Dt.23.06.2015
JAGANNATH BAG, MEMBER
The present appeal is directed against the order dated 17.07.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Burdwan, in DF Case No. 13 of 2013 , whereby the complaint has been allowed on contest without costs.
The complaint case, in brief , was as follows:
The Complainant, having learnt from the office of the OP No.1 that gold loan was available from the OP at a low rate of interest, i.e., 1% p.a , took personal loan on 23.04.2010 , 04.03.2011 and 22.03.2011 by depositing gold ornaments of 221.400 grams, 19 grams and 33 grams and obtained loan amounts of Rs. 2,80,000/-, Rs. 31,000/- and Rs. 51,000/- under PPL Nos. 5273, 1862 and 1985 respectively. The total amount of loan obtained by the Complainant from the OP No.1 was to the tune of Rs. 3,62,000/- . Due to paucity of fund , the Complainant could not repay the loan amount with interest @1% p.a. within the stipulated period. The Complainant after having received a demand notice connection with the PPL loan accounts in the month of February 2012 requested the OP to extend the time of repayment of loan which was allowed. Later the Complainant got a statement of loan account from the OP No.1 and found that the loan amount together with interest stood at Rs. 6,50,870/- as on 26.09.2012. The Complainant requested the OP to impose interest over the availed loan amount @ 1% p.a as per the assurance given by the OP No.1 and the RBI guidelines instead of fixing compound interest. The Complainant’s own calculation of total repayable amount would not exceed Rs. 4,20.000/-. The OP vide their letter dated 29.01.2013 asked the Complainant to pay Rs. 6,50,870/-, failing which the gold ornaments deposited by the Complainant would be auctioned within 7 days from the date of receipt of the notice. Being aggrieved by contents of the letter of the OP, the Complainant filed the petition of complaint with prayer for direction upon the OPs to receive Rs. 4,20,000/- from the Complainant and to pay a sum of Rs. 1,00,000/- towards compensation and Rs. 50,000/- for mental and physical harassment.
The complaint has been contested by the OPs, who in their written version , denied all material allegations and submitted, inter alia that the statement of the Complainant about the repayable amount of Rs.4,20,000/- and interest rate of 1 % p.a. was a matter to be proved by the Complainant. It was further submitted that loans were advanced by them against mortgage / pledge of gold ornaments for short term needs and according to the terms of agreement , the loan account was to be closed within 3 months after payment of monthly interest along with principal amount. As per terms of the agreement , if the borrower did not pay the interest and the principal amount within the stipulated period of three months the OPs would go on sending reminders and finally if payment is not made within 7 days or so the ornaments would be put into auction to recover the dues . It was also submitted by the OPs that as the Complainant failed and neglected to repay the outstanding dues on account of interest and the principal amount inspite of several notices and reminders , the gold loan accounts in the name of the Complainant became a non performing asset and the OPs sustained huge loss arising out of the said non performing asset. The OPs gave a statement showing that PPL 1862 dated 04.03.2011, PPL 1985 dated 22.03.2011 and PPL 5273 dated 31.03.2012 were issued for Rs. 31, 000/-, Rs. 53,000/- and Rs. 4,68,400/- respectively. It was also contended by the OPs that the Complainant concealed the fact of filing Writ Petition Nos. 7130 (W) of 2012 and Writ Petition No. 22920 (W) of 2012 before the Hon’ble High Court, Calcutta, seeking relief on the self same cause of action. Hence , the Complainant was not entitled to get any relief from the Ld. Forum below. Any negligence or unfair trade practice or deficiency in service was denied on the part of the OPs.
Ld. Forum below after having perused the materials on record and upon hearing of arguments advanced by the Ld. Advocates for both parties at length observed that the rate of interest on the loan amount was not mentioned in the documents annexed as A, A1 and A2. Ld. Forum also observed that they were not sure as to whether the OPs are entitled to claim interest @ 1% or 6% p.a. They relied on the complaint field on affidavit by the Complainant that interest rate was 1% p.a. on the entire loan amount . Further, it was observed that though the OPs claimed Rs. 6,50,870/- towards unpaid loan amount , no document was filed by the OP . The sum of Rs. 4,20,000/- as declared by the Complainant was taken as the firm amount and accordingly Ld. Forum below ordered the Complainant to pay a sum of Rs.3,20,000/- only after adjustment of Rs. 1,00,000/- which stood paid in view of the interim order passed by the Ld. Forum below dated 05.02.2013. The Complainant was accordingly directed to pay the said amount of Rs. 3,20,000/- to the OPs along with interest @ 1 % p.a. from ‘taking out the loan till payment of entire amount’ within 45 days from the date of passing of the order and in default the Complainant shall pay penal interest @ 9% p.a. upon the said amount of Rs. 3,20,000/-.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below the OPs have come up before this Commission with prayer for direction to set aside the impugned order .
Ld. Advocate appearing for the Appellant submitted that it was totally wrong to hold that the Complainant/Respondent was given the gold loan with 1% interest. No document in support of such statement made by the Complainant was produced before the Ld. Forum below. The minimum interest rate was 24.5% which was recorded in the loan documents of all the concerned 3 gold loans which would go on increasing depending upon the period of closing of the loan account. The Complainant/Respondent had taken gold loans in the year 2011 and 2012. The PPL account No. 5273 of 2012 of Rs.4,68,400/- has not been taken into consideration by the Ld. Forum below. The rate of interest was very much mentioned in the PPL accounts . Further, the Ld. Forum below ignored the fact that the rate of interest on the loan account was never mentioned as 1% p.a. The impugned order reflects gross irregularity in respect of facts stated by the Respondent / Complainant. The Appellants never mentioned that the rate of interest would be 6% as observed by the Ld. Forum below in the impugned order. Moreover, all the loans were not taken at a time and at no point of time the accumulated liability of the Respondent /Complainant stood at Rs. 4,20,000/-. Accordingly, Ld. Forum’s order that a total sum of Rs. 4,20,000/- was to be treated as the loan received by the Complainant is a gross material mistake. The impugned order deserves to be set aside on this score alone.
Ld. Advocate appearing for the Respondent submitted that the Appellants have come up with such documents as are not correct. Ld. Forum below considered all material evidence and decided in the matter of the total liability of the loanee Complainant/Respondent and if considered by this Hon’ble Commission a maximum of 12% interest p.a. may be fixed upon the loan amount. In that case, Ld. Forum’s order may be modified if found fit.
The point for consideration before us is whether the order passed by the Ld. Forum below suffers from material irregularity or jurisdictional error which requires interference from our side.
Decision with Reasons
We have gone through the memorandum of appeal together with copies of the impugned order , the petition of complaint , the W.V. filed before the Ld. Forum below , the loan accounts bearing nos. 0001862, 0001985 and 0005273 which appear to be issued by the Appellant/OP releasing loan amounts of Rs. 31,000/-, Rs.51,000/- and Rs.4,68,400/- respectively.
It is striking to note that while as per the Complainant’s statement in the petition of compliant , the loan of Rs. 2,80,000/- was taken vide PPL No. 5273 dated 23.04.2010 , the OP in their W.V. mentioned that the loan amount against the PPL 5273 was Rs. 4,68,400/- . There is, thus, a gross difference in respect of the actual amount of loan taken by the loanee Complainant and disputed by the Appellant / OP in the present case.
It is also important to note that the Ld. Forum below made contradictory statements about the rate of interest as evident from their own observations which are as follows:
“… We can not say at this juncture that whether the Complainant is under obligation or the OPs are entitled to claim either 1% p.a or 6% p.a. ?
….. We are of the view that the Complainant is under obligation to pay interest @ 1% p.a. on the entire loan amount.”
Again, the W.V filed on affidavit does not show that the Complainant is to pay 6% interest, though, Ld. Forum below observed that the W.V contained such statement of the OP.
The figure of Rs.4,20,000/- appears to have been noted in the petition of complaint in which the Complainant stated that the availed loan amount together with statutory interest thereon may not exceed Rs.4,20,000/-. No detailed calculation was furnished by the Respondent /Complainant, but Ld. Forum below took that figure as firm and accordingly passed the order on that basis. The unsubstantiated declaration by the Complainant about his liability regarding payment of loan should have been verified with necessary supporting documents which the Ld. Forum below did not carry out.
Going by the above discussion we are of the considered view that the impugned order suffers from material irregularity and jurisdictional error . The impugned order is liable to be set aside on the said grounds. We deem it fit to send the matter back to the Ld. Forum below for fresh adjudication. Hence,
Ordered
That the appeal be and the same is allowed on contest. The impugned order is set aside and the matter be sent back on remand to the Ld. Forum below for fresh adjudication after giving opportunity of hearing and also opportunity of producing fresh evidence by the respective parties for the interest of justice. There shall be no order as to costs. Parties to report to the Ld. Forum below on 16.07.2015.
