Order-14.

Date-16/07/2018.

Smt. Sangita Paul, Member

Complainant, by filing this case states that Complainant had deposited gold weighing 21.6 grams and availed loan on 28.07.2016 from the OP. Again on 03.08.2016 Complainant had deposited gold 110.8 grams and had availed loan. On 20.08.2016, Complainant had deposited gold weighing around 08 grams and availed loan. Finally on 24.08.2016, Complainant had deposited weighing 7.8 grams and had availed loan from the OP.

            On all occasions, Complainant had executed separate loan agreements and other relevant documents related to loan. At that point of time, he did not bother to ask for the executed documents. On repeated occasions, Complainant visited the office of the OP and verbally  prayed for the executed documents. Since he was unaware of the repayment  of loan, he was in great anxiety and tried to convince the OP to handover the repayment schedule, such that payment can be made on due time.

            On 27.10.2017, Complainant received four separate notices dated `13.10.2017, wherein it has been specifically stated that since Complainant had defaulted in making payment of the outstanding amount, the OP shall put  the security on auction sale and fixed the auction sale on 13.11.2017. Complainant stated that Complainant had no  intention to commit default in making payment of loan amount, since the OP, in spite of repeated requests had not supplied with documents, so the Complainant was not aware of repayment schedule and could not pay. Complainant went to the office and he was informed that due to non-payment of the outstanding amount, such notice was issued. Complainant has hired a service by availing of loan. OPs are deficient, but they failed, adequate service was provided to Complainant. For the gross negligence on the part of the OP,  Complainant has been adjudged a defaulter. It was the duty of the OP to supply all the documents including agreement and repayment schedule relating to loan availed by Complainant.

            Complainant is entitled to compensation for mental agony and physical harassment suffered by him for the deficiency in service of the OPs. Complainant states that on 13.10.2017 the OP has served the auction sale notice to Complainant. Complainant is well aware of the period of limitation as specified under the relevant provisions of Consumer Protection Act, 1986. Unless orders as prayed for herein are passed, Complainant shall suffer irreparable loss and injury.

            Complainant prays for directing the OPs to show cause as to why they should not be liable for deficiency in service, directing the OPs to supply all relevant documents including copy of agreement  and repayment schedule relating to loan availed by Complainant, directing the OP to pay to Complainant Rs.1,00,000/- towards compensation for mental agony, physical harassment and anxiety.

The OP in their Written Version states that the Complainant is guilty of suppression, misrepresentation and distortion of material facts. The allegations levelled against the OP which is a law abiding entity are concocted, vexed and misleading. The Complainant has malafide intentions of filling this application with false and frivolous allegations against the OP. The OP denies and disputes every allegation made and disputes every allegation made in the said application. The OP states that at the outset this application is not maintainable as the Complainant while framing this application has not come with clean hands. This application is not maintainable and dismissed with heavy cost on the Complainant due to non joinder and rejoinder  of parties and the actual cause of action rose in B.T.Road Branch of the OP and the Complainant has wilfully and with clandestine design has filed this Application before this Learned Forum without making the OPs necessary parties. All the statements and / or allegations and / or contentions made in the complaint are false and untrue. The OP is the Creditor of the pledged gold articles as described in the said application and the Complainant has no right, title or interest whatsoever in the pledged gold as has been wrongfully claimed or otherwise. The OP further states that the instant matter is governed by the Principals laid down U/s 172-176 of the Indian Contracts Act, 1872 and the relation of the Complainant and the OP is that of the Pawnor and that of a Pawnee The OP has every right to sell the pledged article for the realization of the claimed amount, if the Complainant fails to repay the loan amount U/s 176 of the Contracts Act, 1872 and to that effect the OP has followed the due process of law. The pledged gold articles is in the exclusive possession and the OP shall have the exclusive right title interest over the property. OP States that the Complainant never mortgaged the said gold but willingly and after understanding all the terms and conditions and the consequences thereto has availed the loan facility by pledging some gold ornaments. Complainant knows 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. Complainant had accepted the terms and conditions by putting his sign, seal, and signature after reading, understanding the same the detail of which are as follows .

            It is pertinent to mention here that the Complainant has explicitly admitted the fact that he has defaulted in repaying the loan amount along with the accrued interest within the agreed period of time i.e. 12 months before the said loan account got expired due to the lapse of the tenure of the loan and has now come with this mellow drama before this Learned Forum about his gold being pledged from various sources. The OP further states that the Complainant has secured the Gold Loan by pledging the Gold and after availing  the loan facility and enjoying the Amount, have come up with this false and frivolous case just to evade and avoid the auction process.

            It was pre decided and vividly mentioned in the loan agreements that the tenure of the loan was for 12 months only and the fact that the Complainant did not have any knowledge in terms of the Repayment.

            It is the ardent duty of the Complainant  / Borrower to look into the application form, which he did and secured the loan enjoyed the same and after enjoying the same, without paying a single penny as interest have just come up with an alibi of consumer deficiency  services just to gain sympathy from this Ld. Forum.

Decision with Reasons

            We have perused complaint petition, written version, papers regarding sanction of loan, reply to show cause, photocopy of notice addressed to Complainant and other documents lying on record. Complainant availed loan by depositing gold ornaments. He deposited gold weighing 21.6 grams and availed loan on 28.07.2016 from the OP. Again on 03.08.2016 Complainant had deposited gold 110.8 grams and had availed loan. On 20.08.2016, Complainant had deposited gold weighing around 08 grams and availed loan. Finally on 24.08.2016, Complainant had deposited weighing 7.5 grams and had availed loan. Complainant executed separate loan agreements. He never knew the conditions of repayment of loan. Complainant tried to convince the OP to handover the repayment schedule for making payment. But Complainant failed to produce the evidence that he knocked at the door of the OP for repayment schedule. Complainant received four separate notices on 17.10.2017. In the notice it was written that since `Complainant was unable to repay the loan, the OPs shall put the security on auction sale on 13.11.2017’. OP has legal right to initiate legal proceeding against Complainant because Complainant, knowing full well, signed the papers of securing loan. The original loan was secured way back in August, 2016, but after a lapse of considerable period, Complainant has failed to repay the loan amount against which the gold ornaments were pledged.

            The OP further states that being the Pawnee, the OP has every right to auction the pledged gold after giving sale notice, sine the OP has the exclusive title and interest of the said gold, the OP has every right to sell the pledged gold. Complainant filed the interim application before filing the case. Interim application No.MA280117 was filed on 8^th November,2017. The case was admitted on 12.12.2017, but the interim application was not moved. The case was heard finally  on 120.06.2018. After the disposal of the case, the disposal of interim petition does not arise.

            It appears from the record that Complainant was served notice for the pledged gold twice, but Complainant failed to answer their reminders. Complainant has neither settled nor closed the loan account. Neither he cleared the loan nor he contacted with the OP on dates of the case. Complainant was told to pay the up- to-date   interest and renew the account. He was also given a time of seven days by the OP. The date of the first auction sale was given on 13.11.2017, the date of second auction sale was given on 23.11.2017 still Complainant failed to contact with the OP. Complaint was admitted on 12.12.2017, on 31.01.2018, 16.02.2018, 23.03.2018, 19,.04.2018 10.05.2018 and also on the date of hearing Complainant remained absent. The conduct of the Complainant does not prove that Complainant wanted to settle the matter with OP. No petition was filed to that effect.  On the date of final hearing, Complainant failed to tender his presence and establish his point. The Complainant neglected to answer the OP’s reminders. Complainant took no initiative to recover his gold, by giving the principal amount and interest.

            In a reply to show cause filed on 25^th January, 2018 Complainant stated that he was eager to settle the issue and had approached the Ld. Lawyer of the OP to work out on easy instalment for repayment of the outstanding dues.

            After understanding the terms and conditions and consequences, Complainant has availed the loan facility by pledging some gold ornaments knowing fully well that the said pledged gold can be utilized for realization of the loan amount along with accrued interest and other charges  in case of default by Complainant.

            Complainant, upon his willful intent pledged his gold to the OP and has secured loan from the OP only upon reading terms and conditions of the pledge form. Upon understanding the same he has put his signature.  All the terms and conditions are mentioned in the borrower’s copy.

            If the Pawner makes default in payment in respect of the pledged gold, Pawnee may retain the goods pledged or he may sell the goods. Complainant never contacted with the OP, he never talked to them for settlement. At the time of proceedings, Complainant got ample opportunity to talk about settlement in this regard. The version of the OP remained unchallenged. Complainant availed of loan by pledging gold. Complainant failed to repay the loan and recover his gold. On 13.10.2017, Complainant was served an auction notice by the OP. The date of second auction was also mentioned as 23.11.2017. Complainant could return no amount to repay the loan and recover the gold ornaments.

            Complainant  was aware of the terms and conditions, still he availed loan from the OP by pledging gold. It remains clear that Complainant’s earnest duty is to repay the loan.

            In Revision Petition No.423 of 1996 Standard Chartered Bank Vs  P.N.Tantia case, Hon’ble NCDRC declared that no material was placed on record by Complainant  in support of their case that they suffered loss, if any, on account of  alleged improper sale of shares by the Bank. Hon’ble NCDRC set aside the order passed by the State Commission and the District Forum and dismiss the complaint of Complainant.

            Yogendra Nayyar Vs Branch Manager, State Bank of India, the Hon’ble State Commission, Orissa, Cuttack in FA No.864 of 2005 states, the OP caused no wrong in selling away the pledged gold, sale of the pledged gold by the OP is justified since Complainant has failed to repay the loan dues as per terms of agreement. Therefore, the appeal is dismissed on contest without cost.

            In the present case, Complainant failed to repay the loan, which he availed by pledging gold. The OP served notice informing Complainant to turn up at the office of the OP and repay the loan. On 13.10.2017, an auction notice was also served upon Complainant, Complainant did not turn up. We find no deficiency and negligence on the part of the OP.

In result, the complaint fails

Hence,

Ordered

That the case be and the same is dismissed on merit. No order as to cost.