11/01/16

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT

             This Appeal is directed against the judgment and order passed by Learned District Forum, Howrah in CC 40 of 2013 allowing the complaint and directing the OP No.3 to return the pledged ornaments as per agreement or alternatively repay the amount of the price of the gold at the present market value as on 20/09/13 within 30 days from the date of this order after deducting Rs.42,000/- being the principal loan amount, in default the interest @ 9% p.a. will be levied in respect of the entire amount till realisation.  The OP No.3 was directed to pay Rs.50,000/-. 

            The case of the Complainant/Respondent, in short, is that he took gold loan to the tune of Rs.42,000/- from the OPs.  The period of loan was scheduled to expire in September 2012, but the Complainant on account of his pressure in work and tension in daily life completely forgot the same.  Nevertheless the Complainant diligently paid the interest for the months of October, November and December 2012 against proper receipts.  The Complainant is all along ready and willing to pay the interest as well as the loan amount because of the great deal of sentiment attached with the pledged gold ornaments which were presented to his wife at the time of marriage and is very much eager to get it back at any cost.  Two notices dated 07/11/12 and 08/12/12 sent by the OP No.2 were, in the absence of the Complainant received by his old ailing father who forgot to hand over the same or to inform the Complainant verbally.  The time between the issuance of notices and the date of auction was very short and the Complainant got no opportunity to repay the loan amount or to resist the auction.  The Complainant sent notice to the OP No.2 on 31/01/13, but no reply was sent from their side.  Under the circumstances, the complaint was filed before the Learned District Forum.

            The Learned Counsel for the Appellant has submitted that the parties are bound by the terms of agreement and the Complainant although paid the interest but did not repay the principal amount.  It is submitted that the loan amount was treated as NPA and after serving due notices the pledged gold was sold in auction.  It is submitted that there was no deficiency in service on the part of the Appellant. 

            It is submitted by the Respondent that the loan was taken to the tune of Rs.42,000/- and the amount of interest was duly paid and as regards principal no message was sent by the OP to the Complainant.  It is submitted that the Complainant is not a defaulter. 

            We have heard the submission made by both sides and perused the papers on record.  From the materials on record it appears that as per agreement the due date as to principal was 22/09/12 and as regards interest the due date was 22/04/12.  The Complainant having agreed to the terms signed the agreement.  Moreover, as per clause 5(c) of the terms and conditions, in the event of the borrower failing to repay the loan amount the financier will have the right to sell the pledged articles.  It is the settled law that parties are bound by the terms of agreement and it is an admitted fact that the Complainant did not repay any amount towards the principal.  The Complainant having signed the agreement cannot say that no message was sent for repayment towards the principal.  The Complainant being a defaulter cannot get any relief in this case.  The Learned District Forum was not justified in allowing the complaint case. 

            The Appeal is allowed.  The impugned judgment is set aside.  The petition of complaint is dismissed.