BY - SRI.SAURAV CHANDRA, MEMBER

1. Brief facts of the Complainant’s case are that the Opposite Parties are the Finance Company from whom the Complainant took a Gold Loan amounting to Rs.66,011.00 with @20% per annum Fixed Rate of Interest for a tenure of 11 Months against pledging 23.60 GMS ornaments as per the Agreement No.GL14009878, dated: 07.03.2020. (Annexure – ‘A’ of the Complaint)

2. The tenure of loan was schedule to expire on completion of 11 Months but, due to total closure of the office of the Op No.1 for COVID-19 Lockdown situation, the Complainant unable to pay the amount. Thereafter the Complainant during unlock wanted to pay the entire Principal amount with Interest but, the Op No.1 refused to inform about the amount of Interest to be paid against the said loan. Moreover in the Agreement the amount of EMI to be payable on every month was not clearly mentioned.

3. All on a sudden the Ops send a letter dated: 26.10.2020 with a consolidated Demand of Rs.75,338.00 with Principal and Interest Rs.6,359.00 but, without mentioning the amount of Penalty Charges, Late Payment Charges and Other Miscellaneous Charges to the Complainant for payment within 10 days failing which an Auction will be conducted on 20.11.2020 or later at 10:00 AM. (Annexure – ‘B’ of the Complaint) The Complainant further alleged, as per the direction of the Govt. of India, the Ops can’t claim any demand for Penalty, Late Payment and Other Miscellaneous Charges due to COVID-19 pandemic. Moreover, the Complainant declared himself as an unemployed person during the Lockdown period of COVID-19 pandemic as he has no income at that time.

4. Although the Complainant collected Rs.10,101.00 from his relative and deposited the said amount through Paytm on 30.12.2020 vide Receipt No.12652055859 which has also reflected in the online system of such loan account. (Annexure – ‘C’ of the Complaint) Thereafter, on 21.01.2021 under instruction of the Complainant his Ld. Counsel sent a letter to the Ops for a statement requisition statement and query for the payable balance interest amount to take back the entire pledged 23.60 GMS Gold but, the Ops didn’t replied after receiving the said letter vide India Post as per the confirmation receipt and Acknowledgment Due Cards respectively. (Annexure – ‘D’, ‘E’, ‘F’ & ‘G’ of the Complaint)

5. The cause of action of this case arose on 21.01.2021 when the Ops. refused to reply against the letter of the Ld. Counsel of the Complainant.

The Complainant, therefore, prays for:-

1. To Return Back of the scheduled Gold.

2. To pay Compensation of Rs.1,50,000.00 after adjustment of any dues against the said loan.

3. To pay Litigation Cost of Rs.20,000.00 to the Complainant for conducting the case.

4. Any other reliefs.

6. Notices were duly served upon the Op No.1 & 2. The Ops being represented by its’ Learned Counsel has contested the case by filing Written Version against the complaint. While resisting the claim of the Complainant, the Ops in its’ Written Version stated inter alia that this complaint is not maintainable in its present form and in law because the claim is purely in civil nature and it is required to be adjudicated before the competent Civil Court. Moreover, there were no faults or deficiency in service on part of the Ops. The fault of non- payment of money had arisen in the part of the complainant himself.

7. As per the Terms & Conditions of Clause 9.2 of the loan application – “Any dispute arising out of or in connection with the present loan transaction/agreement shall be settled by Arbitration under provisions of the Arbitration & Conciliation Act, 1996” which the Complainant avoided at his whims. Moreover, the agreement was duly and voluntarily signed by both the parties, wherein the terms and conditions were stipulated, but later the Complainant had failed to observe the same. Therefore, as per the terms and conditions of the executed  Gold Loan Agreement, the Ops can auction the pledged gold in case the loan or interest is not realized in full within the due date i.e. 06.02.2021, as per RBI norms.

8. The Ops. further submit that from the very beginning of the loan account, the Complainant was very irregular and knowingly ignored for paying both Principal and Interest in-spite of several reminder communications over Telephones, SMS etc. which ultimately turned into Non Performing Asset (NPA) of the Ops. books of accounts as per the RBI norms.

9. The Ops. have  also mentioned, the Complainant made payment of Rs.10,101.00 on 30.12.2020 and Rs.1,177.00 on 30.01.2021 respectively i.e. Rs.11,278.00 in total out of his total loan Principal amount of Rs.66,083.00 and accumulated interest thereon. The Complainant was granted moratorium of Rs.217.44 on 06.05.2020, Rs.1,992.68 on 27.05.2020 and Rs.913.40 on 08.06.2020 respectively as per the RBI directions for COVID-19 pandemic situation but, he didn’t show any interest for paying back the debts. Even the Ops issued a letter to the Complainant for the renewal of the tenure of the expired loan on 27.05.2021 but, the Complainant paid no heed.

10. Therefore, the Ops were forced to issue loan recall and Public Auction Notices of the pledged gold ornaments of the Complainant on 28.07.2021 but, due to no heed by the Complainant, the Ops were compelled to hold the auction and sold the gold to recover the money on 31.08.2021 after proper Notification in the News Paper dated: 18.08.2021 and subsequently sent a notice to the Complainant on 24.09.2021 to realize the excess amount of recovered auction money for Rs.17,341.00 only.

11. The Ops has cited one Order of the Hon’ble West Bengal State Consumer Disputes Redressal Commission in its favour in the cases of :-

1. India Infoline Finance Ltd. & Others – Vs. – Saimul Haque Mollah [Appeal No.FA/1168/2013, 11.01.2016] – which clarifies, “The Complainant being a defaulter cannot get any relief in this case. The Learned District Forum, Howrah was not justified in allowing the Complaint Case No.CC-40-2013. The impugned judgment is set aside. The petition of complaint is dismissed.” 

12. Under the above circumstances, the Ops has prayed for dismissal of the present case with costs.
13. Points for determination are:

1. Is the case maintainable in its present form and in law? 
2. Is the Complainant entitled to the relief(s) as sought for?

14. Decision with reasons

1. Both the points I and II, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.

2. We have carefully perused the Petition, Affidavit and Examination-in-Chief, Questionnaire of the Complainant along with all papers and other documents and Written Version, Evidence-in-Chief, Reply with all receipts and other documents etc. filed by Ops.

3. Having regards had to the facts and circumstances of the case in the light of evidence, it is evident that there is no dispute that Complainant is a consumer having grievances against the OP No.1 & 2, as such the case is maintainable in its present form and in law.

4. We have heard the submission made by the both sides and perused the documents on record. It is true that the complainant was allowed moratorium as per RBI norms ,but the complainant borrower could not clear the debt. Now, it is the right of the complainant to know about the exact date of auction of the pledged gold . It appears from the notice dated 28.07.2021 it was mentioned that date time and place of  auction would be informed to the complainant in due time. The ops failed to show that  date time and place of  auction was at all informed to the complainant. There is no proof that the notice dated 28.07.2021  was served to the complainant . The date of auction ie 31.08.2021 was not intimated to the complainant. The Newspaper reflects the date of auction as 20.08.2021. The holding of auction without informing the date to the complainant is unfair. The ratio of the Judgement of the Hon’ble WBSCDRC referred by the ops is not applicable in this case as the facts and circumstances of the instant case are different from the said referred case;  in the referred case the date of auction was known to the complainant but in the instant case despite Advocates notice the complainant could not know the exact date of auction. Thus the ops have set instances of unfair trade practice. Therefore the complainant is entitled to get compensation of Rs. 20,000/- for the loss he suffered for not getting his pledged gold ornaments which were auctioned without his knowledge in addition to the amount of Rs.17,341/, the excess sale proceeds.
5. Accordingly, both the points are disposed of
6.  Thus, the complaint case succeeds in part .

Hence, it is

          O R D E R E D

That the CC-47 of 2021 be and the same is allowed in part  on        contest.  

The ops ,who are jointly and severally liable, are directed to pay Rs.37,341/- along with simple interest @ 9% per annum from the date of filing of this case till realisation and Rs.5000/-as towards litigation costs wthin 45 days from the date of this order ;in default the complainant will be at liberty to put the order into execution.

Let a copy of this judgment be provided to the parties  free     of cost. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.

File be consigned to record section along with a copy of this   judgment.