BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 305 of 2017
Date of Institution : 27.11.2017
Date of Decision : 16.1.2019.
Rahul Rangara (aged about 24 years) son of Sh. Jagdish Chander, resident of 241/B, Police Line, Barnala Road, Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
- Manappuram Finance Limited, Branch Sirsa, Branch Office Near Jagdev Singh Chowk, Opposite Chawla Sweets, Circular Road, Sirsa through its Branch Manager.
- Manappuram Finance Limited, Manappuram House, Valapad, P.O. Trichur, District Kerala- 680567 through its Managing Director/ Authorized Signatory.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
SH. ISSAM SINGH SAGWAL….. …… MEMBER.
Present: Sh. Vijay Sharma, Advocate for the complainant.
Sh. J.R. Garva, Advocate for opposite parties.
ORDER
The case of the complainant in brief is that complainant is a law abiding and peace loving citizen and is having a sound reputation among the society. That the complainant was in dire need of money and as such on 22.10.2016 he took a gold loan of Rs.29,987/- at the rate of 24% per annum from the op no.1 which is the branch of op no.2. At the time of taking the said loan, the complainant has pledged his gold jewelry weighing 14.2 grams, which was having its market value to the tune of Rs.45000/- approximately. It is further averred that the complainant has been paying the interest of the loan amount regularly and he has paid total interest amount of Rs.2786/- calculated up to 18.2.2017. Thereafter, the complainant was served with a notice dated 1.3.2017 to the effect that a sum of Rs.242/- is outstanding as interest on the loan amount and the complainant was directed to pay the said amount of interest and it was directed by the ops vide said notice that if the said amount is not deposited within 14 days from the receipt of the notice, then the gold jewelry will be auctioned by the ops on 23.3.2017 at the office of op no.1. That on receiving the said notice, the complainant immediately visited the premises of op no.1 and showed the said notice to op no.1 and asked them to show the present status of his gold account. At this, the op no.1 duly checked the loan account of the complainant and told the complainant that this notice has been issued by ops by mistake, because such amount of interest is not due towards his account and no auction proceedings is to be held on 23.3.2017. After making it clear, the op no.1 assured the complainant that no such auction proceeding will be held on 23.3.2017. Even otherwise also, the complainant also visited the office of op no.1 on 23.3.2017, which was given in the notice as place of auction but on that day no auction regarding the jewelry of the complainant was held there and after enquiry on that day also, the op no.1 assured the complainant that his jewelry cannot be auctioned because no interest amount is due towards his loan account. That thereafter on 26.7.2017, when the complainant visited the office of op no.1 to deposit the interest plus loan amount, then the complainant came to know that the loan account of the complainant has been closed by the ops and his pledged items i.e. gold jewelry weighing 14.2 grams has been sold by the ops in an auction held on 21.4.2017 for an amount of Rs.33,378/-. On that day i.e. 26.4.2017, the op no.1 handed over a cheque amounting to Rs.1442/- bearing No.070034 dated 24.4.2017 on account of auction surplus to customer. The said cheque was handed over to the complainant even after its expiry. It is further averred that the ops have sold the gold jewelry of the complainant without giving any notice or intimation to the complainant, whereas no amount of interest was due against the said loan amount. The complainant was depositing amount of interest to the ops regularly and lastly deposited whole of the interest amount upto 18.2.2017 and hence the interest was being deposited by the complainant regularly. Hence, the ops could not sell out the gold jewelry of the complainant without any intimation or prior notice to the complainant. But the ops have sold out the gold jewelry of the complainant just to get undue benefits and wrongly, illegally and against the terms and conditions have usurped the gold jewelry of the complainant, which is against law, against facts and against natural justice and the said auction proceedings are totally vitiated and not warranted by any law. It is further averred that complainant was/is still ready to deposit the loan amount alongwith interest, hence the ops have no right to grab the pledged property of the complainant under the garb of illegal auction proceeding, which have been conducted at the back of the complainant. The complainant has made several rounds to the office of op no.1 to handover his gold jewelry after depositing loan amount alongwith interest upto 26.7.2017, but the ops did not bother to the genuine request of the complainant and have refused to admit the claim of complainant. Hence, this complaint for a direction to the ops to release the gold jewelry of complainant after depositing loan amount alongwith interest up to 26.7.2017 and to pay a sum of Rs.1,00,000/- as compensation on account of harassment, mental pain and agony and also to pay a sum of Rs.11,000/- as litigation expenses and Rs.3000/- as miscellaneous charges.
2. On notice, opposite parties appeared and filed written statement taking certain preliminary objections regarding maintainability; suppression of true and material facts, locus standi and cause of action and that the Hon’ble Karnataka State Consumer Redressal Forum in the case of Nagendra vs. Manappuram Finance Limited (Appeal No.3955/09) held that when the complainant has executed the documents offering his acceptance to pay interest, penal interest, it is not fair on her part to allege deficiency of service and that the complaint is barred under Section 5 of Arbitration and Conciliation Act, 1996 as there is an arbitration clause in the DPN. The clause No.21 of the DPN clearly mentions that in case of any dispute, the matter shall be referred to Arbitration. On merits, it is submitted that averment regarding rate of interest is not correct. The rate of interest agreed by the complainant was 24% for 1 to 60 days, 26% for 61 to 90 days. Overdue interest at the rate of 3% is also agreed after the due date of 90 days. The complainant had selected the scheme as per his choice and agreed terms and condition for interest and installments for repayment of the loan. Further the averment regarding market rate of pledged gold is not true. The complainant is legally bound by this terms and condition. It is further submitted that averments in para no.3 of the complaint are true. But the complainant has suppressed regarding the earlier notice sent by the company regarding auction. The complainant never approached the ops as stated in para 3 and the averments is a concocted story created for the sake of the complaint. The complainant has tried his best to twist the true facts of the case. In fact, complainant himself became defaulter as he not paid the interest due against his account intentionally and willfully thereafter demand notice dated 1.2.2017 and another demand notice/ auction information dated 1.3.2017 were issued to complainant by registered post, copy of notices and receipt are attached. Despite receiving these notices, complainant did not pay the due interest. After taking due process of auction proceeding finally the auction was held on 19.4.2017. Auction detail is as under:-
Branch Name : SIRSA HARYANA
Customer Name : RAHUL RANGARA
Pledge No. : 0130150700007882
Pledge amount : 29987
Auction date : 19-Apr-17
Gross Wt (Grams) : 14.2
St Wt (Grams) : 12.496
Realized Price/Gram: 2643.36
Auction Amount(Rs): 33031
Pledge settlement amount(Rs): 31549
Surplus : 1482
It is further averred that thereafter auction surplus amount of Rs.1482/- was generated from the pledge no. 0130150700007882, postal charges of Rs.40/- were deducted and the balance surplus amount of Rs.14421/- was sent through cheque No.70034 dated 23.5.2017. The auction proceeding was held on 21.4.2017 after giving due notice to the complainant as mentioned in foregoing para as well as through publication in newspaper, Indian Express and Aaj Samaj. A cheque of balance amount was issued to complainant. He himself cannot get the benefit of his own wrong. The remaining contents of complaint are also denied and prayer for dismissal of complaint made.
3. The parties then led their respective evidence by way of affidavits and documents.
4. We have heard learned counsel for the parties and have perused the case file carefully.
5. The complainant has filed this complaint with the averments that he had taken a gold loan of Rs.29,987/- on 22.10.2016 at the rate of 24% per annum from opposite party no.1 which is branch of op no.2 against gold of 14.2 grams having market value of approximately Rs.45,000/- which was pledged with ops. The complainant had been paying the interest of loan regularly but however he received a notice dated 1.3.2017 by which a sum of Rs.242/- was shown outstanding as interest and complainant was called upon by that notice that if the said amount is not deposited within 14 days from the date of receipt of this notice, the gold jewellery will be auctioned on 23.3.2017. There is specific defence plea of the ops that since complainant was a regular defaulter in payment of interest, as such ops had no other option except to go for the auction of the gold jewellery. After serving a notice, the jewellery was put to auction, the sum was collected from the auction proceedings out of which after deducting due amount, a sum of Rs.1482/- was surpluse and cheque of this amount was duly sent to the complainant. Now nothing is due and complainant is not consumer of the ops and his complaint is not maintainable and moreover since there is an arbitration clause in the agreement, as such this Forum has no jurisdiction to try and dispose off present complaint.
6. The perusal of evidence of complainant reveals that complainant in order to prove his allegations against ops has furnished his affidavit Ex.CW1/A in which he has reiterated all the averments made in the complaint. He has also furnished affidavit of his friend Sh. Ashwani son of Sh. Ram Bhagat Ex.CW2/A who has also corroborated the version of complainant qua visiting of the office of op no.1 not to proceed with the auction proceedings. The complainant has also placed on file copy of notice Ex.C1 which is dated 1.3.2017 by which loan amount was reflected as Rs.29,887/- and interest amount due was shown as Rs.242/- and in case of non payment of interest amount, the auction to be held on 23.3.2017. The complainant has also placed on file copy of mail alongwith copy of cheque Ex.C2 and copy of statement of account Ex.C3.
7. On the other hand, Sh. Satish Bamel posted as Area Head of ops company has furnished his affidavit Ex.RW1/A in support of defence plea of the ops and ops have tendered documents i.e. loan agreement Ex.R2, copy of terms and conditions Ex.R3, copies of loan documents Ex.R4 to Ex.R6, copy of newspaper item Ex.R7, copy of notice dated 1.2.2017 Ex.R8, copy of post card Ex.R9, copy of statement of account Ex.R10, copy of auction detail Ex.R11 and copy of resolution Ex.R12.
8. The perusal of the evidence of complainant further reveals that as per notice Ex.C1, the auction was to be held on 23.3.2017 whereas Sh. Satish Bamel posted as Area Head has furnished his affidavit Ex.RW1/A in which he has specifically deposed in para no.10 that the auction date was 19.4.2017 but however in para no.11 he himself has deposed that auction proceeding was held on 21.4.2017. Further as per his deposition in his affidavit, the gross weight was 14.20 grams, standard weight (grams) was 12.496 and realized price was Rs.2643.36 per gram, auction amount shown as Rs.33,031/-, pledge settlement amount shown as Rs.31,549/- and surplus amount was shown as Rs.1482/- whereas he has further deposed that balance surplus amount of Rs.14,421/- was sent through cheque no.70034 dated 23.5.2017. All these figures and amounts deposed by the authorized signatory of the ops are self contradictory and does not create any trust rather it shows that the figures shown by the ops are not reliable and trustworthy and it creates doubt in the auction proceeding which was got conducted by ops arbitrarily and illegally.
9. During the course of arguments, learned counsel for ops has strongly contended that complainant is not consumer and complaint is not maintainable. Since the complainant has hired services of ops for getting loan against his pledged gold and ops had been charging interest on the loan amount, as such the ops cannot take plea that complainant is not consumer. The second plea of ops also appears to be devoid of merit since complainant is consumer as such the complaint filed by complainant is duly maintainable. The third contention of learned counsel for ops that since there was an arbitration clause in the agreement as such present complaint is not maintainable before this Forum has also no merit because Section 3 of the Consumer Protection Act, 1986 provides that remedy provided under the Consumer Protection Act is an additional remedy in derogation of other law. As such it is choice of the complainant to get arbitration proceedings initiated or to knock the door of the Consumer Forum to get his grievance redressed.
10. In view of the above, we allow this complaint and direct the opposite parties to settle the claim of complainant after assessing the market value of the gold of complainant on the date of alleged auction and also to overhaul the account of complainant in his presence after serving a seven days prior notice and to make refund of the amount to which he is found entitled thereto. We further direct the ops to pay a sum of Rs.5000/- as composite compensation and litigation expenses to the complainant. The ops are liable to comply with this order within a period of 30 days from the date of receipt of copy of this order. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:16.1.2019. Member District Consumer Disputes
Redressal Forum, Sirsa.
