Smt. Bandana Roy, President
The case of the complainant, in short, is that the complainant is a customer of the OP, who has been carrying on goldsmith business under the name and style of M/s Ranu Jewelers since long years at Sankarara, P.O. and P.S.- Tamluk, Purba Medinipur. The complainant purchased gold ornaments off and on as per requirement/necessity for the OP. The complainant went to the shop of the OP and took a loan of Rs.40000/- on 19.01.2009 and Rs.10000/- on 30.01.2009 totaling Rs.50000/- by mortgaging the schedule gold ornaments with valuable stone and the OP gave complainant proper receipt acknowledging the same.
Thereafter, the complainant went to the shop of the OP with proper receipt and agreed to pay the entire loan amount and demanded the mortgaged gold ornaments with valuable stone. But, the OP said that he opened a new premise for gold business and would search the gold ornaments and return the ornaments. However, the complainant went to the shop of the OP time and again but the OP did not return the gold ornaments with valuable stone. Finding no other alternative, the complainant sent a notice through his ld. Lawyer by regd. Post with A/D on 05.09.2014 which was received by the OP on 08.09.2014, but the OP did not return the questioned ornaments to the complainant. The complainant then made a G.D. at Tamluk P.S. vide G.D. Entry No. 872 dtd. 15.11.2014 and informed the matter to S.P. Purba Medinipur and S.D.P.O., Tamluk. The complainant lodged a complaint u/s 156 (3) of Cr. P.C. u/s 420/406/506 of I.P.C. on 17.11.2014 against the OP. The OP went to the Hon’ble High Court Kolkata for Anticipatory Bail and the OP said that he is ready to return the questioned jewelleries vide order dtd. 13.05.2015.
The complainant claimed that he is a ‘consumer’ and the OP has rendered deficiency in service regarding non return of the gold ornaments with valuable stone as per averments made in the complaint.
Opposite Party contested the case by filing W/V and denied all the allegations of the complainant. The OP stated that present complaint is not maintainable in its present form and prayer and the complainant has no locus standi to file this case u/s 12 of the Consumer Protection Act, 1986, the instant case is not within the purview of Sec 2(1)(d) of the C.P. Act, 1986 and is liable to dismissed as there was no seller and purchaser relationship between the complainant and the OP. The OP also claimed that the case is barred law of Limitation Act. The OP denied that the complainant went to the shop of the OP and took loan of Rs.40000/- on 19.01.2009 and Rs.10000/- on 30.01.2009 totaling Rs.50000/- by mortgaging the schedule gold ornaments with valuable stone and the OP gave complainant proper receipt acknowledging the same.
The fact of W/V is that the OP has two goldsmith shop at Tamluk Bara Bazar. There is no allegation against the OP or against the shop of the OP regarding the said business. The complainant has friendly relationship with the OP within the town Tamluk. Due to this friendly relationship, the complainant came on 19.01.2009 to the shop of the OP and by holding two hands of the OP, the complainant stated that he was in danger and in need of Rs.40000/- as loan for one month from the OP. The OP on good faith gave Rs.40000/- on 19.01.2009 but without any agreement. At that point of time complainant forcefully gave one golden necklace and one golden ring (written as ‘D’ name) forcefully to the OP as the friendly relationship do not come to an end. The OP was bound to give one Receipt dtd. 19.01.2009 to the complainant.
After one month the OP asked the complainant to repay the loan taken on 19.01.2009 and agreed to return said ornaments. But the complainant did not want to repay the loan amount of Rs.40000/- instead wanted to get back his gold ornaments. That after 3/4 years the complainant gave one Advocate’s letter with false allegation. The OP asked the complainant through one Indrajit Paria to take back his ornaments after repaying the loan amount of Rs.40000/- but the complainant never came. That on 27.12.2014 at about 4/4.30 P.M. the complainant alongwith two unknown persons came to the shop of the OP and broke the showcase glass and theft one and half bhory (1.5) gold necklace and two golden bouty from the shop of the OP. The OP lodged F.I.R. against the complainant vide Tamluk P.S. case no. 18/2015 dtd. 07.01.2015 u/s 420/406/379/506 I.P.C. which is pending before ld. C.J.M., Tamluk Court. The OP also claimed that this loan transaction is purely Civil dispute in nature and not within the purview of the Consumer Protection Act.
Points for consideration:
- Whether the complaint is maintainable?
- Whether the complaint is barred by limitation?
- Whether the complainant is a ‘consumer’ under the Consumer Protection Act, 1986?
- Whether the complainant is entitled to get relief, as prayed for?
Decision with reason:
All the above points are taken up together for convenience and brevity of discussions as they are interrelated.
The OP alleged that there is no buyer and seller relationship between the complainant and the OP, hence complainant is not a ‘consumer’ under the Consumer Protection Act, 1986. It appears from para 33 of the W/V that the OP admitted that the complainant took loan of Rs.40000/- by mortgaging gold necklace and gold rings to the OP. It is admitted position that the complainant hired the service of the OP by depositing gold with the OP. So, the complainant is a ‘consumer’ according to the Consumer Protection Act, 1986.
OP alleged that the complainant is barred by limitation as the transaction held in the year 2009 and the complainant filed this case on 26.05.2016 i.e. after long seven years of the date of transaction. Ld. Lawyer for the complainant in this connection referred a decision reported in 2016 (3) CPR 155 (NC) and submitted that when goods are held by the OP in trust of the complainant, then it will be continuing cause of action so long the gold ornaments are returned to the OP. The aforesaid decision says “Consumer Protection Act 1986 - Section 24 A – complainant limitation – continuing cause of action – in a case of this nature where goods are held in trust for the depositor, owner of gold ornaments has a recurrent/continuing cause of action against pledge till either gold ornaments are returned to her or pledge refuses to return ornaments – complaint having been filed in same year was within limitation”. Complainant also stated that the cause of action arose on and from 05.09.2014 when notice was sent on the OP. We have carefully considered the argument advanced by both the parties’ ld. Lawyers and we are of the considered view that as per decision of Hon’ble National Commission in 2016 (3) CPR 155 (NC) “Where goods are held in trust for the depositor, owner of gold ornaments has a recurrent/continuing cause of action”. OP admitted that the OP did not return the gold ornaments in dispute and hence, complainant’s case is not barred by limitation.
Admittedly, both parties are involved in criminal case. It is also admitted that the OP was granted Anticipatory Bail in the Hon’ble High Court, Kolkata. Copy of the order has been filed by the OP. It appears from the said order in CRM No. 438/2015, Hon’ble Division Bench observed the OP was ready and willing to return the questioned jewellaries to the de-facto complainant i.e. complainant in this case. We have perused the copy of the documents filed by the complainant (annexure 1 to 10). From the documents it is clear that the complainant kept some jewellaries including necklace, stone, pearl etc. Admittedly OP did not return the gold ornaments. This is deficiency in service on the part of the OP. Hence, we are of the view, that the complainant is entitled to get relief in this case.
Hence, it is
ORDERED
that the complaint case being no. CC/53/2016 be and the same is allowed in part on contest against the OP. Complainant is directed to repay the loan amount, if any, within one month from the date of this order. On receipt of the due amount, OP will deliver the gold ornaments in original to the complainant immediately. OP is directed to pay compensation of Rs. 30000/- and litigation cost of Rs.5000/- within one month from the date of this order, failing which OP will be liable to pay Rs.200/- daily as punitive charges which will be payable to the Consumer Welfare Fund.
Let the copies of the judgement be supplied to all the parties free of cost.
