: J U D G M E N T :
The brief fact of the case is that the complainant took loan of Rs. 72,000/- from OP against the pledged articles such as chain & solid gold ornaments on 20.11.12. OP paid the said loan amount of Rs. 72,000/- to the complainant by taking the possession of said gold ornaments. The complainant has signed the agreement paper stating some terms & conditions regarding pledging of gold articles. The OP did not supply the signed paper to the complainant. The complainant paid Rs. 5000/- on 08.08.2013 and also paid Rs. 5000/- on 30.08.2013 to the OP. Due to financial hardship the complainant has failed to pay the loan amount with interest in the office of OP. But when the complainant went to the office of OP on 03.03.14 for payment of loan amount along with interest, he knew that the OP sold the pledged articles. The OP did not provide any prior notice to the complainant before selling the pledged articles. This is a gross negligence and deficiency in service on the part of OP. So for getting proper relief, the complainant knocked at the door of the Forum.
The OP contested this case by filing written version stating, inter alia that the complainant received Rs. 72,000/- as loan from OP against some pledged gold articles on 20.09.2012. As per terms and conditions of the agreement complainant did not repay the loan amount though he signed the agreement paper. Thereafter the OP sent a notice to the complainant for payment of Rs. 75,492/-. The complainant neglected the said notice and did not pay any loan amount. As per loan agreement the complainant has paid the entire loan amount by giving the consent of selling of gold articles. There is no gross negligence or deficiency in service on the part of OP. hence, the case is liable to be rejected with cost.
Now the Forum is to consider the following:-
- Whether the complainant is to be treated as consumer or not as per
Consumer Protection Act 1986.
- Whether the arbitration clause is applicable in the instant case or not.
- Whether there is any gross negligence or deficiency in service on the
part of OP or not,
- Whether the complainant is entitled to get any relief as prayed for.
DECISION WITH REASONS
All the points are taken up together for the sake of convenience and brevity.
We have perused Annexure – 1 sanction letter. From the said document it is fact that the complainant received Rs. 72000/- from OP Finance Ltd. on 20.11.2012 against the pledged articles such as chain and solid gold valued at Rs. 22,422/- + Rs. 56,628/- = Rs. 79,050/-. So the complainant is to be treated as consumer as per Consumer Protection Act, 1986.
We have also perused the terms & conditions of the sanction letter (Annexure – 1) wherein the complainant / borrower undertakes that in case of default in the repayment of interest / instalment / principal amount, the borrower / complainant authorizes the OP / Finance Ltd. to sell all or any of his pledged articles. It is admitted that due to financial hardship the complainant has failed to repay the loan amount within the proper time. Only as per Annexure – 3, it is fact that the complainant paid Rs. 5000/- on 08.08.2013 and as per Annexure – 2, it is fact that the complainant paid Rs. 5000/- on 30.08.2013. So it is admitted position that the complainant paid only Rs. 10,000/- to the OP Finance Company. So there is a clear latches or fault on the part of the complainant regarding nonpayment of loan amount due to breach of agreement by the complainant. As per terms & conditions of the agreement dtd. 20.11.2012 it is admitted that the borrower / complainant authorized that OP / Finance Ltd. to sell his pledged articles in default of payment of loan amount and OP also sold the above mentioned gold articles, when the complainant has failed to repay the loan amount.
Now we turn into another important points regarding service of 10 days notice to the complainant. No copy of notice has been filed by the OP Finance Ltd. No acknowledgment or receipt regarding service of notice has also been filed by the OP so that we can understand that 10 days notice has been delivered properly to the complainant. The OP just only filed a copy of list of the name of some persons with addresses and other particular which does not prove the serving of 10 days notice to the complainant. In this regard there is a gross negligence and deficiency in service on the part of the OP / Finance Ltd.
It is fact that the OP / Finance Ltd. has realized the entire loan amount by selling the pledged articles. So in such situation the extra payment of Rs. 10,000/- (Rs. 5,000/- dtd. 08.08.13 & Rs. 5000/- dtd. 30.08.13 received by OP / Finance Ltd.) should be returned / refunded to the complainant.
Now we try to analysis regarding arbitration clause. Whether the Forum may entertain the case or not or the Forum has any jurisdiction to try the case wherein the arbitration clause is involved. In M/S National Seeds Corporation Ltd. vs. M. Madhusudan Reddy and Another (ILC 2012 SC Civil January 06) the Supreme Court held that the remedy of arbitration is not only remedy. It is an optional remedy. As per Seeds Act, the farmer may approach to the arbitration and again as an optional remedy the farmers can easily approach before the consumer Forum for getting their relief / relieves. So as per view of Hon'ble Supreme Court, the consumer Forum can easily try the matter wherein the arbitration clause is involved.
However, there is a gross negligence and deficiency in service on the part of the OP. The complainant is entitled to get relief against the OP as per above observation.
All the points are decided.
The case is allowed partly on contest against OP.
Hence,
Ordered,
That the case No. CC/2014/27 be and the same is allowed on contest against the OP/Finance Ltd. with cost of Rs. 1,000/-. That the OP/Finance Ltd. is hereby directed to pay or refund Rs. 10,000/- plus cost of Rs. 1000/-, i.e., total of Rs. 11,000/- to the complainant within 30 days from the date of order, i.d., interest of 10% p.a. shall be charged upon the awarded amount till full realization.
Let the copy of this order be supplied to the parties free of cost.
