Complaint filed on: 11-08-2016 Disposed on: 18-05-2017
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM,
OLD DC OFFICE COMPOUND, TUMAKURU-572 101
CC.No.112/2016
DATED THIS THE 18th DAY OF MAY 2017
PRESENT
SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT
SMT.GIRIJA, B.A., LADY MEMBER
Complainant: -
O.Papanna S/o. Obaiah,
Aged about 43 years,
Near Annapoorneshwari Temple,
NH 4, Madhavanagar, Sira
Present address:
Jayamma Layout,
1st Cross, 100 ft. Road,
Vedhavati nagar, Challakere Road, Hiriyuru
(By advocate Sri.S.G.Dileep Kumar)
V/s
Opposite party:-
Branch Head,
Manappuram Finance Limited, TKP Lodge, Sira
Tumakuru District
(By advocate Sri.B.R.Prabhulinga Murthy)
ORDER
SMT.PRATHIBHA. R.K. PRESIDENT
This complaint is filed this complainant against the OP, under Section 12 of the Consumer Protection Act. The complainant prays to direct the OP to pay today market price of gold ornaments of item No.1 and 3 of Rs.2,00,000=00 and to pay Rs.2,50,000=0 towards mental agony, financial loss and award litigation cost and such other relief as deemed fit, in the interest of justice and equity.
2. The brief facts of the complaint is as under.
The complainant is a customer of the OP branch since 4 years.
The complainant submitted that, on 7-2-105 the complainant had pledged his gold ornaments of one 12.10 grams of Bangale vide pledged No.0127470700004896 for a sum of Rs.22,000=00 and it is recognized as item no.1
The complainant further submitted that, on 25-5-2015, the complainant had pledged his gold ornaments of one 6.30 grams of chain vide pledged No.0127470700005862 for a sum of Rs.10,000=00 and it is recognized as item no.2.
The complainant further submitted that, on 17-8-2015, the complainant had pledged his gold ornaments of one 30.70 grams of chain (Mangalya) and one neck chain with locket vide pledge No.012747000006821 for a sum of Rs.53,400=00 and it is recognized as item no.3.
The complainant further submitted that, the complainant had approached the OP branch on 4-3-2016 for redeeming the gold ornaments by paying principle amount and interest amount. On 17-12-2015 the OP had auctioned the gold ornaments of item no.1 for a sum of Rs.28,214=00 and the same has been adjusted to the principle amount and interest amount. The OP Company had auctioned the gold ornaments without giving any notice or intimation to the complainant thereby caused breach of trust and cheating. Hence there is un-trade practice and deficiency in service on the part of the OP Company.
The complainant further submitted that, on 20-2-2016 the OP had auctioned the gold ornament of item no.3 for a sum of Rs.71,491=00 and in that amount Rs.60,869=00 was adjusted to the said loan accounts towards principle amount, interest amount and other charges and remaining surplus amount of Rs.10,622=00 has been adjusted to the item no.2 account No.0127470700005862. The above said transaction/adjustment of the surplus amount to the loan account of Item no.2, the OP has not been intimated to the complainant. The OP has adjusted the amount without giving notice. On 4-3-2016 the complainant has paid a sum of Rs.1,442=00 towards the principal and interest of the loan account of Item no.2 and got released the item No.2 ornaments on 4-3-2016.
The complainant further submitted that, on 10-3-2016 the complainant had issued legal notice to the OP and the same was served on the OP and on 11-4-2016 the OP has replied to the said notice. Hence the complainant has come up with the present complaint.
3. After service of notice, the OP has appeared through his counsel and filed objections contending interalia as under.
The complaint is not maintainable either in law or on facts. The complainant is not a consumer as defined by Section 2 (1) (d) of the CP Act. The complainant has not purchased any goods or availed any services of the OP. The complainant had taken loans from the company by pleading gold ornaments as security for the same and the relationship between the complainant and the OP is one that of “debtor” and “creditor” and hence the transactions are only specific contracts and do not fall within the purview of CP Act.
The OP further submitted that, as per the conditions 21 of the loan agreement, it is specifically agreed between the parties and all disputes, difference and /or claim arising out of or touching upon the gold loan, whether during its subsistence or thereafter, shall be settled by arbitration in accordance with the provisions of the Arbitration and Conciliation Act 1996 or any statutory amendments thereof and shall be referred to the Arbitration of the Arbitrator appointed by the OPs.
The OP further submitted that, since the case of the complainant is pertaining to accounts and its legal consequences, the same will not fall within the purview of this Hon’ble Forum.
Without prejudice, the OP submitted that, as per the terms and conditions of the loan, the complainant ought to have redeemed the above said gold loans on or before the due date as mentioned in the pawn tickets. All the terms and conditions of the loan agreement were explained to the complainant and the complainant had voluntarily executed the loan agreement and obtained the gold loans whereby he has to strictly adhere to his part of the contractual obligation in repaying the interest with principal within the loan tenure as agreed by him in the loan agreement. Since the complainant has not paid the interest regularly and since the period of loan had expired, the OP had sent due notices to the complainant periodically, demanding the remittance of loan amount along with interest. Notices were sent to the given address of the complainant requesting the complainant to pay the due amount and to settle the loan account. But the complainant had not cleared/settled the loan in time as per the terms and conditions of the loan. As per the terms and conditions of the loan agreement signed by the applicant, “if the full repayment of loan is not made within stipulated time, the company shall have the right to sell the ornaments at the risk of borrower by public auction”. The complainant did not pledges within the stipulated time, irrespective of sending periodic notice, registered auction notices. But the complainant had not made any efforts to redeem the pledged gold within the time stipulated in the auction notice. The list of the pledges, which would be sent for auction, had also been displayed in the notice board in the branch. In spite of the best efforts of the OP, the complainant did not come forward to settle the loan.
The OP further submitted that, as per the documents available with the OP, the complainant had availed the auctioned loan on 7-2-2015 and 17-8-2015 and agreed to repay the loans on or before 5-8-2015 and 14-11-2015 respectively and the tenure of the loans were 180 days and 90 days respectively and it was bounden duty of the complainant to settle the loan accounts as agreed. The OP has the right and authority to dispose of the pledged gold ornaments in public auction, if the loan amount with accrued interest is not made on or before the date of maturity of the loan. The complainant had not paid any amount towards the loan or redeemed the jewels as per the terms and conditions of the loan. The OP issued registered notice to the complainant on 7-8-2015 and 14-1-2016. The auction intimation letter dated 7-8-2015 was duly served to the complainant on 13-8-2015 and letter dated 14-1-2016 was returned with an endorsement “left”. The OP informed the same through telephone and requested the complainant to redeem the pledge as stated in the notice. It was specifically informed the complainant to redeem the pledges within 15 days from the receipt of this notice and the complainant agreed to redeem the pledged gold within 15 days from the receipt of this notice. The complainant agreed to redeem the pledged gold within 15 days but the complainant did not turned up.
The OP further submitted that, the OP has issued public notice of auction in New Indian Express and Samyuktha Karnataka daily news papers. The details of the pledged which will be auctioned were also published in the notice board of the branch. The OP has also informed the complainant through telephone, but the complainant did not settle the loans as per the agreed terms and conditions. The OP was constrained to sell the ornaments in public auction after complying with all the requisite legal formalities.
The OP further submitted that, as per the agreed terms of the loan agreement executed by the complainant, the OP has right to adjust the surplus amount towards any other liability of the complainant to the OP. So the OP has adjusted the surplus amount of Rs.820=00 and Rs10,622=00. The complainant had ratified the same by redeeming that loan account after making payment of the balance due amount of Rs.1,464=00 on 4-3-2016. After knowing all these, the complainant had instructed to issue this notice with a malafide intention to grab unjust enrichment from OP Company by raising baseless allegations.
The OP further submitted that, the complainant even after being under obligation to repay the loan amount with accrued interest thereon has not bothered to repay the amount to the OP. Due to the default of the complainant; the gold ornaments have been auctioned in public auction. Hence the OP is not liable to return the gold ornaments and to compensate the complainant in any way. The OP has not committed any deficient service as alleged in the complaint. The OP is not liable to compensate the complainant. The complainant is not a consumer. The transaction between the complainant and the OP is Pawnor and Pawnee wherein the Contract Act is squarely applicable. On the account the complainant is bound by the contract for loan as agreed by her and the complainant has not fulfilled contractual obligation. There are no merits in the complaint and there is no cause of action for the complainant. Hence it is prayed to dismiss the complaint with cost, in the interest of justice and equity.
4. In the course of enquiry into the complaint, the complainant and OP have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced documents, which were marked as Ex-C1 to C8. The OP has produced the documents, which were marked as Ex-R1 to R13. We have heard the arguments of both parties and perused the documents of both parties and posted the case for order.
5. Based on the above materials, the following points will arise for our consideration.
- Whether there was deficiency in service on the part of the OP as alleged by the complainant?
- What Order?
6. Our findings on the above points are;
Point no.1: In the Negative
Point no.2: As per the final order below.
REASONS
7. On perusal of the pleadings, affidavit evidence, objections of the OP and documents produced by both parties, it is an admitted fact that, the complainant had availed gold loan from the OP on 7-2-2015 and 17-8-2015 for a sum of Rs.22,000=00 and Rs.53,400=00 (i.e. items no.1 and 3) respectively by pledging his gold ornaments of one gold bangle total net weighted of 12.10 grams and one Mangalya chain and one neck chain with locket total net weighted of 30.70 grams with the OP. It is also admitted facts that, the complainant has agreed to pay 24% interest on the said gold loan amount for 180 days and 90 days respectively. It is also an admitted fact that, the complainant is redeeming the said gold loan amount within the stipulated time.
8. The main contention of the complainant is that, after availing the gold loan amount, the OP has auctioned the pledged gold ornament without giving any notice and auctioned the pledged gold ornaments in fewer prices and it is against the terms and conditions of the loan agreement.
9. On the other hand, the complainant had voluntarily executed the loan agreement and obtained the gold loans and agreed to repay the interest with principle amount within the loans tenure. The complainant has not paid the interest regularly and since the period of loan had expired. The OP has sent due notice to the complainant periodically and notices were sent to the given address of the complainant. But the complainant had not settled the loan in time as per the terms and conditions of the loan. As per the loan agreement, if the full repayment of loan is not made within stipulated time, the company shall have the right to sell the ornaments at the risk of borrower by public auction. But the complainant had not made any efforts to redeem the pledged gold within the time stipulated in the auction notice and auction notice has been displayed in the notice board in the branch. But the complainant did not come forward to settle the loan amount. To substantiate his contention, the OP has produced paper publication in New India Express and it is marked as Ex.R-6 and Ex.R-13 is regarding notice sent to the complainant’s home.
10. On perusal of the document produced by the OP in Ex.R-6 and R-13. As per the Ex-R-6 on 24-9-2015 the OP has issued public auction notice i.e. item No.1 in New India Express. As per the paper publication, it is seen that, the OP has mentioned auction date as 9-10-2015. Hence it is clear that, the OP has auctioned item no.1 pledged gold ornaments and informed to the complainant as per the terms and conditions of the loan agreement. Further with regard to gold ornament pledged No.0127470700006821 i.e. item no.3, the OP had sent a registered notice on 18-1-2016 and the same has been returned back as “Addressee Left” as per Ex-R-13. As per the terms and conditions of the loan agreement, the complainant has to informed the change of address to the OP, but the complainant has not informed the change of address to the OP. Hence, we come to conclusion that, notice has been served to the complainant.
11. The documentary evidence of the complainant that, he acted as per the terms and conditions of the loan agreement by making payment towards principal and interest of loan is not corroborated by clear and tangible documentary evidence. On the other hand, the document of complainant reveals that after availing the loan, the complainant has not paid the loan amount well within 180 days and 90 days as per the terms and conditions of the loan agreement. Hence, the OP has issued public notice in New India Express and sent registered notice on 18-1-2015. Hence the OP had auctioned the pledged gold ornaments as per the terms and conditions of the loan agreement. Therefore, there is no deficiency of service on the part of the OP.
12. As such the defence taken by the complainant in relating to non-issuance of the notice is not accepted as such the action taken by the OP is not unlawful. Hence, the OP has acted in accordance with the terms and conditions of the loan agreement. Hence we do not find any negligence and deficiency of service on the part of the OP in conducting the public auction of gold ornament of complainant. On the other hand, the complainant has not acted in accordance with the terms and condition of agreement and has committed default in paying the loan amount along with interest well within the stipulated period. Hence, we come to conclusion that, there is no negligence and deficiency in service on the part of the OP in conducting the public auction as per the terms and condition of the agreement and accordingly we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is dismissed. No costs.
Supply free copy of this order to both parties.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this, the 18th day of May 2017)
LADY MEMBER PRESIDENT
