PER:
Nidhi Verma, Member
1 The present complaint has been received back from the Hon’ble State Commission, Punjab Chandigarh vide order dated 11.10.2018 for fresh decision.
2 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 12 against the opposite party on the allegations that the complainant is consumer of Opposite party and has obtained a loan of Rs. 1,31,000/- on 17.10.2014 through customer ID No. 15320000003613 against his gold ornaments weight 75 grams i.e. Karas-2, Rings-4, Chain with locket-1, Studs-4 Pairs (1 stud cracked). Due to financial crisis, the complainant could not pay the gold loan amount alongwith interest within time. The complainant visited the opposite party several times and wanted to deposit amount due for deposition. Opposite party made excuses and avoided the complainant with the intention to keep him in dark to grab his gold ornaments. In the month of January 2016, the complainant visited the opposite party and the complainant has been informed that due to nonpayment of interest amount in time, gold ornaments have been auctioned and he has been asked to come in next month for resolution of the matter. The complainant visited the opposite party in the month of Feb, 2016 but the opposite party did not listen the complainant and the complainant gave an application dated 5.4.2016 to the office of opposite party but the opposite party did not acknowledge the same. On the same day, the complainant has e-mailed a separate application to the higher officer at Jalandhar. On 18.4.2016, the complainant again approached the opposite party and opposite party handed over Photostat copy of their legal notice dated 11.1.2016. From the acknowledgement dispatch receipt register issued by Postal authority of opposite party, it is revealed that this notice has been sent to Sham Singh of Gurdaspur. The opposite party also handed over him a photocopy of their letter No. Nil addressed to the Audit Manager A & I Dept. Jalandhar Region. sending of legal notice on wrong address by opposite party and avoiding the complainant at several times shows ill will on the part of opposite party. The aim of the opposite party is only to grab the gold ornaments of complainant. From the list handed over to the complainant, it comes to the light that the opposite party has auctioned gold ornaments of 59 customers and the name of complainant is also enlisted therein. The opposite party has illegally auctioned the gold ornaments of complainant without giving any opportunity of being heard. The opposite party has not complied with the terms and conditions. The opposite party has grabbed the gold ornaments of much worth on account of giving him loan of Rs. 1,31,000/- merely. The complainant has also served a legal notice dated 20.4.2016 to the opposite party. After receipt of notice, opposite party called the complainant and assured him that his gold ornaments will be returned soon. But the opposite party did not return the gold ornaments to the complainant. The complainant suffered financial loss, mental harm, stress, physical wear and tear and it amounts to deficiency in services on the part of the opposite party. Hence the present complaint is filed. The complainant has prayed that the opposite parties be ordered to pay compensation to the tune of Rs. 1,00,000/- and return the gold ornaments to make irreparable loss of the complainant.
3 After formal admission of the complaint, notice was issued to Opposite Party. Opposite Party appeared through counsel and filed written version contesting the complaint on the preliminary objections that the complaint is not maintainable and is liable to be dismissed being false, frivolous and vexatious. There is no deficiency in service on the part of the opposite party. The complainant has not approached this Commission with clean hands. He has suppressed material, relevant, exact and correct facts from this Commission. The opposite party is renowned financial institution and gave loan by pledging the gold ornaments of customers. The complainant has taken the loan by pledging his gold articles in one loan account. The complainant is a consistent defaulter and the opposite party various times requested the complainant to pay the installments of loan amount, but all their requests fell on the deaf ears of the complainant and he did not pay the outstanding amount to the opposite party. It was specifically agreed between the complainant and opposite party that in case the complainant failed to pay the due loan amount alongwith interest up to date, then his gold will have to be auctioned. As per due process, the opposite party through its Advocate sent a notice to the complainant whereby again granting the last opportunity to him to pay the total outstanding dues failing which the opposite party will be constrained to sell/ auction/ dispose of the pledged ornaments in public auction, but despite of the service notice the complainant did not bother to pay the installments of loan amount to the opposite party. The opposite party has done proper publication before auction. The opposite party delivered the notice to the correct address of the complainant before auction even then complainant did not pay the outstanding amount to the opposite party and the opposite party auctioned the above said pledged gold articles of the complainant as per terms and conditions of the loan agreement after following the proper and legal procedure. The complainant is not a consumer as defined under the Consumer Protection Act. On merits, it was pleaded that the complainant had never any intention to repay the loan amount. The only intention of the complainant is to harass the opposite party. The opposite party sent a cheque bearing No. 094008 dated 26.7.2016 for a sum of Rs. 14,216/- to the complainant as surplus amount after deducting the outstanding loan amount from the amount recovered by the opposite party by auctioning the gold ornaments of the complainant on 14.10.2016 through registered post. The opposite party denied all the other allegations and prayer was made for dismissal of the complaint with costs.
4 Sufficient opportunities were granted to the parties to lead evidence in order to prove their respective case. The complainant tendered in to evidence his affidavit Ex. C-1, alongwith documents Ex. C-2 to Ex. C-15 and closed the evidence and thereafter, the opposite party tendered in evidence affidavit of Swaran Singh OP/1 alongwith documents Ex. OP/2 to Ex. OP/6 and closed the evidence.
5 We have heard the Ld. counsel for the parties and have carefully gone through the record placed on the file.
6 In the present complaint, the complainant is consumer of OP and has obtained a loan of Rupees 1,31,000/- on dated 17.10.2014 through customer ID No. 015320000003613 against his following gold ornaments (weight 75 gms as per customer copy (Ex.C-1)
- Karas -2
- Rings -4
- Chain with locket -1
- Studs -4
Due to financial crisis the complainant could not pay the gold loan amount long with interest within time. Thereafter complainant visited the opposite party at several times and wanted to deposit amount due for deposition. Indeed month of January 2016 the complainant visited opposite party he has been informed that due to non payment of interest amount in time gold ornaments have been auctioned, however he has been asked to come in next month for resolution of the matter. In the month of February 2016, Opposite party again avoided the complainant by making lame excuses. The complainant approached opposite party in writing vide his application dated 5th April 2016 handed over at office of OP on the same day and even OP have not issued him acknowledgement of the same . On the same day , the complainant has emailed a separate application to the higher office at Jalandhar. Further, on dated 18/04/2016 the complainant again approached OP . The OP handed over him a photocopy of their legal notice dated 11.01.2016 (Ex.c 10) . From the acknowledgement dispatch receipt issued by postal authority to Op , it is revealed that this notice has been sent to a Sham Singh of Gurdaspur (Ex.C 10) .
7 OP stated in their written version that the complainant has taken the loan by pledging his Gold articles in one loan account. The complainant is a willful defaulter and the OP various times requested the complainant to pay the installments of loan amount but complainant did not pay the outstanding amount to the OP. Hence , as per due process, the OP through its advocate sent a notice to the complainant whereby again granting the last opportunity to him to pay the total outstanding dues failing which the OP will be constrained to sell/ auction/dispose of the pledge ornaments in public auction but despite of the service of notice the complainant did not bother to pay the instalments of loan amount to the OP. Moreover, OP also done paper publication before auction. The OP also delivered a notice by hand to the complainant before auction even the complainant did not pay the outstanding amount to the OP and hence the OP auctioned the above said pledged gold articles of the loan agreement after following the proper and legal procedure. The OP denied the facts that the complainant handed over any application or E mailed a separate application to the higher office at Jalandhar. Further, the OP denied the fact that the OP handed over the complainant a photocopy of their legal notice dated 11.01.2016 and postal receipt which revealed that this notice has been sent to a Sham Singh Gurdaspur.
8 As a result of the above discussion, we are of the considered view that , it is an admitted fact that complainant availed a gold loan amounting Rs 1,31,000/- from the OP on dated 17.10.2014 and the gold ornaments which were pledged has been auctioned. As per the allegation of the complainant it is to be decided by this Commission that whether the OP have acted lawfully by auctioned the gold ornaments of the complainant or not ? It is alleged that without any Notice or prior intimation to the complainant the gold ornaments were put into the auction. As per the complainant , he approached the OP in writing vide application dated 5.04.2016 (Ex.C 2) handed over at office of OP on the same day but no such document is placed on record . Further, on same day ,the complainant has emailed a separate application to the higher office at Jalandhar (Ex.C-3) but again no such document or any email has been placed on record by the complainant. Thereafter, on dated 18.04.2016 , the complainant again approached the OP . The OP handed over him a photocopy of their legal notice dated 11.01.2016 and also gave the acknowledgement dispatch receipt issued by postal authority to OP, from the said receipt the complainant found that the notice has been sent to the wrong address i.e. Sham Singh of Gurdaspur. (Ex.C-10) but on other hand OP denied the facts that they handed over any legal notice plus dispatched receipt to the complainant . Further , if we go through the documents placed on record i.e. Ex.C 10 the postal receipt attached herewith, stating that :-
Sent to – Sham Singh , Gurdaspur
From – Mohli & Sorti ( not cleared)
Further, no other information or postal detail is there, which can prove the point that same receipt is the receipt through which the OP sent the legal notice to the complainant . Hence, we cannot consider this as an evidence that this notice has been sent at wrong address. On other hand, OP submitted that as the complainant did not release the pledged gold ornaments within the stipulated period and as per the terms and conditions executed between the OP and the complainant, the Gold will have to be auctioned. OP also done paper publication before auction ( Ex .OP2) and it is important to mention here that OP also hand served the notice to the complainant upon correct address before auction, to prove this point , OP placed an evidence on record the affidavit of an office boy( Princejeet Singh) in Muthoot Finance Ltd. Branch Office,Tarn Taran . As per office boy he visited Sham Singh S/o Mukhtar Singh , resident of village Manochahal Kalan , Tarn Taran that on dated 27.01.2016 he handed over the legal notice of the auction on dated 29.01.2016 but family members of the complainant refused to receive the notice on behalf of the complainant and he pasted the above said auction notice at the main door of the house of the complainant . Later on the auction date i.e. 29.01.2016 was postponed to 18.02.2016 again office boy visited the house of the complainant on 15.02.2016 again Sham Singh was not at his house and family members refused to receive the notice on his behalf and again office boy pasted the copy of the notice on the main door of the house of the complainant. OP has after completion of all legal formalities auctioned the Gold ornaments of the complainant. From the above discussion , OP first sent the office boy on dated 27.01.2016 for the auction dated 29.01.2016 . Second time , OP sent office boy on dated 15.2.2016 for auction dated 18/02/2016 . In both the cases OP sent the information for the auction to the complainant just 2 or 3 days before where the 14 days notice is mandatory which proves the deficiency on the part of the OP. Same view has been taken by the Hon’ble State Consumer Dispute Redressal Commission U.T , Chandigarh vide it’s order dated 04.10.2021 in Appeal No. 305 of 2019 titled as “Muthoot Finance Ltd. Vs Vikas Bali” & the relevant portion of this judgement is quoted from page No. 4 of the copy of order “ Thus by not giving 14 days prior notice to the respondent before conducting auction of his pledged loan gold ornaments, the appellant has not only acted in a deficient manner but also indulged into unfair trade practice”.
9 Further , the OP placed on record the photocopy of newspaper Dainik Nyaya Setu (Ex.Op 2) which is regarding publication for the auction of gold. It is pertinent to mention here that the said newspaper has been circulated in the district Hamirpur of Himachal Pardesh as it has been written on the same . However , the complainant is resident of village Manochahal Kalan , Tarn Taran, Punjab and as per settled Law the publication must have been effected in local newspaper . But the OP has got effected publication in the newspaper of Himachal Pradesh. This also proves the deficiency in the service of the OP. Further, same publication was done on dated 23.01.2016 for auction dated 29.01.2016 just 6 days prior to the auction . However , the amount realised through auction is higher than the total amount due from the complainant, then the excess amount realised will be refunded to the complainant either in cash or by cheque within 30days. But again OP has violated this clause of his loan agreement. The auction of the Gold ornaments has taken place on 18.02.2016 and cheque is of dated 26.07.2016 and same has been sent on 14.10.2016 (Ex.C6) , which is after the lapse of 07 months . By this again OP proves the deficiency and negligence in service.
10 Further , (Ex. C 2) where auction date was mentioned as 02.02.2016, whereas the 2nd auction notice which was sent by the OP to the complainant on dated 15.02.2016 for auction dated 18.02.2016 . The stand of the OP is self contradictory , as the auction of the gold ornaments was held on dated 02.02.2016 . Hence there is deficiency as well as unfair trade practice on the part of the OP.
11 After gone through the above discussion we are of the considered view that by not giving 14 days prior notice to the respondent before conducting auction of his pledged gold ornaments and the perusal of the records show that the auction was already held on 02.02.2016, whereas OP has sending the notice of the auction on dated 15.02.2016. The OP has not only acted in a deficient manner but also indulged into unfair trade practice.
12 In the instant complaint, the complainant has prayed to return the gold ornaments, but the gold ornaments have been auctioned, as such, the complainant is entitled to price of the gold ornaments against which the opposite party has given loan to the complainant.
13 In light of the above discussion, the complaint succeeds and the same is hereby allowed with costs in favour of the complainant. The opposite party is directed to make the payment of gold ornaments to the complainant. The complainant has been harassed by the opposite party unnecessarily for a long time. The complainant is also entitled to Rs. 15,000/- as compensation on account of harassment and mental agony and Rs 11,000/- as litigation expenses. Opposite Party is directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. This complaint could not be decided within prescribed period due to heavy pendency of cases in this commission and COVID-19. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.
Announced in Open Commission.
15.03 2023
