BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 20^thJune 2017

PRESENT

  SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

SMT.LAVANYA M. RAI                   : HON’BLE MEMBER

ORDERS IN

C.C.No.199/2016

          (Admitted on 3.6.2016)           

Shankar Bhat,

S/o GovindaBhat,

Aged 28 years,

R/at. Kukkarabettu House,

Mithur, Kabaka Post,

BantwalTaluk, D.K.

                                                                      ……… Complainant

(Advocate for Complainant by Sri SD)                                                                                                   

VERSUS

Manager,

Shri VenkatramanaCo.Operative Society,

Empire Mall Building,

Puttur Road, Vittla,

PutturTaluk, D.K.

                                                      …. Opposite Party

(Advocate for Opposite PartySriTP)

ORDER DELIVERED BY HON’BLE MEMBER

SMT. LAVANYA M. RAI

1.  This complaint is filed under section 12of the Consumer Protection Act alleging deficiency in service against the opposite party claiming certain reliefs.

The brief facts of the case are as under:

          The complainanthas availed 2 jewel loans of Rs.19,000/ and Rs.75,000/ on 26.5.2012  and on 29.11.2012 as per J.L. No. 2.55 and J.L.No.2.158.  At the time of taking the 1^st loan the complainant has kept 9.590 grams of gold and at the time of taking the 2^nd loan the complainant has kept 39.390 grams of gold in Opposite Party  society and the value of the gold kept in Opposite Party  society was Rs.23,016/ and Rs.88,537/.  The Opposite Party have issued a card to the complainant showing the amount of loan, loan number, date of loan to the complainant.  But the card does not show the weight of the gold kept with the Opposite Party.  The complainant could not pay the interest to the Opposite Party as per loan agreement due to financial constraints.  Hence the Opposite Party have auctioned the above gold on 21.3.2013 and closed the above two jewel loans.  At the time of availing the above loans the Opposite Party have taken signed blank cheques form the complainant.  That after the auction the Opposite Party have not informed anything to the complainant.  Hence after waiting for sufficient period the complainant came to Opposite Party office personally on 8.12.2015 to get the information with regarding the above jewel auction.  But the Opposite Party has refused to give information to the complainant.  Hence the complainant gave application dated 8.12.2015 to the Opposite Party to get the information.  The Opposite Party have written an endorsement in the application that on 10.12.2015 the complainant can get the necessary document from Opposite Party office.  As per the endorsement when the complainant visited Opposite Party office again refused to give the information and documents.  Hence the complainant gave complaint to the Vittla Police Station on 10.12.2015 against Opposite Party with regarding above facts.  Thereafter Opposite Party furnished the information of the above auction on 18.12.2015 through Vittla police.  In the above letter the Opposite Party have shown the net weight of the gold for the 1^st  jewel loan as 8.000 instead of 9.590 and net weight of the gold for the 2^nd jewel loan as 33.900 instead of 39.350, the ring and neck less had precious stones embedded in it and it was costly stone and it cannot be discarded.  Hence Opposite Party deliberately shown less weight of the gold ornaments pledged.  It is further submitted that as per the above information the Opposite Party have excess amount.  The total value of the gold i.e. 33.900 grams of gold is Rs.1,00,000/- as per the authorised appraiser.  Hence not refunding the remaining balance amount and auctioning the jewels for lesser price amounts to deficiency in service by the Opposite Party.  Hence complainant got issued regd lawyers notice dated 6.1.2016 to the Opposite Party and the same was served on the Opposite Party on 9.1.2016 without demur.  Hence the above complaint filed by the complainant before this forum under section 12 of the C.P.Act 1986(here in after referred to as the Act) seeking direction torefund Rs.8,882/ with 12% interest from 21.5.2013 till payment to the complainant and to refund Rs.20,339/ with 12% interest from 29.11.2012 and to pay Rs.20,000/- compensation and to pay Rs.20,000/ as expenses and such other reliefs.

II.Version Notice served to the opposite parties by RPAD, Opposite Parties filed version stating that the complaint is barred by limitation. No reason is made out for delay in filing the above complaint.  That if any dispute pertaining to the loan or auction the complainant got right to adjudicate it under co-operative societies Act 1959.  Hence on this ground alone the above complaint is liable to be dismissed.      The complainant approached the Opposite Party for grant of jewel loans on 29.11.2012 and offered a Nekles, Jumki ring and Bangle.  The Opposite Party has handed over the same to its gold appraiser and he has submitted his report.  As per gold appraiser report the jewels of the complainant is weighing 33.90 grams and it value at that time is Rs.1,00,000/.  The Opposite Party has granting loan up to 75% value of the gold and sum of Rs.75,000/ has granted to the complainant. The complaint has executed a loan agreement and demand promissory note on 29.11.2012 and received a sum of Rs.75,000/ from the Opposite Party.  As per the terms and conditions of the loan agreement the complainant should have settled the loan amount within 3 months from the date of receipt of the loan amount along with 13% interest.  If the complainant failed to pay the loan amount as agreed the Opposite Party is entitled to collect penal interest and also the Opposite Party has got right to sell the hypothecated jewels in public auction and in such a case if any shortage occurred in a weight or loss is caused the complainant the Opposite Party is not responsible. The Opposite Party has paid loan to the complainant on the security of gold ornaments.  The complainant agreed to settle the loan amount within 3 months.  That after lapse of one year and even after so many requests by oral and written complainant has not paid the loan amount.  That time the gold rates is going to decreases in the year 2013.  On 7.5.2013 the Opposite Party has requested the gold appraiser to give the market value of the jewels hypothecation by the complainant.  The gold appraiser gave valuation on 9.5.2013 and as per gold appraiser report the hypothecated gold of the complaint is worth about 77,970/.  If the Opposite Party is not taken any steps for sell the hypothecated ornaments there is no chance to recover the loan amount hence for avoid the loss to the society as per the procedure the Opposite Party gave publication in vijayavahini daily newspaper dated 12.5.2013 and clearly mentioned that if the complainant not going to settle the loan before 18.5.2013 it will sell the hypothecated ornament in public auction on 21.5.2013. That even after giving sufficient opportunity to the complainant for settle the loan amount he has not paid the loan amount and hence the Opposite Party has sold the gold ornaments in a public auction for avoid further loss as the gold price has slashed down during the time of auctioning the jewels as compared to the time of advancing the jewel loans.    The Opposite Party has given loan to its members for purchase of new Motor cycle on the security of the motor cycle.  But the complainant after sale not got registered the motor cycle to avoid to hypothecation of the motor cycle to the Opposite Party society and hence some dispute was arose complainant and Opposite Party.  That the complainant having a habit to obtain loan and not making payments, hence prays for dismissal.         

III.     In support of the above complaint, the complainantMr.ShankarBhat,filed affidavit evidence as CW1 andanswered to the interrogatories served on him and produced documents got marked at Ex.C1 to C9 as detailed in the annexure here below..   On behalf of the opposite party Mr.Manoj (RW1) Manager, also filed affidavit evidence and answered to the interrogatories served on him and produced documents got marked at Ex.R1 to R8 as detailed in the annexure here below.

IV.     In view of the above said facts, the points for arise for our consideration in the case are:

1. Whether complaint is barred by limitation.
2. Whether the Complainant proved that the Opposite Party committed deficiency in service?
3. If so, whether the Complainant is entitled for any of the reliefs claimed?
4. What order?

  We have considered the arguments submitted by the complainant and Opposite Party and also considered the materials that, placed before the Fora and answered the points are as follows:

                             Point No. (i) :Affirmative

                             Point No. (ii) and (iii) : Affirmative

                             Point No.(iv): As per the final order.

REASONS

V.   POINTS No. (i) and (iii):The case of the complainant that he availed 2 jewel loans from Opposite Party as per the loan agreement. The complainant not paying interest to the Opposite Party, Opposite Party auctioned the gold on 21.3.2013.  After the auction the complainant demanded the necessary information of the jewel auction. After several visits to the Opposite Party bank they refused to give information and documents the complainant gave complaint to the Vittal police Station on 10.12.2015.  After that the Opposite Party furnished the documents through Vittla Police on 18.12.2015.  On gone through the documents complainant found that Opposite Party has auctioned the jewels for lesser amount.  Hence insisting to refund the remaining balance from Opposite Party but Opposite Party not refunded the amount. The contention of the Opposite Party that the complainant sold the jewels on 21.5.2013 by public auction adjusted the amount towards the loan due from the complainant and the complainant filed complaint before this fora after lapse of three years and which is admitted in the reply of complainant. After going through the complaint and documents we observed that after the auction the Opposite Party have not informed any thing to the complainant.  Therefore waiting sufficient period the complainant gave application on 8.12.2015 as per Ex.C3 to the Opposite Party.  Hence the cause of action arose on 8.12.2015 when the complaint given to the Opposite Party hence limitation point does not arise.  Apart from the above the complainant contending that the value of the gold is Rs.1,00,000/.  As per the authorised appraiser and Opposite Party have auctioned the jewels for lesser amount.  But as per Ex.R5 the authorised appraiser given the market value of the jewels hypothecation by the complainant.  The gold appraiser gave valuation on 9.5.2013 and as per report the hypothecated gold of the complaint is worth about Rs.77,970/-.  If the complaint not satisfied the report submitted by the gold appraiser as per Ex.R5.  The option left open to the complainant to examine the gold appraiser before this fora.  Absence of the same, the complainant pointing out of this matter does not arise and the complainant also not establish the case that at the time of auction, the gold rate is higher than the loan obtained. The complaint not attempt to prove the case before this fora by placing evidence of witness and documents hence we accept the Ex.R5 market value furnished by the gold appraiser. Further the complainant has executed loan agreement and demand promissory note on 29.11.2012 and received a sum of Rs.75,000/ from the Opposite Party.  As per the terms and conditions of the loan agreement the complaint should have settled the loan amount within 3 months from the date of receipt of the loan amount along with 13% interest.  If the complainant failed to pay the loan amount as agreed the Opposite Party is entitled to collect penal interest and also the Opposite Party has got right to sell the pledged jewels in auction and in such a case if any shortage occurred in a weight or loss is caused to the complainant, the Opposite Party is not responsible as per Ex.C9. Now the dispute is only that as per Ex.C3 the Opposite Party not comply the documents, after filing application on 8.12.2015 the Opposite Party not given the information of the auction sale.  The Ex.C3, Ex.C4 and C5 clearly reveals that the Opposite Party not furnished the documents of the complainant.  It is the duty of the Opposite Party that supply of the required documents of the complainant.  After intervention of the Vittal police the Opposite Party had given the document in the presence of the police.  The Opposite Party ought to have furnished the required documents at the time of complainant application but refused to give the formation and also not returning the balance amount of auction sale kept in the suspense account. Which is already admitted in the version hencewhich amounts to be deficiency in service on the part of the Opposite Party.As such point No.1 to 3 is affirmative. Considering the above we are of the opinion that the Opposite Party is liable to pay the amount of Rs.1,859/ be ordered to be refund with 13% interest as it was the rate charged by Opposite Party on complainants loan amount kept in the suspense account and Rs.10,000/ shall pay as mental agony caused to the complainant and also pay Rs.10,000/ as litigation expenses is justified.

In the result, accordingly we pass the following Order.

ORDER

The complaint is allowed.  Opposite Party shall liable to pay the balance amount kept in suspense account of Rs.1,859/ with interest at 13% p.a. from 21.5.2013 the date of auction of gold and furtherpay Rs.10,000/  for mental agony and pay Rs.10,000/ as litigation expenses.  Payment shall be made within 30 days from the date of this order.

Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

(Page No.1 to 10 directly dictated by Member to the Stenographer typed by him, revised and pronounced in the open court on this the 20^th June 2017)

         MEMBER                                           PRESIDENT

(LAVANYA M RAI)                       (VISHWESHWARA BHAT D)

D.K. District Consumer Forum            D.K. District Consumer Forum

             Mangalore                                               Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr.ShankarBhat

Documents marked on behalf of the Complainant:

Ex.C1: 29.11.2012: copies of the card issued by the Opposite Party.

Ex.C2: 26.5.2012: copies of the card issued by the Opposite Party.

Ex.C3: 8.12.2015: copy of the latter addressed by complainant to Opposite Party.

Ex.C4: 10.12.2015: copy of the police complaint.

Ex.C5: 11.12.2012: copy of the endorsement of the vital police.

Ex.C6: 18.12.2015: Copy of the particulars given by Opposite Party.

Ex.C7: 6.1.2016: O/c of the regd lawyer’s notice.

Ex.C8: 3.2.2016: Reply of Opposite Party.

Ex.C9: 29.11.2012: copy of the loan application submitted by complainant.

Witnesses examined on behalf of the Opposite Party:

RW1 Mr. Manoj, Manager

Documents marked on behalf of the Opposite Party:

Ex.R1: 10.12.2015: Office copy of the complaint filed by the Opposite Party against the complainant to the Sub Inspector of Police Vittla.

Ex.R2: 26.5.2012: Original loan application filed by the complainant along with a loan agreement and promissory note.

Ex.R3: 29.11.2012: certified copy of the loan application filed by the complainant along with a loan agreement and promissory note.

Ex.R4: 12.5.2013: Original paper publication issued by the Opposite Party in Vijayavani.

Ex.R5: 7.5.2013: Office copy of the letter written by the Opposite  Party to the Gold Appraiser and the market value furnished by him.

Ex.R6: 21.5.2013: Details of the person appeared for auction sale along with sale confirmation. 

Ex.R7: 26.5.2012: Computerized copy of the loan account  No.J.L.No.2.55 belongs to complainant.

Ex.R8: 29.11.2012: Computerized copy of the loan account No.J.L.No.2-15 belongs to complainant.

Dated: 20.6.2017                      MEMBER