DATE OF FILING : 05.05.2016.
DATE OF S/R : 13.06.2016.
DATE OF ORDER : 06.03.2017.
Shri Prasad Ch. Paul,
son of late Narendranath Paul
of village & P.O. Jadurberia, P.S. Uluberia,
District Howrah……………..…………………………….…………… COMPLAINANT.
- Muthoot Finance Ltd.,
Branch Manager,
Ram Charan Sett Road, Ramrajatala,
Howrah 711104.
- Muthoot Finance Ltd.,
Muthoot Chamber, Banerjee Road, Kochi,
Kerala 682018………………………………………...OPPOSITE PARTIES.
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 complainant, Shri Prasad Ch. Paul, against the o.ps., Muthoot Finance Ltd., praying for a direction upon the o.ps. to return the pledged gold ornaments or to refund the value of the pledged gold ornaments and to determine the rate of interest as per law and to pay Rs. 2,00,000/- as compensation for mental agony and harassment and Rs. 25,000/- as litigation costs.
- The case of the petitioner is that on 14.2.2014 he took total loan of Rs. 5,13,200/- from o.p. no. 1 with loan a/c nos. MSL 19911, MSL 19912 & MIL 67 against his pledged gold ornaments as a collateral security and paid interest upto July, 2015. The o.p. informed the complainant through advocate on 21.01.2016 for paying the outstanding of loan with interest as a last chance. Thereafter complainant sent a reply letter dated 08.02.2015 by speed post to the advocate of the o.p. requesting them to allow him time for repayment of his dues. On 12.02.2016 complainant sent an a/c payee cheque for Rs. 27,117/- dated 12.2.2016 in favour of o.p. and requesting the branch manager of o.p. to send total dues lying in his loan accounts but the o.p. did not settle the balance amount of loan. Complainant visited the o.p. company on several times and requested the o.p. to settle the loan amount with a view to return his pledged gold ornaments by paying the outstanding loan amount with interest. But the o.p. authority did not pay any heed to his request. Being frustrated and finding no other alternative, complainant filed this instant complaint with the aforesaid prayers.
- The o.ps. filed written version denying the allegation made in the complaint petition and stating that the complainant took three loans from the o.ps. as per terms of the loan agreement by pledging his gold ornaments as a collateral security but the complainant failed to repay the loan amount. With a view to recover the loan amount, the o.p. issued demand notice dated 17th December, 2015 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 12th February, 2016 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.Ps. ?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
- In support of his case the petitioner, Prasad Ch. Paul, 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 14.2.2014 being three loans amounting to Rs. 5,13,200/-. 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 no. 13. From terms and conditions no. 14 it is 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 term no. 19 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 all such loan agreement there is signature of both the branch managers as well as this petitioner, Prasad Ch. Paul. 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 14.02.2015 the petitioner ought to have repaid the loan with interest and to get back the gold ornaments given as collateral security. But he failed to do so. However, the o.p. also accepted the interest from the petitioner till 12.02.2016 and thus the o.p. has waived his right to take action against the petitioner. Once a person waives his right then he cannot claim the same right later on because waiver; voluntary relinquishment or intentional abandonment of a known right, benefit privilege or advantage, which but for waiver the party could have enjoyed. Waiver may be expressed or implied by conduct. In the instant case the o.p. bank was well concerned and fully informed of the right laid down in the loan document and with full knowledge has accepted the interest even after the expiry of the period and thus the o.p. bank intentionally abandoned their right. Our Supreme Court in the case of Associated Hotels vs. S.B. Sardar Singh AIR 1968 SC 133 and also in the case Shrikrishnadas v State AIR 1977 SC 1691 and in many a later cases expressed the same view. Thus after a person has waived his right he cannot assert the right already waived and the court also cannot give him relief. Thus, in the instant case if the petitioner repay the loan with interest within the time mentioned by Forum then 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. 168 of 2016 ( HDF 168 of 2016 ) be and the same is allowed on contest without cost against the o.ps. considering the circumstances of the case.
The petitioner is entitled to the other relief as prayed for and the o.ps., Muthoot Finance Ltd., who are directed to determine the amount of loan with interest due from the petitioner after deduction of the payment already 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.
