 secretly and without her knowledge. That said Shamsher Singh taken the gold jewellery by saying that he will keep the same in the bank locker. That said Shamsher Singh expired on 26.03.2021 and complainant No.1 had no knowledge of loan allegedly taken by her husband. That on 17.01.2022, complainant No.1 found loan papers in the articles of late Shamsher Singh and came to know that whole jewellery kept by OP No.2 as security of alleged loan. That on 18.01.2022, she approached to OP No.2, who told that they had already sold whole gold jewellery kept by them as security of loan, upon which, they demanded accounts and other details of repayment and sale value, but they refused to give the same. That as per papers found, late Shamsher Singh took loan of Rs.14900/- for 11 months on 26.02.2020 and in this regard, gold ornaments i.e. 1 gold ring 22 caret weight 2.90 grams, 2 gold stud 22 caret weight 2.50 grams, total weight 5.40 grams taken as security by OPs from husband of complainant No.1. That again on 08.09.2020, OPs sanctioned another loan of Rs.20100/- in the name of late Shamsher Singh vide loan account No.GL15472075 and OP No.1 deducted the balance of previous loan amount of Rs.14900/-, from the loan sanctioned. That in this loan, gold ornaments in addition to previous gold ornaments, taken as security by OP No.2 as under (i) Gold Locket 21 caret weight 1.20 grams (ii) 1 gold mangalsutra 21 caret weight 9 grams (iii) 1 gold tikka 21 caret weight 2.10 grams, total weight 12.30 grams from the husband of complainant No.1. That husband of complainant No.1 was labourer and due to Covid-19 and lockdown, there was slump in the construction work, hence he could not found labour work and due to financial crunch in the family, he might not pay some of the installments. That no prior intimation or notice given to late Shri Shamsher Singh or after his death to his legal heirs before selling/disposing off the gold ornaments, kept with the OPs. That neither any intimation given nor it was disclosed at how much price jewellery was sold/auctioned and other details of loan. That the above act and conduct of OPs of disposing of gold ornaments entrusted to them as security, without any notice, amounts to gross deficiency in service, on their part, due to which, they suffered huge physical harassment, mental agony as well as financial loss, constraining them, to file the present complaint, against the OPs, before this Commission.

3.                Upon notice of complaint, OPs appeared and filed their written statements, stating therein that husband of complainant namely Shamsher Singh availed two loan facilities from the OIPs vide loan account No.GL15472075 and GL13878351 respectively. That as per terms and conditions, the loan was repayable in monthly installments along with interest, but Shamsher Singh failed to adhere the repayment schedule and became defaulter of OPs. That the OPs sent various letters and reminders to Shamsher Singh to deposit the loan amount, but he failed and ultimately, as per terms and conditions of loan agreement, OPs gave public notice for auction of the mortgaged articles. That inspite of that, Shamsher Singh did not come present in the office of OPs to deposit the loan amount, hence, the mortgaged articles were sold for Rs.17715/- and Rs.22673/- and the amount was deposited in the loan account of Shamsher Singh. That a sum of Rs.8841/- and Rs.1630/- is still due towards Shamsher Singh and complainants being legal heirs of Shamsher Singh are legally bound to clear the said loan amount and in this regard, intimation was sent to Shamsher Singh, but instead of making the payment of balance loan amount, they filed the present complaint with ulterior motives and prayed for dismissal the same.

4.                To prove the case, complainants tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 to Annexure-C3.

5.                On the other hand, OPs No.1 to 3 tendered into evidence affidavit Ex.RW1/A and documents Annexure R-1 to R-8.

6.                We have heard the learned counsel for the parties and perused the record carefully.

7.                Learned counsel for the complainants has argued that deceased husband of complainant No.1 namely Shamsher Singh, during his lifetime took loan against the security of gold ornaments from OP No.2. He further argued that said Shamsher Singh expired on 26.03.2021 and complainant No.1 had no knowledge of loan allegedly taken by her husband. He further argued that on 17.01.2022, complainant No.1 found loan papers in the articles of late Shamsher Singh and came to know that whole jewellery kept by OP No.2 as security of alleged loan. He further argued that on 18.01.2022, complainant No.1 approached to OP No.2, who told that they had already sold whole gold jewellery kept by them as security of loan, upon which, they demanded accounts and other details of repayment and sale value, but they refused to give the same. He further argued that again on 08.09.2020, OPs sanctioned another loan of Rs.20100/- in the name of late Shamsher Singh vide loan account No.GL15472075 and OP No.1 deducted the balance of previous loan amount of Rs.14900/-, from the loan sanctioned. He further argued that in this loan, gold ornaments in addition to previous gold ornaments, taken as security by OP No.2, total weight 12.30 grams from the husband of complainant No.1. He further argued that husband of complainant No.1 was labourer and due to Covid-19 and lockdown, there was slump in the construction work, hence he could not found labour work and due to financial crunch in the family, he might not pay some of the installments. He further argued that no prior intimation or notice given to late Shri Shamsher Singh or after his death to his legal heirs before selling/disposing off the gold ornaments, kept with the OPs. He further argued that neither any intimation given nor it was disclosed at how much price jewellery was sold/auctioned and other details of loan. He further argued that the above act and conduct of OPs, amounts to gross deficiency in service, on their part.

8.                On the other hand, learned counsel for the OPs has argued that husband of complainant namely Shamsher Singh availed two loan facilities from the OIPs vide loan account No.GL15472075 and GL13878351 respectively. He further argued that as per terms and conditions, the loan was repayable in monthly installments along with interest, but Shamsher Singh failed to adhere the repayment schedule and became defaulter of OPs. He further argued that the OPs sent various letters and reminders to Shamsher Singh to deposit the loan amount, but he failed and ultimately, as per terms and conditions of loan agreement, OPs gave public notice for auction of the mortgaged articles. He further argued that inspite of that, Shamsher Singh did not come present in the office of OPs to deposit the loan amount, hence, the mortgaged articles were sold for Rs.17715/- and Rs.22673/- and the amount was deposited in the loan account of Shamsher Singh. He further argued that a sum of Rs.8841/- and Rs.1630/- is still due towards Shamsher Singh and complainants being legal heirs of Shamsher Singh are legally bound to clear the said loan amount and in this regard, intimation was sent to Shamsher Singh, but instead of making the payment of balance loan amount, they filed the present complaint with ulterior motives and prayed for dismissal the same.

9.                From document Annexure C-1 it is evident that on 26.02.2020, husband of complainant No.1 late Shamsher Singh (since deceased) took loan of Rs.14900/-, from the OPs, for 11 months with interest rate @25% per annum, by pledging his gold ornaments of total weight 5.40 grams, bearing Gold Loan Account No.GL13878351. From document Annexure C-2, it is evident that on 08.09.2020, said Shamsher Singh took another loan of Rs.20,100/-, from the OPs, for 11 months with interest rate @21.96 per annum, by pledging his gold ornaments of total weight 12.30 grams, bearing Gold Loan Account No.GL15472075. Said Shamsher Singh was expired on 26.03.2021 as is evident from his Death Certificate Annexure C-3. From Account Statement Annexure R8, we found that in Loan Account No.GL13878351, said Shamsher Singh deposited Rs.920/- on 21.8.2020, Rs.750/- on 07.11.2020 and Rs.2022/- on 08.04.2021. Similarly, from Account Statement Annexure R2, we found that in another Loan Account No.GL15472075, said Shamsher Singh had deposited Rs.750/- on 07.11.2020 and Rs.2453/- on 08.04.2021

10.              Learned counsel for the complainants has firstly alleged that husband of complainant No.1 was labourer and due to Covid-19 and lockdown, there was slump in the construction work, hence he could not found labour work and due to financial crunch in the family, he might not pay some of the installments. He further alleged that no prior intimation or notice given to late Shri Shamsher Singh or after his death to his legal heirs, before selling/disposing off the gold ornaments, kept with the OPs, and neither any intimation given nor it was disclosed at how much price jewellery was sold/auctioned and other details of loan, which amounted to gross deficiency in service, on the part of OPs.

11.              Contrary to it, learned counsel for the OPs has contended that said Shamsher Singh failed to adhere the repayment schedule and became defaulter of the OPs and in this regard, the OPs sent various letters and reminders to him, to deposit the loan amount, but he failed to deposit the same. He further contended that ultimately, the OPs served final notices dated 25.08.2021 to Shamsher Singh Annexure R-5 and R-6 respectively, to deposit Rs.17804/- and Rs.22208/- along with agreed interest etc. Annexure R-2, but no legal heirs of said Shamsher Singh did not visit the office of OPs to pay the same. But it is pertinent to mention here that legal heirs of Shamsher Singh denied to receive any such notices, from the OPs, at any stage of time. Moreover, the OPs have failed to clarify that by which mode, they (OPs) had sent this final notice, to the legal heirs of Shamsher Singh, either by email or registered post etc. For example, if OPs have sent these notices to through email, then they (OPs) have to produce email confirmation letter, on the case file in this regard, and if they have sent the same through registered post, then it was required for the OPs to produce copy of that postal receipts, on the case file, but no such document has been produced, by the OPs, on the case file, and without any documentary proof, the above contentions of the OPs of sending these legal notices to the legal heirs of complainants, is doubtful, hence, cannot be believed.

12.              Learned counsel for the OPs has further contended that the OPs gave public notice for auction of the mortgaged articles Annexure R-1, but inspite of that, Shamsher Singh did not come present in the office of OPs to deposit the dues of loan amount, as such, his mortgaged articles were sold for Rs.22673/- and Rs.17715/- respectively, and after deducting the due loan amount and interest i.e. Rs.21043/- and Rs.26556/- respectively, a sum of Rs.8841/- is still due towards Shamsher Singh and Rs.1630/- have to refund back to the complainants, and the complainant, being legal heirs of Shamsher Singh are legally bound to clear the said loan amount. In this regard, intimation was sent to Shamsher Singh vide letter dated 18.01.2022 Annexure R4 and R-7 respectively, but instead of making the payment of balance loan amount, the legal heirs of Shamsher Singh filed the present complaint with ulterior motive. But it is pertinent to mention here that again the OPs have also failed to produce any documentary evidence, on the case file to clarify that by which mode, they (OPs) have allegedly sent the letters Annexure R-4 and R-7, to the legal heirs of complainant.

13.              The OPs has produced cutting of newspaper, showing some public notice for Auction of Gold Ornaments Annexure R-1, wherein, thousands of loan account numbers are mentioned, from which, it is not easy to trace out the loan account numbers of said Shamsher Singh, if mentioned therein. The OPs has contended that they sold the mortgaged articles of Shamsher Singh for Rs.22673/- and Rs.17715/- respectively, but again there is no documentary evidence, produced by the OPs, on the case file, vide which, it can be gathered that to whom the OPs have allegedly been sold those gold ornaments.

14.              As per letter dated 18.1.2022 Annexure R-7, the OPs sold the ornaments of Shamsher Singh, under Loan Account No.GL13878351 in Rs.22673/-, and after deducting the due loan amount + interest, total Rs.21043, a sum of Rs.1630/- is still lying with the OPs, but even then the OPs have failed to pay the said amount of Rs.1630/-, to the legal heirs of Shamsher Singh till today. For the sake of discussion, if this contentions of OPs that neither said Shamsher Singh nor his any legal heirs contacted them (OPs), even after sending various reminders time and again, is believed, even then the OPs can sent this amount of Rs.1630/-, to the legal heirs of Shamsher Singh, through Demand Draft, by registered post, on their address, but the OPs did not do so, reason best known to them.  

15.              However, it is pertinent to mention here that where any item/property is pledging, against the loan amount, in that case, as per any loan agreement, it is mandatory for the loaner to give prior written intimation to the loanee, before selling his mortgaged property/item, but in the case in hand, from the above facts and circumstances of the case, it is coming out that the OPs have totally failed to prove, on the case file that they had ever gave any prior intimation/notice, to said Shamsher Singh/his Legal Heirs, before selling his mortgaged/pledged gold ornaments, in an open auction. Hence, the above auction, done by the OPs, is held to be unjustified.

16.              In the case in hand, as per version of complainant No.1, her husband Shamsher Singh was a labourer and due to Covid-19 & lockdown, there was slump in the construction work, hence he could not found labour work and due to financial crunch in the family, he might not pay some of the installments. After death of said Shamsher Singh, when complainant No.1 approached OPs for paying the loan amount, then the OPs refused to deposit the same, alleging that his account has been closed and their hypothecated ornaments have been sold, in an open auction, then the complainants, being innocent persons, considers herself to be cheated, by the OPs and might have suffered huge physical harassment, mental agony including financial loss, without any fault on their part and was running from one pillar to another to get back their pledged ornaments, and lastly left with no other option, except to knock the door of this Commission, by way of filing the complaint in hand. The above act and conduct of OPs not only amounts to gross deficiency in service, but also an act of unfair trade practice on the part of OPs.

17.              Now the question which arises for consideration is what should be the quantum of indemnification? In case titled HDFC Bank Ltd. & 3 Ors. Vs. Ravi Kumar, Revision Petition No.1511 of 2023 (Against the Order dated 01.03.2022 in Appeal No.345/2013 of the State Commission Tamil Nadu), DOD 26.07.2023, the respondent Ravi Kumar took gold loan of Rs.48500/- from the petitioner bank on 13.10.2008 after pledging his 8 sovereign jewel gold and the petitioner bank has closed the loan account of respondent without giving him written intimation in this regard and illegally sold his gold jewellery. The District Forum vide its order dated 28.06.2010 has allowed the complaint and directed the petitioner bank to return the gold jewelly to the complainant after receiving Rs.48500/- with interest @16.5% per annum from 13.10.2008 to 31.03.2008 with compensation amount of Rs.25000/- and litigation expenses of Rs.3000/-, but contrary to it, the Hon’ble State Commission vide its order dated 19.01.2023 has modified this order dated 28.06.2010 to the extent that instead of returning gold jewellery to pay value of 8 sovereign gold “as on today”. However, against that order, the Petitioner HDFC Bank has filed revision petition before the Hon’ble National Commission, New Delhi, which was also dismissed vide its order dated 26.07.2023. The facts of the present case is squarely covered under the above-mentioned case law. From documents Annexure C1 and C2, it is evident that said Shamsher Singh had pledged his gold ornaments of weight 5.40 grams (22 carets) + 12.30 grams (21 carets) respectively, total 17.7 grams. So, keeping in view the ratio of case law, referred to above, the OPs is liable to pay the value of 5.40 grams (22 carats) and 12.30 grams (21 carets) of gold ornaments (as mentioned in documents Annexure C-1 & C-2 respectively) “as on today’s rates”, to the complainants.

18.              In view of our above discussion, we accept the present complaint and direct the OPs to pay the total value of 5.40 grams (22 carats) and 12.30 grams (21 carets) of gold ornaments (as mentioned in documents Annexure C-1 & C-2 respectively) “as on today’s rates”, to the complainants, within a period of 45 days, from the date of this order, failing which, the total award amount shall carry interest @6% per annum, from the date of filing the present complaint, till its actual realization.

19.              In default of compliance of this order, proceedings shall be initiated under Section 72 of Consumer Protection Act, 2019, as non-compliance of Court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both. A copy of this order be sent to the parties free of cost. File be consigned to the records, after due compliance.       

Announced in open Commission:

Dt.:24.05.2024.

                                                                                      (Neelam Kashyap)

                                                                                      President.

 

(Sunil Mohan Trikha).             (Suman Rana).              

Member.                                  Member.

 

 

 

Typed by: Sham Kalra, SSS.