PER:

Varinder Pal Singh, Member

1        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 34, 35, 36 and 38 against the opposite party on the allegations that the opposite party i.e. Muthoot finance Limited co. is dealing in providing loan against the gold. The officials of the opposite party has approached the complainant and asked him for availing gold loan by giving some lucrative offers. The complainant has shown interest in the offer and asked about other terms and conditions. The officials have told that it is policy of the company not to sell the gold until 5 years have passed from the date of availing loan. As such, thereafter the complainant has availed loan against gold, the details of which are as following. The complainant has availed loan of Rs. 4,07,035/- by pledging gold having weighing 119.8 Grams on date 11.8.2020 vide loan No. F7885/-. Further the complainant has also availed loan of Rs. 1,72,900/- by pledging Gold having weighing 52.8 Grams on dated 11.1.2021 vide loan No. F855. As such the total Gold weighing 172.8 Grams belonging to the complainant is lying with opposite party. The complainant has paid all the installments on time of the loan amount. During the outbreak of COVID-19, the complainant has suffered a big loss in his earning and could not paid some installments. In the last month, the officials of the company have come to the complainant and told him to deposit the entire outstanding pending amount. The complainant has told that he could not pay the entire  amount at once and he will pay the entire outstanding amount in installments but the officials of the opposite party have not listen to him. Afterwards, the complainant has visited the officials of the opposite party for several times and told them that they cannot sell the pledge gold till the passing of 5 years as such, they should cooperate with him in this time of pandemic but no positive response has been given by the concerned officials. The officials of the opposite party are further threatening again and again that they are going to sell the entire gold of the complainant. The complainant has requested them not to do so but they had refused to listen the complainant. The complainant has prayed that the opposite parties be directed not to sell the gold weighing about 172.6 Grams belonging to the complainant lying with opposite party against the loan No. F7885 and loan No. F8553 in the interest of justice. The opposite party / company also be directed to compensate the complainant for mental and physical harassment to the complainant suffered due to unfair trade practice and deficiencies in services to the tune of Rs. 20,000/- and litigation expenses of Rs.  10,000/-.  Alongwith the complaint, the complainant has placed on record his affidavit Ex. C-1, Self attested copy of aadhar Card Ex. C-2, Self attested copy of details of Gold loan Ex. C-3.

2        Notice of this complaint was sent to the opposite party and opposite party appeared through counsel and filed written version by interalia pleadings that the opposite party is a nonbanking Finance Company registered with the Reserve Bank of India and operate over 3600 + branches all over India. The opposite party is carrying on the business as per the guidelines, rules and regulations of RBI. The company has been providing various financial services to the General Public for the past several decades with unblemished track record and command considerable reputation and goodwill among the general public. The present reply is being filed through Mr. Rishu Jaitly (Branch Head)  who has been duly authorized and competent to file, sign, verify, institute the present reply and follow up the proceedings on behalf of the company. The relief sought for by the complainant in the present complaint has become infructuous. This fact is very much in the knowledge of the complainant that the opposite party had conducted auction to sell the gold ornaments lying with the opposite party with reference to loan accounts. The auction was conducted on 7.10.2021 and by selling the gold ornaments of the complainant, the opposite party has recovered amount of Rs. 4,70,944/- against Gold loan account No. F7885 against outstanding amount of Rs. 5,58,706/- and there remains outstanding amount of Rs. 87,762/- to be recovered from the complainant against loan account number F7885. Similarly, the opposite party has recovered amount of Rs. 2,03,537/- against Gold loan account No. F8553 against outstanding amount of Rs. 2,15,725/- and there remains outstanding amount of Rs. 12,188/- to be recovered from the complainant against loan account number F8553. Since, the opposite party has already conducted auction and has sold out the gold ornaments of the complainant, as such, the complaint filed by the complainant has become infructuous and is liable to be dismissed. The present complaint filed by the complainant is an abuse of process of law and is not maintainable in its present form. With malafide intention and on the basis of wrong facts, present complaint has been filed by the complainant.  The complainant himself is guilty for his acts and conduct. After availing the loan from the opposite party, the complainant had failed to deposit the amount of loan as well as interest amount to the opposite party and inspite of various reminders and notices, the complainant had failed to deposit any amount with the opposite party as such, the opposite party in its valid right, had auctioned the gold ornaments as per terms of the loan agreement. There is no deficiency or negligence on the part of the opposite party in any manner. The present complaint is liable to be dismissed. The present complaint is liable to be dismissed lacking a proper cause of action, it would be observed that averments made therein are vague, baseless and with malafide intentions. The complainant has made misconceived, false and baseless allegations of deficiency in service without any documentary evidence in support of allegations made in the complaint. The complainant had signed the loan agreement as per his own will by understanding its terms and conditions before availing the loan from the opposite party. The complaint filed by the complainant is not maintainable as there is no deficiency of services provided by the opposite party. The opposite party has performed its duties / acts with due diligence in carrying out its duties/ obligations to the customer/ complainant and hence the complaint is not maintainable. The complainant is a chronic loan defaulter who has not bothered to pay a single installment after availing the loan from opposite party and has filed this complaint by contending that he has paid the installments to the opposite party which is totally false and untrue.  At the time of availing loan from the opposite party, the complainant had provided his Aadhar Card and other proof and in Aadhar Card submitted by the complainant, address of the complainant was mentioned as 298,  opposite Gurudwara Tarn Taran. The complainant had approached the branch office of opposite party at Tarn Taran and had availed two gold loans as mentioned in the complaint. The details of the loan are as follows:-

The tenure of both the above mentioned loans were 6 months. The rate of interest , default rate slab and other terms and conditions of the loan were also clearly mentioned in the pledge cards handed over to the complainant at the time of pledge. The complainant had availed the said loans only after fully understanding and acknowledging all the terms and conditions of the facilities, he has availed from the company. It can be seen from the ledger records maintained at the branch office of opposite party that the complainant has not made a single payment towards both the gold loans availed by the complainant on 11.8.2020 and 11.1.2021 respectively. As on 5.10.2021 the amount due towards the gold loan No. F7885 is Rs. 5,47,599/- and the amount due towards Gold loan No. F8553 is Rs. 2,10,897/- contrary to the agreed terms and conditions of complainant has defaulted in repaying the loan amount. Since the dues were not cleared on or before the expiry of loan tenure, the said loan accounts of the complainant were classified as NPA and the company was constrained to issue notices to the complainant on various occasions. Registered notice for GL NO. F8553 was issued on 21.6.2021 and for GL No. F8553 on 17.8.2021. the said registered notices were returned as the complainant was not available in the address given to the branch. As per clause 7 of the pledge terms and conditions, it is mandatory to inform the branch if there is a change in address of the customer. This has not been informed to the branch by the complainant. The complainant was manually served the default notice by the branch on 16.8.2021 when he visited the branch office of the opposite party. The complainant was therefore well aware of the pending dues towards the gold loans availed by him specifically well in advance. The branch staff also explained in detail to him regarding the loan restructuring schemes provided by the company in wake of the COVID-19 Pandemic to help the customers whose gold loans were in the auction list but the complainant never turned up to the opposite party and had never offered any installment amount to the opposite party and as such, the opposite party had issued gold auction notice in the local newspaper and had conducted auction on 7.10.2021 and gold ornaments of the complainant were sold out in the said auction and part payment was recovered by the opposite party against the loan account of the complainant. Inspite of approaching the opposite party, the complainant opted to file the present complaint against the opposite party which is without any merits and baseless and has become infructuous. Reminder notices had been sent on 21.6.2021 and 17.8.2021 to the complainant stating that if no payment is made towards the respective gold loans, it will end up in auction of gold pledged. The company, therefore, had been left with no other option but to auction the gold ornaments as contained in clause 12 of the pledge agreement. The auction process was initiated only after following all the due process prescribed under the law. In addition to serving of the notices to the complainant by registered post, the company had published the same in two newspapers, one in Yugmarg and other in Deshsewak on 23.9.2021 informing that the ornaments pledged vide the above said loan accounts would be auctioned on 6^th October 2021. The opposite party company had worked in a professional and ethical manner. No harassment has been caused to the complainant in any manner and the allegations falsely alleged by the complainant are made in manner so as to injure the repudiation and goodwill of the opposite party company. The complainant had visited the office and had signed on the notices, which were returned to the opposite party due to wrong address given by the complainant and it was well within the  knowledge of the complainant that due to non payment, his gold ornaments will be sold out. Considering  the spread of COVID-19 Pandemic, the company had introduced an exclusive scheme “PunarNav Gold Loan” for re-pledge of loan accounts due for auction, wherein, the customer can repay the differential principal and interest in cash to re-pledge under the new scheme (with discounted interest discount at the rate of 11.99%) In addition, there was also an option to extend the auction by paying full interest up to date, or a portion of the interest plus a portion of the principal. All these “save auction” initiatives were explained and conveyed to the complainant by company branch staff multiple times. Taking into account the pandemic, the company had opted to file the present complaint which now has become infructuous.  The opposite party has denied the other contents of the complaint and prayed for dismissal of the same.  Alongwith the written version, the opposite party has placed on record self attested affidavit of authorized signatory Ex. OP-1, authority letter in favour of signatory Ex. OP-2, Copy of Loan pledge Card dated 11.8.2020 bearing No. 171493 Ex. OP-3, copy of loan pledge card dated 11.1.2021 bearing No. 168981 Ex. OP-4, Copy of Ledger account of loan Number F 8553 Ex. OP-5, F7885 Ex. OP-6, Copies of returned inland letter Card Ex. OP-7 to OP-10, Copies of  Auction notice dated 16.8.2021  Ex. OP-11 and OP-12, copy of public notice auction Ex. OP-13.  

3        We have carefully gone through the record and heard Ld. counsel for complainant and opposite parties.

4        Ld. counsel for the complainant contained that the complainant has availed loan against gold, the details of which are as following. The complainant has availed loan of Rs. 4,07,035/- by pledging gold having weighing 119.8 Grams on date 11.8.2020 vide loan No. F7885/-. Further the complainant has also availed loan of Rs. 1,72,900/- by pledging Gold having weighing 52.8 Grams on dated 11.1.2021 vide loan No. F855. As such the total Gold weighing 172.8 Grams belonging to the complainant is lying with opposite party. The complainant has paid all the installments on time of the loan amount. During the outbreak of COVID-19, the complainant has suffered a big loss in his earning and could not pay some installments. In the last month, the officials of the company have come to the complainant and told him to deposit the entire outstanding pending amount. He further contended that the complainant has told that he could not pay the entire  amount at once and he will pay the entire outstanding amount in installments but the officials of the opposite party have not listen to him. Afterwards, the complainant has visited the officials of the opposite party for several times and told them that they cannot sell the pledge gold till the passing of 5 years as such, they should cooperate with him in this time of pandemic but no positive response has been given by the concerned officials. The officials of the opposite party are further threatening again and again that they are going to sell the entire gold of the complainant and prayed that the present complaint may be allowed.

5        Ld. counsel for the opposite party contended that the relief sought for by the complainant in the present complaint has become infructuous. This fact is very much in the knowledge of the complainant that the opposite party had conducted auction to sell the gold ornaments lying with the opposite party with reference to loan accounts. The auction was conducted on 7.10.2021 and by selling the gold ornaments of the complainant, the opposite party has recovered amount of Rs. 4,70,944/- against Gold loan account No. F7885 against outstanding amount of Rs. 5,58,706/- and there remains outstanding amount of Rs. 87,762/- to be recovered from the complainant against loan account number F7885. Similarly, the opposite party has recovered amount of Rs. 2,03,537/- against Gold loan account No. F8553 against outstanding amount of Rs. 2,15,725/- and there remains outstanding amount of Rs. 12,188/- to be recovered from the complainant against loan account number F8553. Since, the opposite party has already conducted auction and has sold out the gold ornaments of the complainant, as such, the complaint filed by the complainant has become infructuous and is liable to be dismissed. The present complaint filed by the complainant is an abuse of process of law and is not maintainable in its present form. After availing the loan from the opposite party, the complainant had failed to deposit the amount of loan as well as interest amount to the opposite party and inspite of various reminders and notices, the complainant had failed to deposit any amount with the opposite party as such, the opposite party in its valid right, had auctioned the gold ornaments as per terms of the loan agreement. There is no deficiency or negligence on the part of the opposite party in any manner. The complainant is a chronic loan defaulter who has not bothered to pay a single installment after availing the loan from opposite party and has filed this complaint by contending that he has paid the installments to the opposite party which is totally false and untrue.  At the time of availing loan from the opposite party, the complainant had provided his Aadhar Card and other proof and in Aadhar Card submitted by the complainant, address of the complainant was mentioned as 298, opposite Gurudwara Tarn Taran. He further contended that the tenure of both the above mentioned loans were 6 months. The rate of interest , default rate slab and other terms and conditions of the loan were also clearly mentioned in the pledge cards handed over to the complainant at the time of pledge. The complainant had availed the said loans only after fully understanding and acknowledging all the terms and conditions of the facilities, he has availed from the company. It can be seen from the ledger records maintained at the branch office of opposite party that the complainant has not made a single payment towards both the gold loans availed by the complainant on 11.8.2020 and 11.1.2021 respectively. As on 5.10.2021 the amount due towards the gold loan No. F7885 is Rs. 5,47,599/- and the amount due towards Gold loan No. F8553 is Rs. 2,10,897/- contrary to the agreed terms and conditions of complainant has defaulted in repaying the loan amount. Since the dues were not cleared on or before the expiry of loan tenure, the said loan accounts of the complainant were classified as NPA and the company was constrained to issue notices to the complainant on various occasions. Registered notice for GL NO. F8553 was issued on 21.6.2021 and for GL No. F8553 on 17.8.2021. the said registered notices were returned as the complainant was not available in the address given to the branch. As per clause 7 of the pledge terms and conditions, it is mandatory to inform the branch if there is a change in address of the customer. This has not been informed to the branch by the complainant. The complainant was manually served the default notice by the branch on 16.8.2021 when he visited the branch office of the opposite party. The complainant was therefore well aware of the pending dues towards the gold loans availed by him specifically well in advance. The branch staff also explained in detail to him regarding the loan restructuring schemes provided by the company in wake of the COVID-19 Pandemic to help the customers whose gold loans were in the auction list but the complainant never turned up to the opposite party and had never offered any installment amount to the opposite party and as such, the opposite party had issued gold auction notice in the local newspaper and had conducted auction on 7.10.2021 and gold ornaments of the complainant were sold out in the said auction and part payment was recovered by the opposite party against the loan account of the complainant. Inspite of approaching the opposite party, the complainant opted to file the present complaint against the opposite party which is without any merits and baseless and has become infructuous. Reminder notices had been sent on 21.6.2021 and 17.8.2021 to the complainant stating that if no payment is made towards the respective gold loans, it will end up in auction of gold pledged. The company, therefore, had been left with no other option but to auction the gold ornaments as contained in clause 12 of the pledge agreement. He further contended that the auction process was initiated only after following all the due process prescribed under the law. In addition to serving of the notices to the complainant by registered post, the company had published the same in two newspapers, one in Yugmarg and other in Deshsewak on 23.9.2021 informing that the ornaments pledged vide the above said loan accounts would be auctioned on 6^th October 2021. The opposite party company had worked in a professional and ethical manner. The complainant had visited the office and had signed on the notices, which were returned to the opposite party due to wrong address given by the complainant and it was well within the  knowledge of the complainant that due to non payment, his gold ornaments will be sold out. Considering  the spread of COVID-19 Pandemic, the company had introduced an exclusive scheme “PunarNav Gold Loan” for re-pledge of loan accounts due for auction, wherein, the customer can repay the differential principal and interest in cash to re-pledge under the new scheme (with discounted interest discount at the rate of 11.99%) In addition, there was also an option to extend the auction by paying full interest up to date, or a portion of the interest plus a portion of the principal. All these “save auction” initiatives were explained and conveyed to the complainant by company branch staff multiple times. Taking into account the pandemic, the company had opted to file the present complaint which now has become infructuous.  The opposite party has denied the other contents of the complaint and prayed for dismissal of the same. 

6        We have gone through the rival contentions of Ld. counsel for the parties.

7        In the present case, the complainant has claimed the relief as follows:-

“It is, therefore, prays before this Commission that the opposite party may be directed not to sell the gold weighing about 172.6 grams belonging to the complainant lying with OP against the loan No. F7885 and loan No. F8553 in the interest of justice. ……”

          In the present complaint the complainant is claiming that his gold ornaments may not be sold. But on the other hands, the case of the opposite party is that gold ornaments have been auctioned. Moreover, the opposite party has placed on record letter Ex. OP11 regarding auction of gold ornaments addressed to Shamsher Singh (complainant), another letter Ex. OP12 regarding auction of gold ornaments addressed to Shasher Singh (complainant)  and same are bearing the signatures of Shamsher Singh complainant, which shows that the complainant was having full knowledge regarding the auction process of the gold ornaments. As such, the relief which has been sought by the complainant in the present complaint has become infructuous.

8        The complainant has taken loan from the opposite party and he has to return the same but the complainant has not returned the loan to the opposite party, therefore,  according to terms and conditions of the loan agreement, the gold ornaments have been sold. Both the parties are bound by the terms and conditions of the policy. The terms and conditions of the Insurance Policy have to be strictly construed. Hon’ble Supreme Court in the case of Export Credit Guarantee Corporation of India vs. Garg Sons International 2013 (1) SCALE 410 (SC) held in Para Nos.8 to 11 as under:

“8.  It is a settled legal proposition that while construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the Court to add, delete or substitute any words. It is also well settled, that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed in order to determine the extent of the liability of the insurer. Therefore, the endeavour of the Court should always be to interpret the words used in the contract in the manner that will best express the intention of the parties. (Vide: M/s. Suraj Mal Ram Niwas Oil Mills (P) Ltd. v. United India Insurance Co. Ltd., (2010) 10 SCC 567). 

9.  The insured cannot claim anything more than what is covered by the insurance policy. The terms of the contract have to be construed strictly, without altering the nature of the contract as the same may affect the interests of the parties adversely. The clauses of an insurance policy have to be read as they are consequently, the terms of the insurance policy, that fix the responsibility of the Insurance Company must also be read strictly. The contract must be read as a whole and every attempt should be made to harmonize the terms thereof, keeping in mind that the rule of contra proferentem does not apply in case of commercial contract, for the reason that a clause in a commercial contract is bilateral and has mutually been agreed upon. (Vide : Oriental Insurance Co. Ltd. v. Sony Cheriyan AIR 1999 SC 3252; Polymat India P. Ltd. v. National Insurance Co. Ltd., AIR 2005 SC 286; M/s. Sumitomo Heavy Industries Ltd. v. Oil & Natural Gas Company, AIR 2010 SC 3400; and Rashtriya Ispat Nigam Ltd. v. M/s. Dewan Chand Ram Saran AIR 2012 SC 2829). 

10.   In Vikram Greentech (I) Ltd. & Anr. v. New India   Assurance Co. Ltd. AIR 2009 SC 2493, it was held:  “An insurance contract, is a species of commercial transactions and must be construed like any other contract to its own terms and by itself. The endeavour of the court must always be to interpret the words in which the contract is expressed by the parties. The court while construing the terms of policy is not expected to venture into extra liberalism that may result in rewriting the contract or substituting the terms which were not intended by the parties. (See also: Sikka Papers Limited v. National Insurance Company Ltd & Ors. AIR 2009 SC 2834).” 

11.  Thus, it is not permissible for the court to substitute the terms of the contract itself, under the garb of construing terms incorporated in the agreement of insurance. No exceptions can be made on the ground of equity. The liberal attitude adopted by the court, by way of which it interferes in the terms of an insurance agreement, is not permitted. The same must certainly not be extended to the extent of substituting words that were never intended to form a part of the agreement.” 

9        In view of the above discussion, we do not find any merit in the present complaint and the same is hereby dismissed with no order as to costs.  Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.

Announced in Open Commission

24.04.2024