DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C.C. No.  524/2017

Date of Filing:-                        Date of Admission:-                     Date of Disposal:-

           09.10.2017                                   09.10.2017                                      28.08.2023

P R E S E N T                :-   Smt. Monisha Shaw..………… Member.

                                         :-   Sri.  Abhijit Basu…. …………. Member.

JUDGMENT/FINAL ORDER

The Complainant filed this Complaint u/S. 12 read with Section 13, 14 of the Consumer Protection Act, 1986.

The brief facts of the case is complainant taken gold loan from O.P. The O.P. is a finance company and it carries on business of financing the amount under different policies including Gold Loan. On urgent need of money in the last part in the year 2014, the O.P. approached the complainant for loan. The O.P. agreed to make payment under Gold Loan Scheme and instructed the complainant to bring gold ornaments. Accordingly, Complainant took the gold ornaments like bangle (nine in number), one chain button and four chains (total gross weight of which were 197=5 gm and net weight were 1885 gm) and handed over to the O.Ps. The O.P. upon taken the gold ornaments from Complainant asked to put signature in printed forms and considering the urgent need of Complainant without gone through the printed forms on good faith Complainant put his signature as per direction of the O.P. No. 1. The O.P. No. 1 assured that final agreement would be handed over to the Complainant latter. The Complainant put his signature in payment voucher at the direction of O.P. No. 1 and an amount of Rs. 3,46,000/- was disbursed in favour of the Complainant and the customer copy and payment voucher were issued by O.P. But no agreement was made between them as assured earlier. The Complainant paid an amount of Rs. 7,000/- on 02.06.2016 by cash, Rs. 7,000/- by cash on 31.05.2016, Rs. 7,000/- by an Account payee cheque dated 13.06.2016, Rs. 7,000/- by an Account Payee Cheque dated 13.06.2016 and Rs. 7,000/ by an Account Payee Cheque dated 13.06.2016. All drawn on State Bank of India, Belgachia, Dutta Bagan, Milk Colony Branch. The Complainant suffering various ailment and the Complainant informed the O.P. No. 1 about his change of present residence. The Complainant further issued cheque bearing no. 443761 dated 31.01.2017 of Rs. 6,500/-, Cheque bearing No. 443762 dated 05.02.2017 of Rs. 6,500/-, Cheque bearing No. 443763 dated 15.02.2017 of Rs. 6,500/-, Cheque bearing No. 443764 dated 22.02.2017 of Rs. 6,500/-, all drawn on Punjab National Bank. On being updated with account of Complainant found that the aforesaid cheques were not encashed by O.P. 1. Then the Complainant went to the office of O.P. No. 1 to know the reason for non-encashment of such cheques but the O.P. deferred the matter. The Complainant sent letter on 13.04.2017 along with another cheque of Rs. 6,500/- beaing No. 443790 dated 13.04.2017. Thereafter, Complainant requested the O.P. for issuance of an official account statement but in vain. The O.P. No. 1 representative of O.P. No. 2 threatened the Complainant on 22.09.2017 that they will sell out the gold ornaments in favour of third person and in case of failure to make payment of double amount. Hence, the Complainant filed this complaint.

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           C.C. No.  524/2017

The complainant is within the territorial and pecuniary jurisdiction of this Forum, hence this Forum/Commission has ample power to try this case. The O.P. appeared and filed written version. In W/V, O.P. stated that there is no territorial jurisdiction of this Forum. O.P. stated that no transaction was made at Barasat Branch. Though the Complainant submits all ornaments deposited at Barasat Branch. It is also stated in W/V that an application of interim order for restoration of electric connection was sent as notice. It is also stated by O.P. that Complainant has failed to make payment of outstanding amount despite of reasonable opportunity being given and notices were served upon Complainant. Loan was taken for a personal reason and cannot be treated under the ambit of domestic consumer. The O.Ps. admitted that the said gold were received by O.Ps. and sanctioned loan. The O.Ps. also admitted that he sanctioned loan. The O.Ps. also admitted that he sanctioned loan of Rs. 3,46,000/- vide Loan Account No. 000059 dated 17.11.2014 under the FLEXI BALANCE ACCOUNT. the O.Ps. stated that the loan was for a period of 12 months in 12 installments. The O.Ps. submit that the Complainant defaulted the repayment of loan. The O.P. submits that Complainant willfully overlooked and upon getting up the notice of Auction has came up the stories.

The O.Ps. stated in W/V that they directed to pay all cheuqes in one cheque.

The Complainant submits that no auction letter was sent by the O.P. and/or no auction letter was received by the Complainant.

The O.Ps. were absent at the time of hearing of argument. Hence, the case is heard ex-parte at the time of argument.

 Following issued were framed for the purpose of decision:-

1. Whether the complaint is maintainable or not?

2. Whether the Complainant is entitled to get relief/reliefs in this case.

Reason for Judgment:-

Considering the facts and circumstances of the case as well as nature and character of this case all the prints are interlinked with each other and as well as all the points are taken up together for consideration for the sake of brevity and conveyance.

On perusal of materials along with the supporting affidavit relied to documents available in the case record as well as hearing of argument made by the Ld. Advocate for Complainant and the written version of the O.Ps. It revealed and admitted that Complainant received loan of Rs. 3,46,000/- by depositing gold ornaments gross weight of which is 197=5 gm and net weight of which is 1885 gm. It is not clear by the O.P. in W/V that whether the auction sale of gold was made or not. As per several High Court observation it is revealed that “Notice is required to be served upon the defaulter calling upon the defaulter to pay certificate amount within 15 days from the date of service of notice. It means the notice has to be personally served on defaulter.” (Telengana High Court W.P. 28105 of 2019).

The Ld. Advocate for Complainant relied upon the Judgement of Hon’ble NCDRC, Revision Petition No. 382 of 2021, Hon’ble  Kerala SCDRC Appeal No. 314/2006, Hon’ble NCDRC Revision Petition No. 1835/2013, Hon’ble Kerala High Court – (W.P. – (C)) No. 30611 of 2010, observation of Hon’ble Telengana High Court and Hon’ble Supreme Court of India Civil Appeal No. 4558/1991.

We gone through all observations of said Hon’ble Courts. We are in view that when Bank or any financial organization is resorting to public auction, it is bound to follow the correct procedure i.e. 30 days notice to the borrower is mandatory. If the requirement are not followed, the entire procedure will be fraulty, is the dictum. Many branches of O.Ps. are within the territorial jurisdiction of this Commission. It is also our view after perused of the record does not anywhere show that a notice was issued to the Complainant prior to the auction to have give an opportunity to him to exercise the option whether the participate in the auction or not. This is against the principles of natural justice and Audi Alterm Partem.

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           C.C. No.  524/2017

Hence, the conduct of the Finance Company is auctioning the gold without prior notice to the Complainant amounts to unfair trade Practice. It is also pertinent to mention the observation of Hon’ble NCDRC Revision Petition No. 382/2021 that “Finance Co. auctioned his gold jewels without specific prior notice on information to Complainant – Thus, State Commission instead of directing appellants to return jewels weighting 44=40 gms, they are directed to pay value of jewels, as on date of order, to respondent/ Complainant and also to pay compensation for mental agony caused to Complainant”. O.Ps. could not prove that notice is satisfactory served upon Complainant for auction.

Considering the above facts and circumstances we are in view that the propr notice for auction was not served properly upon Complainant without serving proper notice none can auction the gold jewellery.

As the Complainant take loan by depositing their gold ornaments. Hence Complainant is a consumer and Opposite Parties are service provider as he issued vouchers for receiving gold ornaments, so Opposite Parties are service provider. If Complainant falls to repay the instalment in that event O.P(s) are liable to serve notice to the Complainant for payment of loan amount i.d. auction the gold jewelries positively, even personal service of notice is required.

The O.P(s) could not produce any poof for satisfactory service of notice upon Complainants regarding auction. O.P(s) are not agreed to return back the gold jewelleries to the Complainant. Complainant is agreed to deposit all dues after produce statement of accounts by O.Ps. But the Opposite Parties are disagreed to provide the statement of account and return back the gold jewellery is deficiency of service on the part of O.Ps. Even proper service or personal service of notice upon the Complainant for non-payment of dues or instalment or auction his/her articles is mandatory. When O.P failed to proper service of notice upon Complainant which will be treated as deficiency of service. In the instant case notice was not properly served upon Complainant which will be treated as deficiency of service.

Complainant deposited gold jewelries to Barasat Branch which is the territorial jurisdiction of this Commission. This case is within territorial and pecuniary jurisdiction of this Commission. Hence, this Commission has ample power to try this case. Complainant is prove his case so he is entitled to get relief.

Hence,

it is ordered,

            That the case being no. C.C./524/2017 be and the same is allowed on contest as the O.P. filed written version.

            The O.Ps. are directed to return the gold jewelry in question to the Complainant on receipt of entire loan amount along with interest as per guideline of R.B.I. with compensation and litigation cost of Rs. 20,000/- within three months from the date of this judgement. Alternatively, the O.Ps. shall pay the value of gold as per present market price as on the date of final order / judgment with compensation and litigation cost of Rs. 20,000/- on receipt of entire loan amount and interest as R.B.I. rules.

           It is also directed the O.Ps. to furnish the statement of account in details to the Complainant within three (03) months from the date of this judgement.

           Failing which the Complainant has liberty to file execution case as per Law.

            Let plain copy of this order be given to the parties free of cost as per CPR, 2005.

Dictated and Corrected by me

            Member

            Member                                                   Member