By Smt. C.S. Sulekha Beevi, President,

Facts:-

1. The case of the complainant is that on 13-02-2003 he pledged 64gms of gold ornaments with opposite party and availed loan of Rs.27,000/-. That the interest rate advertised and agreed by opposite party was Rs.1.50 per month for every Rs.100/- of the total amount availed as loan. On 03-11-2003 complainant approached opposite party to redeem the pledge by repaying the amount. Opposite party demanded Rs.33,326/- towards settlement of account and to return the pledged article. On the said day complainant repaid some amount and took back all ornaments except a chain. Since he did not have enough money he retained one gold chain with opposite party for the balance of Rs.2,200/- yet to be paid by him. The next day he paid Rs.2,208/- and redeemed this chain also. When complainant requested to issue receipt for the repaid amount of Rs.33,325/- opposite party told him that there is no practice of issuing receipts. On insistance by complainant opposite party issued a computer receipt in which it was merely stated that complainant has paid Rs.27,000/- and the interest from 13-02-2003. Opposite party did not disclose what was the interest portion collected by them. Complainant alleges that opposite party has illegally collected interest over and above the interest agreed by them and that it amounts to deficiency in service. Hence this complaint seeking direction against opposite party to return the excess amount collected and for compensation of Rs.25,000/- together with costs.

2. Opposite party filed version denying the complainant to be consumer contending that the relationship between pawner and pawnee is that of a Debtor-Creditor relationship and does not give rise to a consumer dispute. It is admitted by opposite party that complainant pledged 64 gms of gold ornaments and availed loan of Rs.27,000/-. Though opposite party does not specifically admit the interest rate advertised and agreed, opposite party has stated that the averments in paragraph one of the complaint is true and hence admitted. It is further submitted that the loan period was fixed as 6 months and so complainant was duty bound to redeem the gold by paying principal and interest within this period. Thus the complainant had to redeem the pledge within 13-8-2003 or else he is liable to pay penal interest. As per pledge agreement complainant had to pay monthly interest which he has not remitted at all. Opposite party has collected interest only as per agreed terms and no excess amount was collected. Proper receipt was issued. Complainant came the next day and asked for a duplicate copy alleging that he lost the original. Since the Manager was not authorised to issue duplicate receipt opposite party asked the complainant to come after one week. Complainant got angry and walked out of the Bank shouting. The other allegations re denied as false. That there is no deficiency in service or unfair trade practice on the part of opposite party. That the complainant is not entitled to any reliefs.

3. Evidence consists of the oral evidence of complainant who was examined as PW1. Exts.A1 and A2 marked for complainant. Opposite party has not filed any counter affidavit. Ext.B1 marked for opposite party.

4. Points for consideration:-

(i) Whether complainant is a consumer?

(ii) Whether opposite party has committed deficiency in service or unfair trade practice.

(iii) If so, reliefs and costs.

5. Point (i):-

Though opposite party has stated in the version that as per precedents rendered by Hon'ble Supreme Court and National Commission the transaction between Pawner and a Pawnee is that of Debtor and Creditor, opposite party has not placed before us any relevant citations. A pawn is a security whereby a deposit of goods is made by contract as security for a debt. Section 2(o) defines 'Service' to include the provisions of facilities in connection with banking and financing. The service availed herein is that of availing loan on the security of goods. This in our view definitely comes within the purview of service as defined in the Consumer Protection Act. We therefore hold that complainant is a consumer and the complaint is maintainable.

6. Point (ii):-

The main grievances of the complainant is that opposite party collected excess interest and also that opposite party did not issue proper receipt for the repayment of loan.

7. Though opposite party contends that excess interest was not collected opposite party has not stated in the version exactly what is the interest, penal interest and other charges if any collected by opposite party. Absolutely no evidence is adduced as to what is the exact amount of interest collected from the complainant at the time of repayment. It is contended by opposite party that the loan period was fixed as 6 months and that complainant was bound to pay monthly interest. That on default he was liable to pay penal interest. Ext.B1 is the document relied by opposite party which is purported to be pledge agreement. On perusal of Ext.B1 it is seen that the spaces for entering the rate of interest and period of loan are left blank. Relevant portion of Ext.B1 is as under:

“"മുത്തൂറ്റ് BANK MALAPPURAM നിന്നും 27,000/- രൂപ രൊക്കം പറ്റിയിരിക്കുന്നു. ഇൗ രൂപ മാസം നറുക്ക് വീതം കൂടുന്ന പലിശയോടു കൂടി മേല്‍പ്പടി മുത്തൂറ്റ് നോ ആര്‍ഡര്‍ക്കോ ആവശ്യപ്പെടുംേപാള്‍ തന്നുകൊളളാമെന്ന് ഇതിനാല്‍ ഞാന്‍ വാഗ്ദത്തം ചെയ്തുകൊളളുന്നു.”

8. This document is not sufficiently stamped. Though opposite party submits that Ext.B1 is a pledge agreement it purports to be a pronote. Ext.B1 is unstamped and hence inadmmissible in evidence. It is held in AIR 1966 SC 1457 Roman Catholic Mission Vs. State of Madras & Others, that “a document not admissible in evidence though brought on record has to be excluded from consideration.” Apart from Ext.B1 there is nothing before us placed by opposite party to prove what was the agreed rate of interest and term of loan. Complainant has sworn in para 4 of the affidavit that opposite party has collected 2774.50 over and above the agreed rate of Rs.1.50 per month for Rs.100/-. The pledge was for the period between 13-2-2005 till 03-11-2003 ie; for 263 days. There is no contra evidence adduced by opposite party to prove that Rs.2774.50 was not collected by them in excess of the actual amount repayable by complainant. The evidence of complainant has withstood the cross examination by opposite party. There is nothing to disbelieve the case of complainant. We hold that opposite party has collected Rs.2774.50 illegally as excess from the complainant and that opposite party is liable to refund the same. Collection of amount in excess is illegal and amounts to deficiency in service. We find opposite party deficient in service.

9. Exts.A1 and A2 are the two receipts said to be issued by opposite party to complainant. Opposite party has not specifically denied issuing these receipts. Opposite party contends that proper receipts were issued. But no copies of such receipts or any document to prove the said contention is produced before us. In Ext.A2 it is simply written as “Received rs.33,325/- from Mr. Ramesh Babu on 03-11-2003”. It does not clearly stated the different heads on which the amount is collected. It does not bear the seal and is not in proper form of a receipt. Consumer/Customer is entitled to receive proper documents evidencing the payments made to the trader/service provider. Non issuance of bills and receipts by traders and service providers has to be viewed seriously. While cross examining the complainant opposite party has submitted that opposite party is a Non-Banking Financial establishment registered under RBI. If that be so opposite party is bound to issue proper receipts and maintain proper registers. Complainant had filed I.A.112/07 seeking direction against opposite party to produce the gold loan register and the pledge agreement. Even after availing sufficient opportunity opposite party failed to produce these documents and therefore we have no hesitation to hold adverse inference against opposite party in this regard. Opposite party being a Non-Banking Financial Establishment registered under Reserve Bank of India and controlled and supervised by Reserve Bank of India such practices of non issuance of proper receipts is not at all proper and legal . Non-issuance of receipt for the payment made by the consumer is definitely unfair trade practice. We find that opposite party is guilty of unfair trade practice. Point found in favour of complainant.

10. Point (iii):-

Complainant prays for refund of Rs.2774.50 and compensation of Rs.25,000/-. The prayer for refund is only to be allowed. In our view, the repayment of said amount with interest @ 9% per annum from the date of complaint till payment will serve as sufficient compensation to the complainant. We consider that complainant is also entitled to cost of Rs.1,000/-

11. In the result we order the following:-

Opposite party shall pay to the complainant Rs.2774.50 (Rupees Two thousand seven hundred and seventy four and paise fifty only) with interest @ 9% per annum from date of complaint (12-11-2003) till payment together with costs of Rs.1,000/- (Rupees one thousand only) within one month from the date of receipt of copy of this order. We also order that opposite party shall cease the unfair trade practice of not issuing proper receipts to it's customers.

Dated this 11th day of May, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 and A2

Ext.A1 : Photo copy of the Receipt for Rs.27,000/- dated 13-2-2003

Ext.A2 : Photo copy of the Receipt for Rs.33,325/- dated, 03-11-2003.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1

Ext.B1 : Pledge Agreement

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER