Delhi

East Delhi

Cc/1021/2012

AJIMOL K.N. - Complainant(s)

Versus

MANAPURAM GENERAL FINANCE - Opp.Party(s)

20 Nov 2017

ORDER

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO.1021/12

Mrs. AJIMOL K.N.,

W/O Mr. REJIMON K.S.

R/O A-25, FIRST FLOOR,

JAGATPURI, GALI NO.3.,

NEAR GURUDWARA,

EAST DELHI DISTRICT,

DELHI-110051                                                                              ….Complainant

 

•  

 

 

M/S MANAPPURAM GENERAL FINANCE & LEASING LTD.,

BRANCH OFFICE, BRANCH CODE I.D. 0276,

S-14, 2^ND  FLOOR, PANKAJ PLAZA MANAGER,

PLOT NO. 6, COMMUNITY CENTRE,

KARKARDOOMA, DELHI-110092.

                                                                                                                  ….Opponent

 

Date of Institution: 13.12.2012

Judgment Reserved for: 20.11.2017

Judgment Passed on: 30.11.2017

 

CORUM:

Shri SUKHDEV SINGH                  (PRESIDENT)

Dr. P.N. TIWARI                          (MEMBER

Ms. HARPREET KAUR CHARYA (MEMBER)

 

ORDER BY:  HARPREET KAUR CHARYA (MEMBER)

JUDGEMENT

1. The present complaint has been filed by Mrs. Ajimol K.N., against M/S Manappuram General Finanace & Leasing Ltd., (OP), with the allegations of deficiency in services.
2. The facts of the present complaint are that complainant availed the facility of personal loan against collateral security of gold ornaments vide receipt dated 19/06/2010, where her address as A-27, Jagatpuri, Gali No. 6, Near Gurdwara, Delhi-110092 has been mentioned as residential address. It has been stated that her mobile no. 9891797488 has also been written on the above mentioned receipt. It has further been stated that the complainant shifted her residence to A-25, First Floor, Jagatpuri, Gali No. 3 near Gurudwara, regarding which the OP was duly informed. OP being the legal entity has registered office at Mannapuram House, Valapad, Thrissar, Kerala and having regional & branch office at Uttam Nagar& Karkardooma respectively. Copy of envelope depicting regional office & branch office has been annexed as Annexure C & Annexure D to H.  The complainant on 19/06/2010 pledged her gold ornaments weighing 65.10 gms at Karkardooma Branch against loan of Rs.91,000/- vide receipt no. 012760700000607 at CLR value of Rs.106,601.25. The complainant had pledged 19 in number gold ornaments with following description from complainant with sale purchase value of Rs.1,17,831/-. It has been stated that an amount of Rs. 15,601,25/- was deficiently disbursed and Rs.26,831/- in comparison to consumer sale/ purchase, thereby making the difference of around 9.53%. It has been stated by the complainant that OP did not give any copy of the contract despite repeated requests. The loan was to be repaid in monthly installment by 19^th of each month called as reset day, and in the event of default in payment of monthly installment the borrower had to pay cumulative interest @ 31.60% for the days of default as penalty. The complainant has stated that as per terms and conditions-

1. The OP reserved the right to issue notice at the cost of the borrower and to recover the amount outstanding.
2. That in the event of loss of recovery receipt issued by the OP it was to be communicated to the Manager of the OP and in such a situation a sum of Rs. 50/- were to be charged from the customer for issuance of duplicate receipt.
3. If the paid back amount was less than 10% of the principle amount and interest on it and cumulative interest thereof, the O.P. reserved the right to sell or auction the pawned articles and adjust the proceeds against the outstanding amount due and payable. If there was any short payment after the adjustment the customer had to pay the difference to the O.P. If there was any surplus amount it was to be returned to the customer. The pawner was not to raise any objection against such actions of the O.P.
4. That in the event of change of address, telephone or mobile phone number/s the same was to communicated to the Manager.
5. That the pawned articles were to be returned in the same condition as they were received from the pawner.

3.  It has further been  stated that initially the complainant could not pay installments regularly due to her financial & family conditions, but for first time in the first week of Dec, 2011, the complainant paid Rs.50,000/- in cash at Karkardooma branch office of OP and assured payment of balance amount at the earliest, for which receipt was issued by OP, the complainant lost her purse in which she had kept the receipt of the amount deposited by her and next day she requested OP to issue the duplicate receipt, where she was asked to deposit Rs.50/-. It has further been stated that she was informed by the staff of OP that the duplicate receipt would be issued only when the staff who had received the payment joined back from leave.
4. The complainant has also stated that the receipt of Rs.50/- was taken by the Branch Manager, with assurance that duplicate receipt will be handed over to her on her next visit. But during the next visit the Branch Manager informed the complainant that there was no entry of Rs. 50,000/- in her account, as the staff who had received the payment had left the job and was not traceable. The matter was referred to Regional/ Registered office. On 14/06/2016, the debit entry of Rs.8/- was reflected in the statement as documentation charges, another debit entry of Rs.245/- as other charges. The complainant has stated that Rs.91,000/- being the principle amount along with Rs.49,496/- as interest, thus the total amount  payable was Rs.1,40,749/-. It has also been alleged that no description with respect to debit entry of Rs.40/- as postal charges dated 6/05/2012 was given. Even the payment of Rs.50,000/- was not reflected. According to the complainant, the outstanding balance was Rs.90,749/- which she was willing to pay during her visit to OP’s office, was refused to be accepted by the Branch Manager of OP on the pretext that he needed instructions from regional/registered office. On 14/06/2012 the gold ornaments pledged by the complainant were sent to the head office of OP for sale/auction, on 30/12/2011 which were sold for Rs.1,51,932/- as per Annexure A & F despite the fact that entire transaction took place in Delhi. OP has neither given any statement of account nor paid the excess amount from the sale proceeds despite demand. The complainant has further stated that the  cheque dated 16/05/2012 was posted on 05/07/2012 and the surplus amount was not paid to the complainant despite lapse of 6 months. It has been averred that on 19/06/2010 the CLR value of gold was Rs.1,637.50 per gram of gold which means that the value of 65.10 gram of gold was worth Rs.1,06,601.00.  After adjusting Rs.91,000.00 there was an excess amount of Rs.15,601/- with the O.P. The CLR value of gold on 30/12/2011 was Rs.2750/- which means that the value of the gold was Rs.1,79,025/- and after lessing Rs.91,000/- the balance in excess was Rs.88,025/-. On 19/06/2010 the consumer purchase price was Rs.1810/- per gram. This shows that the CLR value of gold was less than the consumer purchase price. The difference was around 7%. On adding Rs.50,000/- paid in cash by the complainant the total amount was Rs.2,29,025.00 after adjusting Rs.1,40,479/- the balance payable to the complainant was Rs.88,546/- which was not considered by the O.P. It has been further alleged that as per Annexure-C, OP paid only Rs.25/- as postal charges but as per annexure F has charged Rs.40/-. The complainant has stated that neither any notice was given with respect to the auction of the pledged gold nor any proof of service was provided by OP despite demand. No duplicate recovery receipt was issued in lieu of the payment of Rs.50,000/- towards loan again. The complainant sought intervention of police official to resolve the matter amicably, but all in vain. The complainant has stated that she had agreed to pay outstanding amount after adjustment of RS.50,000/- which was unacceptable to OP.

Legal notice dated 05.07.2012 was served upon OPs which was neither replied nor complied with. On 05.07.2012 the complainant received Rs.11,143/- by way of cheque No. 230802 dated 16/05/2012 drawn on Axis Bank, as surplus payment which was encashed by the complainant stating to be under protest. Hence, the present complaint with prayer clause-

1. To direct the alleged sale/auction as null and void as the same was without notice and against the provisions of law and to direct the OP to issue fresh notice to the complainant to hold fresh sale/auction in Delhi only.
2. To adjust Rs.50,000/- to the credit of the complainant and to take the balance amount as per statement of accounts dated 14/06/2012 and to return the gold ornaments in the same condition as pledged.
3. That if the above said prayer are not viable to order the OP to disclose the time, place and date of sale/auction , the full  details of each bidder and the details of the highest bidder, the CLR value and consumer purchase/value of gold or the rate on the date of auction/sale to furnish the detailed statement of accounts with all charges and transactions, and calculations of surplus amount arrived at to effect the said payment.
4. Compensation for deficiency in service and unfair trade practice.
5. To direct the OP to pay the litigation charges.
6. To instruct the OP to pay interest on various accounts as the OP used the legal money of the complainant to enrich him to the detriment of the complainant.

5. The complainant has annexed the statement of account dated 14/06/2012 as     Annexure-A, customer copy of the receipt dated 19/06/2012 as Annexure-B, postal receipt copy dated 21/06/2012 as Annexure-C, legal notice alongwith postal receipt as Annexure D and cheque alongwith forwarding letter dated 16/05/2012 as Annexure F & G and copy of the reply postal receipt notice under protest dated 10/07/2012 as Annexure H & I as well as lists of witnesses with the complaint.  
6. Notice of the present complaint was served upon OP who filed their reply and took several pleas such as there was no cause of action in favour of the complainant “the matter involved intricate and complex question of law and facts which could not be decided in summary proceedings”. The transaction was commercial in nature and could not be decided under the Consumer Protection Act. It was submitted that the complainant had taken a loan of Rs.91,000/- after pledging 65.1 gm of gold (including stone weight of 1 gm) which included 14 items and all the details of the loan were clearly mentioned on pawn tickets which was issued to the complainant while availing loan. It was further submitted that OP cannot grant the loan amount at the rate of market rate prevailing to the new gold of the same depended upon the LTV rate of particular scheme selected by the complainant which was different for each scheme. It was also submitted that as per terms of the loan agreement, in case the loan was not repaid within 12 months from the date thereof or within such period as demanded by the company, the company shall have the right to sell the ornaments at risk of the borrower, in auction at any time after giving notice of sale to the borrower and adjust from the net proceeds of such sale all amounts due to company in respect of the loan. The complainant had agreed to the terms at the time of execution of the loan agreement. It was denied that the complainant had paid Rs.50/- for which no receipt was issued. The surplus of Rs. 11,143/- was sent to the complainant after adjusting of all the dues, thus, no deficiency in service or unfair trade practice could be attributed to OP. Rest all the contents of the complaint were denied. Fresh Certificate of incorporation consequent upon change of name from Mannapuram General Finance Leasing Ltd., to Mannapuram Finance Ltd., certificate of incorporation, receipt dated 19.06.2010 along with AD, notice to the complainant for sale or auction alongwith postal receipt, loan agreement dated 19/06/2010, statement depicting auction details, settle pledged details, statement of account dated 02/05/2013 have been annexed with the reply.
7. Rejoinder to the written statement was filed by the complainant, where the contents of the written statement were denied and those of the complaint were reiterated.
8. Evidence by way of affidavit was filed by the complaint where she deposed on oath the contents of the complaint and has got Exhibited the receipt dated 19/06/2010 as  EX. CW-1/1, copy of the statement dated 14/06/2012 as EX. CW-1/2, copy of the envelope addressed to the complainant by OP as EX. CW-1/3, statement of Axis Bank as EX. CW-1/4, copy of the legal notice as EX. CW-1/5 along with postal receipt, copy of the reply notice as EX. CW-1/6. OP examined Shri Raghav Agrawal, Legal Manager, Mannapuram General Finance & leasing Ltd., who reiterated the contents of the reply on oath and has relied on the annexure annexed with the reply.
9. We have heard the submissions of the Ld. Counsel for the OP and as the complainant had stopped appearing, we have also perused the material on record.  The complainant had alleged that she was not given the notice of sale/auction of the pledged gold. The OP has placed on record the notice in defence stating that notice for auction had been served upon the complainant, careful perusal of the same reveals that the address of the complainant in the said notice was “A-27, Jagatpuri Gali No.6 Near Gurudwara, Kalyan Vas-110092, Delhi and the address furnished in application form was “A-25, Jagatpuri Karkardooma” and as per Clause-6 of the application form “The address for all communication shall be the one furnished in this application form if not intimated to the company regarding any subsequent change of address in writing & under acknowledgement from the company”. Thus, the notice was served on the address which is different from the address mentioned in the said application form. Thus, it is not a valid service of notice of the auction/sale. Further, the complainant has avered that she had paid Rs.50,000/- for which a receipt was issued, which got lost and had paid Rs.50/- as charges for issuance of duplicate receipt. However, the complainant has neither placed on record the police complaint with respect to loss of her purse nor any receipt for payment of Rs.50/-, thus, the complainant’s averment regarding payment of Rs.50,000/- does not hold any weight. The complainant herself has admitted that she did not repay loan due to financial crisis, it is settled principle of law that parties to the contract are bound by the terms and conditions. Thus, what can be culled from the above discussion is that the notice was not served upon the complainant, which is in contravention of clause-9 of the terms and conditions, which speaks of serving of registered notice to the borrower.
10. Hence we allow the present complaint and declare sale/auction as null and void. But at the same time considering the fact that the pledged articles have been sold and they cease to exist, they cannot be returned to the complainant. It is admitted fact by the complainant that she was not regular in paying installments as per schedule, so, she was also a defaulter. Therefore, we direct OP to pay Rs.25,000/- in lumpsum which includes compensation for mental agony and harassment, the said amount be paid within 30 days from the date of order else it shall carry interest @ 9% from the date of order till realization.

Copy of this order be sent to both the parties as per law.

 

                   (Dr. P.N. TIWARI)                                                                        (HARPREET KAUR CHARYA)                                                   

      MEMBER                                                                                     MEMBER

 

 

(SUKHDEV SINGH)

PRESIDENT