IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 24th day of February, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
Sri. K.M. Anto, Member
C C No. 27/2020 (filed on 01-02-2020)
Petitioner : P.A. Samad,
S/o. Aboobaker,
Thenguthottathil House,
Athirampuzha P.O.
Kottayam.
(Adv. ZakhierHuzzain and
Adv. A. Sunitha)
Vs.
Opposite Party : Mr. Joby,
The Proprietor,
ThuruthelMattathil Financiers,
Athirampuzha P.O.
Kottayam – 686562.
(Adv. SibyChenappady, Adv. Anu
Santhan and Adv. Noble Joseph)
O R D E R
Sri. Manulal V.S. President
Complaint is filed under Section 12 of the Consumer Protection Act, 1986.
Case of the complainant is as follows:
Opposite party is s financier conducting money lending business on the security of gold ornaments pledged with them. Complainant availed their service by pledging a necklace and neck chain totally weighing 55.30grams and borrowed an amount of Rs. 1,10,000/- on 14-8-2017. On 11-10-2019 the opposite party issued a demand notice to the complainant demanding either to close the loan account and take back the ornaments or to renew the loan by paying interest within 15 days of receipt of notice. When the complainant approached the opposite party, they demanded exorbitant interest which is not permitted by the money lenders act and refused to give written statement of account showing the principal amount and interest. Even after the repeated request the opposite party did not furnish the statement of account to the complainant.
On 5-9-2019 the complainant issued a lawyers notice the opposite party demanding to furnish the statement of account showing the rate of interest and the amount to pay to take back the ornaments. But the opposite party neither sent a reply nor furnished the statement of account as demanded. At last when the complainant approached the opposite party he came to know that the gold ornaments were sold by the opposite party and the amounts were appropriated towards his loan account without any intimation to him. The opposite party did not give any details of how much amount was received by them in the sale and how much is credited to the loan account. According to the complainant the action of the opposite party in not furnishing the statement of account and sale of gold without informing him and utilize the amount by themselves is unfair trade practice and deficiency in service on the part of the opposite party. Hence this complaint is filed by the complainant.
Upon notice from this commission opposite party appeared and filed version contending as follows:
Complainant is not a consumer under the consumer protection act. The complainant had a loan account having A/c no. 4240 which was opened on 14-8-2017. The opposite party issued a demand notice on 11-1-2019 to the complainant demanding either to close the loan or to take back the gold ornaments or to renew he loan by paying interest within 15 days from the receipt of notice. The complainant did not approach the opposite party neither for closing the loan or for renewing the loan as demanded. The opposite party never demanded exorbitant interest from the complainant as alleged. The legal notice was issued by the complainant after the sale of the pledged ornaments. There is a lapse of 9 months between the demand notice send by the opposite party and the notice send by the complainant. The sale was conducted strictly according to section 9F of Kerala money lenders Act 1959. The opposite party is not liable to provide the details of auction and opposite party did not conduct any activity which amounts to unfair trade practice. The complainant is not entitled to get any reliefs as prayed for.
Evidence of this case consists of proof affidavit filed by the complainant and exhibits A1 and A2 from his side. Opposite party filed proof affidavit and exhibits B1 to B6 were marked from their side.
On evaluation of complaint version and evidence onrecord we would like to consider the following points.
- Whether the complainant is a consumer under ConsumerProtection Act?
- Whether there is any deficiency in service or unfair trade practice on the part of the opposite party?
- If so what are the reliefs?
For the sake of convenience and brevity we would like to consider the point number 1 to 3 together.
Point Nos.1, 2 and 3
It is admitted by the both parties that the complainant had availed a loan of Rs. 1,10,000/- from the opposite party on 14-8-2017 by pledging a necklace and neck chain totally weighing 55.30grams . In Section 2(d) of Consumer Protection Act, 1986 "consumer" is defined to mean any person who.. (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and include any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.
Section 2(o) defines "service" to mean service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing, construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service. Thus we are of the opinion that the complainant is a consumer of the first opposite party as defined in the consumer protection act 1986.
The specific case of the complainant is that the opposite party had levied exorbitant interest for the loan and sold pledged ornaments without furnishing statement of account and informing him. Complaint was resisted by the opposite party by stating that though they had issued exhibit A1 demand notice on 11-1-2019 to the complainant demanding either to close the loan or to take back the gold ornaments or to renew the loan by paying interest within 15 days from the receipt of notice, but he did not approach them neither for closing the loan or for renewing the loan as demanded.
It is alleged by the complainant that before conducting the auction of the gold ornaments no information was given to him by the opposite party and they have not complied with the formalities before conducting the auction. It is stated by the opposite party that the complainant was never prompt in either paying interest or the loan amount which he had availed. As the complainant has not paid either the interest or the principal amount they were left with no other alternative, but to obtain the amount by selling it in public auction which maximum available price.
According to the opposite party they have informed the complainant about the auction. It is the case of the complainant that no information was given to him regarding the auction. But in exhibit A1 it is stated that if the amount is not remitted the gold ornaments will be auctioned. So according to the opposite party there is nothing illegal or unjustifiable on their part.Exhibit B4 proves that the opposite party had sold the ornaments on 24-5-2019 for an amount of Rs. 1,43,445.
It is the law of the land that when a person has availed any loan he is bound to repay it within the prescribed time limit and with agreed rate of interest. It is the case of the complainant that the opposite party illegally obtained gold ornaments.Complainant admitted that he was bound to pay Rs 1,10,000/- with interest to the opposite party . So it can be seen that there is no basis in the allegation of the complainant that the opposite party illegally obtained gold ornaments. Since the complainant failed to remit the loan amount with interest the opposite party sold the gold ornaments in public auction and credited the amount in loan transaction. It is alleged by the complainant that since the opposite party firm is a private finance institution they have not followed the formalities in conducting the auction sale. On perusal of exhibits A1 and B1 we can see that there was no mention about the amount of interest which was due from the complainant in the loan account. More over the opposite party did not produced any evidence to show that they had issued a demand notice to the complainant specifying the actual amount and the interest due under the loan transaction and the date of auction sale in case of failure to repay the loan amount. Though the opposite party produced exhibit B3 notice for the auction but did not produce any evidence to show that it was published in public places in accordance with the provision of Rule 16 of Kerala Money Lenders Rules. More over the opposite party failed to produce the confirmation for the auction sale by deputy commissioner having the jurisdiction over that place .
On a close evaluation of evidence we can see that the opposite party had not followed the formalities before conducting the auction sale and he had not issued any demand notice to the complainant. The opposite party has not even revealed the actual amount due to them from the complainant. Considering all these we found that there was deficiency of service on the part of the opposite party and the complainant is entitled to get compensation. The complainant failed to prove any financial loss to him due to the act of the opposite party. So we are of the opinion that an order for compensation to the complainant for the mental agony suffered by him, due to the deficiency in service committed by the opposite party will meet the ends of justice.
Therefore, we allow the complaint and pass following Order.
There we herby direct the opposite party to pay Rs 25,000/- as compensation for the mental agony suffered by the complainant due to deficiency in service on their part and to pay Rs 1000/- as cost.
Order shall be complied within a period of 30 days from the date of receipt of Order. If not complied as directed, the award amounts will carry 9% interest from the date of order till realization.
Pronounced in the Open Commission on this the 24th day of February, 2022.
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R, Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 –Notice dtd.14-08-17 issued by Thuruthelmattathil Financiers, Athirampuzha.
A2- Copy of lawyers notice dtd.05-09-19 by Adv. ZakhierHuzzain to The
Proprietor, ThuruthelMattathil Financiers, Athirampuzha.
Exhibits marked from the side of opposite party
B1 – Pawn ticket
B2 – Copy of notice dtd.14-08-17 issued by Thuruthelmattathil Financiers,
Athirampuzha.
B2 (a) – Postal receipt
B3 - Copy of auction notice dtd.07-05-19
B4 – Receipt dtd.24-05-19 by T.M. Mathew
B5 – Account statement of P.A. Samad from14-08-17 to 24-05-19
Thuruthelmattathil Financiers, Athirampuzha.
B6 – Copy of day book
By Order
Assistant Registrar
