BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD

Revision Petition  35 OF 2014 against IA no.74 of 2014 in CC no.214 of   2009, District Forum II, Krishna District at Vijayawada.

Between:

1. Muthoot Finance Corporation Ltd

Rep. by its Managing Director

Mullassary Tower, Cunnen Road

Trivendram, Kerala State.

1. Muthoot Finance Corporation Ltd

Rep. by its Branch Manager, branch office

Vijayawada – 500 001                  ..      Petitioners

And

Tatineni Vijaya Kumar, S/o Late Koteswara Rao

Hindu, aged about 51 yrs,

R/o D.No. 30-5-24/1, Koka Chalapathi Rao Street,

Durga Apartments, Vijayawada              ..              Respondent.

Counsel for the Petitioners            :       M/s. Amancharla V. Gopala rao

Counsel for the Respondent           :       M/s. T. Rajinikanth Reddy

QUORUM:  

HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA, PRESIDENT

AND

SRI  R. LAKSHMINARASIMHA RAO, HON’BLE MEMBER

THURSDAY,  THE SEVENTEENTH DAY OF  JULY, TWO THOUSAND FOURTEEN

Oral Order :   ( As per Sri R. Lakshminarasimha Rao , Hon’ble Member )

                                ****

1.     The revision is directed against the order dated 15.04.2014 passed in IA no.74 of 2014 in CC no.214 of 2009 by the District Forum II, Krishna District at Vijayawada.

2.     The respondent filed complaint, C.C.No. 214 of 2009 seeking direction to the revision petitioners to release the gold ornaments pledged with them under gold loan account no. F-572.  The District Forum allowed the complaint on 25.03.2010. The operative portion of the order reads as under:

“In the result, this complaint is allowed in part and the opposite parties are directed to return all the gold items pledged with the opposite parties under gold loan account No.F572 soon after the complainant deposits the balance amount of Rs..92,261/- (Ninety two thousand two hundred and sixty one rupees only) and intimating the opposite parties. The complainant is given time till 31.12.2012 to deposit the amount of Rs.92,261/-. The opposite party shall comply with the order handing over all the gold items pledged by the complainant, to the complainant within 15.1.2013. The opposite parties are entitled to receive the amounts in deposit after compliance with the order. Both the parties shall bear their respective costs “.                   

3.     The petitioners filed appeal, F.A.No.184 of 2013 and this Commission modified the rate of interest awarded by the District Forum and confirmed the rest of the order. This Commission, thus  allowed the appeal in the following terms:

“        In the result the appeal is allowed modifying the order of the District Forum.  The respondent is directed to pay the amount of  Rs. 9,38,311/- with interest @ 19.5% per annum from 17.7.2008 till  29.11.2012.  The complainant has deposited a sum of Rs.11,88,235/- ( Rs.10,95,974/- + Rs.92,261/-) till 29.12.2012.  The complainant shall deposit balance amount after deducting the amount deposited by him from the amount due.  On deposit of the balance amount by the complainant, the opposite party shall receive the entire amount and return the pledged gold items under Gold Loan A/c No.F572.      There shall be no order as to costs “.   

4.     The said order was also questioned  before the National Commission  and as the  respondent was  unsuccessful before the National Commission  he  moved the Hon’ble Supreme Court  and there also his  SLP was dismissed.   Thus,  the order  passed by the District  Forum as modified by  this  Commission  has  become final. 

5.     The   respondent   deposited an amount of Rs. 3,88,780/- on  21.3.2014 and further an amount of Rs.  94,765/- on 26.3.2014 before the District  Forum and filed IA  74/2014  with a claim for return of pledged gold ornaments as per the order passed by the  Dist. Forum as  confirmed by this Commission.

6.     The petitioners resisted the said application stating that  they are not aware of any of the proceedings  either before the National Commission or before the Hon’ble Supreme Court for the reason that no notices were sent  or received by them.   As the order passed by the Dist. Forum   and  as  modified  by this Commission  for return of  pledged gold ornaments on payment of  loan amount and as the same was not paid within the time stipulated, the petitioners/Opposite Parties  after issuing a notice  put the said  gold ornaments  for auction, and accordingly  the said gold ornaments  were  auctioned which  fact was within the knowledge of  complainant/respondent herein.   In the auction that was  conducted on 20.2.2014  the said gold ornaments fetched  an amount of Rs. 26,17,830/-.    In those circumstances, after deducting  the amount which was  due to the Opposite Parties  they requested the  respondent/complainant to collect balance of sale proceeds.   

7.       Having considered  the  submissions of both parties  and also taking into consideration various orders passed by  all the appellate/higher courts,  the  District Forum allowed the IA  and directed the petitioners/Opposite Parties  to  return the  gold ornaments which were pledged with them by the  complainant/respondent herein.   As against the said  order, this revision is filed. 

8.     Aggrieved by the order of the District Forum, the respondents/opposite parties  filed the revision contending that they issued notice after expiry of appeal time and as the respondent failed to comply with the order passed by this Commission, they sold the ornaments in auction .  The petitioners contended that the National Commission and the Supreme Court dismissed the revision and SLP  at the admission and the respondent cannot claim any right for his own wrong.

9.     The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?

10.  Learned counsel for the  petitioners/Opposite Parties herein  vehemently  contended before us  stating that  pledged gold ornaments are not in existence for the reason that  they were  put to auction  and  the auction purchaser purchased the pledged gold ornaments  for a consideration of Rs.  26,17,830/-.    According to him,  the auction was  within the knowledge of respondent/ complainant herein, and in those circumstances the  petitioners/Opposite Parties herein cannot be found fault with.    According to him,  the said auction  has also taken place  solely on account of  lapse on the part of respondent/complainant herein i.e., non-deposit of  amount as directed by the  Dist. Forum as  modified  by this Commission.    In those circumstances,  the question of  return of pledged gold  ornaments does not arise. 

11.    However, the same was  opposed by the counsel appearing for the respondent/complainant  stating that  it is only  with an ulterior motive, pledged gold ornaments were sold in a hurry, when the matters are pending before the National Commission  and the Hon’ble Supreme Court.    In fact,  alleged pledge of  gold ornaments had taken place  as early as  on  16.2.2007 and the alleged auction  is dt. 20.2.2014 i.e., after a lapse of  7 years.    This clearly indicates the mind of the Petitioners/Opposite Parties  and the very intention to defraud  the respondent/complainant .    However, according to him, as directed  by this Commission  by its order dt.  26.6.2013  an amount of Rs. 3,88,780/-  and further an amount of Rs.  94,765/-  were deposited on 21.3.2014 and 26.3.2014  respectively.  By  the time when the said  amounts were deposited also it was brought to the notice of the petitioners/Opposite Parties.

12.    The learned counsel for the petitioners has contended that the Interlocutory application is not maintainable as the District Forum becomes functus officio after disposing of the complaint. A perusal of the provision of law under which the petition is filed would indicate the invocation of provisions of Section 27 of the Consumer Protection Act.  Therefore, the nomenclature of the petition does not in any manner affect the maintainability of the petition

13             The petitioners had filed the affidavit of their Regional Manager during pendency of the Revision before this Commission. It appears that the petitioners had filed the affidavit of R. Sridhar Madhav, Branch Manager as the District Forum was not inclined to believe their version that they sold the gold ornaments in auction on 20.02.2014.  Taking into consideration of the statement of R. Sridhar Madhav, Branch Manager in his affidavit, we are of the view that the petitioners sold the gold ornaments without   intimating this Commission or the District Forum.

14.            Admittedly, the revision and the SLP filed by the respondent were dismissed by the National Commission and the Supreme Court.  After dismissal of the SLP, the respondent deposited an amount of Rs.3,88,780/- on 21.3.2014 and Rs.94,765/- on 26.3.2014 in compliance of the order dated 26.06.2013 passed by this Commission. On depositing the amount by the respondent, the petitioners have the obligation to comply with the order. The petitioners had not waited till the time available under law to the respondent to deposit the balance amount. The District Forum observed that the petitioners cannot take shelter under the plea that the time fixed for filing revision has to be construed as time for the respondent to comply with the order of this Commission.  Paragraph 6 of the order reads as under :

“       As observed above the State Commission had directed the complainant to deposit the balance amount and on such deposit the opposite party was directed to receive entire amount and return pledged gold ornaments under gold loan account no. F572.  There was no time fixed either for deposit of balance amount by the complainant or returning the gold ornaments.  When there is no such date fixed and when the complainant says that he is depositing the amount, the opposite party cannot be allowed to say the  he waited till appeal time and then conducted auction of gold ornaments.  The time prescribed  for appeal or revision cannot be taken as  time fixed for payment.  When there is no time fixed the opposite party ought to have either applied to State Commission for fixing time period for payment of the  amount or approached the State Commission or this Forum for permission to proceed with auction of the gold ornaments.  They did not do so.  Therefore under the guise of the issuing auction notice the opposite party cannot be permitted to proceed with auction of gold ornaments without seeking permission from the State Commission or this Forum.  The alleged auction cannot be recognized by this Forum.  Therefore it is necessary for issuing direction to produce the gold ornaments”.

        .

15.            The gold ornaments  are not in existence for the reason that  they were sold in auction and  some third  parties have  purchased them for a valid consideration of Rs. 26,17,830/-.    In the circumstances,  we advised both parties to  come  for an amicable settlement, however, the said efforts have not yielded any result.  In those circumstances,  we further directed both parties  to come forward with actual value of the gold ornaments and to the effect file memos. The respondent/complainant has come forward and filed a memo stating that  the entire amount  i.e., the value of the gold ornaments, stones etc.  would work out to Rs. 50,78,500/-. The Petitioners /Opposite Parties have filed a  memo with regard to confirmation of auction. 

16       It  is not possible for this Commission to order return of  pledged gold ornaments for the reason that  this  Commission has believed  the auction   that has taken place on 20.2.2014.   The memo as filed by the respondent is   not  disputed nor  did the   Petitioners/Opposite Parties  have come forward  to  file a memo with regard to value of the pledged gold ornaments which were auctioned. 

17     The respondent filed calculation memo showing the value of the gold ornaments item wise like the value of the gold, stone value, making charges etc. which is shown below:

18.            As  per the version of the petitioners the gold ornaments were sold for an amount of Rs.  26,17,830/-.    The  amount that fetched during the course of auction cannot be taken as the exact value of the  gold ornaments  for the reason that  the Petitioners/Opposite Parties cannot be said to have  evinced  any interest  for getting maximum value for the gold ornaments for the reason that  the loan amount is only a sum of  Rs. 12,59,947/-  as on 16.2.2009 as per the calculation memo filed before the District  Forum.    In the circumstances, we cannot accept the sale proceeds or the gold ornaments , Rs.26,17,830/- as their actual value and similarly the amount which was mentioned by the  respondent/complainant i.e., 50,78,500/-  cannot also be held  to reject the accurate value of the gold ornaments.

19     The respondent had complied with his part of the direction whereas  the petitioners in utter disregard and intentional violation of the order of this Commission, sold the pledged gold ornaments and attempted to throw blame on the respondent that he had not complied with the order.

20.        The respondent, as stated above, claimed an amount of Rs. 50,78,500/- towards the value of the pledged gold items.  Taking into consideration of the present market value of the gold, sentiment expressed  by the respondent as to the ornaments on the premise of gift, gross violation of the order by the petitioners causing mental tension to the respondent, we are inclined to hold the petitioners liable to pay an amount of Rs.40 lakhs to the respondent. 

21.          In the result, the Revision petition is allowed modifying the order of the District Forum. The Revision Petitioners/opposite parties are directed to pay an amount of Rs.40,00,000/- ( Rupees Forty Lakhs only ) to the respondent/complainant. There shall  be no separate order as to costs.  Time for compliance  four weeks.

                                                                        PRESIDENT

                                                                        MEMBER

                                                                        DATED : 17.07.2014