IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
DATED THIS THE 28th DAY OF OCTOBER 2022
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LLM. President
Smt.S.Sandhya Rani. Bsc, LLB ,Member
Sri.Stanly Harold, B.A.LLB, Member
CC.No.94/2022
Azeem, 42 years,
S/o Abdul Kareem,
Kaippada Thazhe Kishakkathil,
Vadakkekkara, Ashtamudi P.O.,Kollam.
Rep.through his mother Nadeera : Complainant
(By Adv.Sudarsanan M.S.)
V/s
Sajeev Sundar S.,
S/o K.P.Sundaresan,
‘Hemandam’, S.K.P.Nagar 30,
Mangad P.O., Kollam. : Opposite party
ORDER
Sri. E.M.MUHAMMED IBRAHIM , B.A, LLM,President
This is a case based on a complaint filed U/s 35 of the Consumer Protection Act 2019.
The averments in the complaint in short are as follows:-
The complainant is a plumber and now he is working at abroad. Hence the complainant has been filed through his mother who knows the facts of the case. The opposite party is the proprietor of “Hemandam Finance” engaged in the gold financing business.
The complainant had pledged his gold ornaments weighing 52 gms on 16.11.2018 the Hemandam Finance and availed a loan of Rs.1,35,000/- for his personal need.
The opposite party made assurance at the time of pledging the gold ornaments that the complainant could redeem the gold ornaments pledged as and when required by paying the borrowed amount with interest @ 5% and the complainant is at liberty to pay interest monthly or can pay the same in lump sum at the time of closing the gold loan.
The complainant who is the Pawnee is employed in Saudi Arabia before his departure he deputed his mother Nadeera to deal with the matters arising from the gold pledging.
Thereafter on 16.05.2021 the mother of the complainant who is the authorized person of the loanee approached the opposite party to redeem the pledged gold ornaments with the required money but the opposite party informed that he could not deliver the gold ornaments soon as he repledged it an another bank and sought time collecting the gold ornaments and send back the mother of the complainant by stating that he will contact soon after collecting the gold ornaments. Since the opposite party failed to contact the complainant as promised, she personally contacted him and demanded back the ornaments after collecting the principal amount with interest accrued, but the opposite party was not willing to redeem the gold ornaments pledged. The opposite party is withholding the gold ornaments for unlawful enrichment. In these circumstances the complainant had issued a notice on 09.09.2021 demanding to redeem the gold ornaments for which the opposite party responded with a false reply against the facts. The act of opposite party amounts to deficiency in service and unfair trade practice. The complainant is entitled to realize the gold ornaments after paying the pledged amount and interest. Hence the complaint.
Though notice issued to opposite party from the Forum/Commission was served the opposite party failed to appear and was called absent, hence set exparte. Complainant filed proof affidavit by reiterating the averments in the complaint and got marked Exts.A1 to A6 documents. Ext.A1 is the authorization given by to his mother Nadeera to redeem the gold ornaments. Ext.A2 is the Pawnee chit dated 16.11.2018 for Rs.1,35,000/- issued from Hemandam Finance. Ext.A3 is the legal notice dated 09.09.2021 issued to the opposite party. Ext.A4 is postal receipt dated 09.09.2021. Ext.A5 is postal acknowledgement dated 10.09.2021. Ext.A6 is reply notice issued to the opposite party issued by the counsel for the complainant.
Heard the counsel for the complainant. Perused the records.
The unchallenged averments in the affidavit coupled with Ext.A1 and A2 documents would establish prima facie that on 16.11.2018 the complainant had pledged 52 gm of ornaments and availed Rs.1,35,000/- for his personal requirements @ 5% interest. It is clear from the materials available on record that at the time of pledging gold ornaments weighing 52 gms the opposite party has assured the complainant that the complainant has the liberty either to pay interest on monthly basis or to pay in lump sum at the time of closing the gold loan account.
Admittedly loan was availed by pledging the gold ornaments on 16.11.2018. Condition No.2 stated in the overleaf of Ext.A2 pawnee chit would indicate that the loan is for 6 months and within 6 months the complainant has to redeem the pledge. Therefore the cause of action for filing the complaint starts from that date which is 16.05.2019 . The present complaint is seen filed only on 11.03.2022 which is after about 2 years and 10 months of starting the cause of action. Section 69 of the Consumer Protection Act provides 2 years time for filing the complaint. Of course the complainant is entitled to file the complaint at a belated stage along with a petition to condone to delay as provide U/s 69 of the Consumer Protection Act 2019. Though the complaint is highly belated one no petition to condone the delay has been filed. Hence we hold that the complainant is hopelessly barred by limitation.
Relief No.1 sought for in the complaint is to issue a direction to return the gold ornaments or to compensate as per the present market condition. Admittedly the complainant has availed Rs.1,35,000/- by pledging 52 gms of gold ornaments. Even according to the complainant the gold loan availed was for interest @ 5% per month. The complainant has also stated that rate of interest is 5% per month in Ext.A3 legal notice. Neither the complainant nor the counsel for the complainant has understood the implication of interest @ 5% per month. Usually interest is calculated at a percentage which is application for one year and if it is stated that interest @ 5% per annum then interest for Rs.1,35,000/- for 6 months
will be Rs 1,35,000 X 5 X 6
100 X 12 =3375 However if it is stated interest is 5% per month then the interest for Rs.1,35,000/- for 6 months will be Rs.1,35,000X 5X6
100 = 40,500. The difference is Rs.37,125/-. It is to be pointed out that the opposite party has not stated the rate of interest anywhere in Ext.A2 receipt or in Ext.A6 reply notice. But the complainant without any basis would claim that the interest claimed by opposite party is @ 5 % per month in the complaint and Ext.A3 lawyer notice. If the complainant has availed the gold loan by agreeing to repay the same with interest @ 5% per month the complainant has to pay Rs.40,500/- as interest along with interest Rs.1,35,000/-. The total of which will be Rs.1,75,000/- at the end of 6 month. But the complainant has no case that neither himself nor his mother being the authorized representative has offered Rs.1,75,000/- on 16.05.2021 and requested the opposite party moneylender to redeem the pledged gold ornaments. Even in the relief portion the complainant has not expressed his readiness and willingness to pay the principal amount and agreed interest which is permitted to a moneylender to be charged for a gold loan. But the complainant simply requested to return the gold ornaments without offering at least the principal amount of Rs.1,35,000/- and 18% interest (which is the maximum permitted to be charged by a money lender other than banks) after swallowing the loan amount. Hence the relief No.1 is not legal and proper. If the complainant is sticking on the first relief to return the gold ornaments he or the authorized representative of the complainant is bound to pay Rs.1,35,000+admitted interest of Rs.40,500/- for 6 months and thereafter permissible interest for gold loan. Then only the gold ornament can be ordered to be returned. The value of gold as on the date of pledge will be round Rs.3,000/- per gram. If that be so 52 gm of gold would worth Rs.3000X52=156000. The complainant has to pay Rs.1,75,000/- after 6 months of the pledging the gold ornaments. If the 5% interest per month is accepted which may not be profitable for the complainant to redeem the gold ornament. Now if the gold ornament has
to be redeemed or ordered to be returned the complainant is expected to pay principal amount and interest for the principal amount at least the at the rate of 18% per annum that till today.
Of course 5% interest per month is equal to 5X12=60% interest per annum which is unconscionable rate which cannot be ordered to be paid by a court of law or tribunal. But when the complainant himself would claim that the agreed interest is 5% per month (60 per annum) court/commission is helpless. But in Ext.A2 receipt or in Ext.A6 reply notice the opposite party has not stated that he used to levy 5% interest per month . In the circumstances the averments in the complaint and A3 lawyer notice probably may be due to the non-understanding of the implication of interest per month.
In this connection it is pertinent to point out that after recording exparte evidence the case was taken up for order to 12.08.2022. But after perusing the records we entertain doubts regarding limitation, rate of interest and also regarding the 1st relief sought for in the complaint. Hence earlier order posting the case for order stands reviewed suo moto and posted the case for hearing. But the learned counsel for the complainant for the reasons best known has not turned up nor clarified doubts regarding any of the above aspects. In the circumstances we have again taken up the case for order.
It is crystal clear from the available materials that the complaint is hopelessly barred by limitation and that the claim to return the gold ornaments without offering the principal amount borrowed and agreed interest till today is not fair and reasonable. Therefore we find no merit in the complaint and same is only to be dismissed.
In the result complaint stands dismissed.
No costs.
Dictated to the Confidential Assistant Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the Open Commission this the 28th day of October 2022.
E.M .MUHAMMED IBRAHIM:Sd/-
S.SANDHYA RANI:Sd/-
STANLY HAROLD:Sd/-
Forwarded/by Order
Senior superintendent
INDEX
Witnesses Examined for the Complainant:-Nil
Documents marked for the complainant
Ext.A1 : The authorization given by to his mother Nadeera to redeem the gold
ornaments.
Ext.A2 : The Pawnee chit dated 16.11.2018 for Rs.1,35,000/- issued from
Hemandam Finance.
Ext.A3 : Legal notice dated 09.09.2021 issued to the opposite party.
Ext.A4 : Postal receipt dated 09.09.2021.
Ext.A5 : Postal acknowledgement dated 10.09.2021.
Ext.A6 : Reply notice issued to the opposite party issued by the counsel
for the complainant.
Witnesses Examined for the opposite party:-Nil
Documents marked for opposite party:-Nil
