Debi Sengupta.,  Presiding Member.

This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainants that the complainants no. 1 took loan from the opposite parties against mortgage of Gold in the following ways;

and the complainants no. 2 took loan from the opposite parties against mortgage of Gold in the following ways;

and the three loan accounts referred above were not so much irregular of the complainants and the gold ornaments were mortgaged by the complainants during the period referred above as they were suffering from acute financial crisis and the complainants no. 2 is seriously ill and advised to bed rest and the complainants have every intention to release their gold ornaments by paying the loan account from the opposite parties and they have also some amount according to their capability during this period.

The complainants further state that suddenly on 1.12.2017 the opposite party no. 2 served three legal notices to the complainants which are known as the auction notice of the three loan accounts with a direction that the auction of the said accounts of the said accounts will be held on 1.12.2017 and 8.12.2017 in the office of the opposite party no. 1 and the complainants received the notices on 1.12.2017 but the notices were dt. 28.10.2017 and the first auction date was over when the complainants the notices and the complainants have every intention to repay the loan amounts to release the Gold ornaments lying with the said three accounts but the complainants requested the opposite parties to give the complainants a time of six months and the complainants are also willing to pay the interest for the extended period and at last the complainants will pay the whole amount but the opposite parties did not pay any heed to the utter cry of the complainants and opposite parties did not even supply any statement of accounts nor did the opposite parties give any information about the auction to the complainants prior to auction notice served upon him on 1.12.2017 and the decision of the auction of the Gold ornaments mortgaged in the super and the Premier loan accounts without giving the opportunity to the complainants to state the complainants’ disability to repay the loan by the opposite parties is arbitrary and unfair trade practice and deficiency in service by the opposite parties towards the complainants and the serving of auction notice on 1.12.2017 to auction the ornaments on 1.12.2017 and 8.12.2017 is too much early for 8.12.2017 and too late for 1.12.2017 for the complainants to protect their right and in the event of such auction the complainants will suffer irreparable loss as the date of the first auction on 1.12.2017 already expired before serving of the notice.

Complainants filed the complaint petition praying direction upon the opposite parties to restrain themselves from holding any auction sale on 8.12.2017 respectively as per their notice dt. 28.10.2017 and to give an opportunity of six months time to the complainants to repay the said loan in the three loan accounts and to release the mortgage gold after repayment and to pay the cost of the case and to give any other relief or relives deem fit and proper in law and equity.

The opposite parties have contested the case by filing written version denying inter-alia all the material allegation as leveled against them. These opposite parties submit that the complainants have not mentioned the gross net weight methodology applied by the opposite parties while providing the loan and has only mentioned the weight of the gold ornaments which includes weight of dirt, stones and other materials other than gold and the complainants have willingly and after understanding all the terms and conditions and the consequences thereto and comparing the facilities with other organizations has finally availed the loan facility by pledging some gold ornaments as collateral security knowing fully well that the said pledged gold can be utilized for realization of the loan amount along with the accrued interest and other charges in case of default by the complainants and it is the policy of the opposite parties to explain the terms and conditions in the vermicular comprehensible by the customer in order to protect their interest and the same policy was applied in case of the complainants also and it clearly transpires from the contentions made by the complainants that it was pre-decided and vividly mentioned in the loan agreement that the tenure of the loan was for 12 months only and the fact of the knowledge has been expressly admitted by the complainants and the complainants have miserably failed to make up his case as several representations, reminders and even the legal notice for auction was send to the complainants and the complainants have miserably failed to make good of the payment, in terms of returning the loan amount by pledging the gold ornaments and the opposite parties have every right to recall their loan, if the said loan account becomes a NPA (Non Performing Asset) in terms of non repayment of loan account and the legal notice is in concurrence with Section 176 of the Contract Act, 1872 and the opposite parties have duly complied with the same and the complainants have agreed to the terms and conditions as incorporated in Clause 6 and 7 of the various Loan Agreements and the opposite parties have always being a law abiding entity have complied with the terms and conditions of the loan agreements and the norms laid by RBI and the complainants have applied loans and have never taken any initiative to make payments but have given only assurances and commitments but nothing in actuality and after this Ld. Forum gave a specific directive to make payments to the tune of Rs. 3000/- that the complainants settle one loan account by making the full payment in terms of that specific Loan Account and not a lot of document is shown by the complainants to prove the contentions that any such request was made to the opposite parties as stated by the complainants asking for a time of six months for repayment of the said loan or the complainants were asked to pay the interest for the extended period.

The opposite parties further submit the terms of the Loan Agreement state as interalia;

Term 6 of the terms and condition of Muthoot Gold Loan-

“The Loan amount along with interest and other charges is repayable on demand made by the Company. Even if not demanded, the loan has to be repaid with interest within the loan tenure of 12 months. In case the value of gold ornaments given as collateral security comes down, below the total dues payable the borrower has to immediately make good the amount either in cash or by pledging additional gold ornaments of proportionate weight/value. In the event of failure on the part of the borrower to do so, the company shall have the right to recall the loan and demand the borrower to repay the entire loan amount together with interest and other charges any time during the currency of the loan”.

Term 7 of the terms and condition:

“ In case of any default on the part of the borrower to repay the loan amount together with interest/ charges within the due date or earlier as demanded by the company, the company has the legitimate right to initiate legal proceedings against the borrower and/or sell the ornaments pledged through an auction by giving 14 days prior notice given to the borrower at the address given in the application for loan and appropriate the amount so received towards the loan amount, interest and other charges. If the amount realized through an auction is insufficient to cover the total dues to the company, the shortfall will be recovered from the borrower or from his personal assets like immoveable assets land, building or any moveable assets. When the amount realized through auction is higher than the total amount due from the borrower, then the excess amount realized will be refunded to the borrower either in cash or by in cheque within 30 days from the date of realization. However, if there are any amounts due from the Borrower the same will be recovered by the appropriation from the excess amount and the balance if any thereafter only will be refunded to the Borrower”.

The opposite parties further submit that even after the lapse of the considerable period of time the complainants have failed to repay the loan amount against whom the gold ornaments were pledged and the complainants have deliberately kept silent upon the issue of repayment of the loan amount and the interest despite repeated communications in English specially the various reminders issued and the terms and conditions of the loan agreement and although he was made well aware that the whole loan amount along with other interest and charges has to be repaid within 12 months from the date of sanction and it is not the discretionary power of the opposite parties to extend the loan agreement only on the basis of any request of the complainants and it was pre decided  and vividly mentioned in the loan agreements that the tenure of the loan was for 12 months only and a short cut and easy way to know the status of the said loan account by clicking on the line being

The opposite parties have filed the complaint petition praying direction upon the complainants to recall and/or set aside the interim order dt. 6.12.2017 and the application should be dismissed by imposing heavy costs on the complainants as the opposite parties and its officials have complied with all legal provisions as prescribed by the Statute and the complainants has no right to use the scheduled property without repaying the loan amount along with the interests and all incidental charges incurred due to acts of the complainants and the opposite parties are entitled for all the amounts claimed against the complainants vide Auction Notice dt. 28.10.2017 and further pending/ accrued interest/ interests till the disposal of this application and to give permission to conduct sale of the Pledged Gold Articles in the event if the complainants fails to repay the entire Loan amount along with interest and incidental charges and to pass such other and/ or orders may deem fit and proper.

Issues/points for consideration

1. Whether the complainants is the consumer of the opposite party or not?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether there is any deficiency of service on the part of the opposite party?
4. Whether the complainants is entitled to get relief or not?

DECISIONS WITH REASONS

All the points are taken together for easiness of the discussions of this case.

1. In the light of the discussion hereinabove and from the materials on record, it transpires that the complainants is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, the complainants here in is a consumer of the opposite party,
2. Both the complainants and the opposite party are residence/having their office addresses within the district of Hooghly. For mental agony and other expenses which is within Rs. 2,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
3. The case of the complainants is that the complainants took loan from opposite parties against the mortgage of gold and the six loan accounts referred were not so much irregular of the complainants and the gold ornaments were mortgaged by the complainants during the period referred as he was suffering from acute financial crisis  and the wife  of the complainants extends her cooperation by giving all her ornaments to support the complainants and the complainants has every intention to release his gold ornaments by paying the loan amount to the opposite parties.

             The dispute cropped up between the parties when the opposite party no. 2 on 27.11.2017 served one legal notice to the complainants which is known as the auction notice with a direction that the auction of the said account will be held on 1.12.2017 and 8.12.2017 in the office of the opposite party no. 1.

The complainants stated in his complaint petition that the complainants received the notice on 27.1.2017 but the notice was dt. 28.01.2017. The complainants requested the opposite party to give a time of six months and the complainants also states that he is also willing to pay the interest of the extended period and at last he will pay the whole amount but the opposite parties did not pay any heed to the request o the complainants and the opposite party did not even supply any statement. Getting no alternatives the complainants filed the instant complaint case before this Forum praying direction upon the opposite parties to reframe themselves from holding any auction sale on 1.12.2017 and 8.12.2017 respectively as per their notice dt. 28.10.2017 and to give an opportunity of six months time to the complainants to repay the said loan in the six loan accounts and to release the mortgage gold after repayment and to pay the cost of the case and to give any other relief or relives.

The opposite parties contested the case by filing written version. The opposite parties state that the complainants has willingly and after understand all the terms and conditions and the consequences availed the loan facility and in care of default by complainants and it is the policy of the opposite parties’ to explain their terms and conditions in order to protect their interest and the same policy was applied in the case of complainants and it is clearly transpires from the contains made by the complainants that it was pre-decided and vividly mentioned in the loan agreement that the terms of the loan was for 12 months only and the complainants miserably failed to make up his case as several representations reminders and even the legal notice for auction was send to the complainants. The opposite parties in his written version, evidence on affidavit stated and disputed that the opposite parties have every right to recall their loan, if the said loan account becomes a N.P.A. and in terms of non-payment of loan account the legal notice as his concurrence with the Section 176 of the Contract Act, 1872 the opposite parties have complies with the same and the complainants has agreed to the terms and conditions as incorporated in clauses 6 and 7 of the various loan agreement and the opposite party has compelled with the terms and conditions of the loan agreement and the norms laid by R.B.I. The opposite parties state in their written version that the complainants have never taken initiative to make payments and until and unless the ld. Forum gave specific direction to make payments to the tune of Rs. 3000/-. The opposite party also disputes that the complainants have no prove. The contention that the complainants asking for a time of six months for repayment of the said loan or the complainants was asked to pay the interest for the extended period. The opposite parties further state in his written version that the term of 6 of terms and conditions of the Muthoot Gold Loan the complainants has miserably failed to make good of the payment. The opposite party further disputes and submits that even after the lapse of the considerable period of the time the complainants has failed to repay the loan amount against whom the gold ornaments were pledged and the complainants has deliberately kept silent upon the issue of repayment of the loan amount and interest despite repeated communication claim and reminders. The opposite party submits that the complainants are well aware of whole contentions. The whole loan amount along with other interest and charged has to be repaid within 12 months from the date of sanction and it is not discretionary power of the opposite parties to extend the loan agreement only on the basis of any request of the complainants and it was pre-decided and vividly mentioned in the loan agreement that the tenure of the loan was for 12 months and if the complainants is agreed to repayment of the loan there is a specific no. being 08040751515 as mentioned in the loan agreement but the complainants neither took any initiative to make the repayment of loan amount or the interest nor to make herself aware about the loan agreement by following simple steps. The opposite party states and agreed that the opposite parties are ready to give back the pledged gold supplied to the complainants repaying the entire amount along with the pending interest and the charges created due to initiation of their legal process.

The opposite parties have filed the complaint petition praying direction upon the complainants to recall and/ or set aside the interim orders dt. 29.11.2017 and 6.12.2017 by imposing heavy costs on the complainants as the opposite parties and its officials have complied with all legal proceedings as prescribed by the statutes and the complainants has no right to use the scheduled property without repaying the loan amount along with the interest and all incidental charges incurred due to acts of the complainants and the opposite parties are entitled for all the amount claimed against the complainants vide auction notice dt. 27.11.2017 and further pending/ agreed interest/ till the disposal of this application and to give permission to conduct the sale of the pledged gold articles in the event if the complainants fails to repay the entire loan amount along with interest and individually and/ or orders may deem fit and proper.

Complainants files an application u/s 13(3B) of the Consumer Protection Act on 6.12.2018 and therefore the complainants files a petition to extend the interim order and the interim order was extended and till date fixed for hearing interim petition and W/O if any, the complainants files a petition praying time for hearing interim petition. Heard the ld. Lawyer of the complainants and it is ordered that 45 days elapsed. Since the date of filing interim petition and there is also no merit of interim petition. As such there is no necessary to hear the interim petition and W/O again. Thereafter the case is fixed for filing evidence on affidavit by the complainants and opposite parties take no steps on this date. Complainants take time and the date is fixed for filing evidence on affidavit as last chance. Again the complainants prays time for filing evidence on affidavit and the date was fixed for filing evidence on affidavit as last chance. So, prayer for time is rejected as the complainants elapsed a lot and the date fixed for filing evidence on affidavit by the complainants and opposite party was absent on calls. On the next date opposite party files evidence on affidavit and the case is fixed for hearing argument and to file BNA. Thereafter on 2.3.2020 the complainants files a petition praying for time. Be it mentioned that on last date i.e. on 21.11.2019 prayer for time of complainants was allowed on last chance. So, prayer for time of this date stands rejected being not moved. In that view of the above situation as none appears for either of the parties this Forum has no other option but to fix 16.3.2020 for final order.

After perused the case record this Forum observed that the complainants file this case before the Forum but the complainants is very much reluctant to contest the case properly and he takes various dates for filing evidence on affidavit and BNA in respect of his prayer in his complaint petition.

Moreover on the date of hearing argument opposite parties are also absent without steps.

It also appears from the case record that opposite parties filed evidence on affidavit and written version but did not submit BNA when the case is taken up for final hearing.

So, thus Forum is in the opinion that the instant complaint case is not entertainable.

Hence,

it is

ordered

that the complainants case be and the same is dismissed on contest and no order as to costs.

Dictated and corrected by me.