KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL 128/2010
JUDGMENT DATED 30.03.2011
SMT. VALSALA SARANGADHARAN : MEMBER
SHRI. S. CHANDRA MOHAN NAIR : MEMBER
APPELLANT
K.V. George,
Kollemkunnel House,
Valiyathovala P.O.,
Idukki District.
( Rep. by Adv. Sri. Narayan R.)
Vs
RESPONDENT
The Manager,
Muthoot Finance Ltd.,
P.M.E. Towers,
Ist Floor, Nedumkandam,
Padinjarekavala B
Idukki.
(Rep. by Adv. Sri. C.S. Rajmohan)
JUDGMENT
SMT. VALSALA SARANGADHARAN ; MEMBER
This appeal is preferred against the order dated 30.10.2009 of CDRF, Idukki in C.C. 56/2009. The complaint was filed by the appellant herein as complainant against the respondent as opposite party. The Forum below restrained the opposite party from realizing further amount in the name of gold loan from the complainant. In the appeal the complainant has sought for a direction to pay compensation by the opposite party for the unfair trade practice committed by them in auctioning the gold ornaments without proper notice.
The case of the complainant is that he availed a gold loan from the opposite party on 9.3.2007 for Rs. 74,700/- by pledging 95.700 grams of gold. The agreed rate was 12% interest per annum and 3 months interest was taken as advance. The complainant could not pay the interest because of the failure in Agriculture. In December 2008, the complainant approached the opposite party for settling the loan. But they claimed Rs. 1,11,145/- The complainant was not in a position to settle the loan. He sent a legal notice to the opposite party for which the O.P. had given a reply. In the reply the O.P. stated that, part of loan amount was recovered by the sale of gold ornaments pledged by the complainant and the balance of Rs. 19,286/- is due from the complainant. The complainant had not received any auction notice from the opposite party. Hence alleging deficiency in service and unfair trade practice on the part of the O.P. he filed complaint before the Forum.
The opposite party filed written version and contended that as per the undertaking with the opposite party, they have the right to realize the amount by disposing the pledged ornaments. Moreover the complainant failed to renew or close the loan on or before 9.6.2007 as agreed. On 26.3.2008 they issued auction notice under registered post and the complainant requested time up to 5.12.2008 for closing the loan. After the expiry of that period the opposite party realized the outstanding loan partly by the sale of pledged ornaments on 9.12.2008 and received a sum of Rs. 91, 859/- They further submitted that Rs19,286/- was due from the complainant.
The evidence adduced consisted of the oral testimony of Pw1, Dw1 and Exts. P1 to P4 and R1 to R3 series.
We heard the learned counsel for both sides. The learned counsel for the appellant/complainant submitted that respondent/opposite party auctioned the gold ornaments pledged by the complainant without giving proper notice and without remitting the fixed sale tax for the same and it amounts to unfair trade practice and goes against the principles of Banking procedures. Moreover the respondent/opposite party has not produced any record for the amount received by the sale of gold ornaments. Even though the Forum below directed the respondent/opposite party not to make any other claim for getting the balance amount, there was no order to pay compensation to the appellant/complainant. So he filed the present appeal. Thus he requested for allowing the appeal.
On the other hand the learned counsel for the respondent/opposite party argued before us that the respondent conducted the auction after giving notice to the complainant and as per the undertakings with the respondent/opposite party, in the event of failure to repay the agreed interest, the respondent will have the right to raise the amount by selling the pledged ornaments in auction and on 26.3.2008, they issued auction notice by registered posts and the complainant requested time up to 5.12.2008 for closing the loan and only after the expiry of that period, the respondent realized the outstanding loan partly by selling the pledged ornaments. He further submitted that a sum of Rs. 91,859/- was received through selling the gold by auction and Rs. 19,286/- was the balance amount that the complainant has liable to pay. Pleading that there was no unfair trade practice or deficiency in service on the part of the opposite party he prayed for the dismissal of the appeal.
On hearing both sides and on perusing the records, we find that the complainant/appellant has availed a loan from the opposite party on 9.3.2007 for a sum of Rs. 74,700/- by pledging 95.700 grams of gold and the agreed interest rate was 12% per annum from the date of loan and the respondent has taken 3 months interest in advance. It is also admitted by the appellant/complainant that he could not remit the interest, due to the failure in agriculture and when he approached the opposite party for settling the loan in December, 2008, total amount with penal interest and risk interest was informed to be a sum of Rs. 1,11,145/- which the complainant could not pay. We also find that in the reply, of the opposite party to the legal notice sent by the complainant, it was stated that the amount due to the opposite party was recovered by the sale of the pledged gold ornaments and still a sum of Rs. 19,286/- was due from the complainant. The learned counsel for the appellant argued before us that the said action of the opposite party in selling the gold ornaments without proper notice and complying the formalities as stipulated in Ext. P4 is deficiency in service. He has also submitted before us that the respondent/opposite party may be directed to return the gold ornaments weighing 95.700 grams or in the alternative to pay the value of it with compensation. It is to be found that the complainant has pledged gold ornaments on 9.3.2007 for a sum of Rs. 74,700/- and the opposite party had sold the gold ornaments for the realization of their dues. Though the counsel for the respondent/opposite party
vehemently opposed the contentions of the appellant we find that Ext. R3(a) and R3(b) the postal receipts will not support the case of the opposite party that proper notice was issued as the copy of the notice is not produce before the Forum. The appellant /complainant has objected to the said documents. It is observed that the appellant/complainant has produced Ext. P4 which contains the formalities to be complied with before the sale of gold ornaments that are pledged by the parties.
The Forum below has found that the opposite party has not produced any records complying with the said formalities. However it is also seen that the complainant has not remitted any amount towards interest for the loan availed by him by pledging gold ornaments. As the opposite party has sold the gold ornaments only course available to us is to direct the respondent/opposite party to return gold ornaments weighing 95.700 grams or it’s value at the present rate on condition that appellant/complainant pays the principal amount of Rs. 74,700/- with interest at 12% per annum from 9.6.2007 till payment. Considering the facts and circumstances of the case we find that the complainant is not eligible to get any compensation as he was a defaulter in remitting the interest in time.
In the result the appeal allowed in part. Thereby the order of the Forum below is modified to the effect that the respondent/opposite party is directed to give gold ornaments weighing 95.70 grams or in the alternatives to pay it’s value at the present rate provided the complainant pays Rs. 74,700/- with interest @ 12% per annum from 9.6.2007 till payment. As far as the present appeal is concerned, there shall be no order as to costs.
VALSALA SARANGADHARAN ; MEMBER
S. CHANDRA MOHAN NAIR ; MEMBER
ST
