Punjab

Ludhiana

EA/15/229

Anil Kumar - Complainant(s)

Versus

Mathoot Finance Pvt. Ltd - Opp.Party(s)

RK Bhandari adv.

28 Jun 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                             Execution Application No:229 dated 05.10.2015                    

                                       Date of decision: 28.06.2024

 

Anil Kumar Sharma s/o Sh.Jai Ram Sharma, r/o H.No.T-1, Near Bharat Sewak School, Moti Nagar, Ludhiana.

                                                                              Decree holder/complainant

                                                Versus

The Muthoot Finance Limited, 2^nd Floor, B-XV-136, Jandu Tower, Opposite Fire Station, Miller Ganj, Ludhiana, through its Branch Manager.

Judgment Debtor/Opposite party

Application on behalf of complainant to deposit Rs.1,97,294/- in the Consumer Forum in view of order of State Consumer Disputes Redressal Commission, Chandigarh

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For decree holder/complainant                   :         Sh.R.K.Bhandari, Advocate

For judgment debtor/opposite party :         Sh.Anand Sabherwal, Advocate

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                The decree holder/complainant has filed the present application whereby he has sought permission to deposit Rs.1,97,294/- in compliance of the direction issued by the Hon’ble State Consumer Disputes Redressal Commission, Chandigarh vide order dated 04.05.2015 passed in FA No.211 of 2013. It has been submitted that the complainant had filed a complaint against OP directing it to return the gold so pledged by him with the OP along with Rs.70,000/- as compensation on account of mental pain, agony and harassment suffered by the complainant along with Rs.20,000/- as litigation expenses. It is submitted that Learned Forum, Ludhiana had passed an order dated 29.11.2012 in the said complaint by partly allowing the said complaint by directing the OP to pay compensation and litigation cost compositely assessed as Rs.3000/- to the complainant. It was further held in the said order that gold ornaments of the complainant so stolen/looted having been recovered by the police, the OP shall seek the permission of the concerned court to hand over the same to the complainant/their actual owner and that till then the OP shall not recover the loan amount and not to charge interest on the loan amount in proportionate to the value of the gold and that the interest will be charged from the date i.e. since 2009 when the complainant first made efforts to repay the balance amount. The OP party had preferred appeal against the said order before the Hon’ble State Commission which was party accepted vide order dated 4.5.2015 and modified the order to the extent that the OP will be entitled to charge simple interest as agreed between the parties on the outstanding amount as on January 2009 because upto date the interest has already been paid and after calculation of the entire outstanding amount, the complainant will pay that amount to the OP within a period of three months from the date of dispatch of the order passed by the State Commission, Chandigarh that that OP will release the pledged gold ornaments to the complainant and that if the complainant failed to comply with the order as referred above then after that date, the OP will be entitled to penal interest as per agreement between the parties. The complainant will not be entitled to compensation and costs. The complainant has not preferred any appeal against the said order. After working out, an amount of Rs.40,294/- as interest payable by the complainant for the period from June 2009 to October 2015.

2.                Upon notice of this application, JD/OP has appeared and filed the reply by simply stating therein that the complainant has intentionally not calculated the interest correctly and has given a false and misconceived calculation. The total amount to be deposited by the complainant in compliance of the orders of Hon’ble State Commission was calculated as per the attached calculation sheet as agreed between the parties at the time of sanction of loan. Moreover, as the complainant has failed to deposit the payment within three months of the order, thus, it is claimed that the complainant is liable to pay the penal interest to the OP as per the order dated 4.5.2015. It is prayed that direction may kindly be issued to the complainant to deposit the amount of Rs.7,50,030/- with the OP.

3.                We have heard the counsel for the parties and have also carefully gone through the record on the file.

4.                Perusal of record shows that earlier the complainant filed the Complaint No.463 of 06.06.2012 before this Commission against the OP which was partly allowed by the Learned Predecessor of this Commission vide order dated 29.11.2012. The following observations were made by the Learned Predecessor of this Commission while allowing the aforesaid complaint:-

“In view of the above discussion, Forum is of the opinion t hat gold ornaments of the complainant which has been stolen/looted in the theft has been recovered by the police in this case and OP shall seek the permission of the concerned Court to hand over the same to the complainant who is the actual owner of the case property and till than the OP is directed not to recover the loan amount and not to charge the interest on the loan amount in proportionate to the value of the gold. The interest will not be charged from the date i.e. since 2009 when the complainant first made efforts to repay the balance loan amount. Hence, complaint is partly allowed and the OP is directed to pay compensation and litigation costs compositely assessed as Rs.3000/-(Three thousand only) to the complainant on account of harassment and mental tension suffered by the complainant. Compliance of the order be made within one month of the receipt of the copy of order. Copy of order be supplied to the parties. File be indexed and completed and consigned to record room.”

 

5.                Feeling aggrieved with the aforesaid orders, the JD had preferred an First Appeal No.211 of 2023 before the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh whereby the same was partly accepted vide order dated 04.05.2015. The following observations made by the Hon’ble State Commission, Chandigarh while partly allowing the aforesaid first appeal:-

“In view of the above, we partly accept the appeal. The impugned order is modified to the extent that the OP will be entitled to charge simple interest as agreed between the parties on the outstanding amount as on January 2009 because upto that date, the interest has already been paid. After calculation of the entire outstanding amount, the complainant will pay that amount to the OP within a period of three months from the date of dispatch of the order passed by this Commission and the OP will release the pledged gold ornaments to the complainant. In case the complainant fails to comply with the order as referred above then after that date, the OP will be entitled to penal interest as per the agreement between the parties. The complainant will not be entitled to compensation and costs.”

6.                During the course of arguments, counsel for the decree holder/complainant has contended that in compliance of the order of the Hon’ble State Commission, the decree holder/complainant after calculating the amount as agreed between the parties, was ready and is still ready to pay Rs.1,97,294/- to the OP but the OP has lingered the matter on one pretext or the other and also failed to comply with the order passed by the Hon’ble State Commission.

7.                On the other hand, counsel for the JD has contended that the decree holder/complainant has failed to deposit the amount as directed by the Hon’ble State Commission vide order dated 04.05.2015 within the stipulated time, therefore, he is liable to pay the penal interest to the OP which has been calculated to the tune of Rs.7,50,030/- along with principal amount as well as interest.

8.                We have considered the rival contention raised by counsel for the parties.

9.                Admittedly, the decree holder/complainant had availed the finance facility from the OP to the tune of Rs.1,34,000/- on 22.06.2009 with applicable interest as 17.5% per annum and also availed the loan of Rs.23,000/- from the OP on 22.06.2009 with applicable interest as 18.5% per annum. Further, the decree holder/complainant had already paid the interest uptill January 2009. As per the directions contained in the order dated 4.05.2015 passed by the Hon’ble State Commission, Chandigarh, the OP was entitled to ‘charge simple interest as agreed between the parties only’ and had the complainant paid the amount so ordered within 3 months from the date of dispatch of said order passed by the Hon’ble State Commission. As per the stamp endorsed on the certified copy of order, date of disposal of order is 04.05.2015 and date of issue of certified copy and date of delivery of the certified copy of the order is 15.05.2015. Thus, the complainant/decree holder was required to make the payment upto 15.08.2015. However, the complainant/decree holder did not take any pro-active steps to make the payment to the OP within stipulated period and rather in order to cover up the non-compliance of the order, the complainant/ decree holder moved the present application in the disguised form of an execution application and sought the permission for deposit of certain amount. The application is mis-conceived and ill-advice as there was no direction either from the Learned Predecessor of this Commission or from the Hon’ble State Commission, Chandigarh regarding seeking permission for deposit of an amount before this Commission.

10.              It is a well settled law that all questions arising with regard to the execution, discharge and satisfaction of the order under execution or of decree are to be determined by the Executing Court.

11.              Now the next point for determination arises what is rate of interest to which OP is entitled to realize on the outstanding amount. After carefully perusing the order dated 4.5.2015 passed by the Hon’ble State Commission, Chandigarh in FA No.211 of 2013, it is noticed that the Hon’ble State Commission while passing the said order/judgment has made the following observations in para no.12:-

“In those circumstances, it cannot be said that the complainant was defaulter, therefore, he will not be liable to pay the penal interest. Therefore, the order so passed by the learned District Forum requires modification to the extent that the complainant will be liable to pay the agreed rate of interest on the principal amount and after that OPs will release the pledged property.”

 

12.              In continuity of the aforesaid observations, the direction to charge “simple interest as agreed between the parties” was issued. The aforesaid directions when read together make it crystal clear that at no point of time, the Hon’ble State Commission had directed the complainant to pay just a simple interest. Rather, it is the agreed rate of interest on the principal amount, if the complainant pays the amount within the stipulated period, otherwise the complainant was liable to pay the penal interest in case of default. The counsel for the JD has drawn the intention of this Commission upon the identical declarations regarding the applicable rates of interest furnished by the complainant on the approval/sanction letters while obtaining the finance and loan facilities from the OP on 22.06.2009 which reads as under:-

“DECLARATION:- I declare that the ornaments pledged by me are owned by me and are made in pure gold. In case any of my declaration(s), with regard to the ownership and/or the metal in which the said ornaments are made, is/are proved to be incorrect, then in that event, I shall be liable to be prosecuted under the relevant provisions of the Indian Penal Code and shall also be liable to indemnify M/s The Muthoot Finance Pvt. Ltd to extent of loss suffered by it on account of such wrongful declaration.

I further understand and agree that the company levies a rate of interest of 15% per annum. The rate of interest will also vary depending on the rate at which advance has been availed as the Company has different schemes which enables the borrower to avail a higher amount of loan for a given value of the asset pledged. The rate of interest so levied at higher rate, linked to the advance rate is recovered as ‘Risk Interest’ by the company in addition to the base rate of 15%. Accordingly, the risk interest for this loan shall be 17.5%. However, there will be a rebate for early payment @__& for loans closed within 3 months and @___% for loans closed within 6 months out of the risk interest rate due. Compounding of interest of loan outstanding for more than one year will be ‘x’ percent or total interest (Base Plus Risk), where ‘x’ is the completed period of loan in months minus 2.”

 

13.              As such, OP is entitled to charge the rate of interest as contained in the declarations which were duly signed by the complainant while availing the finance and loan facilities from the OP. So, as a sequel of the above discussion, the application being devoid of any merits and is hereby dismissed. Copies of order be supplied to the parties free of costs.

14.              File be indexed and consigned to record room.

 

(Monika Bhagat)              (Sanjeev Batra)                                                 Member                                President      

Announced in Open Commission.

Dated:28.06.2024.

Gurpreet Sharma