ORDER

04.11.2024

Sh. Sanjay Kumar, President

1. The factual matrix of the present case is that complainant has taken gold loan from OP having no. MSL 20513, 670, 671, 672 and 673 and time to time paying interest. It is stated that against MSL 20513 gold loan interest of Rs.3368/- paid on 12.01.2016 but came to know on 23.03.2016 when visited branch at Sector 16 for depositing interest that ornaments have already been auctioned. It is further stated that on 15.02.2016 OP company received the loss of Rs.262/-.
2. It is stated that the OP company without knowledge and without any telephonic message to complainant got auction of gold ornaments. It is stated that a legal notice received by complainant dated 11.01.2016 and 25.01.2016 wherein complainant was asked to deposit interest. It is stated that complainant visited the branch there branch manager told to deposit Rs. 3368/- and also told that if this amount is deposited than gold auction would not be done. It is further stated that complainant deposited the said amount.
3. It is stated that OP company committed fraud with complainant and caused mental agony and harassment according to which image of the complainant tarnished in the society. The complainant is seeking return of gold ornaments and compensation of Rs.90,000/-.
4. OP filed detailed WS and taken preliminary objections that the present complaint is not maintainable and is liable to be dismissed since no cause of action subsists in favour of the complainant at the time of filing the present complaint. It is further stated that the complainant had admittedly availed separate Gold loans from the OP in the past including loans bearing no. MSL-20513. It is stated that despite being aware of the terms of the said gold loan agreements, the complainant had failed to adhere to the financial schedule and was in default in making the payment of both the principal gold loan amount and the interest thereof to the OP despite receipt of various written demand notices in this respect from the OP in the past under the gold loan bearing no. MSL-20513. It is stated that since in defiance of the terms of the loan agreement no. MSL-20513, the complainant had failed to repay the said loan amount alongwith interest to OP in time and even after receipt of numerous notices asking for the defaulted amount, finally as per the terms of the gold loan agreement, the OP had decided to auction the gold ornaments, which were pledged with it, through a public auction to recover its dues. It is further stated that OP had thereon sent an auction notice dated 08.01.2016 to the complainant at his address, however despite the receipt of the said auction notice admittedly by the complainant, when the complainant had failed to repay the entire loan amount with interest thereof to the OP, the pledged gold ornaments were auctioned through public auction by OP as per the terms of the gold loan agreement no. MSL-20513 and the amount so received was adjusted towards the dues of the complainant but there still remains an outstanding amount which is due and payable by the complainant to the OP. It is further stated that no cause of action  now subsists between the complainant and the OP in respect of the said loan agreement and the present case thus deserves to be dismissed being devoid of any cause of action or merits in favour of the complainant.
5. It is stated that present complaint is further not maintainable and is liable to be dismissed in view of section 176 of the Contract Act which provides that in case the Pawnor (the Borrower/Complainant herein), commits a default in repayment of the loan, then in such an event, the Pawnee (Company/OP herein) is entitled to “sell the pledged ornaments, after giving the Pawnor, a reasonable notice of sale’ and if the proceeds of such sale are less than the amount due in respect of the debt or promise, the Pawnor is still liable to pay the balance to the Pawnee. It is further stated that thus in the present case the sale of the pledged gold ornament by the OP through public auction after admittedly giving the auction notice to the complainant and on the failure of the complainant to clear his liability thereon does not amount to any deficiency of service on the part of the OP.
6. It is stated that the present complaint is further not maintainable and is liable to be dismissed, as the present complainant does not qualify as per the provision of section 2 (1) (d) of the Consumer Protection Act, 1986 since the relationship between the complainant and the OP already stands concluded before the filing of the present complaint by the complainant with the auction of the pledged gold ornaments by the OP vide public auction on the failure of the complainant to repay the loan amount alongwith interest to the complainant. It is further stated that the present complaint also does not fulfills all the ingredients of a valid complaint as envisaged in section 2(c) of the Consumer Protection Act, 1986. It is stated that in view of the non-subsistence of the relation of consumer with the complainant at the time of filing of this complaint, the same deserves to be dismissed outrightly.
7. It is stated that complainant has further failed to verify the consumer complaint according to the stated provisions of civil procedure code and had also not filed the affidavit in support of his alleged complaint before this hon’ble court and thus the present consumer complaint being defective and barred for want of proper verification and supporting affidavit is thus liable to be dismissed with heavy cost. It is stated that present complaint is further not maintainable and is liable to be dismissed in view of the candid admissions being made by the complainant in the present complaint to the fact that despite the receipt of the auction notice from the OP, he had failed to repay the entire loan amount alongwith interest in time to the OP in respect of the gold loan agreement. It is further stated tht thus vide the terms of the loan agreement, the OP had auctioned the pledged gold ornaments to recover its money vide a public auction and the complainant has not approached this Hon’ble Tribunal with mischievous and ulterior motives only and with a sole aim to harass and malign the reputation of the OP.
8. It is stated that the present complaint is further not maintainable and is liable to dismissed since the complainant had also failed to deposit the requite court fees alongwith his frivolous complaint as per the Consumer Protection Rules, 1987 and thus in the absence of depositing the requite court fees alongwith his frivolous complaint, the present complaint cannot be entertained as per law. It is stated that present complaint is also not maintainable and is liable to be dismissed, since on perusal of the allegations made in the present complaint, it would be evidence that the present matter involves intricate, complex and complicated questions of law and facts which would require detailed and elaborate trial and involves leading of voluminous evidence which is possible only in regular proceedings before a Civil Court and cannot be effectively, properly or judiciously be adjudicated upon under the provisions of the Consumer Protection Act before this Hon’ble Tribunal.
9. It is stated that the instant complaint is not even filed in a requisite form and format and is at best a letter addressed to this Hon’ble Forum which cannot be entertained and adjudicated upon as consumer complaint under the Consumer Protection Act, 1986 and the same is thus liable to be dismissed with heavy cost. It is further stated that the instant complaint is false, malicious, incorrect and vexatious complaint which has been filed by the complainant just to avail undue advantage to the prejudice of the OP. It is stated that present complaint is liable to be dismissed under section 26 of the Consumer Protection Act, 1986 with heavy cost.
10. It is stated that the present complaint is not maintainable and is liable to be dismissed as no cause of action ever arose in favor of the complainant and against the OP to file the present complaint and hence the present complaint is nothing but an abuse of the process of the law and as such the same is liable to be dismissed with heavy cost, which would serve as a landmark for others who are misusing the Consumer Courts for getting some extra bucks by putting pressure upon the innocent peoples like the OP.  It is stated that the present complaint filed by the complainant is wholly without jurisdiction, illegal and is not maintainable and hence the present complaint ought to be dismissed in-limini.
11. On merit all the allegations made in the complaint are denied by OP and reiterated contents of preliminary objections. It is stated that as per the specific admission of the complainant, herein, he had only paid some interest against the gold loan agreement no. MSL-20513 in January 2016 while the loan agreement was signed by the complainant on 14.10.2014 whereby as per the terms of the said agreement, the complainant was liable to pay interest every 3 months and the entire tenure of the loan agreement was 12 months from the date of the agreement. It is further stated that the fact that no payment receipt of making the payment of the interest in the past in respect of Gold Loan Agreement No. MSL-20513 was filed by the complainant alongwith his letter proves beyond doubt the continuous default on the part of the complainant to repay the entire principal gold loan amount with interest thereon to the OP.
12. It is stated that infact only a meager sum of Rs.3368/- was paid by the complainant in January 2016 to the OP against his total outstanding amount of Rs.16,550/- and still a huge amount of money was due and payable by the complainant to the OP for recovery of which the OP had legally auctioned the pledged gold ornaments after giving proper notice to the complainant which was also admittedly received by the complainant. It is further stated that when the complainant had approached the OP, the complainant was specifically informed about his entire outstanding due amount and the fact that on his failure to clear the entire outstanding due amount the pledge gold ornaments shall be auctioned by the OP as per the terms of the gold loan agreement.
13. It is stated that the complainant had specifically admitted in his letter that he was in receipt of the (Auction) notice in this respect in January 2016 from the lawyer of the OP wherein the OP had demanded the entire loan amount with interest from the complainant failing which it was made clear in the said notice the pledged gold ornaments shall be auctioned through public auction for recovering the dues under the gold loan agreement no. MSL-20513. It is further stated that despite the receipt of the auction notice from the OP, when the complainant had failed to clear his entire outstanding dues thereof in respect of gold loan agreement no. MSL-20513 then the OP was left with no option but to recover its dues by auctioning the gold ornaments of the complainant and in this respect the OP cannot  be either held guilty of deficiency of service or any sort of illegality.
14. It is stated that as far as making phone call to the complainant is concerned, the OP is not legally bound to inform telephonically the complainant about the auction and moreso when the auction notice sent in this respect, there is no need to inform the complainant telephonically about the auction. It is further stated that OP had all the right as per the terms of the gold loan agreement no. MSL-20513 and as per the prevalent law to recover its dues and no illegal or unlawful act has been committed in this respect by the OP.
15. It is stated that despite receipt of various demand notices and auction notice, which were sent to and served upon the same address of the complainant on which he was admittedly served with the auction notice to repay the loan amount with interest, when the complainant had failed to clear his outstanding amount then it is the complainant who had played fraud upon the OP and had cheated and breached the trust of the OP and not the other way round as is frivolously claimed by the complainant. It is stated that if despite being made aware of the entire outstanding due amount, the complainant had chosen not to repay the same to the OP deliberately and intentionally and rather wishes to continue to enjoy the benefits of the loan amount thereof in defiance of the terms of the loan agreement, the OP cannot be now faulted and cannot be expected to be a mute spectator to the said default to the complainant and is legally entitled to recover his entire outstanding due amount from the complainant as per the terms of the loan agreement.
16. It is stated that the complainant had no cause of action to file the present false and frivolous complaint against the OP. It is stated that OP was only asking the complainant to repay the loan amount, which has been taken by the complainant from the OP, alongwith interest thereon, and the same is neither illegal nor unlawful, rather the same is the legal right of the OP as per the terms of the loan agreement and thus the OP is neither guilty of any illegality nor is liable to pay any compensation of any sort to the complainant. It is further stated that complaint is liable to be dismissed.
17. Complainant filed rejoinder to the WS and denied all the allegations made therein. Complainant reiterated contents of complaint.
18. Complainant filed evidence by way of his affidavit and reiterated contents of the complaint and referred the documents filed on record.
19. OP filed evidence by way of affidavit of Sh. L.D Sharma AR. In the affidavit contents of WS reiterated. OP relied on photocopy of power of attorney dated 09.01.2015 Ex.DW1/1, copy of certificate of incorporation Ex.DW1/2 (colly), copy of pledge form dated 14.10.2014 Ex.DW1/3, copy of third and final demand notice dated 20.11.2015 Ex.DW1/4 and copy of auction notice dated 08.01.2016 Ex.DW1/5 (colly).
20. Written arguments filed by complainant as well as OP company.
21. We have heard complainant in person and Sh. L.D Sharma AR on behalf of OP. We have also perused the record.
22. It is admitted case of the parties that complainant had taken gold loan from OP finance company and entered into an agreement. The complainant alleged that his mortgaged gold was auctioned. The complainant admitted that he had received a notice dated 11.01.2016. The OP finance company alleged that the complainant committed breach of the loan agreement and failed to repay the loan alongwith interest. The public notice for auction and recovery of dues was issued and a copy was sent to complainant on 08.01.2016 but complainant failed to repay the loan. The OP filed on record the loan agreement and the notice issued to complainant dated 20.11.2015 and legal notice dated 08.01.2016. The complainant admitted the fact of receiving the notice. We have gone through the agreement entered by complainant. There was outstanding due of Rs.16,550/- as on 22.12.2015. The complainant has not filed any documentary proof of repayment of loan. The complainant has only filed that he paid only Rs.336/8/- on 12.01.2016 and Rs.2270/- on 30.01.2016. As per record OP finance company proceeded as per agreement between the parties.
23. The complainant alleged the allegations of cheating and fraud against OP finance company. The law is well settled that this commission has no powers to adjudicate allegations of fraud and cheating. The complainant is also seeking relief of return of his ornaments. As per record OP has proceeded against complainant when he failed to repay the loan amount as per agreement and after adopting due process of law and serving notice and public auction notice sold the ornaments to recover the loan amount. In these circumstances we are of considered opinion that there is no deficiency of service on the part of OP finance company.
24. On the basis of above observation and discussion present complaint is dismissed. No order as to cost. File be consigned to record room.
25. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  04.11.2024.

       SANJAY KUMAR                 NIPUR CHANDNA                       RAJESH

       PRESIDENT                             MEMBER                                MEMBER