Tamil Nadu

Nagapattinam

CC/30/2013

P.Kaliyaparumal - Complainant(s)

Versus

The Branch Manager, Manapuram Finance Ltd. - Opp.Party(s)

R.Balaji

05 Aug 2014

ORDER

Date of Filing      : 02.08.2013

                                                                                     Date of Disposal: 05.08.2014

                                                                   

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

NAGAPATTINAM

 

PRESENT: THIRU.P.G.RAJAGOPAL, B.A.B.L.,         …..PRESIDENT

    THIRU.A.BASHEER AHAMED,B.Com., ….  MEMBER I

               Tmt. R.GEETHA, B.A.,                             …. MEMER II

 

 

CC. No.30/2013

 

DECIDED ON THIS   05^th   DAY OF AUGUST 2014.

 

 

            Kaliperumal, Age.60,

            S/o Paappu Nattar,

            Mela Fisher Colony,

            Boompukar, Sirkali Taluk,

            Nagapattinam  District.                                                         …..      Complainant

                                                                                                  

                                                                /versus/

                                   

The Branch Manager,

Manappuram Finance Ltd.,

Near Bus stand, Sirkali Taluk,

Nagapattinam District.                                                           ….. Opposite party

  

 

            This complaint having come up for final hearing before us on 30.07.2014, on perusal of the material records and on hearing the arguments of Thiru.R.Balaji, Counsel for the complainant, Thiru.A. Udhayagnanasekarn counsel for the opposite party, having stood for consideration, till this day the Forum  passed the following

 

      ORDER.

     By the President, Thiru.P.G.Rajagopal, B.A.B.L., 

This complaint is filed by the complainant u/s 12 of the Consumer Protection  Act 1986. 

           

2. The gist of the complaint filed by the complainant is that the complainant, a Fisher Man by occupation  pledged his gold chain and two golden rings weighing   27.7gm with the opposite party and borrowed sum of  Rs.56000/-, undertaking to redeem it within the  period of one year.  Owing to financial difficulty the complainant could not redeem the Jewells within the said period and the opposite party sent a notice to the complainant on 11.12.2012 which was received by the complainant on 18.12.2012.  In the said notice the opposite party had called upon the complainant to redeem the Jewells within 14 days from the date of receipt of the notice failing which that would be sold in public auction.  The complainant after getting financial assistance from his relatives and friends went to the office of the opposite party on 31.12.2012 to redeem the Jewells and he was asked to come on 02.01.2013 as the Manager had been out of station.  The complainant when came to the office of the opposite party on 02.01.2013, he was shocked to be informed that the said Jewells were sold in auction and it could no longer be redeemed.  The opposite party has sold the Jewells even prior to the expiry of the period of 14 days mentioned in their notice.  Further before auctioning   the Jewells the opposite party has not duly advertised the auction by way of publication in the dailies.  Therefore it is sheer negligence and deficiency of service on the part of the opposite party.  The complainant has suffered from mental agony and loss owing to the deficiency of service of the opposite party.   For the notice sent by the complainant through his lawyer on 05.01.2013 reply had been given by the head office of the opposite party on 22.01.2013 with false averments.  The complainant therefore prays for an order to direct the opposite party to return the Jewells pledged by him and to pay Rs.200000/-(Rupees two lakhs only) to the complainant towards compensation for the mental agony, hardship and inconvenience caused to him, owing to the deficiency of service of the opposite party along with the expenses of this litigation.

                        3. The gist of the written version filed by the opposite party is that the complainant is not  a consumer as defined under sec.2(1)(d) of the Consumer Protection Act 1986 and the relationship between the complainant and the opposite party is one that of the debtor and creditor only. The complainant had availed gold loan of the sum of Rs.56000/- by pledging 27.7gms of his gold ornaments. As per clause of 3 of the terms and conditions of the loan application and agreement accepted and executed by the complainant, the opposite party has the right to sell the gold ornaments at the risk of the borrower either by public auction or by private arrangement.  As the complainant had failed to redeem the Jewells even after the period of one year in spite of the repeated  demands of the opposite party, the latter had to auction the Jewells after due advertisement of the auction by way of publication in the news paper Daily Thanthi dated 28.11.2012.  The Jewells were sold only for Rs.71843/- and there is loss of Rs.8154/- towards settlement amount and the complainant is liable to make good the said loss.  There is no deficiency of service on the part of the opposite party and the complaint is therefore liable to be dismissed with cost of this opposite party.

                        4. The complainant has filed his proof affidavit reiterating all the averments made in his complaint and has filed 4 documents which are marked as Exhibits A1to A4. The Branch Manager of the opposite party has filed his proof affidavit in support of his defence and has filed 11 documents which are marked as Exhibits B1 to B11. Written arguments are submitted by the both the sides.

                        5. Points for consideration:-

                        1. Whether there is deficiency of service on the part of the opposite party?

                      2. Whether the complainant is entitled to any relief? If so to what?

                        6. Point 1: The complainant has filed the Pledge Ticket issued by the opposite party as Exhibit A1.  The notice of demand sent by the opposite party to the complainant warning him of the proposed auction is filed as Exhibit A2.  The office copy of the lawyer’s notice sent by the complainant is filed asExhibit A3.  Exhibit A4 is the reply given by the opposite party to the complainant’s counsel.  The main allegation of the complainant is that the opposite party has sold the Jewells before the expiry of the 14 days period mentioned in the notice Exhibit A2 and thereby deprived the complainant of his right to redeem the Jewells and the opposite party has auctioned the Jewells recklessly   without complying with the procedure contemplated under the Tamil Nadu Pawn Brokers Rules 1943.  The complainant’s contention is that when he went to the office of the opposite party on 31.12.2012 for redeeming the Jewells,  he could not redeem the Jewells as he was told in the office that the Manager had been out of station and asked  him to come on 02.01.2013.  The pledging of gold chain and two rings weing 27.7gs with the opposite party for Rs.56000/- on 27.08.2011 is admitted.   Exhibit A1 as wells as Exhibit B1 are Pledge Tickets.  Exhibit A2 is the notice  dated 11.12.2012 sent by the opposite party to the complainant informing him of the proposed auction of the Jewell, in case he fails to redeem the Jewell within 14 days from the date of the receipt of the said notice.   The said notice has been received by the complainant on 18.12.2012 as would be evidenced  by the Exhibit A2.  Admittedly the Jewells have been auctioned by the opposite party on 31.12.2012 as would be evidenced by the Exhibit A4, the reply given by the opposite party.  Exhibit A3, is the lawyer’s notice of the complainant.  Exhibit A2 is the copy of the notice received by the complainant on 18.12.2012.  The 14^th day from 18.12.2012, the date of receipt of the auction notice Exhibit A2, expires on 01.01.2013 whereas the Jewells have been sold in public auction by the opposite party on 31.12.2012, the 13^th day itself.  Therefore the opposite party has sold the complainant’s jewels in public action in contravention of his own statement in Exhibit A2.

                        7. Further as per Rule no.12 of the Tamil Nadu Pawn Brokers Rules 1943 prior notice of the auction of the Jewells pledged with the opposite party should be published by way of advertisement in the widely circulated news papers approved by the District Collector and in the said advertisement the Pawn Broker’s name of business, the month in which pledges were pawned and the date, hour and place of sale shall be given.  Exhibit B6 is the daily thanthi dated 28.11.2012 in which advertisement of the auction of the complainant’s Jewell is said have been published. But the perusal of the said advertisement goes to show that no such particulars as contemplated in the said Rule 12 are given.  But the substance of the advertisement is to that effect that 2500 pledged Jewells would be auctioned at 11.00am at Regional Office during the period from 03.12.2012 to 31.12.2012.  No such particulars as the Pawn Broker’s name, the month of pledge etc., finds place in the said advertisement.  Failure on the part of the opposite party to follow the procedure in auctioning of the pledged goods as per rule 12 of the Tamil Nadu Pawn Brokers Rule 1943 and the opposite party’s auction of the complainant’s Jewell on 31.12.2012 that is before the expiry of the time granted in the auction notice,  Exhibit A2 for redeeming his Jewell, are not only the negligence of duty on their part, but also sheer deficiency of service on their  part. Exhibit B1 is the pledge ticket, Exhibit B2 the application for pledging the Jewells with terms and conditions, the Exhibit  B3, the auction notice and Exhibit A4 the statement of account would  go to show that the complainant has committed default     without redeeming the Jewell within the period of 12 months from the date of the pledge.  Exhibit B5 is the notice of auction sent by the opposite party to the complainant.  Exhibit B7 is the Branch wise details of pledges which are to be public auctioned.  Exhibit B8 is the pledge details of the opposite party Branch.  Exhibit B9 is the copy of the reply notice sent by the opposite party to the notice send by the complainant’s lawyer.  Exhibit B10 is the certificate of the Registration of the Manappuram General Finance and Leasing Company Ltd.  Exhibit B11 is the fresh certificate of the concern Corporation upon the change of name of the opposite party from Manappuram General Finance and Leasing Company Ltd to Manappuram Finance Ltd.   Exhibit A4 & B9, B1 & A1, B3 & A2 are one and the same documents. Un doubtedly   the opposite party has been negligent, reckless and irresponsible in auctioning the pledged Jewells of the complainant.  No doubt the complainant is a defaulter in the repayment of the said loan.  But it could not cause the opposite party to act of their own accord in auctioning the Jewells without following the statutory procedure therefor.  Therefore this Forum finds without any hesitation that the opposite party is totally deficient in their service towards the complainant.

                        8. Point 2: In the result, the complainant ought to have redeemed the pledged jewels on or before on 27.08.2012, the date of expiry of an year from the date of pledging of jewels with the opposite party.  But he has failed to redeem it within the said period.  There is no concrete evidence to prove that he approached the opposite party on 31.12.2012 and on 02.01.2013 with the entire amount due to the opposite party for redemption of these jewels.  Therefore in such circumstances this Forum fixes the amount due from him to the opposite party as follows:-

The principal amount of loan advanced by the opposite party on 27.08.2011, is Rs.56000/-

             Interest for Rs.56000/- at the rate of 12% per annum from 27.08.2011 till today

             05.08.2014, is Rs.19479.

Therefore the total amount due to be paid by the complainant to the opposite

party is Rs.56000+Rs.19479=75479

This Forum requested the complainant’s counsel to produce the evidence to assess the value of the jewels as on 31.12.2012, the date of the auction of the jewels.  But the complainant has produced the proof  of the market rate of gold as on 27.08.2011, the date of his pledging only.  Therefore according to his own option the value of 22 carat gold, per gram is Rs. 2612(Rupees two thousand six hundred and twelve only).  Therefore the value of the complainant’s jewels namely the 27.7gms is 2612X27.7=Rs.72352/-(Rupees seventy two thousand three hundred and fifty two only).  After deducting the said value of the jewels Rs.72352/- from out of the total amount of Rs.75479 (Rupees seventy five thousand four hundred and seventy nine only) due to the opposite party, the balance amount due to the opposite party is Rs.3126 (Rupees Three thousand one hundred and twenty six only).  For the mental agony, hardship, inconvenience and loss caused to the complainant owing to the deficiency of service of the opposite party the latter is directed to pay a sum of Rs.20000/-(Rupees twenty thousand only) towards compensation to the complainant within 30 days from the date of this order, failing which the said amount shall carry an interest at the rate of 12% per annum from the date of this order, till the date of its payment.  The said amount of Rs.3126 (Rupees three thousand one hundred and twenty six only) due to be paid by this complainant to the opposite party as stated above is set off, towards the complainant’s cost of this litigation, which is fixed at Rs.3126/-(Rupees three thousand one hundred and twenty six only)

 This order is dictated by me to the Steno-Typist, transcribed, typed by him, corrected and pronounced by me on this    05^th   day of  August 2014.

 

 

 

 

    MEMBER I                                    MEMER II                                   PRESIDENT

 

List  of document   filed by the complainant

 

Ex.A1/Dt.27.08.2011: Xerox copy of the Pledge Ticket of the complainant issued by the

    Opposite party.

Ex.A2/Dt.11.12.2012: The Xerox copy of the auction notice sent by the opposite party to

    the Complainant.

Ex.A3/Dt.05.01.2013: The Xerox copy of the notice sent by the complainant’s lawyer to the

    opposite party.

Ex.A4/Dt.22.01.2013: The reply notice sent by the opposite party to the complainant’s

    lawyer.

 

List  of document   filed by the 1^st opposite party:-

 

Ex.B1/Dt. 27.08.2011: Xerox copy of the Pledge Ticket of the complainant issued by the

    Opposite party.    

Ex.B2/Dt.27.08.2011: The Xerox copy of the Application for pledging the jewel by the

              complainant.

Ex.B3/Dt.01.03.2012: Copy of the auction notice sent by the opposite party to the

    complainant  

Ex.B4/Dt.10.02.2014: Copy of the Statement of Account of the complainant given by the

    opposite party.

Ex.B5/Dt. Nil             : Copy of the auction notice sent by the opposite party to the

    complainant 

Ex.B6/Dt.28.11.2012:  Daily Thanthi Paper publishing the advertisement of the auction of

    the jewels pledged with the opposite party.

Ex.B7/Dt.26.11.2013: Copy of the Branch wise details of pledges of the opposite party.

Ex.B8/Dt.26.11.2013: Copy of the pledge details of Sirkali Branch of the opposite party.

Ex.B9/Dt.22.01.2013: The copy of the reply notice sent by the opposite party to the

    Complainant’s counsel.

Ex.B10/Dt.25.5.1998: Copy of the Registration Certificate of the Manappuram General

    Finance and Leasing Company Ltd issued by the RBI.

Ex.B11/Dt. Nil           : Copy of the Fresh Certificate of Incorporation Consequent upon

   Change of Name.

 

 

 

 

MEMBER I                                    MEMER II                                       PRESIDENT

 

 

 

 

 

DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM,

NAGAPATTINAM.

 

CC.No.30/ 2013

Order Dt:05.08.2014.