BY - SRI ASISH DEB, PRESIDENT
Brief facts of the complainant’s case are that he pledged the 356.5 gm gold ornaments to the O.Ps (1 & 2) for loan whose customer ID No. 35480007349688. The said O.Ps ( 1 & 2 ) settled that the pledged gold was 354.5( 22 carat ) gm and net Amt disbursed Rs. 746000/- through the two loan account being No. 135480700001335 the loan amount Rs. 255000/- on dated 03/03/2016 and No. 135480700001344 the loan amount Rs. 420000/- on dated 04-03/2016. Due to the financial problem, the complainant could not pay the interest regularly as a result the O.Ps issued two demand notices for auction the said pledge on 01/07/2016. The Complainant also sent a letter dated 04/07/2016 to the O.Ps praying for sometimes for this auction. The Complainant has renewed the said Gold Loan pledged on 30/07/2016 and consolidated his two accounts (that is A/C No. 135480700001335 and A/C No. 135480700001344) into a single A/C being No. 0135480700003166 for his convenience. The complainant’s revised Gold loan amount Rs. 746000/- where the ornaments are same which the complainant has pledged before that is 356.5 gm at Contai East Midnapore Brnach after assessment of the gold. The Complainant paid the interest of Rs. 13221/- on 27/08/2016 and Rs. 50047/- on 27/01/2017 against the said pledge No. 0135480700003166 of the loan then the principle was Rs. 746000/-. The O.Ps ( 1 & 2) served the notice of auction without mentioning any date of auction on 04/07/2017. The Complainant also made query about this auction letter at the branch office of Contai East Midnapore but the office could not confirm the date of auction or did not make any other solution for settlement of this loan. Thereafter, the finance company informed me that the company was constrained to auction the pledged gold at Rs. 91456/- and total amount of outstanding Rs. 746000/- and total deficit amount of Rs. 855794/- as on date 13/10/2017. The OPs finance company took a vague and baseless ground to cheat this Complainant’s pledged gold for his financial weakness. After taking the pledged gold for such loan, the OPs have no right/locus standi to do such thing. The Complainant is entitled to get the compensation for the pledged gold amount to Rs. 200000/- (Two Lakh) along with the compensation for mental agony Rs 30,000/- and Legal Expenses Rs 6,000/- total amount to 2,36,000/- (Rupees Two Lakh Thirty- Six Thousand only).
Having received the notices the ops have contested the case by filing written version. The sum and summerisation of the written version are that the instant claim case is not maintainable within the purview of Consumer Protection Act . The instant complaint is barred by the principles of estoppel, waiver and acquiescence. The instant complaint is barred by the provisions of Indian Contract Act. The complainant can not get any benefit from the opposite parties for his willful latches and suppression of material facts and violation of the specific terms and conditions of availing loan against gold under pledge. The Opposite parties No. 1 & 2 submit that the O.P. No.2 is Manappurm Fiunance Ltd. Having its registered office at Manappuram House, P.O. & P.S.0Valapad, Dist.-Thrissur, Kerala-680567 and carrying on its business of financial assistance against gold under pledge throughout all over India and one of its branch office at Contai , District-Purba Medinipur, The complainant applied for loan on 03.03.2016 and Rupees 2.55 lakhs against keeping gold in the custody of O.P. No.1 Under Pledge for a quantity of 134.50 grams and the loan was sanctioned on that date and loan amounting Rupees 2.55 lakhs was disbursed in favour of the complainant and for which an account of loan was opened in which a loan account was opened in his name being no. 135480700001335. Subsequently on 04.03.2016 the complainant again applied for loan keeping the gold under pledge for a quantity of 222.50 grams, whereby an amount of Rupees 4.20 lacs was sanctioned and disbursed in his favour being no. 135480700001344. That on 01.07.2016 two demand notices issued by the branch office to the complainant in order to pay the outstanding interest within 31.07.2016 for an amount of Rupees 20,792/- and Rupees 33,913/- against above two loan accounts. But the complainant did not pay the interest as demanded. According to the advice of the branch manager and the prayer of the complainant the above two accounts ware consolidated on 30.07.2016 and a new single account in the name of the complainant was opened being no. 0135480700003166. The complainant revised gold loan amount Rupees 7,46,000/- and where the gold ornaments were same i.e. 356.5 gram. As pledged under the custody of O.P. accordingly previous two accounts were closed. The complainant paid interest against his new loan account of Rupees 13,221/- on 27.08.2016 and Rupees 50,047/- on 27.07.2017. Besides the above interest payment the complainant failed to pay the installment together with interest regularly in respect of the gold loan. The Opposite Party No. 1 issued demand notices in many occasions to alert and requested the complainant to pay the dues at a regular interval but the complainant did not pay heed to the notices so issued, in spite of regular communications. The O.P. No.1 issued ultimate demand notice asking to pay off the entire dues immediately otherwise the companies branch office i.e. the O.P. No.1 would have no other alternative but to realize the entire loan amount together with interest accrued there on by way of the method of auction the pledged gold as per terms and condition laid down in the agreement which was signed by the complainant. Accordingly the complainant was informed that auction would be held on 02.03.2017. The auction was held duly on that date and gold report was received and the auction was properly held according to the norms and in presence of Auditor Auctioneer and Govt. officials and bidders whereby it was found that the pledged gold was valued of Rupees 91,456/- as the pledged gold was spurious. The deficit amount was Rupees 8,55,794/-. In view of above circumstances the complainant cannot claim as per prayer of the complaint. On the other hand the complainant is liable to the amount of deficit/loss incurred by the company’s branch office. The instant consumer case being otherwise bad and the same is liable to the dismissed imposing exemplary cost upon the complainant.
Contentions of the Ld Advocates
It has been contended by the Ld Advocate for the complainant that the complainant has proved the elements of deficiency in service and unfair trade practice against the ops-1 & 2 and as such he is entitled to get the reliefs as prayed for.
Per Contra, the Ld. Advocate for the op-1 has vehemently contended that the complaint is not maintainable. According to him the complainant has failed to prove his all allegations. The Opposite Party No. 1 issued demand notices in many occasions to alert and requested the complainant to pay the dues at a regular interval but the complainant did not pay heed to the notices so issued, in spite of regular communications. The O.P. No.1 issued ultimate demand notice asking to pay off the entire dues immediately otherwise the companies branch office i.e. the O.P. No.1 would have no other alternative but to realize the entire loan amount together with interest accrued there on by way of the method of auction the pledged gold as per terms and condition laid down in the agreement which was signed by the complainant. It was found that complainant obtained loan pledging spurious gold causing loss to the ops. The ops owe Rs.8,55,794/- to the complainant towards deficit amount. As such he has prayed for dismissal of the complaint.
Points for determination are:
- Is the case maintainable in its present form and in law?
- Is the complainant entitled to the relief(s) as soughtfor?
Decision with reasons
Both the points, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.
We have carefully perused and assessed the affidavit of the complainant, written version filed BY ops, evidence of both parties, ie examination in chief of complainant questionnaire and reply thereof and examination in chief of Abdullah Molla, Branch Head of Contai Branch Of OP, questionnaire and reply thereof alongwith receipts and other documents.
Having regards had to the facts and circumstances of the case it is evident that the complainant being a consumer has alleged deficiency in service and unfair trade practice against the ops- ; the bundle of facts indicate that this case is maintainable in its present form and in law. Indisputably, the complainant applied for loan on 03.03.2016 and Rupees 2.55 lakhs against keeping gold in the custody of O.P. No.1 Under Pledge for a quantity of 134.50 grams and the loan was sanctioned on that date and loan amounting Rupees 2.55 lakhs was disbursed in favour of the complainant and for which an account of loan was opened in which a loan account was opened in his name being no. 135480700001335. Subsequently on 04.03.2016 the complainant again applied for loan keeping the gold under pledge for a quantity of 222.50 grams, whereby an amount of Rupees 4.20 lacs was sanctioned and disbursed in his favour being no. 135480700001344. That on 01.07.2016 two demand notices issued by the branch office to the complainant in order to pay the outstanding interest within 31.07.2016 for an amount of Rupees 20,792/- and Rupees 33,913/- against above two loan accounts. The above two accounts ware consolidated on 30.07.2016 and a new single account in the name of the complainant was opened being no. 0135480700003166. The complainant revised gold loan amount Rupees 7,46,000/- and where the gold ornaments were same i.e. 356.5 gram. The complainant paid interest against his new loan account of Rupees 13,221/- on 27.08.2016 and Rupees 50,047/- on 27.07.2017.
Now, as per agreement the ops have every right to realise its dues by way of auction after serving due notice and informing the date of auction. The complainant has established by his evidence that the date of auction was not intimated to the complainant at all .Auction notice dated 04.07.2017 does not reflect any date of auction. It is clear from the written version of ops that ops have no clear knowledge about the date of auction. Let us quote what has been mentioned in the written version “Accordingly the complainant was informed and auction would be held on 02.03.2017. The auction was held duly on that date “. Auction notice was given on 04.07.2017 without date of auction. As per ops own annexure auction was held on 13.10.2017. Therefore, the actual date of auction is 13.10.2017 which was done without informing the date to the complainant. On 02.03.2017 it was examined and ascertained that the pledged gold was spurious without informing the date and matter of examining the gold to the complainant or his representative. It is crystal clear that examination of the gold and auction were done back and behind the knowledge of the complainant. From the document and versions of the ops it is clear that at the time of granting loan sample was tested ; then no question of impurity was raised. It is not perceivable if the sample was found pure how it could be spurious on test done at the time of auction. The complainant was not allowed to see the procedure of examination of the gold. The above mentioned acts of the of ops indicate that there is something foul play in the whole process of disposal of the pledged gold. In the facts and circumstances of the case, it is clearly established that Ops had caused deficiency in service and had set instances of unfair trade practice. In the factum, observed as above it indicates that there is substance in the contentions raised by the ld. Advocate for the complainant, on the other hand the contentions raised by the ld. Advocate for the OPs have no leg to stand upon.Coming to the question of entitlement of the reliefs ,if any ,by the complainant , it is pertinent to mention that complainant has not paid the loan installments and accrued interest thereon to the ops. Cumulative effect of the value of the pledged gold and dues of the complainant to the ops are almost equal or same. Thus, the parties do not owe any amount to each other on the value of the gold or on loan transactions. However, ops can not avoid its liability of causing harassment and mental stress to the complainant in the dealing of the loan matter. Consequently, it would be just and proper if the ops are jointly and severally asked to pay Rs. 10,000/- (Rs.5000/-as compensation and Rs.5000/- as Litigation costs) to the complainant within two months from the date of order; in default the OPs will have to pay Rs. 100/- per day till the date of actual payment in addition to the said amount for non compliance of the order.
Both the points are decided accordingly. Thus the complaint case succeeds in part.
Hence, it is
O R D E R E D
That the CC/43 of 2019 be and the same is allowed in part on contest against the OPs.
The OPs, who are jointly and severally liable, are hereby directed to pay Rs. 10,000/- (Rs.5000/-as compensation and Rs.5000/- as Litigation costs) to the complainant within two months from the date of this order; in default the OPs will have to pay Rs. 100/- per day till the date of actual payment in addition to the said amount for non compliance of the order.
Let a copy of the judgment be supplied to each of the complainant and the OPs free of cost.
