Andhra Pradesh

Visakhapatnam-II

CC/474/2010

Allam Dora Babu - Complainant(s)

Versus

M/s Manapuram General Finance and Leasing Limited - Opp.Party(s)

Palakurthi Srinivasa Apparao

30 Jun 2015

ORDER

                  Reg. of the Complaint:24-12-2010                                                                                                                                      Date of Order:30-06-2015

BEFORE THE DISTRICT CONSUMERS FORUM-II

AT VISAKHAPATNAM

                   Present:

1.Sri H.ANANDHA RAO, M.A., L.L.B.,

       President

2.Sri C.V.RAO, M.A., B.L.,

                                             Male Member

3.Smt.K.SAROJA, M.A., B.L.,

       Lady Member

                                            

 

TUESDAY, THE 30^TH DAY OF JUNE, 2015

CONSUMER CASE NO.474/2010

 

BETWEEN:

Sri Allam Dora Babu S/o Narayana Dora,

Hindu, aged  42 years, D.No.21-174,

Srinivasnagar, Simhachalam, Visakhapatnam.

…Complainant

AND:

1. M/s Manapuram General Finance and Leasing Limited,

Rep. by its Authorised person, 1^st Floor, D.no.58-1-43-11,

S.S.R.Complex Shanti Nagar, Visakhapatnam.

2. M/s Manapuram General Fianance and Leasing Limited,

Rep. by its Promoter/Executive Director Sri V.P.Nanda Kumar,

Manappuram House Corporate Office,

Valapad, Thrissur District State-680567.

…Opposite Parties

 

This case coming on 25-05-2015 for final hearing before us in the presence of                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    SRI PALAKURTHI SRINIVASA APPA RAO, Advocate for the Complainant, and of                                     SRI P.KOTESWARA RAO, Advocate for the Opposite Parties, and having stood over till this date for consideration, this Forum made the following.

 

ORDER

 (As per the Honourable President on behalf of the Bench)                                                                              

 

1. The Complainant filed the present complaint against the Opposite Parties, directing them to return the gold weighing 290.900gms after receiving balance amount, if any, Rs.12,00,000/- towards compensation and costs.
2. The case of the complainant in brief is that he is a builder and contractor doing business in the name and style of Sri Sai Constructions, Visakhapatnam and also doing business of mines at Kurnool and Kudapah. Basing on the advertisement of OPs, he has deposited                                                                                                                                                                                                                                                                                                                                                                                                                                            the gold weighing 290.900gms towards the loan and the gold has been given as security for Rs.1,96,000/- and at that time, the OPs had taken signatures  on various documents without supplying those documents and further the said loan has to be cleared as per the installments amounts as per the demands of the OP and subsequently, a loan was sanctioned for a sum of Rs.1,96,000/- and he has been paying installments amounts as per their demands and they passed receipts to that effect from 28-06-2008 to 04-07-2009 and some of the receipts were not passed. In spite of his demands, they failed to supply the receipts and statement of account of his loan. It is also his case that due to hike in the price of the gold, the OPs in order to have illegal gain by retaining customers gold by creating false accounts and that he made number of requests orally in person and through one S.Govinda Rao but there is no response and apprehending danger in the hands of OP, he addressed a letter in the format given by the OP and nominated his sister on 28-06-2008 even then there is no response from OPs and further the OPs are demanding more than the agreed amount without giving any proper response and in spite of number of negotiations taken place but OP threatening him with dire consequences saying  that they would sell away the gold to the 3^rd parties and defraud him by cheating and thereby committed deficiency of service.
3. The case of the OPs is that the complainant has not obtained any loan for Rs.1,96,000/- on 28-06-2008 and he obtained gold loans on 16-03-2009 and on 23-03-2009 on 5 accounts for a total amount of Rs.2,69,000/- by pledging the gold ornaments weighing 275.4 grams including stone weighing and that as per the terms of the loan agreement, the complainant undertook to repay the amount with interest within loan period of 1 year but, he failed to pay the agreed amount and became defaulter and thereby violated the terms and conditions of the agreement.
4. That as per the condition no.3 of the loan agreement, if the account holder becomes the defaulter within the loan period of 12 months expires or completes from the last payment their company is authorized to sell the pledged gold in public auction after duly issuing a registered notice and accordingly they issued 5 registered notices to the addresses furnished by the complainant but they were returned. Further, as the complainant did not turn up to their office for redemption of the gold ornaments pledged, they auctioned the same after duly giving paper publication and sold the ornaments in auction for an amount of Rs.4,01,155/- and after deducting the sale amount, an amount more than Rs.9,577/- is still due to them as there is no possibility of depositing the gold ornaments belongs to the complainant. As such, their acts do not amount to any deficiency of service.
5. To prove the case on behalf of the complainant, he filed his evidence affidavit and got marked Exhibits A1 to A4. On the other hand, on behalf of the OPs, they filed their evidence affidavit and got marked Exhibits B1 to B18.
6. Exhibit A1 is the  Payment of Bunch of Bills, Exhibit A2 is the Letter addressed to OPs, dated 28-06-2008, Exhibit A3 is the Bank Pass Book, dated 20-12-2007 and Exhibit A4 is the Letter addressed to OPs, dated 26-10-2010.
7. Exhibit B1 is the  Loan Application dated 16-03-2009, Exhibit B2 is the Loan Application, dated 16-03-2009, Exhibit B3 is the Loan Application, dated 16-03-2009, Exhibit B4 is the Loan Application, dated 23-03-2009, Exhibit B5 is the Loan Application, dated 23-03-2009, Exhibit B6 is the Cash Receipt for Rs.2,200/- dated 16-03-2009, Exhibit B7 is the Cash Receipt, dated 16-03-2009, Exhibit B8 is the Cash Receipt, dated 16-03-2009, Exhibit B9 is the Cash Receipt, dated 23-03-2009,  Exhibit B10 is the Cash Receipt, dated 23-03-2009, Exhibit B11 is the Registered letter issued to OP, dated 18-09-2009, Exhibit B12 is the Registered letter issued to OP, dated 18-09-2009, Exhibit B13 is the Registered letter dated 08-04-2010, Exhibit B15 is the Regd. Letter issued by the OP, dated 24-04-2010, Exhibit B16 is the Registered letter, dated 29-04-2010, Exhibit B17 is the Auction paper publication Eenadu News Paper, dated 15-11-2010 and Exhibit B18 is the Auction details of Branch Marripalem Centre.
8. Both Parties filed their respective written arguments.

9.       Heard oral arguments from both sides.

10.     Now the point for determination to be determined in this case is;

Whether there is any deficiency of service on the part of the OPs and the Complainant is entitled to any reliefs asked for?

11.     Before going to the merits of the case, we feel it is relevant to state some admitted and disputed facts. Originally the present complaint is filed on 23-12-2010 and it was returned on the same date stating to mention the terms and conditions of the transaction and how much amount was paid by the complainant but without complying them, it appears the complaint was called at bench and it was numbered, on 29-12-2010. The docket order is as follows: “Heard. Registered the Complaint, if otherwise in order and on the same date, it was numbered by issuing notice to 24-01-2011”. It is evident as seen from record, I.A.No.360/10 is filed on 23-12-2010 by which date the present complaint was not at all numbered to grant interim direction to direct the OP not to sell gold belonging to him till disposal of the complaint. Unfortunately instead of returning this petition on the same day, an exparte order was passed on 29-12-2010 that the respondent shall maintain status ante in respect of gold ornaments of the complainant. The OPs herein filed their counter on 18-02-2011 at Para 16 “stating that as the complaint failed to discharge the amount, the auction conducted on 26-01-2010 it is the public as procedure under general publication”. At Para 19 further stated “the total amount of liability is Rs.4,10,728/- and the properties were auctioned at Rs.3,28,751/- and still the complaint is liable to discharge an amount of Rs.9,577/-etc.,”  So also OPs filed their counter in main C.C., on the same date reiterating the same averments.

12.     The record further goes to show that I.A.No.360/11 is filed by the complainant herein, directing the OP to deposit gold ornaments as per the earlier directions and the OP filed their counter informing about the auction proceedings etc., However, docket proceedings shows as OP failed to deposit Gold, NBW was issued against them. According to OP, they  preferred revision and wherein the Honourable State Forum passed the following order “Thus, in the light of the plea of the Revision Petitioner that the pledged ornaments were sold in auction, the claim of the 1^st Respondent that the revision petitioner has not sold the gold ornaments and retained with it, have to be proved by cogent evidence. In the result, Order dated 27-4-2012 passed by the District Forum  is not sustainable and therefore, Order of the District Forum issued NBWs is set aside”.

13      After drawing our attention to all these facts, the learned counsel for OPs by relying upon decision reported in 1993 CPJ 1614-R Seth Raman Vs. The Manager, Indian Overseas Bank and another, contended that the present dispute will not fall within the purview of this forum as the subject matter of the complaint is thoroughly commercial in nature. As seen from the complaint averments, it is evident that it is pertaining to the accounts and its legal consequences, the forum constituted under Consumer Protection Act is not the proper forum for taking accounts and competent jurisdiction. The amount due to the parties is a matter which has to be settled after taking accounts and this relief could be granted only by a regular civil courts as rightly contended by the learned counsel for the OP, in view of the judgment relied upon by him.

14.     A careful perusal reading of the evidence of both sides coupled with documents let in by them much less Exhibit B Series, it is evident that the OPs have informed to the complainant prior to before the auction to the address furnished by them at the first instance stating that they are default in payment of installments and they are intending to auction the pledged gold property. Thus, it can be held that on intimation to the complainant only, they proceeded for public auction. It appears as seen from I.A.230/11 averments, the complainant is aware about the public auction to be held in the month of November, 2010 and thereby immediately after knowing that he moved an Application on perusal of the Averments in the I.A.360/2010, it can be further held that the complainant is having knowledge about the auction to be held in the month of November, 2010 but without settling the accounts, he approached this forum for the reasons best known to him. The evidence on record clearly goes to show that subsequent to the auction of the gold pledged by the complainant, he filed the present complaint. On scrutiny of the documents filed by the complainant, we are of the considered view that the complainant has not come to the court with clean hands and further the complainant failed to establish that the acts of the OP comes under the purview of deficiency of services. For all these reasons, we are of the considered view that the complainant filed by the complainant deserves to be dismissed.

15.     In the result, this compliant is dismissed. The Office of this Forum is directed to return the amount of Rs.1,96,000/- (Rupees one lakh ninety six thousand only) which was deposited in this forum on 08-09-2011 by the complainant to the complainant on proper identification and acknowledgment.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, on this the 30^th day of June, 2015.                                   

 

 Sd/-                                                 Sd/-                                          Sd/-

LADY MEMBER                            MALE MEMBER                        PRESIDENT       

 

 

 

 

APPENDIX OF EVIDENCE

  For the Complainant:-

Exhibits	Date	Description	Remarks
A1		Payment of Bunch of Bills	Photocopies
A2	28-06-2008	Letter addressed to OPs	Photocopy
A3	20-12-2007	Bank Pass Book	Photocopy
A4	26-10-2010	Letter addressed to OPs	Photocopy

For the Opposite Parties:-                                                             

Exhibits	Date	Description	Remarks
B1	16-03-2009	Loan Application	Original
B2	16-03-2009	Loan Application	Original
B3	16-03-2009	Loan Application	Original
B4	23-03-2009	Loan Application	Original
B5	23-03-2009	Loan Application	Original
B6	16-03-2009	Cash Receipt	Original
B7	16-03-2009	Cash Receipt	Original
B8	16-03-2009	Cash Receipt	Original
B9	23-03-2009	Cash Receipt	Original
B10	23-03-2009	Cash Receipt	Original
B11	23-09-2009	Regd. Letter issued by the OP which was returned unserved	Original
B12	18-09-2009	Regd. Letter issued by the OP which was returned unserved	Original
B13	08-04-2010	Regd. Letter returned unserved	Original
B14	10-04-2010	Regd. Letter	Original
B15	24-04-2010	Regd. Letter issued by the OP returned unserved	Original
B16	29-04-2010	Regd. Letter	Original
B17	15-11-2010	Auction paper publication Eenadu News Papers on 15-11-2010	Original
B18		Auction details of Branch, Marripalem Centre	Original

 

Sd/-                                                  Sd/-                                          Sd/-

LADY MEMBER                            MALE MEMBER                        PRESIDENT