| Final Order / Judgement | ORDER 16.04.2024 Ms. Nipur Chandna, Member - In brief facts of the present case are that complainant was in the urgent need of funds in the month of January, 2014, as such he approached OP-2 for availing a gold loan on 28.01.2014 from its Shalimar Bagh Branch, Delhi. Believing on the representation and assurance of OP-2 complainant availed the gold loan of Rs. 3,20,000/- vide customer ID No. 2017143 repayable in 12 monthly installments along with interest @ 15% p.a. against pledge of gold ornaments of his mother. While availing the aforesaid loan the complainant signed various loan documents and the same were kept by OP-2 in its own custody.
- It is further stated that when the complainant approached to deposit the EMI at Shalimar Bagh Branch he came to know that the Branch was close down and no further detail of the branch were mentioned anywhere. OP-2 also failed to inform the complainant in respect to its shifting and had not provided any fresh address to him. It is further alleged by the complainant that having no other option the complainant sent legal notice dated 22.06.2016 to OP-1 for getting the pledge gold return and to satisfy the loan account in question. The OP-1 vide its letter dated 28.07.2016 replied to the legal notice of the complainant wherein it is disclosed that the gold ornaments pledged by complainant were auctioned by OP-1 and the sale proceeds there from were adjusted against the outstanding amount stated to be payable by complainant along with the reply OP-1 attached the copy of the letter dated 07.10.2014, 27.10.2014 as well as copy of the public notice dated 06.02.2015 alleged to be published by OP-1 in ‘Veer Arjun’ and business standard news paper in respect to the illegal auction of the gold ornaments in question. It is further alleged by the complainant that entire act of OP-1 clearly establish the violation of the guidelines and norms set up by Reserve Bank of India.
- It is further alleged that the copy of letter dated 07.10.2014 as well as 27.10.2024 are forged and fabricated documents created by the OP-1 in order to cover up the fraud played by OPs in a very clever, calculated and cunning manner. It is further stated that the complainant never received any letter from OP-1 in respect to the repayment of the gold loan in question. It is further alleged that the OPs never disclosed any details in respect to the sale proceeds against the pledge gold in question which is the clear violation of NBFC guidelines dated 26.03.2012 and 16.09.2013 issued by RBI. It is further alleged that OP had acted in violation of the provision of section 176 of the contract act which provides for any sale affected from without giving notice to the pawnor is vitiated and hence void. It is further alleged that since OP had refused to handover the gold ornaments pledge against the loan by the complainant without assigning any justifiable reason and sale the pledge loan without giving any notice to the complainant this act of OP amounts to deficiency in service on its part , hence, this complaint.
- Notice of the complaint was sent to OP. OP filed its written statement thereby denying any deficiency in service on its part. Vide order dated 29.05.2017 the application for amended written statement of OP is allowed and the amended written statement is taken on record. It is further stated that complainant has taken the gold loan of Rs. 3,20,000/- from the Shalimar Branch of OP. Against the said loan the application form, gold pledge card, gold loan valuation certificate, credit appraisal memo, photograph of the articles, gold loan disbursal receipt, lable details, demand promissory note were duly executed between both the parties as applicable under law and complainant signed the same with his free consent. It is further stated that after availing the loan facility complainant started defaulting the payment of installment which was duly reminded by OP vide notice dated 07.10.2014. Further, on 27.10.2014 again a recall notice was sent to complainant for making the payment but the complainant failed to discharge his liability. It is further stated that the address of the head office of OP was clearly mention in the demand letters issued by OP hence, closure of the Shalimar Bagh Branch of OP does not absolve the complainant from going to the head office and from his liability. It is further stated that complainant has fabricated a false story by way of this complaint to hide his own default of non payment of single EMI against the loan in question. Having no other option, the OP had to auction the ornaments and recover the loan amount in question and while doing so the complainant has acted within the foure corners of the loan agreement agreed between the parties. It is further stated that the present complaint is false and frivolous one, hence, dismissed with cost.
- Complainant filed his evidence by way of affidavit wherein he has corroborated the contents of his complaint. Complainant has placed on record the copy of circular dated 26.03.2012, 16.092013 of RBI, copy of gold pledge card, copy of letter dated 07.10.2014, 27.10.2014, copy of legal notice dated 22.06.2016 in support of his contention.
- OP filed evidence of Sh. Munish Pathak AR of OP by way of affidavit. OP has placed on record copy of application forum, loan pledge card, gold valuation certificate, gold loan disbursal receipt, copy of IDs and photographs of complainant and witnesses. Copy of letter dated 07.10.2014, 27.10.2014 as well as copy of newspaper cutting in respect to the public notice of auction of the gold ornaments in question in support of his contention.
- Written arguments filed by complainant. We have heard the arguments advance at the bar by Ld. Counsel for complainant Sh. Abhishek Gosain and Ms. Jyoti Gulati counsel for OP and have perused the record.
- It is argued on behalf of complainant that the OP had arbitrarily sold the pledge gold ornaments without intimating the complainant, this act of OP squarely covered under the definition of deficiency in service, hence, complainant is entitle for the relief claim.
On the contrary, it is argued on behalf of OP that the complainant failed to repay the EMI as per the loan agreement agreed between them as such the OP was justified in selling the pledge gold ornaments to recover the loan amount given to the complainant. It is further argued that present complaint case is nothing but misuse of the process of law, hence dismissed with cost. - The sole question for our consideration in the present complaint case is whether OP is justified in selling the pledge gold ornaments of the complainant.
Admittedly, the complainant has taken the gold loan on 28.01.2014 for a sum of Rs. 3,20,000/- from OP vide customer ID No. 2017143 repayable in 12 monthly installments along with interest @ 15% p.a. against pledge of gold ornaments of his mother. Against the said loan the application form, gold pledge card, gold loan valuation certificate, credit appraisal memo, photograph of the articles, gold loan disbursal receipt, lable details, demand promissory note were duly executed between both the parties as applicable under law and complainant signed the same with his free consent. After availing the loan facility complainant started defaulting the payment of installment which was duly reminded by OP vide notice dated 07.10.2014 and 27.10.2014. The OP has also placed on record copy of newspaper cutting in respect to the public notice of auction of the gold ornaments. - We have carefully gone through the letter dated 07.10.2014 & 27.10.2014 vide this letter OP has given an opportunity to complainant to repay the loan along with accrued interest. The OP had issued both the letters on the address of the complainant mentioned in the Loan Agreement and in the arrays of the parties of the present complaint Admittedly, the complainant after taking the gold loan on 28.01.2014 had not paid any single EMI to the OP as agreed till 27.10.2014 despite repeated reminder. Having no other option the OP by invoking clause 20 the loan agreement auction the gold ornaments pledge with him to recover the loan amount. The contents of which are reproduced as under:-
Clause 20) “on the happening of an event of default customer (s), the loan become immediately due and payable to CFL and unable CFL to enforce the gold pledged with it and sell the same. The CFL shall upon giving 14 days return notice to the customer (s) be entitle at the cost of the customer to sell the gold mentioned in the valuation certificate or otherwise disposed off all or any part of the gold either by inviting quotations from the persons dealing in such a security or by holding public auction or by inviting quotations from public or by private treaty and apply the net proceed of any such a sale or disposition toward repayment of all the outstanding dues and such a appropriation by CFL shall be final and binding on the customer in all respect. The customer shall not have any claim against CFL in respect of any loss arising out of any such sale or any postponement thereof”. - The bare perusal of the clause 20 of the loan agreement which was duly signed by complainant makes it clear that the OP has right to sale the pledge ornaments for recovery of the loan amount disbursed to the complainant in case of his default. Admittedly, the complainant had not paid single loan EMI to the OP as such in a compelling situation the OP has sell the pledged ornaments in auction and has adjusted the entire loan amount along with interest and charges from the sale proceeds. The OP has acted in the four corners of the loan agreement agreed between the parties, it is the complainant who has defaulted the EMI of the loan in question as such we find no deficiency in service on the part of OP as alleged in the complaint.
- In view of the above discussion, we are of the considered opinion that the complainant failed to establish the case of deficiency in service against OP. We therefore find no merits in the present complaint, hence, dismissed.
- Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.
Announced in open Commission on 16.04.2024. SANJAY KUMAR NIPUR CHANDNA RAJESH PRESIDENT MEMBER MEMBER | |
