| Final Order / Judgement | DATE OF FILING : 18.02.2016. DATE OF S/R : 01.04.2016. DATE OF ORDER : 07.04.2017. Shri Atanu Dey, son of late Prabir Dey, residing at Sibtala, Progotipalli, P.S. Moheshtala, Kolkata 700140……………..……………………….…………… COMPLAINANT. Muthoot Finance Ltd., represented by its Branch Manager, having its office at ground floor, 4, Mohalla Para Lane, P.S. Shibpur, District Howrah, PIN 711102. ……………………………………………………...OPPOSITE PARTY. P R E S E N T Hon’ble President : Shri B. D. Nanda, M.A. ( double ), L.L.M., WBHJS. Hon’ble Member : Smt. Jhumki Saha. Hon’ble Member : Shri A.K. Pathak. F I N A L O R D E R - This is an application U/S 12 of the C. P. Act, 1986 filed by the petitioner, Shri Atanu Dey, against the o.ps., Muthoot Finance Ltd., praying for a direction upon the o.ps. not to auction the gold ornaments and order for ascertain of the actual amount payable by the petitioner in favour of the o.p. by easy installments and costs of the proceedings.
- The case of the petitioner is that he is a business man residing at Sibtala, Progotipalli, P.S. Moheshtala, Kolkata 700140, and the o.p. is a financial institution with address at ( ground floor ) 4, Mollaha Para lane,P.S. Shibpur, The petitioner took total loan of Rs. 2,46,300/- from o.p. no. 1 against his pledged gold ornaments as a collateral security weighing 110.00 gms. on condition that the loan amount was payable by 12 monthly installments and he has already paid Rs. 1,64,595/-. However, due to financial stringency the petitioner could not pay the rest EMIs and requested the o.p. to extend the same.The o.p. granted loan of Rs. 2,46,300/-but the value of the gold ornaments was Rs. 3,30,000/-. The o.p. did not explain the terms of agreement of loan to the petitioner and his behavior was also changed when the petitioner did not pay the EMI.
- The petitioner received a letter from o.p. threatening him that unless the entire loan amount is paid by 12.2.2016, the gold ornaments belonging to the petitioner would be sold in auction. After receiving the notice the petitioner went to the o.p. and requested them to stay the auction sale and the same would be deficiency in service on their part as well as unfair trade practice. The o.p. did not pay heed to the words of the petitioner compelling him to file the case.
- The o.p. filed written version denying the allegations made in the complaint petition and stating that the complainant took loan from the o.p. by pledging his gold ornaments as a collateral security and as per terms of the loan agreement, the complainant failed to repay the loan amount. With a view to recover the loan amount, the o.p. issued demand notice dated 21.01.2016 to the petitioner but the complainant did not respond. Thereafter the o.p. was constrained to issue legal notice dated 21st January, 2016 to the complainant through counsel to collect the outstanding dues but again complainant did not pay any heed. In the legal notice, it was mentioned that if the applicant did not make the payment on or before 30th December, 2015 then the o.p. shall be constrained to sell / auction / dispose of the pledged ornaments in the public auction which would be conducted on 13th February, 2016 even if the complainant after receiving the notice failed to pay the dues. The relationship between the petitioner and the o.p. is a ‘Pawnor’ and ‘Pawnee’. The petitioner pledged the gold ornaments as collateral security for the purpose of securing the repayment of a loan availed by him from the o.p. company, which is a non banking finance company, registered under the Reserve Bank of India under Section 176 of The Indian Contract Act, 1872 which provides as under “176. Pawnee’s right where pawnor makes default. If the pawnor makes default in payment of the debt, or performance; at the stipulated time or the promise, in respect of which the goods were pledged the pawnee may bring a suit against the pawnor upon the debt or promise, and retain the goods pledged as collateral security; or he may sell the things pledged, on giving the pawnor reasonable notice of the sale.” So the case against them be dismissed.
- Upon pleadings of parties the following points arose for determination :
- Is the case maintainable in its present form ?
- Whether the petitioner has any cause of action to file the case ?
- Whether the case is barred by waiver estoppels etc ?
- Whether there is any deficiency in service on the part of the O.P. ?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS : - In support of his case the petitioner, Atanu Dey, filed affidavit as well as documents and the o.p., Muthoot Finance Ltd., also files documents showing such loan in favour of the petitioner on 30.12.2014 being loan amounting to Rs. 2,46,300/-. From the terms and conditions of the agreement it is noticed that the loan amount along with interest is payable on demand made by the company and even if no demand is made then the loan is to be repaid with interest within 12 months. In case of value of gold ornaments as collateral security comes down the borrower has to repay immediately the amount demanded by the company as noticed from the terms and conditions. From the terms and conditions it is further noticed that in case the loan amount together with interest is not repaid within the due date or earlier as demanded by the company, the company has the right to initiate legal proceeding and sell the gold ornaments in auction with prior notice and set off the amount so received towards the loan amount, interest and other charges. If the amount thus recovered is insufficient to cover the amount, the shortfall be recovered from the borrower personally or from his other personal assets. It is also noticed from terms and conditions mentioned in the agreement that the company shall be entitled to retain the gold ornaments as a bonafide holder of the said ornaments till the borrower has not performed his promise to repay the loan amount. In the loan agreement there is signature of both the branch managers as well as this petitioner, Atanu Dey. Thus keeping in mind the terms and conditions of the loan agreement as laid down in the body of the said agreement this Forum finds that within 30.12.2015 the petitioner ought to have repaid the loan with interest and to get back the gold ornaments given as collateral security or he would have paid interest for renewal of the loan period. But he failed to do so. Thus, in the instant case if the petitioner had repaid the loan with interest within the time mentioned then there was no question for o.p. to send legal notice. However, This Consumer Protection Act, 1986 being a legislation looking after the interest of the consumers providing better protection of their interest and thus in the instant case this consumer though has not made even a single payment of installments yet the Consumer Forum cannot dismiss his case without directing him or rather giving him a chance to repay the loan with interest as per terms and conditions of the agreement between this consumer and the service provider. So the petitioner would be entitled to the relief as prayed for. In the instant case, the petitioner prayed for a direction upon the o.p. to return the gold ornaments pledged by the petitioner as collateral security and also prayed for determination of the interest as per law payable by the petitioner to the o.p. and compensation and costs. As the petitioner got the relief through waiver by o.p. so he succeeds in proving the case and he would pay the loan with interest as would be determined by the o.ps. as per terms of the loan agreement.
In the result, the application succeeds. Court fee paid is correct. Hence, O R D E R E D That the C. C. Case No. 77 of 2016 ( HDF 77 of 2016 ) be and the same is allowed on contest without cost against the o.ps. considering the facts and circumstances of the case. The petitioner is entitled to the other relief as prayed for and the o.p., Muthoot Finance Ltd., is directed to determine the amount of loan with interest due from the petitioner after deduction of the payment if at all made by the petitioner and the o.p. is to do the same within one month from the date of this order and the petitioner would repay the amount within another two months from the date of such determination of loan amount with interest. On payment of the total loan with interest the petitioner would get back his pledged ornaments from the o.p., who would deliver the said ornaments to the petitioner within seven days from the date of full payment of loan with interest. Considering the circumstances of the case no order is passed as to compensation. If any of the parties fail to comply the final order then the other party would have liberty to put this final order in execution after the expiry of the stipulated period mentioned in the final order. Supply the copies of the order to the petitioner, free of costs. DICTATED & CORRECTED BY ME. ( B. D. Nanda ) President, C.D.R.F., Howrah. | |
