DATE OF FILING : 16-08-2010.
DATE OF FINAL ORDER : 28-01-2011.
Ms. Pampa Sinha,
daughter of Late Ashu S inha,
resident of 10/1, Kaliprasad Chakraborty Lane,
Howrah – 711101. COMPLAINANT.
Versus -
The Branch Manager,
Muthoot Finance Ltd.,
Having its regional office at
1st Floor, 4/3, G.T. Road ( South ),
Howrah – 711101. OPPOSITE PARTY..
P R E S E N T
1. Honble President : Shri J.N. Ray..
2. Honble Member : Smt. Samiksha Bhattacharya.
C O U N S E L
Representatives for the complainant : Shri Prithwiraj Sarkar,
Shri Debranjan Banerjee,
Shri Anshu Mukherjee,
Ld. Advocates.
Representatives for the opposite party : Smt. Sarbari Datta,
Smt. Anindita Santra,
Ld. Advocates.
F I N A L O R D E R
This is to consider an application filed by one Ms. Pampa Sinha, daughter of Late Ashit Sinha, resident of 10/1, Kaliprasad Chakraborty Lane, Howrah, against the Branch Manager, Muthoor Finance Ltd. having its regional office at 1st floor, 4/3, G.T. Road ( South ), Howrah – 711101, alleging the deficiency in service.
The case of the complainant is that the O.P. is a public limited company registered as non banking financial institution and is eligible to give all types of loans. The complainant on account of huge financial pressure and crisis pledged gold ornaments viz. Chains – 1 ( 13 gms. ), Ball Chain 1 ( 17.500 gms. ), Studs with Stone – 2 (3 gms. ), in total 4 numbers ( 33.500 gms. ) on 19-02-2008 and ring with stone – 2 (5.2000 gms.), neckless with stone – 1 ( 27.800 gms. ), Studs with stone – 2 ( 5.600 gms.), chain button – 1 ( 9.800 gms. ) in total 6 nos. ( 48.400 gms. ) on 25-02-2008 by way of co-lateral security in lieu of Rs. 25,300/- and Rs. 38,000/- only which was supposed to be repaid on 24-08-2008 to the O.P. That on 19-03-2008 the complainant paid Rs. 506/- against the aforesaid loan toards its interest and thereafter on 24-05-2008 the complainant paid a sum total of Rs. 67,001/- towards repayment of the said gold loan as its full and final settlement and thereafter sought for the aforesaid gold ornaments to be returned back to her. For such purpose when the complainant and her old ailing mother approached the branch manager of the O.P. at the Howrah office she was informed to contact the concerned personnel for such return of the gold ornaments, but, to the utter surprise of the complainant, the complainant was informed to pay further sum of Rs. 1,951/- and Rs. 2,815/- respectively in total Rs. 4,766/- towards the interest accrued thereupon the said aforesaid loan immediately in order to take back the gold ornaments. Since the complainant did not have ready money amounting to Rs. 4,766/- she was assured that the said gold ornaments would definitely be returned back to pay of such amount.
That thereafter on 29-05-2008 when the complainant went to the office of the O.P. at Howrah to take back the gold ornaments against which the aforesaid loan was granted but the O.P. simply refused to return the gold ornaments with the plea that the complainant had allegedly already renewed the aforesaid loan by depositing only Rs. 1001/- out of total loan amount including interest of Rs. 67,001/- and allegedly requested for renewal of the residual amount as such accordingly alleged old accounts was allegedly closed and few account was opened to save the customer from the levy of the penal clause and as such as per the alleged request of the complainant a loan of Rs. 25,300/- was enhanced to Rs. 27,000/- and loan of Rs. 38,000/- was enhanced to Rs. 39,000/- by opening two new accounts. Thus it was the view of the O.P. that the complainant owed the O.P. a sum of Rs. 66,000/- as principal in respect of both the loan accounts and the interest thereon. The O.P. also granted two separate receipts of the alleged renewal loan made on 24-05-2008. Thus the complainant was unduly and most illegally asked to pay the said amount of Rs. 66,000/- for recovery of the gold ornaments. Consequently the complainant has been harassed number of times for return back the gold ornaments from the O.P. so finding no other alternative the complainant complained before the office of the General Manager of the Reserve Bank of India, Kolkata, and on the basis of her complaint the Assistant Manager, Reserve Bank of India of Kolkata, by his letter dated 14-11-2008 addressed to the Director, Economic Offences Investigation Cell, Finance Department, Govt. of West Bengal, has requested him to look into the matter and in reply to the said letter the Inspector of Police Economic offences Investigation Cell, Finance Department, Government of West Bengal, expressed his inability to take any action as the cell is not empowered to give redress to the complainant and requested the complainant to take the matter in the appropriate court of law. The complainant also wrote a letter to the O.P. dated 18-03-2009 as well as letter to the Officer in Charge, Howrah Police Station, but no steps had been taken neither on the side of O.P. nor in the officer in charge of police station. However, the complainant has come before this Forum for redress his grievance under the Consumer Protection Act alleging the O.P. is guilty of defrauding the complainant by practicing unfair trade practice and prayed for refund of the gold ornaments kept as pledged morefully described in Schedule A by way of co-lateral of security which is illegal, unlawful, void and cancelled causing irreparable loss to the complainant.
In view of such unfair trade practice and deficiency of service on the part of the O.P. and such the O.P. is liable to pay compensation charges to the tune of Rs. 1,00,000/- further.
The O.P. after appearance before this Forum filed its written version wherein denied all the material facts stating that on 24-05-2008 the complainant again came to the company’s branch office and requested for enhancement of the existing loan as there was appreciation in the rate of gold. It is contended that on 11-05-2008 the gold rate was Rs. 805/- per gm. And on 24-05-2008 she deposited Rs. 67,001/-on account of closure of her loan accounts vide no. 187 and 234 for Rs. 40,255/- and Rs. 26,396/- respectively ( principal + interest ) including service charges of Rs. 200/- and Rs. 150/- for the new loan accounts ( 341 and 342 ) for Rs. 39.000/- and Rs. 27,000/- respectively. Complainant thereafter took the above loan of Rs. 66,000/- ( vide loan account no. 341 for Rs. 39,000/- and loan account no. 342 for Rs. 27,000/- ) from the company on the same day i.e., on 24-05-2008 and received the said amount from the O.P. company in cash. T he O.P. further states that these are short term loans and the loans are to be repaid and closed within three months. The complainant had closed the loan account which she had summarily failed to repay or close the loan account which she availed on 24-08-2008 despite of the demand notices being received by her. When the postal notices did not evoke any response, a notice was sent to the O.P. for a personal process through the office boy of the company, but she had refused to accept the same notice. The O.P. further stated that the dealing official has never mentioned the said account as full and final settlement across the voucher and the complainant has been trying to distort the fact for achieving wrongful gain and complainant is still in debited towards the O.P. for an amount of Rs. 66,000/- as principal in respect of both the loan accounts and the interest accrued thereon.
Against the written version filed by the O.P. the complainant filed her affidavit in reply stating that the O.P. has sanctioned five loans to the complainant for which five post dated cheques ought to have been taken as per rules of the company, which he really have not been taken. Moreover the identity card issued in the name of the complainant having no. 578000382 as issued to complainant. On the other hand the O.P. states that her loan I.D. Card no. is 578000383. During police investigation in regard to the criminal case the complainant was divulged by the O.P. that the O.P. has opened two accounts with two different identity cards which is absolutely absurd as it is against the company rule that a single consumer have two I.D. Card numbers. It is further contended by the complainant that the company has no rule in regard to the enhancement of the loan system or its renewal and it gives new loan against fresh documents, but in the advocate’s letter dated 03-05-2010 the complainant has categorically stated that it has enhanced the loan, which is not permissible as per rule of the company. It is further reiterated that on 19-03-2008 the complainant paid Rs. 506/- against the aforesaid loan towards interest and thereafter on 24-05-2008 the complainant paid a sum of Rs. 67,001/- towards repayment of the said loan as its full and final settlement and thereafter sought for the aforesaid gold ornaments to be returned back to her.
Furthermore the O.P. in his written version has raised a dispute regarding the complainant is a consumer under the Consumer Protection Act. In support of such version the complainant submitted that Section 3 of the Consumer Protection Act provides for in action to and not in derogation of the provisions of any other law for the time being in force. The provision of Section 3 of the Act is some what unique in its nature and despite pointed questioning could not trace or be referred to any identical provision extending there to in any other statute, though authority or analogy may thus be lacking. So the question of raising dispute regarding consumer under the C.P. Act does not apply in the instant case. There is every scope that the said section is applicable in the instant case for which the complainant is entitled to get relief in the instant case.
In support of the contention the O.P. has argued their case by filing written notes of argument wherein it is stated that the present case is not maintainable and is liable to be dismissed in limine. It has argued that this case of enhancement taken by the complainant from the O.P. against pledged of her gold ornaments upon causing sufficient documents with the O.P. has already relied along with written version. The O.P. relied upon the same during the argument too. It is stated that initially on 25-02-2008 the complainant took a loan of Rs. 38,000/- vide her loan account no. 187. Once again she came to the company’s branch on 19-03-2008 and paid the interest due amounting to Rs. 506/- and requested for renewal for residual / principal due. Accordingly the said loan ( account number 187 ) was renewed ad a new loan account for Rs. 25,300/- was opened on the same day i.e., 19-03-2008 vide loan account no. 234. It is also submitted that on the relevant dates of February, 2008 and March, 2008 the gold rate was Rs. 785/- per gm and Rs. 805/- per gm. On 24-05-2008 the complainant again came to the companys branch office and requested for enhancement of the existing loan as there was appreciation in the rate of gold. As a result the complainant deposited Rs. 6,700/- on account of closure of her loan accounts vide no. 187 and 234 for Rs. 40,255/- and Rs. 26,396/- respectively ( principal + interest ) including service charges of Rs. 150/- and Rs. 200/- for her new loan accounts ( no. 341 and 342 ) for Rs. 27,000/- and Rs. 39,000/- respectively. The complainant thereafter took the above loan of Rs. 66,000/- from the company on the same day i.e., 24-09-2008 and received the said amount from the O.P. company in cash. The photographs of the receipt and the pledge forms / receipts vide nos. a87,234, 341 and 342 have been annexed and marked as Annexure A collectively. It is submitted that in view of the above the complainant owes to the O.P. a sum of Rs. 66,000/- as principal in respect of both the loan accounts and interest accrued thereon. Since there are short term loans and the loans are to be repaid or renewed within three months the O.P. / defacto complainant had summarily failed to repay or renew the loan which she availed on 24-05-2008 despite of the demand notices being received by her. Since the company has gold ornaments as collateral security and is having every entitlement of recovery, through auction of the gold, in case the customers fail and neglect to abide by the normal course of repayment. All the alleged allegations and charges are motivated, false and frivolous. In case the complainant repays the loan with interest the same ornaments can be delivered to her but on the other in order to claiming the consolidated and compound voucher for Rs. 67,001/- as her proof of payments. The dealing official has never mentioned the said amount as full and final settlement across the voucher and submits the instant case is not maintainable either in law against the O.P. since no cause of action has arisen in favour of complainant to file the present case and therefore the present case is liable to be dismissed with exemplary cost. It is also argued that the allegation of forgery and misappropriation of funds letc. Have been instituted by the complainant and the same is presently subjudice before the Honble High Court, Calcutta, but the allegation of the complainant is not sufficient and is liable to be dismissed.
Against the submission and argument advanced on behalf of the O.P. and also on furnishing fresh documents as on 14-01-2011 it is contended on behalf of the complainant that the letter dated 03-05-2010 sent by one Sarbari Dutta, Ld. Advocate, on behalf of the O.P. addressed to the complainant in page no. 1 of the said letter that That on 24-05-2008 Miss Pampa Sinha again came to our company’s branch office and requested for enhancement of the existing loans as there was appreciation in the Rate of Gold. She deposited Rs. 1001/- ( Rupees One thousand one only ) and requested for renewal of the residual amount. Accordingly old account was closed such as requested by her a loan of Rs. 25,300/- was enhance to Rs. 39,000/- by opening two new accounts. Accordingly, the following entries were passed through up consolidated and composite voucher of Rs. 67,001/-.
Debit New Loan A/c. 341 – 27,000.00
Debit New Loan A/c. 342 – 39,000.00
Debit Cash A/c. 1,001.00 67,001.00
( being the cash received from Ms Pampa )
Credit Old Loan A/c. 187 26,396.00
Credit Old Loan A/c. 234 40,256.00
Credit Service Charges 150.00
Credit Service Charges 200.00 67,001.00
In view of the above you owed to the company a sum of Rs. 66,000/- as principal in respect of both the Loan Accounts and the interest accrued thereon. Since this is short term and the loan is to be repaid or renewed within three months, you had similarly failed to repay or renewed loan which she availed 24.05.2008 despite of the notices being received by you.
Further O.P. in his written statement has stated in page 2 at paragraph 8 e & f on undertaking that That on 24-05-2008 the Complainant again came to the Companys Branch Office and requested for enhancement of existing loans as there was appreciation in the rate of Gold. It is further submitted that on the relevant date of May,2008 the Gold Rate was Rs. 805/- per gram.
On 24-05-2008 she deposited Rs. 67,001/- on account of closure of her loan Accounts vide no. 187 and 234 for Rs. 40,255/- and Rs. 26,396/- respectively ( principal + interest ) including service charges of Rs. 200/- and Rs. 150/- for her new loan Accounts ( vide No. 341 and 342 ) for Rs. 39,000/- and Rs. 27,000/- respectively. The complainant thereafter took the above loan of Rs. 66,000/- ( vide Loan Account No. 341 for Rs. 39,000/- and Loan Account No. 342 for Rs. 27,000/- ) from the company on the same date i.e. 24.05-2008 and received the said amount from the opposite party company, in cash.
But from the cashier scroll on 19-03-2008 which was submitted before us we find from the receipt column that the O.P. had received Rs. 25,806/- from the complainant and paid Rs. 25,300/- to the complainant, but in reality no such transaction had taken place the complainant had paid only Rs. 506/- to the O.P. as interest of which the O.P. had given a valid receipt but regarding his payment of Rs. 507/- nothing has been mentioned in the cashier’s Scroll in the receipt column. Such facts were never disclosed before by the O.P. either in any letter or in the written version or in written argument.
All the aforesaid three facts as disclosed by the O.P. are absolutely conflicting and contradictory in nature and the principal of estoppels would be applicable here against the O.P. In such a situation it can safely been concluded that the O.P. actually has no real defence. Further we find that in the rules gold loan transaction of the O.P. it is mentioned in Point No. 8 ( interest will be charged for a minimum of 15 days.) Thereafter interest will be calculated on daily basis. But by two letters, both dated 12-03-2009, the Branch Manager of the O.P. clearly stated You have availed a Loan in the sum of Rs. 39,000/- from our Company on 24-05-2008 As on date, you are liable to pay a total sum of Rs. 39,000 on one letter Re:vide PPL No. 0000341, and in another letter further stated You have availed a Loan in the sum of Rs, 27,000 from our Company on 24-05-2008 As on date, you are liable to pay a total sum of Rs. 27,000 on one letter Re:vide PPL No. 0000342. The rule of the Company is to charge interest on daily basis after minimum 15 days, yet on 12-03-2009 the O.P. charges only the principal amount, without any interest. The O.P. had failed the documents of cashiers Scroll from 19-03-2008 but they had not submitted the cashiers scroll of 19-02-2008, on which the complainant had taken the loan vide PPL No. 175. The Managing Director of the O.P. further reappears in his letter dated 07-05-2010 to the Registrar of Companies has clearly stated in point no. 3 that the company does not have any system for renewal of Loans. If a Borrower pays interest and requires extension of the Loan, we arrange a fresh Loan by obtaining fresh documents from the Borrower. – yet in the Written Version as well as in letter dated 03-05-2010 by Sarbari Dutta, Ld. Advocate of the O.P., had stated that they had renewed the loans vide PPL NO. 234, 341 and 342. If the O.P. does not have the system of renewal, as they have stated in aforesaid letter dated 07-05-2010 then how can they renew the Loans vide PPL No. 234, 344 and 342. We also find many other anomalies in connection with the loan account through the complainant had not taken any loan from the O.P. but yet O.P. is claiming that they had availed the loan to the complainant on that date and that was claiming against the rules as admitted by the O.P. in the written statement.
Having heard on both sides and also perusal of the entire facts together with Annexure documents we are of the view that the O.Ps. are not in clean hands and failed to substantiate the case fully against the complainant which are not tenable in the eye of law.
The entire facts and circumstances as disclosed before us we are unable to accept the contention of the O.P. as stated in their written version. On the other hand the complainant very much proved her case by showing documents together with substantive argument in favour of her case and in such view of the contention she is entitled to get relief as prayed for.
In the result the case succeeds.
Hence,
O R D E R E D
That the complainant is entitled to get relief as prayed for and accordingly the O.P. is directed to return back the gold ornaments kept as pledged with described in Schedule A herein by way of co-lateral of security by treating a fresh loan certificate dated 24-05-2008, more fully described in Schedule B as illegal, void and cancelled.
That the O.P. is also directed to pay compensation of Rs. 20,000/- along with litigation cost of Rs 5,000/- which are to be paid within one month from the date of order failing which the said compensation, litigation cost will carry interest at 8 percent per annum till actual date of recovery.
That the O.P. is also directed to return back the gold ornaments belonging to the complainant within one month from the date of order.
That the complaint case is thus disposed of.
Supply the copy of the order to the parties, free of costs. .
