BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 126 of 2017
Date of Institution : 7.6.2017
Date of Decision : 21.12.2017.
Smt. Amarjeet Kaur wife of Shri Gurcharan Singh, resident of H. No.1353, Balasar Road, Rania, Tehsil Rania, District Sirsa.
……Complainant.
Versus.
- Mannapuram Finance Ltd. Building No.17-158, 1st Floor, Sardar Building, Circular Road, Near Jagdev Singh Chowk, Sirsa.
- Mannapuram Finance Ltd. IV/470 (Old) W638A (NEW) Mannapuram House Nalapad, Thrisur, Kerala- 680567.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
SH. MOHINDER PAUL RATHEE …… MEMBER.
Present: Sh. Aashish Vashisht, Advocate for the complainant.
Sh. J.R. Garva, Advocate for opposite parties.
ORDER
The case of the complainant in brief is that complainant is an agriculturist by profession having agricultural land at village Balasar, Tehsil Rania, District Sirsa. That the ops are private finance company ltd. and indulged in the business of granting gold loan facility to the needy persons. The complainant is the customer of the ops and used to take gold loan from the ops time to time as per her needs. That on 10.11.2016, the complainant had taken a gold loan facility of Rs.48500/- from the ops by re-pledging her five gold ornaments including ear rings-2SF. Chain, U-drops, stud-2SF weighing about 35.590 grams (22 caret) under customer ID No.30150005556567 loan application No.0130150700008090 and selection scheme GL-VM and as per the policy of the ops, the complainant had to deposit a total sum of Rs.52792/- including interest and other charges. It is further averred that thereafter on 18.2.2017, the complainant paid an amount of Rs.2082/- qua the interest to the ops and the remaining amount of interest was Rs.1900/- till that date. That thereafter on 21.4.2017, the complainant visited the office of the ops with a purpose to make payment of the loan amount with remaining amount of interest and requested to release the said gold ornaments after getting deposited the amount of loan from her. But it was disclosed by the ops to the complainant that the gold ornaments pledged by the complainant have already been auctioned by ops and refused to return the same to the complainant. The ops further refused to accept the loan amount as well as interest. The complainant was regular in making the payments of the amount due towards her and she was never declared defaulter in making the payments but still the ops in order to cause wrongful loss and in order to take wrongful and illegal benefits auctioned the said gold ornaments of the complainant without prior notice to the complainant or without affording any opportunity to her because it was well within the knowledge of the ops that the value of the gold ornaments was/is more than the value of the amount as well as interest due towards the complainant. It is further averred that the complainant requested the ops to accept the amount of loan with interest from her and to release the gold ornaments to her but the ops have flatly refused to admit this genuine and legal claim of complainant rather the officials of the ops misbehaved and insulted the complainant and threatened her to leave their office otherwise she will have to face dire consequences. That such act and conduct on the part of ops clearly amounts to deficiency in service, unfair trade practice as well as gross negligence on account of which the complainant has suffered unnecessary harassment, hardship and mental pain. That the complainant got issued a legal notice to the ops on 20.5.2017 calling upon the ops to return the gold ornaments to the complainant after acceptance of loan as well as amount of interest from the complainant and to pay a sum of Rs.50000/- as compensation and penalty etc. but to no effect. Hence, this complaint.
2. On notice, opposite parties appeared and filed written statement taking certain preliminary objections regarding jurisdiction, maintainability; no deficiency in service, cause of action, estoppal and that 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 DPN clearly mentions that in case of any dispute, the matter shall be referred to Arbitration. On merits, it is submitted that as per ops/ company records the status of complainant is shown as housewife and not an agriculturist. It is further submitted that complainant availed gold loan facility on 10.11.2016 by pledging about 35.590 grams of gold ornaments from Sirsa branch of the company. Complainant had availed said gold loan for an amount of Rs.52,742/- on 10.11.2016 vide pledge no.0130150700008090 and not Rs.48,500/- as alleged. It is correct that complainant had paid an amount of Rs.2082/- towards the loan on 18.2.2017 but this amount of Rs.2082 was paid by complainant towards the interest of loan upto 11.1.2017. It is also wrong to say that the remaining amount of interest was Rs.1900/- till date. It is further submitted that it is incorrect that complainant came in the company office at Sirsa on 21.4.2017 and had approached to the branch officer to redeem the pledge by making payment of principal amount alongwith accrued interest and requested for releasing the gold ornaments. The complainant did not pay the amount alongwith interest thereon regularly and became defaulter. The ops are law abiding person and have no any ill will with the complainant. Prior to sale the pledge gold in auction, the ops had complied with the required legal formalities. The auction intimation letter dated 1.3.2017 was sent to complainant at her address registered with the company and telephonic information was also given to the complainant pertaining to auction. The notice of auction was also given through newspaper publication in the Indian Express and Aaj Samaj Daily News Paper. Even after that complainant did not make payment good with interest to redeem the pledge gold as per the terms and conditions of the loan. As such the proper opportunity have been given to complainant prior to sale of the pledge gold in auction. The detail of auction was also informed to the complainant. After adjusting the surplus amount of Rs.25,892/- had been sent to complainant through cheque no.70026 dated 23.3.2017 and the same had been returned and received back to the company on 15.6.2017. It is further submitted that allegations in the notice were false and frivolous and after receipt of the notice a due reply was given on 22.7.2017. Remaining contents of complaint are also denied.
3. The complainant produced her affidavit Ex.CW1/A, copy of legal notice Ex.C1, postal receipt Ex.C2, copy of loan and pledge document Ex.C3, copy of customer advice Ex.C4. On the other hand, ops produced affidavit of Sh. Satish Bamel Area Head as Ex.R1, copy of authority letter Ex.R2, copies of loan documents as Ex.R3 to Ex.R7, copy of notice of auction Ex.R8, copy of auction notice in newspaper as Ex.R9, copy of auction details Ex.R10 and copy of reply to notice Ex.R11.
4. We have heard learned counsel for the parties and have perused the case file carefully.
5. The complainant in order to prove his case has furnished her affidavit Ex.CW1/A wherein she has reiterated all the averments made in her complaint. It is proved on record that complainant availed gold loan by pledging her above said gold ornaments weighing gross weight (grams) 36.600 and net weight of 35.590 with the opposite parties on 10.11.2016. The complainant was sanctioned a loan of Rs.52792/- against the pledged ornaments as is evident from document Ex.C3 but she was disbursed amount of Rs.48500/- by the opposite parties and an amount of Rs.4282 was deducted as interest amount and Rs.10/- were deducted as charges as is evident from receipt dated 10.11.2016 Ex.C4. The loan amount was allowed for a period of 90 days i.e. up to 7.2.2017 and for 1 to 30 days, the interest rate was chargeable @20% per annum, from 30 to 60 days, the interest rate was chargeable @24% per annum and from 61 to 90 days, the interest rate was chargeable at the rate of 26% per annum and in case of overdue the interest was to be increased @3% after due date which fact is also evident from document Ex.C3. The complainant on 18.2.2017 paid an amount of Rs.2082/- as interest to the ops. According to the complainant, the remaining amount of interest was Rs.1900/- till that date. The ops have contended that this amount of Rs.2082 was only up to 11.1.2017. According to the ops the complainant availed gold loan for an amount of Rs.52792/- on 10.11.2016 and furnished documents Ex.R3 to Ex.R7. It is an admitted fact that the ops disbursed only Rs.48,500/- to the complainant after deducting Rs.4282/- towards interest in advance besides service charges of Rs.10/- on 10.11.2016 as is evident from document Ex.C4. The ops have averred in their affidavit what has been claimed in their written statement. The ops have claimed that complainant did not pay the amount alongwith interest thereon regularly and became defaulter. The auction notice was sent to the complainant at her address registered with the company as per registered AD post wherein the auction date was fixed as 23.3.2017 in addition to telephonic information. Notice of auction was also given through newspaper publication in the Indian Express and Aaj Samaj Daily. As such proper opportunity has been given to the complainant prior to sale of the pledged gold ornaments in auction but she did not pay the amount outstanding against her. Hence, the auction was done. The ops have stated that after adjusting the surplus amount of Rs.25892/- which had been sent to the complainant through cheque No.70026 dated 23.3.2017 and same had been returned and received back to the company on 15.6.2017, therefore, as per version of the ops, there is no deficiency in service nor any unfair trade practice on the part of the company.
6. From the perusal of the record placed on file and the averments made by both the parties through their counsel, it is an admitted fact that the complainant was sanctioned a loan of Rs.52,792/- on 10.11.2016 against five pledged gold ornaments of gross weight of 36.600 grams and net weight of 35.590 grams for 90 days at the rate of interest mentioned above and the ops disbursed only Rs.48,500/- to the complainant after deduction of Rs.4282/- towards recovery of interest in advance for 90 days including service tax at the rate of 15%. But as per mathematical calculation for given rates, period and amount of loan interest, the amount comes to Rs.3095/- plus Rs.465/- service tax at the rate of 15%, thus total Rs.3560/- only. Hence, it is quite clear that ops have wrongly deducted the amount of Rs.4282/- as interest including service tax in excess and in advance even before accrual of the interest. Hence, it is quite clear that there was no question of becoming the complainant defaulter till 90 days i.e. up to 7.2.2017 particularly when the interest amount was recovered in advance on the day of disbursement of loan itself. It is also an admitted fact that complainant paid Rs.2082/- on 18.2.2017 as interest due including service tax and this amount serviced the loan for another more than 40 days. Therefore, it is established beyond any doubt that the loan holder never became defaulter till 23th March, 2017 the date of auction fixed for except irregular for a short period of 10 days only. The ops have not placed any document on record showing acknowledgement by the complainant about the receipt of auction notice. The publication of auction notice in the newspaper is also not as per procedure laid down in Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 in terms of which name and complete address of the liable persons is to be published alongwith details of the security and amount of default whereas the ops have published only account number and that too improperly on 8.3.2017. Hence, in our considered opinion the auction of the pledged gold ornaments of the complainant by the ops was not based on merits and was unethical and illegal. The claim of the ops in the written statement that the cheque of surplus amount of Rs.25892/- through cheque number 70026 dated 23.3.2017 was dispatched which returned back on 15.6.2017 is also not based on facts because of their counter claim about auction date as 19.4.2017 in para no.5 of their written statement and in para no.11 of affidavit of Sh. Satish Bamel Area Head, Haryana, Sirsa viz.a.viz. through document Ex.R10. The realized price/ gram has been quoted as 2643.36 in Ex.R10 but ops have also not cleared their position about prevailing actual market rate on the day of auction i.e. 19.4.2017. Since, the auction of pledged gold ornaments has already taken place on 19.4.2017 and that cannot be recalled/undone now. However, it has been established beyond any doubt that the ops have adopted unfair trade practice and have caused deficiency in service towards the complainant.
7. In view of the above, we allow the present complaint and direct the opposite parties to pay the sum of Rs.25,892/- alongwith interest at the rate of 26% per annum from 23.5.2017 (which is the actual date of cheque as mentioned in their own document Ex.R10) till actual realization within a period of 30 days from the date of receipt of this order. The complainant also deserves a suitable amount of compensation on account of unnecessary harassment, humiliation and financial losses caused to her. As such, we also direct the opposite parties to pay a sum of Rs.25,000/- as compensation and Rs.5,000/- as litigation expenses including counsel fee to the complainant within above said period of 30 days. This order should be complied with by both the ops jointly and severally. 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:21.12.2017. Member District Consumer Disputes
Redressal Forum, Sirsa.
