Delhi

New Delhi

CC/205/2012

Ganesh Kumar - Complainant(s)

Versus

M/S. The Muthoot Finance Ltd. - Opp.Party(s)

03 Sep 2019

ORDER

 

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTRICT NEW DELHI,  M-BLOCK, 1^ST FLOOR,

VIKAS BHAWAN, I.P. ESTATE. NEW DELHI-1100001.

 

C.C.No. 205/2012

 

Sh. Ganesh Kumar,

S/o Late  Sh. N.R. Lingum,

R/o LPT 322, Sarojini Nagar,

New Delhi-110006.

….Complainant

                Vs.

 

The  Muthoot Finance Ltd.,

Through The Branch Manager,

Branch Office at: A-6,

Above Post Office,

Connaught Place, New Delhi-110001.

Opposite Party

 

ARUN KUMAR ARYA, PRESIDENT

 

O R D E R

 

The complainant has filed the present complaint against the OP under section 12 of Consumer Protection Act, 1986. The brief facts as alleged in the complaint are that the complainant obtained a loan for a sum of Rs.1,92,000/- from the branch of OP after pledging the gold ornaments weighing 142 grams  as collateral security.  Due to some unavoidable circumstances, the complainant was unable to pay the loan amount in time and in default, he received a notice dt. 5.7.2011 from the OP Co.  After receiving the notice, complainant immediately approached OP and sought some more time to pay the loan amount. The complainant despite his best efforts, could not arrange sufficient fund to settle his Loan Account as such and sought further  time but instead of considering his request OP sent him a Legal Notice dt. 3.12.2011,  in which he was warned to clear the outstanding dues on or before 23.12.2011 otherwise, his ornaments would be auctioned/sell in public.  The complainant again approached the OP on 22.12.2011 to avoid any such auction of the pledged gold ornaments and request it to grant some time so that  he would arrange some funds and also requested to waive the interest amount.  But OP did not consider his request and demanded a sum of Rs.3,02,235/- i.e. (Rs.1,92,000/- loan amount plus Rs.1,10,235/- as interest) and asked him to pay the same by 23.12.2011. 

2.     The complainant came to know that the OP Co. has sold out his pledged gold ornaments in a public auction and even did not refund him the balance amount after deducting the loan amount in question, being aggrieved by the attitude of OP, the complainant sent a Legal Notice dt. 3.1.2012 but no reply has been received till date from the OP Co., hence this complaint.

3.     Complaint has been contested by the OP.   In its written statement OP has not disputed that the loan referred above was availed by the complainant.  As per the terms of said loan, the complainant had pledged gold ornaments as a security.  But the complainant had failed to repay the said loan and had committed defaults.  OP Co. had sent demand notice dt. 1.10.2010, 5.4.2011 and 5.7.2011 to the complainant to repay the above said loan but complainant did not respond to the said notice.  Moreover, the OP Co. had issued a legal notice dt. 3.12.2011 to the complainant  in which it was specified that in case the complainant did not make the repayment of loan on or before 23.12.2011, then OP Co. had no other option but to auction/sell the pledged ornaments in public auction being conducted on 24.12.2011.  However, despite the said notice, the complainant failed to repay the outstanding dues.  As such the OP. Co. was constrained to sell/auction the said ornaments in the public auction and adjusted the realized amount against the outstanding dues.    It is submitted the complainant has not come before the Forum with clean hands and has tried to mislead the Forum with false averments.  It is stated that the complaint is not maintainable and is liable to be dismissed. It is further submitted that the present complaint is involves intricate, complex and complicated questions of law, therefore be referred to Civil Court .  

4.     Both the parties have filed their evidences by way of Affidavits.

5.     We have heard the arguments advanced at the Bar on behalf of parties.

6.     Perusal of the present complaint shows that the case involves the complicated question of facts on various issues.  It is alleged by the complainant that although he had not repaid the loan amount in question but he is entitled for the balance amount after satisfying the loan amount in question from the auction money. On the other hand, it is stated on behalf of  OP that on the date of auction the total amount due was Rs.3,02,637/. The pledged ornaments were auctioned at the best offered price and a sum of Rs.2,79,406/- was realized from the said auction.  After adjusting the auctioned proceeds further a sum of Rs.23,231/- is still due and payable.   It is very difficult for us to verify the actual price of ornaments at the time of auction and come to the conclusion as to whether the OP had sale the ornaments at a lesser price then its market value or whether the complainant is entitled for any residue after adjusting the auctioned proceeds in the summary proceedings, the same can be verified by the adducing the evidence which is not possible in the present summary proceedings.  All the issues referred herein required elaborate evidence which cannot be dealt in summary proceedings by the District Fora.

7.     It is apparent that the complainant is asking for the relief which require lengthy evidence and cross-examination.  The cross-examination of witness is life blood of legal system.  The trustworthiness of a witness can only be examined in cross-examination.  The Civil Court not being a summary trial court can easily go the root of every problem.  Admittedly, the Consumer Forum deals with the complaint in a summary proceeding, where cases involve a great deal of evidence, the same cannot be adjudicated upon by the Forum & for which the party concerned has to approach the civil court where elaborate procedure including recording of evidence is followed.

8.     In case titled Punjab Lloyd Ltd. Vs Corporate Risks India Pvt. Ltd. (2009) 2 SCC 301, it was held that the complicated question of law should be decided by the regular court. It further held that the decisive test in not the complicated nature of question of fact and law arising for decision. In another case titled LIC & Ors. Vs Surinder Kaur & Ors. Civil Appeal No.5334 or 2006 (Arising or of SLP (c) No.17866 of 2005) decided by Hon’ble Supreme Court of India on 01.12.2006, it has been held that complex question of facts cannot be decided by the consumer forum under the Consumer Protection Act and such arises can be subject matter of regular Civil Court.

9.     In view of the above, we are inclined to hold that that the present complaint involves complicated questions of facts as well as law regarding the alleged loss in question.  The issues raised in the present complaint required elaborate oral and documentary evidence and the examination of the witnesses for the proper disposal of the matter.  The proper forum for adjudication of the present complaint is Civil Court.  Consumer Protection Act being the special Act where only summary proceedings are taken up and as such the adjudication of the present complaint is beyond the scope and jurisdiction of this Hon’ble Forum, hence the present complaint is dismissed with liberty to the complainant to approach the Civil Court as per law. So far as the question of limitation is concerned, complainant can take advantage of the decision rendered in Laxmi Engineering Works Vs. P.S.G. Industrial Institution 1995 (3) SCC 583.  

A copy of this order each be sent to both parties free of cost by post.  Orders be also sent to www.confonet.nic.in. File be consigned to record room.

Pronounced in open Forum on03/09/2019

 

(ARUN KUMAR ARYA)

PRESIDENT

(NIPUR CHANDNA)                                           (H M VYAS)

       MEMBER                                                         MEMBER