Punjab

Ludhiana

CC/15/661

Ravi Kan - Complainant(s)

Versus

Muthoot Finance pvt.Ltd. - Opp.Party(s)

H.S.Chahal Adv.

20 Feb 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

Consumer Complaint No. 661 of 06.11.2015

Date of Decision          :   20.02.2017

Ravi Kant Swami aged 37 years son of Mata Parshad Swami, resident of MIG-1349, Sector 32, Near BCM School, Chandigarh Road, Ludhiana.

….. Complainant

Versus 

1.The Muthoot Finance Pvt. Ltd., having its Head Office at Muthoot Chambers, Opp.Sarita Theater complex, Banerji Road, Kochi-682018, through its Managing Director.

2.The Muthoot Finance Pvt. Ltd., having its corporate officer at Muthoot Group, Muthoot Towers, Alaknanda, New Delhi-110019, through its Managing Director.

3.The Muthoot Finance Pvt. Ltd.,having its branch office at 2^nd Floor, B-15-136, Jandu Towers, Opp,. Fire Station, Miller Ganj, Ludhiana through its Branch Manager/Authorized signatory. 

.…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :         Sh.Harcharan Singh Chahal, Advocate

For OPs                         :         Sh.Anand Sabherwal, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant for financial requirement approached Ops for contracting loans of Rs.32,000/- and Rs.19,300/-. Gold ornaments i.e. three bangles weighing 45 grams, one ring weighing 5 grams, two chains weighing 23.500 grams, total weighing 73.500 grams were hypothecated for availing these loans for medical urgency. Signatures of complainant were obtained on blank documents and contents thereof were not read over and explained to the complainant. Loan of Rs.51,300/- as such was availed for short period of 4-5 months. These loans were granted on 25.01.2008 vide loan account No.0000212 and on 10.03.2008 vide loan account No.0000615. Complainant has been paying the interest regularly against these loans. In July 2008, the complainant arranged the loan amount and approached Ops for depositing the loan amount and balance interest, if any. However, complainant was shocked to know that in   the theft committed in the branch of OP3 on 19.05.2008, the pledged/hypothecated gold ornaments stood stolen. Concerned branch manager of OP3 refused to get deposited the loan amount because inability was expressed to return the pledged gold ornaments. It was the duty of Ops to keep the gold ornaments in safe custody, but that duty was not performed. After few days, it was disclosed that FIR No.39 dated 19.5.2008 u/s 457/411/380 IPC has been lodged against the employees and police has recovered the gold ornaments. Later on it was disclosed as if OP3 took the possession of the gold ornaments on supurdari, but possession cannot be given to the borrowers. Concerned Manager of OP3 disclosed that no interest will be charged from the complainant till orders from the Court got regarding the return of the pledged ornaments. Complainant did not deposit the loan amount because employee of OP3 expressed inability to receive the same. On 17.10.2015, the complainant received two letters from Ops through authorized signatory for disclosing that complainant bound to pay Rs.1,49,446/- against loan account No.212, but Rs.1,05,286/- against loan account No.615 towards the outstanding dues. Further, it was disclosed that Court vide order dated 31.7.2015 has permitted the Ops to dispose of the pledged gold ornaments. Through those letters, it was further disclosed that in case, the outstanding amount is not paid within 7 days from the date of receipts of letters, then Ops will auction the pledged/hypothecated gold ornaments. There was no fault of the complainant, but despite that gold ornaments not returned and as such, by pleading deficiency in service on the part of Ops, prayer made for directing Ops to return the pledged gold ornaments by waiving of the entire interest from the date of pledging of the same to the date of return of the same to the complainant and even request made for directing Ops to waive of Rs.2,54,732/- i.e. outstanding amount towards his loan accounts. Even directions sought against Ops for not auctioning the pledged ornaments. Compensation of Rs.1 lac on account of deficiency in service, but Rs.50,000/- on account of mental torture even claimed. Litigation expenses of Rs.11,000/- more claimed.

2.                In joint written statement filed by Ops, it is admitted that loan of Rs.51,300/- by pledging of the gold articles was availed. However, allegations regarding obtaining of signatures of complainant on blank documents without disclosing contents thereof denied. Ops are in the business of financial loan against pledged gold ornaments for the last 125 years and they are having good reputation in the society. All the dealings done by the Ops with its customers in transparent manner and relevant documents always are handed over to the customers at the time of availing loan. Admittedly, loan of Rs.32,000/- bearing account No.0000212 availed on 25.1.2008 against interest rate @26.5% per annum, whereas, loan of Rs.19,300/- bearing account No.0000615 availed on 10.3.2008 against interest rate @27.5% per annum(each for 12 months). Complainant failed to pay the outstanding dues till date. Ops have sent various letters to the complainant for calling upon him to make the payment of the loan amounts, but all these pleas fell on the deaf ears of the complainant. Complainant was informed that in case, he failed to pay the outstanding amount, then pledged gold articles will be auctioned for recovery of outstanding payable amount. Instead of complying with all the formalities, complainant is adamant in harassing the Ops in one way or the other. Complainant is liable to pay Rs.1,93,408/- in respect of the loan account No.0000212, but Rs.1,17,187/- in respect of loan account No.0000615 as on 29.1.2016. Loan was contracted by the complainant with his free will and desire, subject to the terms and conditions stipulated in the agreement. Theft was committed in the Miller Ganj branch, Ludhiana of OP company and gold ornaments pledged by various borrowers along with cash amount was stolen/plundered. Even the gold ornaments pledged by complainant stood stolen in that incidence and that is why FIR No.39 was registered with P.S.Division No.II, Ludhiana under Section 457, 411, 380 IPC on 19.5.2008 itself. That act of theft cannot be attributed to act of omission or commission by the Ops. There was no negligence or unlawful act on the part of Ops and as such, Ops cannot be held liable for deficiency in service or indulgence in act of unfair trade practice. Ops made efforts for pursuing the case with investigating agency. Accused who committed theft were arrested and most of the gold ornaments along with cash was recovered by the investigating agency. Ops made efforts for pursuing the custody of the articles as per legal provisions by submitting appropriate application for superdari. That application was allowed by the court of learned JMIC, Ludhiana vide orders dated 21.5.2008. As the superdari of gold ornaments was in term of the case property and as such, Ops were not competent to release the gold ornaments to the complainant except with the permission of the Court. An application with Court was filed by Ops for seeking permission to release/dispose of the recovered articles obtained on superdari, but that application was dismissed by the court of Mrs.Monica Sharma, Learned JMIC vide orders dated 26.3.2012. Meanwhile, vide judgment/order dated 31.01.2015 passed by the Court of Ms.Amandeep Kaur, Learned JMIC, Ludhiana, the case was disposed of with respect to FIR No.39 of 2008 referred above. After conclusion of trial, Ops filed an application u/s 452 Cr.P.C., for permission to Ops to dispose of/return the    pledged gold ornaments to the respective borrowers and that application was allowed vide orders dated 31.7.2015 by the Court of Sh.Ranjeev Kumar, Learned CJM, Ludhiana. After getting this permission, Ops requested the complainant to deposit the due outstanding loan amount for getting back the gold ornaments, but complainant refused and threatened Ops to come to its terms. In view of Sections 173 and 56 of the Indian Contract Act, rule of force majeure protection is available to Ops. Complainant was well aware of theft having taken place since from 19.5.2008 and of lodging        of FIR. Each and every other averment of the complaint denied by praying for dismissal of the complaint.

3.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C6 and thereafter, his counsel closed the evidence.

4.                On the other hand, counsel for OPs tendered in evidence affidavit Ex.RA of Sh.Happy Kumar, authorized person of OPs along with documents Ex.R1 to Ex.R8 and thereafter, closed the evidence.

5.                          Written arguments submitted on behalf of complainant alone, but not by Ops. Oral arguments of counsel for both the parties heard. Records gone through minutely. 

6.                In course of written arguments, it is pleaded that written statement not filed within 45 days, but that stage is over. Orders passed by this Forum qua acceptance of written statement after 45 days cannot be reviewed by this Forum in view of the law laid down by Hon’ble Apex Court of country in Civil Appeal No.4307 of 2007 titled as Rajeev Hitendra Pathak & others Vs Achyut Kashinath Karekar & another decided on 19.08.2011 and also as per law laid down by Hon’ble Punjab State Consumer Disputes Redressal Commission, Punjab, Chandigarh in Revision Petition No.20 of 2013 titled as Punjab State Power Corporation Limited Vs Shera Singh decided on 01.07.2013 and as such, the said plea not tenable for penalizing Ops.

7.                Certainly, receipt Ex.C3 produced by the complainant establishes that an amount of Rs.1180/- was deposited by the complainant with Ops on 10.3.2008, but that amount was deposited prior to taking place of the theft of ornaments in question along with other articles on 19.5.2008 as revealed by copy of FIR Ex.R1. FIR Ex.R1 regarding this theft lodged at the earliest by the Ops and thereafter, they filed an application for getting the articles on superdari and as such, Ops put their best efforts to trace out the stolen articles and recover the same. After getting these articles released on superdari, permission from the Court of Learned JMIC, Ludhiana was sought for return/disbursal of the articles got on superdari, but that permission was not granted by the Learned JMIC, Ludhiana as revealed by copy of orders dated 26.3.2012 passed by Ms.Monica Sharma through orders Ex.R2. Thereafter, for disposal of the case property pertaining to FIR no.39 dated 19.5.2008, Ops again filed an application u/s 452 of Cr.P.C and permission was granted to Ops to deal with the recovered articles as per their requirements. This is revealed by copy of order dated 31.7.2015 Ex.R3 passed by the Court of Sh.Ranjeev Kumar, Learned Chief Judicial Magistrate, Ludhiana. So, all this documentary evidence available on record establishes that Ops did their best in securing the orders of Hon’ble Court for disposal/disbursal of the stolen articles got on superdari during pendency of the trial itself, but they could not obtain the favourable orders resulting in non disposal/disbursal of the recovered stolen articles until 31.7.2015. It was only after 31.7.2015 that authority was given to the Ops to deal with the articles as per their requirements and as such, certainly Ops could have returned the hypothecated/pledged gold ornaments to the complainant after 31.7.2015, but on receipt of the outstanding loan amount.

8.                Though, it is contended by counsel for the complainant that complainant applied in July 2008 for return of the hypothecated/pledged gold ornaments by requesting the employee of OP3 to accept the outstanding amount, but no record in that respect has been produced. Rather, theft of the gold ornaments took place prior to July 2008 because of the same having taken place on 19.2.2008. It is not OP3 or the other OPs who paved way for commission of theft of offence and as such, in case, gold ornaments stood stolen, then Ops cannot be blamed for that. Rather, as discussed above, Ops pursued the matter with courts for ensuring earlier return of the stolen gold ornaments, but despite that they could not do so until 31.7.2015, when orders Ex.R3 were obtained from the Court of learned CJM, Ludhiana.

9.                If really, the complainant would have approached Ops in July 2008 for return of the gold ornaments after acceptance of the outstanding loan amount with interest, but Ops would have refused because of inability to return the pledged gold ornaments, then complainant would not have kept mum for 7 years. This complaint filed on 6.11.2015, but before filing of this complaint, no action taken by the complainant for calling upon Ops to accept the outstanding loan amount after alleged denial of July 2008. So, these circumstances enough to establish that story put forth by the complainant regarding offer of return of the outstanding amount in July 2008 is a story of making. No one would have kept silent for seven years on refusal of Ops to accept the outstanding loan amount with interest.

10.              Ops sent notices Ex.R5 and Ex.R6=Ex.C5 and Ex.C6 on 15.10.2015 for disclosing that amount of Rs.1,05,286/- is outstanding against the account No.SPL611, but Rs.1,49,446/- is outstanding against loan account No.SPL212. It was after receipt of these notices sent through registered post that this complaint filed on 6.11.2015 and as such, submissions advanced by counsel for Ops has force that virtually the story has been concocted regarding offer to deposit the outstanding due loan amount in July 2008. The overall facts and circumstances of the case taken into consideration in this respect leans in favour of holding that in fact the complainant did not approach Ops in July 2008 for return of the outstanding loan amount, but story in this respect has been concocted.

11.              It is contended by counsel for the complainant that copy of statement of account Ex.C4 of Smt.Bimal Swami, the mother of the complainant shows that the complainant was in a position to pay the outstanding amount in July 2008 itself, but said copy of statement of account Ex.C4 of Smt.Bimla Swami does not establish that the said amount mentioned in the entries of this passbook was meant for the use of the complainant. Rather, the entry dated 5.5.2009 shows as if amount of Rs.1 lac paid to the complainant Ravi Kant Swami on 5.5.2009 after clearance of the amount through entry of 4.5.2009. So when these entries taken into consideration, then they at the most establishes as if the complainant got capacity of paying Rs.1 lac on or after 4.5.2009 and not before that. If that be position, then claim of the complainant not acceptable that he was in a position to pay the balance outstanding loan amount in July 2008.

12.              Name of the Manager who refused to take back the loan amount not disclosed in the complaint or in the affidavit or through any other evidence produced by the complainant and as such, story put forth by the complainant is not believable on account of these vague assertions. Certainly, the complaint before this Forum is maintainable because the complainant being consumer of Ops entitled for return of the pledged/hypothecated gold ornaments after payment of outstanding due amount. Submission of counsel for complainant in this respect certainly has force. Benefit from ratio of case titled as Lathika C.Saroja Ganga Nedungolam P.O., Kollam vs. Branch Manager, Muthoot Finance (P) Limited and others-2016(3)Law Herald (SC) 2100(National Consumer Disputes Redressal Commission), cannot be gained by the complainant because after going through the facts of the said case, it is made out that financer failed to produce ornaments, when the complainant went to redeem the loan. Even the record of the sale of the ornaments was not produced and financer was not able to disclose where the jewellary of the complainant was lying.          Those are not the facts and circumstances in the case before us at all because story regarding approach by the complainant to Ops for redeeming the loan not plausible or believable, whereas Ops specifically disclosed that owing to theft of the gold ornaments, the same remained out of their custody until superdari of the same obtained.

13.              Facts of the present case are identical in every respect to the facts of the case decided on 4.5.2015 through First Appeal No.211 of 2013 titled as The Muthoot Finance Limited vs. Anil Kumar Sharma, decided by Second  Additional Bench of Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh. Rather, after going through para no.11 of this cited case of First Appeal No.211 of 2013, it is made out that the entire interest amount was paid as on 22.6.2009, but the payment of the entire interest amount in this case not established even by receipt Ex.C3 because this payment made on 11.3.2008, whereas, two loans in question availed by the complainant on 25.01.2008 and 19.01.2008 respectively as revealed by the contents of complaint and contents of copy of statement of account Ex.R4.

14.              Even in para no.12 of above cited case of First Appeal No.211 of 2013, it has been held that the complainant has not performed his part of contract by paying the balance amount. The same is the position in the case before us. In view of this, by applying the analogy of law laid down by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh in above cited case of Appeal No.211, it is obvious that the complainant cannot escape from liability of paying the interest, particularly when it is not established that the complainant paid the interest upto date or he has approached Ops in July 2008 as discussed above. However, in view of Doctrine of force majeure, as Ops themselves were not in a position to deliver back the pledged/hypothecated gold ornaments and as such, in view of the decision of the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh in First Appeal No.211 of 2013, the ratio of which fully applicable to the present case, Ops will charge simple interest as agreed between the parties on the outstanding loan amount from the date of loans in question. Amount of Rs.1180/- already deposited by the complainant through receipt Ex.C3 liable to be adjusted. Ops would calculate the entire outstanding amount and thereafter, complainant will be disclosed about the same through writing and thereafter, complainant will pay the entire outstanding amount to the Ops within period of 3 months from the date of receipt of notice from Ops. After receipt of that amount, Ops will release the pledged/hypothecated gold ornaments to the complainant, but in case, the complainant failed to comply with these orders, then Ops will be entitled to charge the penal interest as per agreement between the parties. However, complainant will be entitled to meager compensation and litigation expenses to the tune of Rs.3000/- only because fault in non return of the gold ornaments not attributable to Ops.

15.              Therefore, as a sequel of the above discussion, complaint allowed in terms that Ops will calculate the entire outstanding amount by charging simple interest as agreed between the parties on the outstanding loan amounts from the date of contracting of loans and thereafter, Ops will send fresh notice in writing to the complainant for disclosing the outstanding amount. Thereafter, the complainant will pay the entire outstanding amount to Ops within period of 3 months from the date of receipt of notice from Ops. After receipt of that amount, Ops will release the pledged gold ornaments to the complainant, but in case, the complainant failed to comply with these orders, then Ops will be entitled to charge the penal interest as per agreement between the parties. Compensation for mental harassment including litigation expenses of Rs.3000/-  allowed in favour of complainant and against Ops, whose liability adjudged as joint and several. Theses amount of compensation and litigation expenses be paid by OPs to the complainant within 30 days from the date of receipt of copy of this order. Copies of order be supplied to the parties free of costs as per rules.

16.                        File be indexed and consigned to record room.

 

                      (Param Jit Singh Bewli)                      (G.K.Dhir)

                       Member                                                 President

Announced in Open Forum

Dated:20.02.2017

Gurpreet Sharma.