DIST. CONSUMER DISPUTES REDRESAL COMMISSION
NORTH 24 Pgs., BARASAT.
C.C. No. 135/2022
Date of Filing Date of Admission Date of Disposal
21.11.2022 16.12.2022 13.12.2023
Complainant/s:- | SUBHASISH CHAKRABORTY, S/o Salil Chakraborty, Residing at – Nabapally Boys’ School Road Barasat, P.O. – Nabapally, P.S. – Barasat, Disst – North 24 Parganas, Kolkata – 700126. -Vs- |
Opposite Party/s:- | MANAGER MUTHOOT FINANCE Ltd. 2nd Floor Jessore Road, 44 Jessore Road, Opposite Barasat Nursing Home, Champadali More, Barasat Kolkata – 700124. |
P R E S E N T :- Sri. Daman Prosad Biswas……….President.
:- Sri. Abhijit Basu…………………. Member.
JUDGMENT/FINAL ORDER
Complainant above named filed this complaint U/s 37 read with section 39 of the Consumer Protection Act, 1986 praying for return back the golden ornaments along with 22% per annum interest, compensation amounting to Rs. 1,00,000/- and further order.
He alleged in the petition of complaint that he had pledged his golden ornaments before the O.P and borrowed loan amounting to Rs. 2,77,000/-. The aforesaid gold ornaments were 27 pieces and total weight was 82.400 gm.
During the period of Corona pandemic Complainant failed to make payment before the O.P properly. O.P served notice for making payment to the Complainant but Complainant was helpless to arrange the same. Suddenly the O.P sent notice to the Complainant that they have auctioned the gold and O.P suffered loss of Rs. 70,515/- and they claimed the same from the Complainant.
O.P has auctioned the pledged gold without giving any notice regarding auction which is totally illegal in the eye of law. In the notice dated 10/01/2022 the O.P did not mention the date, place and the time of auction. Hence, the Complainant filed this case.
O.P appeared in this record on 21/10/2022 and prayed for time for filing W/V but they did not file W/V within the statutory period. Even they did not file W/V till 29/05/2023. Case is running ex-parte against the O.P.
TRIAL
During trial, Complainant filed affidavit-in-chief.
DOCUMENTS
At the time of filing this complaint, Complainant filed the following documents:-
- Copy of Postal receipt……..2 copies (Xerox).
- Advocate’s letter dated 28/01/2022…..xerox.
- Money receipt……….xerox.
- Sanctioned letter………..3 sheets (Xerox).
Item No. (ii) to (iv) were verified at the time of argument.
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C.C. No. 135/2022
BNA
Complainant filed BNA.
Decision with Reasons
It is the main allegation of the Complainant that he pledged some golden ornaments which were 27 in nos. and is weighing to 82.40 gm, before the O.P and took loan of Rs. 2,77,000/-. Due to Corona pandemic he could not pay the installment in due time. He further stated that O.P sent notice to him on 10/01/2022. He further alleged that before the auction of his golden ornaments O.P did not inform the Complainant about the place of auction, date of auction etc. He further alleged that O.P illegally and whimsically auctioned his golden ornaments without observing the illegal formalities.
In this context we have carefully gone through the Security Interest (Enforcement) Rules 2002 issued by Ministry of Finance and Company Appears (Department of Economic Affairs) (Banking Division) (Notification New Delhi the 28th September, 2002).
We find that in exercise of powers conferred by sub-section (1) and clause (B) of sub-section (2) of section 38 read with section (4), (10) and (12) of section 13 of the securitization and re-construction of financial assets and Enforcement of Security Interest Oridinance 2002(ORD/03/2002), the central government made the said rule i.e. Security Interest (Enforcement) Rules 2002.
We find that there is a provision of demand notice in Rule 3. It has mentioned therein that service of demand notice has referred to in sub-section (2) of section 13 of the act which shall be made by delivery including the hand delivery or transmission at the place where the borrower or his agent empowered to accept the notice or documents on behalf of the borrower, actually and voluntarily resides or carriage on business or personally works for gain, by registered post with acknowledgment due, address to borrower or his agent empowered to accept the service or by speed post or by courier or by any other means of transmission of documents like fax message or electronic mail server. In Rule 4 it has mentioned that if the amount mentioned in the demand notice is not paid within the time specified therein, the authorized officer shall proceed to realize the amount by adopting anyone or more of the measures specified in sub-section (4) of section 13. In Rule 5 it has mentioned that before sell, the authorized officer shall obtain the estimated value of the movable secured assets. In Rule 6 procedure for sell of movable secured assets have mentioned. It has mentioned therein that the authorized officer may sell the movable secured assets taken in his possession under sub rule 1 of Rule 4 anyone or more by adopting any of the following methods to secure maximum sale price for the assets, to be so sold:-
- Obtaining quotation from parties dealing in the secured assets or otherwise interested in buying such assets.
- Inviting tenders from the public.
- Holding public auction including through e-auction mode.
- By provide TT.
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C.C. No. 135/2022
In sub-rule 2 of Rule 6 it has mentioned that authorized officer shall serve to
the borrower a notice of 30 days for sale of the movable secured assets. In sub-rule 4 it has also mentioned that authorized officer shall be hold the detailed terms of conditions of the sale of the movable secured assets on the website of the secured creditor. In the proviso of sub-rule 2 of rule 6 it has mentioned that secured creditor shall cause a public notice in the form given in appendix (ii) (a) to be published in two leading newspapers, including one in vernacular language having wide circulation in the livelihood.
In the present case we find that before auction of the golden ornaments of the Complainant by Opposite Party, Opposite Party did not follow the aforesaid procedure. Accordingly, it is clear before us that sale of aforesaid pledged golden ornaments by the O.P is illegal and without jurisdiction. They have no right to sale the pledged golden ornaments of the Complainant without informing the Complainant under aforesaid procedure.
On perusal of record we find that the Complainant is a consumer and the O.P is service provider.
Having regard to the aforesaid discussion it is clear before us that Complainant has able to established his grievance by sufficient evidence beyond reasonable doubt and accordingly Complainant is entitled to relief as per his prayer.
In the result, the present case succeeds.
Hence,
It is Ordered:-
That the present case vide no. C.C./135/2022 be and the same is allowed on ex-parte against the O.P with cost of Rs. 5,000/- to be paid by O.P in favour of the Complainant.
O.P is directed to refund the golden ornaments of the Complainant which were pledged before him within 45 days from this date after taking loan amount with interest from the Complainant or O.P is directed to return the value of 82.400 gms golden ornaments as per market price as on the date of pledging of gold alongwith interest @ 10% p.a. from the date of pledging gold after deducting the loan amount with interest and to pay the same to the Complainant within next 45 days, failing which Complainant shall have liberty to put this order into execution.
O.P is directed to pay compensation amounting to Rs. 50,000/- in favour of the Complainant within 45 days from this date failing which Complainant shall have liberty to put this order into execution.
Let a plain copy of this order be supplied to both the parties as per CPR, 2005.
Dictated and Corrected by me
President
Member President
