MR BIBEKANANDA DAS, MEMBER:-
The C.C.Case No. 39/2024 has been filed U/s-35 of C.P.Act, 2019 seeking the following relief;
“ To allow the dispute and direct the Op- Asirbad Micro Finance Ltd. to produce the mortgaged gold and receive the total loan mount along with its interest from the complainant and to release the gold ornaments in favour of complainant and also direct the Op- Asirbad Micro Finance Ltd. to pay Rs. 1,00,000/- as compensation to the complainant for mental agony and harassment ”.
Brief fact of this case is that the Complainant being a illiterate lady and urgent need of money availed a loan of Rs. 8,08,000/- from the Op- Asirbad Micro Finance Ltd. by mortgaging 208 grams of gold ornaments on dt. 10.02.2023. During the time of sanction of the said loan, the loan agreement was executed between both the parties. The Complainant never violated the terms and conditions of the said agreement and was paying interest to the Op- Asirbad Micro Finance Ltd. and obtained receipts i.e, Rs.8780/- on dt. 14.03.2023 & Rs, 1,00,386/- on dt. 06.11.2023 towards entire interest of the said loan amount.
Subsequently Complainant arranged money to repay the loan amount with its interest to the Op-Finance Company’s Branch Office at Rajnagar on several times to release the said mortgaged gold but the Op- Asirbad Micro Finance Ltd. without receiving the cash from the complainant to release the said gold ornaments deferred the matter with some plea or other and lastly refused to receive the cash and not released the gold in favour of complainant. In the month of March,2024, when the complainant went to the office of the Op- Asirbad Micro Finance Ltd., the Op- Asirbad Micro Finance Ltd. informed her that the gold pledged for loan have already been auctioned without any prior intimation to the complainant and without giving opportunity to the complainant to take part in the auction for which the Complainant suffered mental agony and sustained heavy financial loss due to deficiency in service and unfair trade practice committed by Op-Asirbad Micro Finance Ltd., Rajnagar.
The Op- Asirbad Micro Finance Ltd. on the other hand submitted in its written version that, the complainant was instructed by the Op- Asirbad Micro Finance Ltd. to renew of loan agreement. The complainant on dt. 06.11.23 paid Rs. 1,00,386/- towards entire interest which was not sufficient to renew the loan agreement. The Op- Asirbad Micro Finance Ltd. has served notice/reminder to the Complainant in several times for payment of interest alongwith principal amount as well as to renew the loan agreement but Complainant paid deaf ear towards the same. So the Op- Asirbad Micro Finance Ltd. decided to auction the aforesaid gold ornaments in order to recover the loan amount with upto date interest. Lastly the Op- Asirbad Micro Finance Ltd. auctioned the said gold on dt. 22.03.2024, and which was within the knowledge of the complainant.
Heard the Ld. Counsel for the complainant as well as counsel for the Op. After careful scrutiny of the entire case record & documents submitted by both the parties, it is our considered view that the action of the Op- Asirbad Micro Finance Ltd. for selling the gold without prior intimation to the complainant is arbitrary, whimsical against the principle of natural justice and coming within the purview of deficiency in service and unfair trade practice.
It is undisputed fact that the complainant availed the loan from the Op- Asirbad Micro Finance Ltd. by mortgaging the gold ornaments weighing 208 gms. As against such loan the complainant has paid entire interest and the interest so paid in repayment of loan is a consideration and as such the complainant is a consumer as per the observation of the Hon’ble Supreme Court reported in 1995(11)-SCC-150(Consumer Unit and Trust Society Vrs. Chairman and M.D, Bank of Baroda).
The next question is whether there is any deficiency in service on part of the Op- Asirbad Micro Finance Ltd. including the authorized person (Branch Manager) and if so whether the Complainant is entitled to any relief as prayed for in her complaint petition. After perusal of the record and documents, it is observed that the Op- Asirbad Micro Finance Ltd. without giving any opportunity and without giving any pre-sale notice (in between dt. 06.11.2023 to dt. 22.03.2024) to the complainant has sold/auctioned the gold ornaments of the Complainant. Further the Op- Asirbad Micro Finance Ltd. has miserably failed to produce any documents like copy of pre-sale notice, postal receipts and paper publication(widely circulated news paper) and has not followed the procedure/ provision of public auction. It is crystal clear that the Op has not filed any evidence like postal receipt, postal tracking report, copy of pre-sale notice and paper publication (widely circulated news paper) in support of their case. The Op has not filed any notice/documents to prove that the date of auction of gold ornaments has been duly intimated to the complainant as per observation of Hon’ble National Commission and Odisha-State Commission reported in 2003(3) CPR-34-N.C, 2004(3) CPR-154-Odisha. The Op- Asirbad Micro Finance Ltd. is also required to file the relevant documents indicating the other bidders who had taken part in the auction and similarly the Op- Asirbad Micro Finance Ltd. has not filed any documents to prove that the gold ornaments of the Complainant has been valued by an approved valuer. It is very much pertinent to mention here that, the case of the complainant is regarding auction of her gold ornaments without pre-sale notice by the OP- Asirbad Micro Finance Ltd. but not about cheating or fraud and the citation and documents submitted by the OP is not squarely applicable to the present C.C.Case in hand and as such the contention raised by the OP its written version is not acceptable to this Commission.
Further it is our considered view that it is undisputed fact that the complainant had availed the gold loan from the OP-Asirbad Micro Finance Ltd. by mortgaging her gold ornaments and was also paying interest to the Op- Asirbad Micro Finance Ltd.. As per guidelines of RBI, the pre-sale auction notice should be served upon the complainant after declaration of his loan A/C as NPA, and so also it is specifically mentioned in the said guidelines of RBI that unless three consecutive installments are not paid then the loan A/c shall be declared as NPA. The Ld. Counsel for the complainant submitted that the third installment was fixed to dt. 06.11.2023 and on the very same day the Complainant paid the entire interest amounting to Rs. 1,00,386/- to the Op- Asirbad Micro Finance Ltd. excluding the principal amount. So, question of declaration of loan A/C of the Complainant as NPA does not arise at all. Conceading for the sake of argument that the Op has submitted the tracking report of dt. 26.12.2023 and dt. 20.01.2024 but with respect to such report, no copy of notice has been filed in the present C.C.Case by the OP- Asirbad Micro Finance Ltd. and the tracking report submitted by the OP- Asirbad Micro Finance Ltd. seems to be fabricated since because the original notice copies are not there in the record. It is quite interesting that the Branch Manager, the authorized person of the Asirbad Micro Finance Ltd. has given as undertaking before the Police of Rajnagar Police Station that he is responsible for the entire process of auction conducted in his presence and shall also return the gold ornaments to the complainant (Xerox copy annexed) and that apart in the video clipping of Kanak New channel submitted by the Complainant in the present C.C.Case wherein the Branch Manager of the Asirbad Micro Finance Ltd., Rajnagar has clearly admitted the illegal and arbitrary action of the Op which clearly established the Op- Asirbad Micro Finance Ltd. has committed deficiency in service and so also adopted unfair trade practice.
From the above observation it clearly goes to establish that the Op- Asirbad Micro Finance Ltd. including the authorized person (Branch Manager) have committed deficiency in service as well as adopted unfair trade practice by auctioning the gold ornaments of the complainant since the Op has not followed the proper procedure of law in auction sale.
O R D E R
We therefore directing the Opposite Party-Asirbad Micro Finance Ltd. including the authorized person ( the Branch Manager) to refund the gold ornaments weighing 208gms which was kept by the OP for mortgage for the purpose of gold loan or shall pay the present market price of the said gold ornaments weighing 208gms to the complainant after deducting the loan amount, if any and the OP- Asirbad Micro Finance Ltd. including the authorized person (Branch Manager) are further directed to pay Rs. 30,000/- (Thirty thousand) only as compensation for mental agony / harassment undergone by the Complainant during these period and shall also pay Rs. 10,000/- (Ten thousand) towards cost of the litigation within a period of 45 days from the date of receipt of this order, failing which the OP- Asirbad Micro Finance Ltd. including its authorized person shall be liable for execution proceeding under the C.P.Act, 2019.
With the aforesaid direction and observation the C.C.Case No. 39/2024 is allowed & accordingly disposed off.
Issue extract of the order to the parties for compliance.
Pronounced in the open Commission, on this the 25th day of November, 2024.
I, agree,
SD/- SD/-
PRESIDENT MEMBER
