By Smt. C.S. Sulekha Beevi, President,

Facts:

1. The case of the complainant is that on 31-01-2004 he availed a loan of Rs.67,000/- from opposite party by pledging 67gms of gold ornaments. The agreed rate of interest was 18%. On 23-8-2004 when he approached opposite party to redeem the pledge and take back the ornaments. Opposite party demanded to pay Rs.11,956/- as interest together with the principal amount of Rs.67,000/-. Since he had no other way he paid the amount as demanded by opposite party. When he protested against the demand of interest over above the rate agreed opposite party told him that he could come and collect petty amount of Rs.150/-. Complainant issued a letter to the Regional Manager stating his grievance. There was no reply. Hence this complaint alleging deficiency in service and praying to allow Rs.8,000/- towards the financial loss sustained by him.

2. Opposite party filed version stating that the relationship between parties is that of Debtor, Creditor relationship and that there is no consumer relationship. Opposite party admits the transaction of pledge and has also stated that the agreed rate of interest was 18%. It is submitted that the period of loan was fixed as 6 months and that complainant was liable to pay monthly interest. Complainant did not remit any monthly interest. That therefore complainant is liable make the loss sustained by opposite party. That a computerized receipt was issued to complainant for the amount collected from him. That the complaint is illmotivated, fabricated and is to be dismissed.

3. Evidence consists of the oral evidence of complainant who was examined as PW1 and Exts.A1 to A4 marked for him. Opposite party filed counter affidavit. Exts.B1 and B2 marked for opposite party.

4. Points for consideration:-

(i) Whether complainant is a consumer.

(ii) Whether opposite party has committed deficiency in service.

(iii) If so, reliefs and costs.

5. Point (i):-

Though opposite party has stated in the version that as per precedents rendered by Hon'ble Supreme Court and National Commission the transaction between Pawner and a Pawnee is that of Debtor and Creditor, opposite party has not placed before us any relevant citations. A pawn is a security whereby a deposit of goods is made by contract as security for a debt. Section 2(o) defines 'Service' to include the provisions of facilities in connection with banking and financing. The service availed herein is that of availing loan on the security of goods. This in our view definitely comes within the purview of service as defined in the Consumer Protection Act. We therefore hold that complainant is a consumer and the complaint is maintainable.

6. Point (ii):-

Admittedly complainant availed a loan of Rs.67,000/- and the interest rate agreed was 18%. As per Ext.A2 receipt it is seen that opposite party has collected Rs.11,956/- as interest along with principal amount of Rs.67,000/-. Opposite party has not specifically denied that they have not collected Rs.11,956/-. It is revealed that opposite party has collected interest @ 30.59%. If interest @ 18% is applied for 7 month of the pledge period the interest would be only Rs.8,840/-. Opposite party has not stated any details of the calculation of interest levied by them. In fact there is no contra evidence adduced by opposite party. Though opposite party filed counter affidavit, opposite party did not mount the box to face cross examination inspite of the orders of this Forum allowing the prayer of complainant to cross examine opposite party. In Vidhyadhar Vs. Manikarao and Anr (1999) 35CC 573 the Apex Court observed that, where a party to the suit does not appear in the witness box and state his own case on oath and offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct. The opposite party herein does not even have a specific case of defense. Their contentions are merely vague. Opposite party relied upon Ext.B1 whichis submitted to be a pledge agreement. In Ext.B1 the spaces for entering the rate of interest and period loan are left unfilled. Ext.B1 is unstamped. The wordings in Ext.B1 purport the intention of creating a pronote transaction. Though the document is brought on record it cannot be considered admissible in evidence being unstamped. Complainant has amply proved and established a case in his favour. The collection of interest over and above the agreed rate of interest is illegal and amounts to deficiency in service. We find opposite party deficient in service.

7. Point (iii):-

From the above discussions we hold that complainant is entitled to refund of Rs.3,116/- (11,956 – 8840). He is also to be compensated for the deficiency meted by him. In our view refund of the said amount with interest @ 9% per annum from date of complaint till payment would be adequate relief to the complainant. He is also entitled to cost of Rs.1,000/-.

8. In the result, we allow the complaint and order opposite party to pay to the complainant Rs.3,116/- (Rupees Three thousand one hundred and sixteen only) with interest @ 9% per annum from date of complaint (15-01-2005) till payment together with costs of Rs.1,000/- (Rupees one thousand only) within one month from the date of receipt of copy of this order.

Dated this 12th day of May, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : PW1

PW1 : E. Unnippokku, Complainant.

Documents marked on the side of the complainant : Ext.A1 to A4

Ext.A1 : Notice dated, 29-4-2004 issued by opposite party to complainant.

Ext.A2 : Receipt for Rs.78,956/- dated, 23-8-2004 from opposite party to complainant.

Ext.A3 : Photo copy of the request dated, 15-9-2004 submitted by complainant had

to opposite party.

Ext.A4 : Postal acknowledgement card from opposite party to complainant.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1 and B2

Ext.B1 : Pledge agreement dated, 31-01-2004

Ext.B2 : Payment Schedule.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER