BY - SRI ASISH DEB, PRESIDENT
Brief facts of the complainant’s case are that the Complainant is a permanent resident of this jurisdiction.
(1) Introduction: The complainant states that the complainant above named is a loanee cum borrower of Gold loan at the IIFL Finance Limited Gold Loan, TamlukManiktala GL, Ward No. 10, 1st Floor, IDBI Bank Building, Padumbasan, Tamluk, PurbaMedinipur Branch. The Opposite Party no.1 is the present Branch Manager of the IIFL Finance Limited, TamlukManiktala GL, Ward No. 10, 1st Floor, IDBI Bank Building, Padumbasan, Tamluk, PurbaMedinipur Branch and opposite party no. 2 is the registered office and opposite party no. 3 is the corporate office of IIFL Finance Limited. The complainant’s one Gold Loan Account No. (Gold Loan Contract No. GL14069232, GL15549487) is Top-up Loan GL: GL15549487 is a linked loan to parent GL: GL14069232 and another Gold Loan Account No. (Gold Loan Contract No. GL14447428, GL15550214) is Top-up Loan GL: GL15550214 is a linked loan to parent GL: GL14447428. The complainant is a consumer as defined under this act.
(2) Transaction:
i. The complainant took two Gold Loans of Rs. 1, 61,120.00/ (Loan date| 13.03.2020) + Rs. 32,700.00/ (Loan Date14.09.2020) = Total of Rs. 1, 93,820.00/ (GL15549487) and Rs. 71,200.00/ (Loan Date12.06.2020) + Rs. 10,850.00/ (Loan Date- 14.09.2020) = Total of Rs. 82,050.00/ (GL15550214). Loan Rs. 1,61,120.00/, Date13.03.2020 against GL14069232 and Rs. 71,200.00/, Date12.06.2020 against GL14447428. Later on Loan Rs. 32,700.00/, Date14.09.2020 against Top up loan GL15549487 in connection with GL14069232 and Loan Rs. 10,850.00/, Date14.09.2020 against Top up Loan GL15550214 in connection with GL14447428 from the above stated IIFL Finance Limited Branch, Tamluk , Maniktala Gold Loan, Padumbasan, Tamluk, PurbaMedinipur by depositing golden ornaments in the said branch as scheduled below:
Schedule of Golden Ornaments as Pledged at IIFL Finance limited,Tamluk-Maniktala Gold Loan
1. Bangle 1 piece 22 carat Total weight 26.60 gm
2. Chain 2 pieces 22 carat Total weight 30.20 gm
= Total 56.80 gm against
GL14069232/ GL15549487.
1. Broad Bangle 2 Pieces 20 Caret Total Weight 18.30 gm
2. Chain 1 Piece 22 Caret Total Weight 12.50 gm
3. Studd 2 Pieces 22 Caret Total Weight 6.00 gm
= Total 36.80 gm against
GL14447428/ GL15550214.
ii. The said two Top Up Loan amount respectively Rs. 32,700.00/ sanctioned on later date on 14.09.2020 against GL15549487 (Parent GL GL14069232) and Rs. 10,850.00/ sanctioned on 14.09.2020 against GL15550214 (Parent GL GL14447428) and after deduction of interest and other charges, total loan amount of approximately Rs. 25,000.00/was paid to the complainant.
iii. The complainant was disbursed an amount of Rs. 1,60,873.00/ against Gold Loan Account No. GL14069232 and Rs. 32,482.00/against Gold Loan Account No. GL15549487.
iv. The complainant was disbursed amount of Rs. 70,744.26/ against Gold Loan Account No. GL14447428 and Rs.10,738.00/ against Gold Loan Account No. GL15550214.
Copies of Gold Loan Agreement and pledged Golden ornaments receipts and Gold loan details documents are enclosed herewith and marked as Annexure P1 collectively.
v. The complainant states that the complainant was paying loan money with interest in installments and some loan interest is currently outstanding due to epidemic situation for Covid-19 period which has been prevailing since the last 3 years. The complainant was served earlier Loan Renewal Notices dated 25.08.2021 (Ref no. GL14447428, GL15550214/MAN TENURE EXP/WB/SEP’2021/16522) and two Pre-Sale Notices dated 11.11.2021, Ref-GL 14447428, GL15550214/MAN ADDL AUC/WB/NOV’2021/39584 and Ref-GL 14069232, GL 15549487,/MAN ADDL AUC/WB/NOV’2021/39348, dated 11.11.2021 and complainant had made some loan EMI payment to the IIFL Finance Limited Branch, TamlukManiktala Gold Loan, Padumbasan, Tamluk, PurbaMedinipur on earlier occasions against the said Notices.
vi. The complainant had made loan EMI repayment at TamlukManiktala GL Branch on 15.02.2021 of Rs. 7983.89/ in Loan Account No. GL14447428, Rs. 1210.11/ in Loan Account No. GL15550214, Rs. 17736.96/ in Loan Account No. GL14069232 and Rs. 3642.04/ in Loan Account No. GL15549487.
The complainant had made loan EMI repayment at Tamluk-Maniktala GL Branch on 04.09.2021, Rs. 4457.82/ in Loan Account No. GL14447428, Rs. 542.18/ in Loan Account No. GL15550214, Rs. 8451.28/ in Loan Account No. GL14069232, Rs. 1548.72/ in Loan Account No. GL15549487.
The complainant had made loan EMI repayment at Tamluk-Maniktala GL Branch on 11.12.2021 of Rs. 4431.38/ in Loan Account No. GL14447428, Rs. 568,62/ in Loan Account No. GL15550214, Rs. 8332.15/ in Loan Account No. GL14069232, Rs. 1667.85/ in Loan Account No. GL15549487.
Copies of the Demand Notices and loan installmentspayment receipts are enclosed herewith and marked as Annexure P2collectively.
vii) That the complainant states the Pre-Sale notices dated 31.01.2022 issued by the IIFL Finance Limited Authorized Officer under Ref. No. GL 14069232, GL 15549487/MAN AUC/WB/FEB’2022/54865 and GL 14447428, GL 15550214/MAN AUC/WB/FEB’2022/54944 and the said pre-sale notices were received by the complainant on 12.02.2022 and in the said notices the complainant was asked to pay the loan interest and the entire loan money within 10 days and it is also stated in the said notices that in case of failure of loan repayment, public auction process of golden ornaments would be started by the opposite party company and in the said notices dated 31.01.2022 it is also stated that the complainant would be informed about the date, time and place of auction of golden jewelries and in the newspaper, ‘Public Auction Notice’ would be published for auction of the golden ornaments which were pledged at the custody of the opposite party company.
Copies of the Pre Sale notices against the said two loan accounts and delivery information of the said notices are enclosed herewith and marked as Annexure P3.
(3) Defect/ Deficiency:
i) The complainant states that after getting the said pre-sale notices dated 31.01.2022 on 12.02.2022 the complainant went to the IIFL Tamluk- Maniktala Gold Loan Branch within 10 working days on 23.02.2022 and 24.02.2022 physically and requested the Branch Manager, IIFL, Tamluk- Maniktala Gold Loan branch to allow him two weeks time from that date for repayment of entire loan money as claimed by the Branch Manager, IIFL Finance Limited, TamlukManiktala Gold Loan Branch and to adjust the outstanding dues as lying in the said loan accounts within the said period and also requested the Branch Manager, IIFL TamlukManiktala Gold Loan Branch for one time settlement of the said loans and to release back the golden ornaments and to close the loan accounts after full loan repayment within the said period, butBranch Manager, IIFL Tamluk- Maniktala Gold Loan Branch did nothing to therequest of the complainant and remained mum in this matter and afterwards the Branch Manager, IIFL TamlukManiktala Gold Loan Branch, Padumbasan, Tamluk informed the complainant that his golden ornaments were sold and auctioned already and Branch Manager, IIFL TamlukManiktala Gold Loan Branch had nothing to do in this matter.
ii) Without informing the complainant regarding Auction or Sale Notice, Auction Date and Time and without giving any advertisement in daily newspapers in vernacular language and another advertisement in a national daily newspaper as prescribed in the loan agreement copies and without giving the complainant any opportunity of hearing and without maintaining the due process of law, auction of gold ornaments would have been supposed to be sold or auctioned as informed by the Branch Manager, IFL, TamlukManiktala Branch to the complainant which is patently illegal, arbitrary and violation of principal of natural justice.
iii) As per Gold Loan auction policy, the auctioneer is liable to serve an auction notice to a loan taker cum borrower at least 21 days ahead of such proposed auction date. This notice should be sent by the registered post. Advertisement of the auction (with its scheduled date, location, place and time) has to be issued in a minimum of two leading local newspaper. Auctioneers should also ensure that at least one newspaper should be printing in the borrower's vernacular language while another in a national daily.
iv) As a loanee, borrower will get an opportunity to release the pledged gold assets by paying an entire due amount before the public auction. Also as a loanee, borrower has a right to know the date, time and place of the auction and he can repay the entire due before such auction.
v) The complainant submits that inspite of repetitive request to the opposite company Branch Manager, IIFL branch, Tamluk-Maniktala Gold Loan Branchto pay the entire due amount and thus without observing due process of lawand without giving the complainant any opportunity of hearing and the company Branch Manager told the complainant that the golden ornaments were sold and the said act of the company Branch Manager involved deficiencyof service and unfair trade practice.
vi) The complainant submits that the golden ornaments belonged to the complainant and his wife and daughter and the said golden ornaments were only valuable properties of them and because of urgent need of money, the said ornaments were pledged with the custody of opposite party company upon trust and the complainant's daughter is unmarried and she needs the said ornaments for her future marriage, but the company opposite party has committed breach of trust as such the complainant and his family members fall in mental agony and pain.
(4) Rectification:
i. The complainant states that on 23.02.2022, 24.02.2022 and again on 28.02.2022 and on several times the complainant had visited the IIFL branch, Tamluk-Maniktala Gold Loan Branch physically and requested the Branch Manager, Tamluk-Maniktala Gold Loan to adjust the entire loan dues and release back the pledged golden ornaments under the said two loan accounts, but the complainant was informed by the Branch Manager, Tamluk-Maniktala IIFL Gold Loan Branch that gold ornaments were sold and he had nothing to do with it at present.
ii. The complainant states that on 06.03.2022 the complainant had sent an email to (gold-helpline@iifl.com) and on 07.03.2022 the complainant had sent letters to the IIFL Gold loan Finance Limited various authorities including IIFL Gold Loan Branch Manager, Tamluk for settlement of the outstanding dues and release back the golden articles as pledged and the said email was delivered on 06.03.2022 and the said letters were received by the IIFL Finance Limited various authorities on 10.03.2022 (TamlukManiktala FL Gold Loan Branch) and 12.03.2022 (IIFL Finance Limited, Thane Regd. Office and IIFL FinanceLimited, Mumbai Corporate Office) but there is no result and all efforts of the complainant regarding settlement of loan dispute and adjustment of loan money had gone in vain.
Copies of the said emails and letters and postalreceipts and delivery information are attached herewith and marked as Annexure P4,
iii. The complainant states that on 06.03.2022 the complainant had visited at the JIFL Finance Limited Zonal Office at 1, ShakespearSarani, (Theater Road), A C Market, 8th Floor, Kolkata700071 for settlement of his grievances regarding loan dispute and to pay the outstanding dues against the said loan accounts but there was no solution and the complainant was informed that ‘Gold Loan’ are not dealt with them,
iv. That again on 07.03.2022 the complainant had sent an email to Tamluk-Maniktala IIFL Gold Loan Branch Manager at tamluk.maniktala.gl@iiflmail.com requesting the Branch Manager, TamlukManiktala IIFL Gold Loan Branch not to take any further step regarding the Golden articles Auction or Sale process and to realize the outstanding dues in the said two loan accounts from the complainant but the said mail was returned back as ‘Undelivered’.
v. The complainant states that an application under section 6(1) of the Right To Information Act, 2005 was made by the complainant on 15.03.2022 to the IIFL Branch Manager, IIFL Finance Limited Gold Loan, TamlukManiktala GL, Ward No. 10, 18 Floor, IDBI Bank Building, Padumbasan, Tamluk, PurbaMedinipur Branch seeking a copy of newspaper advertisement of public auction of golden ornaments as pledged against the said loan accounts and information of the auction notice publication date, time and place and the newspaper name along with other documents and information and also a legal letter had been issued as per the instructions and on behalf of the complainant to the IIFL Branch Manager, IIFL Finance Limited Gold Loan, TamlukManiktala GL, Padumbasan, Tamluk, PurbaMedinipur Branch regarding settlement of loan dispute of the complainant.
vi. That the complainant states that again on 23.03.2022 the complainant had made an application by registered Speed Post to the Branch Manager, Tamluk-Maniktala Gold Loan Branch, Padumbasan, Tamluk for settlement of loan dispute and release back his pledged golden ornaments but justice is deniedwith an empty formality and futile attempt.
vii. The complainant submits that the complainant had visited the IIFL Finance Limited, Tamluk-Maniktala GL, Padumbasan, Tamluk, PurbaMedinipur Branch on various dates and requested the Branch Manager to settle the entire loan and to provide him the up to date statements of Gold Loan accounts and close the loan accounts after settlement of loan dues and also called the Gold Helpline No. and sent email to the opposite party company and requested the opposite party to return back golden ornaments but the opposite party remained mum and did not do anything. Copies of the email and return receipt, letters, RTI application and Legal Letter are enclosed herewith and marked as Annexure P5 collectively.
(5) Other Provisions:
The complainant submits that there is no other provision of law to move the instant application except Consumer Protection Act, 1986 because the case is involved company opposite party’s unfair trade practice and deficiency of service.
(6) Evidence:
i. Copies of Gold Loan Agreement, Golden ornaments receipts and Gold loan details documents are enclosed herewith and marked as Annexure P1,
ii.Copies of the Demand Notices and loan installments and EMI paymentreceipts are enclosed herewith and marked as Annexure P2.
iii. Copies of the Pre Sale notices against the said two loan accounts and delivery information of the said notices are enclosed herewith and marked as Annexure P3.
iv. Copies of the said emails and letters and postal receipts and delivery information are attached herewith and marked as Annexure P4,
v. Copies of the said email letter and return receipt, letters, RTI application and Legal Letter are enclosed herewith and marked as Annexure P5.
(7) Jurisdiction:
The complainant submits that the claim of the complainant is within total of Rs. 5, 00, 000/as such this Hon’ble Forum has jurisdiction to deal with the case.
(8) Limitation: The present complaint is being filed within the limitation period prescribed under section 24 (A) of the Act.
(9) Relief Claimed:
The complainant submits that the complainant is still willing to pay the loan money along with interest and upon one time settlement of the said two loans. The complainant wants to get back the pledged golden ornaments from the Branch Manager, IIFL Finance Limited, TamlukManiktala Gold Loan Branch after adjustment of loan money as lying in the said loan accounts and one time settlement of loan money, but the Branch Manager, IIFL, TamlukManiktala Branch pays no heed to the repetitive earnest requests of the complainant and says the complainant that the pledged golden ornaments were sold and he has nothing to do with it. The complainant, therefore submits that this Hon’ble Forum gives relief to the complainant by way of settlement of loan dispute and gives direction to the opposite party company to adjust the loan money in the said two loan accounts of the complainant and to give direction to the opposite party company to release back the golden ornamentsof the complainant as scheduled above. The relief claimed by the complainant is for deficiency of services and unfair trade practice of the opposite party company.
The Complainant submits that this petition is made bonafide and for the ends of justice.
(10) Prayer Clause: In the above circumstances the complainant most humbly and respectfully prays before this Commission for passing the following orders:
A) For declaration of Gold ornaments of the complainant sold by the opposite party company is without due process of law and also declare that the act of the opposite party company Branch Manager, JIFL Finance Limited, TamlukManiktala Gold Loan Branch and the opposite parties act in this behalf is illegal, unconstitutional and violation of principal of natural justice and the said act of the opposite party company involves deficiency of service and unfair trade practice;
B) To direct the opposite party company to receive the due loan money from the complainant and to settle the loan as outstanding in the said two loan accounts and after adjustment of loan money and to return back the golden ornaments of the complainant as pledged against the said Loan Account nos. GL 14069232 withGL15549487 and GL14447428/ GL15550214 to the complainant if the sale is not done;
C) To direct the opposite party not to sell the gold ornaments which were pledged by the complainant and not to auction the same and adjust the entire dues in respect of the said two loan accounts bearing no. GL14069232/ GL15549487 and GL14447428/ GL15550214 from the complainant;
D) To restrain the opposite parties forbear from selling or auctioning gold ornaments and taking any further step without informing, the complainant about advertisement of golden ornaments’ public auction notice and without giving the complainant the opportunity of hearing and without maintaining the due process of law;
E) To direct the opposite party to consider and dispose of the applications dated 06.03.2022, 23.03.2022 made by the complainant to the opposite party for one time settlement of the entire dues in respect of the said loan accounts;
F) To direct the opposite parties to pay the compensation of Rs. 2,00,000/ (Two Lakh) for mental agony and pain to the complainant;
G) To direct the opposite parties to pay the litigation cost of Rs. 1,00,000/;
H) To pass such other order or orders as the Commission may deem fit and proper.
Notices to the Opposite Parties.
Notices were duly served upon the opposite parties; they have contested the case by filing written version jointly thereof.
In the written version the ops have stated inter aliathat save and except what are matters of record or what may be derived out of records, all allegations contained in the instant application be deemed to be denied and disputed as if set out seriatim. The opposite party denies, refutes and confutes all and singular allegations, contentions, claims and demands made by the Complainant in to, which are in any manner contrary to or inconsistent with whatever is stated herein and opposite party state that none of the said contrary or inconsistent allegations, accusations, claims or demands should be deemed to be admitted by the Opposite Party by virtue of the same has not been specifically denied or dealt with herein. That the Complainant is not a consumer within the meaning of the Consumer Protection Act. The consumer had availed pledging services of loan facility on the monthly interest payment by pledging the gold ornaments with the Opposite Party. The complainant has specifically admitted this fact in the present complainant and also, admitted being defaulted into payment of loan installments and hence he is not entitled to invoke the jurisdiction of this Hon’ble Commission. The opposite party submit that the considering the averments made in the complainant by the Complainant shows that the issue involve is of rejection of alleged claim which is purely civil nature and hence, the same cannot be entertained before this Commission and required to be adjudicated before Competent Civil Court for leading detail evidence & produce document in respect thereof.As per the terms & conditions annexed to signed & submitted by the opposite party, it contains a clause in respect of -Any dispute arising out of or in arbitration proceeding which read as : transaction /agreement shall be referred to and resolved by the process of Arbitration in accordance with the Arbitration and Conciliation Act, 1996 and/or any statutory amendment thereof and the same shall be referred to Sole Arbitrator who shall be appointed by IIFL. The venue of the Arbitration shall be decided by IIFL. There were no faults or deficiency in service in part of the opposite parties. The fault of non payment of money had arisen on the part of the complainant himself. On 3/03/2020, the complainant had approached the OP company branch office on the pretext of availing the loan facility against the pledge of gold articles and in view thereof, complainant had deposited the gold with IIFL and thereafter, the complainant had filled up gold loan application, account no GL14069232 dated 15/3/20, and also, signed there on governing gold loan facility and DPN which are mentioned overleaf of the loan facility. The copies of the respective loan application along with the terms & conditions governing the usage of gold loan facility were promptly given to the complainant. The agreement was duly andvoluntarily signed by both parties, wherein the terms and conditions were stipulated, but later, however, the complainant had failed to observe the same. After due valuation of gold articles based on the then prevalent market rate of the gold ornaments, upon which the complainant had agreed, the complainant had taken the loan facilities to the extentof amount Rs. 161,120.00/ as more particularly mentioned in the suit and the same was required to be repaid to the Opposite party within 13/3/2020, after the date of execution of the terms & conditions of the loan application. Once again on 13/06/2020, the complainant had approached the OP company branch office again on the pretext of availing the loan facility against the pledge of gold articles and in view thereof, complainant facility deposited the gold with IIFL and thereafter, the complainant had fill had gold loan application, account no GL14447428 dated 13/6/20, filled up signed the terms & conditions governing gold loan facility and DPNwhich are mentioned overleaf of the loan facility. The copies of therespectiveloan application along with the terms & conditions governing the usage of gold loan facility were promptly given to the complainant theagreement of was duly and voluntarily signed by both parties, wherein the agreement conditions were stipulated, but later, however, the complainant had failed to observe the same. After due valuation of gold articles, based on the then prevalent market rate of the gold ornament, upon which the complainant had agreed, the complainant had taken the loan facilities to the extent of Rs.161120. the same was required to be repaid to the Opposite Party within 13/03/2022 after the date of execution of the terms and conditions of the loan application.As per the terms and conditions of the gold loan agreements, the Opposite Party Company can auction the pledge gold in case the loan or interest is not realized in full, as per RBI norms. Thereafter, when the market price of gold increased, the value of the pledged gold also increased, the complainant voluntarily approached the OP to top-up his loan, and after that separate child gold loan (GL15549487) were provided to him with the pledged gold in the mother gold loan GL14069232, and child gold loan (GL14447428) were provided to him with the pledged gold in the mother gold loan GL15550214, of Rs. 32700/ and Rs. 10850/ respectively on 14/09/2020. Separate forms were provided to the complainant and he agreed to the terms and conditions and took the money. The Complainant was very irregular in making his payments on time as per the repayment schedule, and failed to pay the loan interest and principal in time. The covid 19 moratorium were provided to him as per the RBI regulations, but still he did not bother to pay back his loan. Subsequently the money was not realized as per schedule, principal and interest went under bad loan, and the pledged gold became NPA. As on 31.01.2022, the NPA of outstanding sum is Rs. 231361/ and Rs. 94458/, including interests. Thereafter Opposite3 Party having no other alternative to recover its dues and loans with respect to the gold loan accounts, informed the Complainant that on the Complainant’s repeated failure to make repayment of the loan amount with interest, Opposite Party’s were forced to issue loan recall and public auction notices of the gold ornaments pledged by the Complainant. Notice was sent o the complainant on 11.11.2021 and 31.01.2022, and finally on 12.02.2022, after given a huge Opportunity to repay the NPA. It is humbly submitted that Opposite Party had time and again through various communication letters reminded the Complainant to repay the loan amount but the Complainant had always turned down to the repeated requests made by the Opposite Parties. The Complainant knowingly ignored the same. In such an event the Opposite Party Company wish to state that, such loan account go into overdrawn status and is reflected as a Non Performing Asset in the Company’s Books. The said public auction was then advertised on 19.02.2022 in newspapers including the English esteemed Daily Business Standard and the Bengali Daily DurantoBartaa wherein all the details of the auction that was to be held on 04.03.2022 by the Opposite Parties/respondents were provided the Complainant was asked to contact the branch in this advertisement but the Complainant again failed. The Complainant did not turn up to the branch and therefore creating a false story regarding that in the complaint. The Complainant only shown his proactiveness post-auction, ad killed time making irregular marginal payments pre-auction. Subsequently, when the complainant paid no heed to the same, Opposite Party were compelled to hold the auction and sold the gold to recover the money. The Opposite Party after the auction of gold, sent notice on 19.03.2022 to the Complainant to realize the excess amount of money recovered from auction. This shows that the Opposite Party had no malafide intension. The Opposite party had acted as per the terms and conditions printed overleaf of the agreement and RBI guidelines and circulars, and it is the complainant, who acted in contrary. The said petition is vexatious, devoid of any merit ad has been made with the sole purpose of harassing and thereby arm twist of the Opposite party. The Opposite Parties deny and disputes the contents, every allegations, and submission of the petition of complaint, unless they are matter of records, and states that the complainant is to be put under strict proof hereof The Op further states that the present complaint is designed to misguide the commission with wrongful contentions. The Opposite Parties deny and disputes the contents of prayer of the petition of complaint, and states that the complainant is to be put unde5r strict proof hereof. The Complainant is guided by pledger- pledge contract, and not a subject matter of the CPA 1986. The Complainant had created his allegations, for extracting money only. The Complainant is not clean handed. The opposite Party denies the entire contention of the complainant, where the complainant had provided false, fabricated and amalgamated stories, to distract the forum and extract money from the Opposite Parties. The Opposite Party rely on the documents filed by Opposite Party, and craves leave to press them. In this circumstances , it is prayed to this Commission to reject the complaint with cost, and/or pas any order/orders as the Commission may deem fit and proper.
Argument
In course of argument the Ld Advocate for the Complainant has submitted that the complainant has been able to prove the averments made in the complaint against the ops. He added that Gold ornaments of the complainant sold by the opposite party company without due process of law and the act of the opposite party company Branch Manager, JIFL Finance Limited, TamlukManiktala Gold Loan Branch and the opposite parties act in this behalf is illegal, unconstitutional and in violation of principal of natural justice and the said acts of the opposite parties company involve deficiency of service and unfair trade practice. He adds that the opposite party company be directed to receive the due loan money from the complainant and to settle the loan as outstanding in the said two loan accounts after adjustment of loan money and to return back the golden ornaments of the complainant.
Per Contra; On the other hand Ld Advocate for the ops has contended that as per the terms & conditions annexed to signed & submitted by the opposite party, it contains a clause in respect of -Any dispute arising out of or in arbitration proceeding which read as : transaction /agreement shall be referred to and resolved by the process of Arbitration in accordance with the Arbitration and Conciliation Act, 1996 and/or any statutory amendment thereof and the same shall be referred to Sole Arbitrator who shall be appointed by IIFL ; as such the case is not maintainable before this Commission. He submits that the complainant has specifically admitted that he defaulted into payment of loan installments and hence he is not entitled to invoke the jurisdiction of this Hon’bleCommission.The Opposite Party after the auction of gold, sent notice on 19.03.2022 and also through SMS on 22.04.2022 to the complainant to realize the excess amount of money recovered from auction. This shows that the Opposite Party had no malafide intension. The Complainant had never enquired about the loan account status and never turned up to the branches of OP to collect information about the statement during loan tenure. It seems he took the loan, and forgotten everything about his duty to pay it back. The account went in overdrawn status and was declared NPA. All the notices were sent in his registered address, but were paid no heed. On the contrary, the communications made by the complainant were all post facto, wherein, further promises towards payment are made but no actual payments were made to retain the gold from conducting auction after the auction notice. He stated that it is the settled law that parties are bound by the terms of agreement and it is and admitted fact that the complainant did not repay and amount towards the principal. Complainant having signed the agreement cannot say that no message was sent for repayment towards the principal. The Complainant being a defaulter cannot get any relief in this case. He has referred the decision of the West Bengal State Commission-in case being no-A/1464/13, and a decision of the Hon’ble Supreme Court in the case Syndicate Bank VsVijaya Kumar reported in 1992(2) SCC}.
On careful consideration of the complaint supported by affidavit, written versions, evidences presented by the contesting parties and arguments, the following points are framed for consideration:
Points for Determination
Whether the complaint is maintainable in its present form and in law?
Have the opposite parties committed any deficiency of services and unfair trade practice as alleged?
3. To what other relief or the reliefs the complainant is entitled?
Decision with reasons
In re: Point no-1.
We have carefully read, analyzed and evaluated the complaint supported by affidavit, written versions, evidences presented by the contesting parties and we also anxiously considered the written arguments of both parties and the ratio of the Judgments cited by the Ld Advocates for the rival parties.
In the instant case, the reliefs claimed by the complainant are for deficiency of services and unfair trade practice of the opposite parties financial company. The complainant is a borrower of Gold loan at the IIFL Finance Limited Gold Loan, Tamluk,PurbaMedinipur Branch. The Opposite Party no.1 is the present Branch Manager of the IIFL Finance Limited, Tamluk,PurbaMedinipur Branch and opposite party no. 2 is the registered office and opposite party no. 3 is the corporate office of IIFL Finance Limited. The ops render service as a financing concern to the potential user within the meaning of definition of serviceunder section 2 (42 ) of the C P Act 2019.
On dealing with the contentions of the Ld Advocate for the ops to the effect that the issue involved is of rejection of alleged claim, as per the terms & conditions of agreement ,annexed to signed & submitted by the opposite party which contains a clause in respect of -Any dispute arising out of or in arbitration proceeding which read as : transaction /agreement shall be referred to and resolved by the process of Arbitration in accordance with the Arbitration and Conciliation Act, 1996. According to ops as there is provision for Arbitration and Conciliation, the instant case is not maintainable in this forum.
We find that the above points have been set at rest by the ratio of the Judgement of the Hon’ble Apex Court passed in Emaar MGF Land Limited vsAftab Singh,( 2019)12 SCC 751.
In Emaar MGF Land Limited vsAftab Singh,( 2019)12 SCC 751 , the Hon’ble Supreme Court held that an arbitration agreement governed by the Arbitration and Conciliation Act,1996 will not oust the Jurisdiction of the Consumer forum to entertain the complaint of the deficiency of goods or service. The Hon’ble Court relied on Section -3 of the Act.As far as the contention of the Ld Advocate for the ops regarding Arbitration clause is concerned , we find it a fit case wherein reliance shall be placed on the Judgement passed in Emaar MGF Land Limited vsAftab Singh,( 2019)12 SCC 751.
The preponderance of evidence and other documents indicate that the complainant has established his relation with the ops as consumer and service provider.The complainant is a consumer as defined under this act. As such, the instant case is maintainable in its present form and law.
In re: Point no-2 & 3.
Both the points being inter related are taken up together for discussion for the sake of brevity and convenience.
Having regards had to the evaluated evidence on record it appears that the total amount of 04 loans is Rs.2,75,870/ without interest. The Complainant has repaid Rs. 60,573/ in total ( vide receipts Annexure-36 to 47 ) only. The complainant submits that the complainant is still willing to pay the loan money along with interest and upon one time settlement of the said two loans. The complainant wants to get back the pledged golden ornaments from the Branch Manager, IIFL Finance Limited, TamlukManiktala Gold Loan Branch after adjustment of loan money as lying in the said loan accounts and one time settlement of loan money. Cumulative effect of the said is that the complainant borrower has defaulted in payment of loan instalments; it is a clear instance of defaulter. The noticesreflecting the matter of lapse in payment of 04 loans were received by the complainant.
To decide the crux of the dispute raised by the complainant it is pertinent to read the Letter of the complainant sent to the ops ieAnnexure P4 which was written after auction sale very minutely where in it is narrated.
In reply to the letter dated 31.01.2022 I, Swapan Kumar Bhunia, S/O- Late JudhisthirBhunia, Vill.- Kalapenia, P.O._ Dhannyaghar, P.S.- Nandakumar, Dist.- PurbaMedinipur, Pin-721643 I beg to state as follows:-
- I had received the letter dated 31.01.2022 on 12.02.2022 regarding pre-sale notice in respect of the said loan.
- I had defaulted in making loan EMI payment due to financial crisis of me and my family in recent times due to Covid-19 and for that reason I had made some defaults in making loan installment payment to the branch.
- I want to pay the entire dues to the branch in respect of the said loan account at present.
- It is pertinent to mention here that after receiving the said letter on 12.02.2022, I had tried to collect money from my near and dear ones for which reason there was some inordinate delay which might be avoided and other reason during Covid-19 period whatsoever may be made from my end and having collected money as soon as possible contracted the Tamluk IIFL Branch and personally went to the branch office on 28.02.2022 and several times till now at IIFL Gold Loan, Tamluk-Maniktala GL, Ward No 10, 1st Floor, IDBI Bank Building, Padumbasan, Tamluk-721636 and had met with Branch Manager and requested the Branch Manager, IIFL Gold Loan, Tamluk, Maniktala to accept the said loan re-payment and return back the golden ornaments, but all my efforts have gone in vain. I wanted to pay entire dues but could not do the golden ornaments but all my efforts have gone in vain. I wanted to pay entire dues but could not do that.
It appears that Notices were published in National wide circulated Newspaper Business Standard,in page-5 dated 22.02.2022 and local vernacular Newspaper DurantaBarta. Ultimately, on 04.03.2022 auction sale was done .Owing to Covid-19 , the complainant was given moratorium facilities too. The complainant got all opportunities to repay the loan or to participate in the auction sale. As the details of accounts listed for auction with date time etc in in National wide circulated Newspaper Business Standard,in page-5 dated 22.02.2022 and local vernacular Newspaper DurantaBarta, the ratio of the Judgment passed by the Hon’ble SCDRC , West Bengal in CC-02/2016 and in the Judgment passed by the Hon’ble SCDRC , Telangana, in FA/301/2016as referred by the Ld Advocate for the complainant will not help the complainant in any way.The ops has got no deficiency up to the level of auction sale of the pledged gold of the borrower. The Complainant has failed to bring home any elements of negligence and deficiency in service against the ops to that extent.
Now, it appears that the auction sale was conducted on 04.03.2022 but ops claim they have sent the notice for receiving the balance amount of the sale proceeds on 19.04.2022ie after one and a half months that to after filing of the instant case. The ops woke up to see the matter after institution of the case by the complainant on 04.04.2022. This is an instance of deficiency of service and unfair trade practice on the part of the ops. The complainant is entitled to get refund of balance amount after adjustment of debt with the sale proceed along with interest and compensation for harassment and mental agony. He should also get litigation costs.These points are decided accordingly.
Thus, the case succeeds in part.
Hence, it is
O R D E R E D
That the CC/55 of 2022 be and the same is allowed in part on contest against all the ops-1, 2& 3.
The ops, who are jointly and severally liable, are directed to refund the balance amount after adjustment of debt with the sale proceeds amounting to Rs.24,822/ (Rs.20131 +Rs.4691) along with simple interest @ 12% per annum from the date of filing of this case till the date of actual payment and to pay compensation of Rs.20,000/ for harassment and mental agony and further to pay Rs.10,000/ towards litigation costs to the complainant within 45 days from the date of this order.
In default, the complainant shall be at liberty to put the order into execution under section 71 of the C P Act 2019 or to initiate proceeding under section 72 of the C P Act 2019
Let a copy of the judgment be supplied to each of the parties, free of cost.
