Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act, 1986 for direction to the Opposite party to refund the balance amount of Rs.25,300/- with interest from 07.10.2003 with compensation of Rs.20,000/-. 2. The case of the complainant is that, on 18.05.2002 he had pledged golden chain weighing 39.400 grams with Opposite party under bill No.1937 for Rs.10,500/- though, the value of the gold chain was Rs.35,000/- at that time. Again on 27.05.2002, the complainant pledged another gold chain weighing 21.600 grams for Rs.6,200/- under pawn ticket No.2002, though the value of the gold chain was Rs.17,000/- at that time. The complainant was paying interest at the rate of 2% per month regularly. On several occasions he approached the Opposite party and requested to receive the loan amount and balance interest and also to return the golden jewels. The Opposite party assuring to return, went on postponing the same on one or the other grounds. Since, the Opposite party failed to receive the amount and to return the golden ornaments, legal notice dated 29.01.2008 was issued and the Opposite party has sent untenable reply dated 05.02.3008 stating that gold ornaments have been auctioned on 07.10.2003 and the amount has been appropriated towards the loan and the interest. The Opposite party has not at all issued notice prior to the auction of the golden ornaments and Opposite party has not at all conducted any auction, but has created false documents to make wrongful gain. The value of the two items of gold ornaments pledged is worth of Rs.35,000/- and Rs.17,000/-. Even if, the gold ornaments were auctioned, Opposite party ought to have adjusted the amount towards the loan and refund the balance amount to the complainant. But, Opposite party has not refunded the amount and committed deficiency in service. Hence, the present complaint is filed. 3. The Opposite party has filed written version stating that the complainant had borrowed loan under two pawn tickets dated 18.05.2002 and 27.05.2002. Later, the complainant failed to pay the interest accrued and became a defaulter. The period as prescribed by law came to be expired and accordingly, the Opposite party for the purpose of realizing the amount, initiated proceedings for the auction of the said articles according to law. On 15.09.2003, notice was issued to the complainant through RPAD and served on the complainant. In spite of it, the complainant did not visit the Opposite party to enquire. Therefore, the Opposite party entrusted the matter of auctioning the pledging articles to the approved recognized Govt. auctioneer. Auctioneer published the auction of the said articles fixing the date of auction as 07.10.2003 in Nudibharathi Daily Newspaper. In spite of the intimation by newspaper, the complainant failed to redeem and therefore the auctioneer auctioned the golden items on 07.10.2003 in public auction and realized the amount and paid to the Opposite party. Therefore, question of paying the compensation and deficiency of service does not arise at all. The complaint is barred by limitation. The allegation that the complainant was paying the interest and approaching the Opposite party for redeeming the articles is denied. The complaint is not maintainable. The complaint is failed to be dismissed with exemplary cost of Rs.10,000/-. 4. During trial, the complainant is examined as CW.1 and Ex.C.1 to C.4 are marked. The Opposite party is examined and Ex.R.1 to R.8 are marked. 5. We have heard both sides. 6. Now the points that arise for our considerations are:- 1) Whether the complaint is barred by limitation? 2) Whether the Opposite party has committed deficiency in service? 3) Whether the complainant is entitled the relief sought for? 7. Our findings and reasons are as here under:- REASONS 8. POINTS No.1 to 3:- The undisputed facts borne out from the materials on record are that the complainant had borrowed loan under two pawn tickets dated 18.05.2002 and 27.05.2002, as per Ex.C.1 and Ex.C.2 respectively borrowing loan of Rs.6,200/- and another loan of Rs.10,500/- pledging gold chain (18.c.t) weighing gross weight 21.600 grams net weight 16.000 gm. and another gold chain weighing 39.400 grams gross weight, net weight is 30 gms and as per Ex.R.1 and R.2 pawn tickets, the time of redemption is 12 months. The complainant has issued the legal notice on 29.01.2008 as per Ex.C.3 and served on the Opposite party and Opposite party has sent reply on 05.02.2008 as per Ex.C.4. As per Rule 20 clause 7 of the Karnataka Pawn Brokers Rules 2005, pawn tickets produced after 3 years by the pawner shall not be entertained. 9. According to the Opposite party, the complainant has failed to pay the interest and became a defaulter and therefore steps for auction was taken under Pawn Bankers Act and in this regard the Government approved auctioneer M/s Naveen Agencies issued notice as per Ex.R.2 fixing the auction date on 07.10.2003 and issued auction notice to the complainant by a registered post and served on the complainant on 15.09.2003 and even the notice of public auction was published in Nudibharati Daily Newspaper, Mandya District as per Ex.R.5 and Ex.R.1 is the sale book of pledges and Ex.R.1(a) and R.1(b) are the items in respect of the complainant gold articles. In the notice Ex.R.2 also, we find it Sl.No.18 & 27 in A series, in respect of the complainant and the notice was served by registered post as per Ex.R.2(a). Though the complainant has disputed the service of notice but there is no reason to suspect the registered post at all. In spite of service of registered post and publication in the newspaper, the complainant has not approached the Opposite party at all to redeem the pledged articles and Ex.C.6 is the list of persons who participated in the auction and Ex.R.7 is the auction statement and perusal of these documents clearly established that legally the approved auctioneer has auctioned the pledged articles and in Ex.R.7 we find that so many items which were published for auction were redeemed and even the auction of some items were stopped Ex.R.7(a) & R.7(b) are in respect of the complainant ornaments and one item is sold for Rs.12,920/- to one Krishnashetty and another item is sold for Rs.9,250/-. So, even though on 07.10.2003 the pledged gold articles were sold the public auction, the complainant did not claim any amount till the legal notice issued in 2008 and the cause of action arose within one year from the date of pledge and also within 2 years from the date of auction i.e., 07.10.2003. Since, the complaint is filed after two years of the auction and even though the complainant has filed an application for condonation of delay, the complainant has not made out sufficient cause to condone the delay, because his case is that he was not at all aware of the auction and no notice was issued by registered post before the auction. The another reason is that though he was ready to pay the loan amount with interest, the Opposite party did not receive on one or the other grounds, therefore he got issued a legal notice. According to him, the date of knowledge of public auction came after the reply notice of the Opposite party and the complaint is in time, but it cannot be accepted because notice by registered post about the auction about the pledged articles was served on the complainant and therefore he was aware of the date of public auction. Therefore, the complaint is barred by limitation. 10. According to the complainant, at the time of auction the ornaments were pledged worth of Rs.35,000/- and 17,000/-, but the loan amount is only Rs.16,700/- and therefore the Opposite party is liable to refund Rs.25,300/- and Opposite party has committed deficiency in service in not refunding the same. The complainant has not produced any materials to prove that the value of the gold items pledged under Ex.C.2 weighing net weight of 30 grams (gross weight 39.400) is worth of Rs.35,000/- and another item weighing net weight of 16 grams and gross weight of 21.6 grams is worth of Rs.17,000/-. In Ex.C.1 the value of the article at the time of pledge is shown as Rs.7,500/- and in respect of other item the value is shown as Rs.13,000/- in May 2002. The golden articles were auctioned on 07.10.2003. So, the complainant has given exaggerative value of the gold articles and according to the Opposite party at the time of auction the value of gold per gram was of Rs.450/- to 500. To prove the contrary, the complainant has not produced any documents obtaining from the jewels shop. Further, it cannot be understood how the complainant say that he was due of only Rs.16,700/- towards the loan, because the principal loan is Rs.16,700/- totally. Admittedly he has not whispered anything about the interest. According to the complainant, he has paid interest regularly at the rate of 2% per month but the complainant has not produced any receipt. According to the complainant, the Opposite party was not issuing receipt for having paid the interest. According to the Opposite party, if a pawner pays the interest the loan will be renewed and fresh pawn ticket would be issued. Even claim for redemption of pawned articles after 3 years of pawn ticket cannot be entertained, in view of rule 20(7) of Money Lenders Rules. Under these circumstances, the grievance of the complainant that Opposite party has committed deficiency in service in not refunding the amount claimed which is said to be excess of the value of the golden items that were auctioned is not justified and tenable. 11. Under these circumstances, the complainant is not entitled to the amount claimed or any compensation. 12. In the result, we proceed to pass the following order; ORDER The complaint is dismissed. However, there is no order as to cost. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 29th day of August 2008). (PRESIDENT) (MEMBER) (MEMBER) ctj
