Date of Filing : 20.08.2011
Date of Disposal : 03.09.2012
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR.
PRESENT: - Sri T.Sundara Ramaiah, B.Com., B.L., President (FAC)
Smt. M.Sreelatha, B.A.,B.L., Lady Member
Sri S.Niranjan Babu, B.A., B.L., Male Member
Monday, the 3rd day of September, 2012
C.C.No.139/2011
Between:
K.Jaffar,
S/o Basuamia,
D.No.9/90,
Narayana Reddy Colony,
Anantapur. … Complainant
Vs.
The Branch Manager,
Manappuram Finance Tamilnadu Limited,
Opp: RTC Bus Stand,
Anantapur. … Opposite Party
This case coming on this day for final hearing before us in the presence of Sri N.R.K.Mohan and Sri A.Suresh Kumar, Advocate for the complainant and Sri K.Chandra SekharRao, Advocate for the Opposite Party and the and after perusing the material papers on record the Forum delivered the following:
O R D E R
Sri S.Niranjan Babu, Male Member: - This complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the opposite party claiming to return the gold pledged by the complainant and also to pay a sum of Rs.10,000/- towards deficiency of service and Rs.10,000/- towards mental agony.
2. The brief facts of the complaint are that: - The complainant has availed gold loan on 06.06.2009 by pledging the gold. After taking into consideration of the weight of the gold the opposite party sanctioned a loan of Rs.16,000/-. As per the terms and conditions of the opposite party the complainant has to pay installments regularly. Subsequently the complainant came to know that the opposite party auctioned the gold pledged by the complainant without the knowledge or consent of the complainant. The complainant when approached the opposite party came to know the above facts. The complainant was never under the purview of the defaulter list even otherwise without any intimation of the subscriber the opposite party cannot conduct the auction. Auctioning the pledged gold without intimation is against to the law and principles of natural justice hence, there is negligence on the part of the opposite party. Immediately the complainant got issued a notice to the opposite party on 08.06.2011 and the said notice was served to the opposite party but there is no response for the said notice. Hence filed this complaint for return of the gold pledged by the complainant and also to pay a sum of Rs.10,000/- towards deficiency of service and Rs.10,000/- towards mental agony.
3. Counter was filed on behalf of the opposite party stating that it is true that the complainant availed a gold loan from the opposite party by pledging his gold. The complainant pledged the gold of gross weight 24 grams and its net weight was 15.58 grams taking into consideration of the weight of the gold as per instructions the opposite party sanctioned a sum of Rs.16,000/- vide pledge No.0703670700710776 under “C-365 days” scheme. As per the scheme the complainant has to repay the entire amount with agreed rate of interest within 365 days and get released the pledged gold and in case of default the complainant is liable to pay over due interest of 4% on the loan amount as per the pawn ticket issued to the complainant contains all the conditions. CL, Rate net weight of the pledged gold and sanctioned loan amount with rate of interest and scheme and over due interest are furnished and the original is handed over to the loan applicant after obtaining the signature of the applicant. The allegation that the amount is to be repaid in equal monthly installments is false and denied specifically by the opposite party. The further allegation that the complainant paid the installment regularly is false and denied specifically. The allegation that the complainant recently came to know that the opposite party auctioned the gold pledged by the complainant is true and the said auction was done only after intimation and as per the terms and conditions agreed between both the parties. The allegation that the complainant was never under the purview of defaulter is absolutely false and denied specifically. The further allegation that without any intimation to the complainant the opposite party had auctioned the gold is again false and the auction was not against to the principles of natural justice. The allegation that the complainant issued a notice on 08.06.2011 and after receipt of the notice there was no response from the opposite party is also false. As per the agreed terms and conditions the complainant has to repay the loan amount within 365 days as the complainant availed loan under C-365 days scheme with interest at 27.92% along with 4% over due interest in case of default. As per the terms and conditions between both the parties the opposite party shall have a right to sell the gold ornaments at the risk of borrower either by public auction or by private arrangement at any time after two weeks from the date of notice of sale to the borrower and adjust the net proceeds as such sale all amounts due to the company in respect of the loan. In case if there is any shortfall the loanee is liable to compensate the same. In the instant case the complainant is in default from the beginning hence the opposite party issued an auction notice to the complainant by registered post and the same was served on 27.06.2009.
4. Further the opposite party submits that this opposite party waited up to 29.11.2010 as there was no response from the complainant, then the gold was transferred to the head office on 30.11.2010 for further proceedings and the same was auctioned on 15.07.2011. Further states that the complainant pretty well knows that the value of the amount that he received through pledge is almost equal to that of the gold pledged. The complainant has taken loan under “C-365 day’s scheme” which means, the complainant has to repay the loan amount within 365 days with interest at the rate of interest 27.92% p.a. along with 4% over due interest in case of default. Further the opposite party submits that the complainant had received more value to the gold will be taken at the rate of 80% to 90% wherein the complainant got in more than 90% of the value of the gold prevailing at the time of pledge and on the condition to make payments regularly to clear interest and keep the rates in the market should be less than the claim amount. Hence, the complainant has to clear the loan within 365 days after the pledge. Unless and until the complainant renews the same by clearing all the dues that are levied in 365 days with interest and any penalty there upon the opposite party shall go for auction to retain at least the amount which was given as loan. If the complainant does not clear the loan in time or renew by paying the dues of interest and principle there is no other go except to auction the gold to recover the debt as per the rules of the opposite party. As the complainant did not pay even a single installment towards interest or principle there is no other go to the opposite party except to auction the gold to recover the loan amount with interest. In the above circumstances the opposite party has not committed any deficiency of service. Hence the opposite party is not liable to pay any compensation to the complainant.
5. Basing on the above pleadings, the following points that arise for consideration are:-
i) Whether there is any deficiency of service on the part of the opposite party
ii) To what relief?
6. In order to prove the case of the complainant, the complainant has filed evidence on affidavit and marked Ex.A1 to A2 documents. On behalf of the opposite party, the opposite party filed evidence on affidavit and marked Ex.B1 to B4 documents.
7. POINT NO 1:- After perusing the documents submitted by both parties there is no dispute with regard to taking of loan by the complainant by pledging the gold ornaments weighing about 23 grams gross and net weight of 15.58 grams. There is no dispute with regard to the loan amount also. Though the complainant has made an allegation that he was regularly paying the amount to the opposite party and he was not a defaulter the complainant did not file any receipts with regard to the payment of interest or principle to the opposite party. This shows that the complainant is a defaulter as he did not file any document to prove that he has paid amounts to the opposite party. As per the terms and conditions of the opposite party at the time of taking the loan the complainant was to repay the total loan amount with interest within 365 days after pledging. But since then there is no payments made by the complainant. This shows that the complainant has taken a loan of Rs.16,000/- on 25.04.2009 and did not pay even a single rupee either towards interest or principle after taking the loan. It is after a lapse of two years the complainant has issued a legal notice dt.08.06.2011 to the opposite party requesting to furnish the account extract in order to clear the loan. In the meantime though the opposite party had issued notices to the complainant to repay the loan amount with interest then the complainant did not take any initiation to clear the loan and get back his gold. A defaulter cannot claim any right against the opposite party.
8. If at all the complainant was interested in clearing the loan and getting back his pledged gold from the opposite party he should have reacted when the opposite party has sent notice that the gold pledged by the complainant will be auctioned. But at that time the complainant did not take any initiation to clear the loan it is only after a lapse of two years the complainant got issued legal notice requesting the opposite party to furnish his account particulars. As per the terms and conditions of the opposite party the complainant has to clear the loan with interest within a period of 365 days from the date of taking the loan but the complainant failed to repay the loan amount even after issuing a sale notice by the opposite party. This shows that the opposite party has given reasonable opportunity to the complainant. Hence there is no deficiency of service on the part of the opposite party.
9. As per the agreed terms and conditions the complainant has to repay the loan amount within 365 days with interest at 27.92 % along with 4% over due interest in case of default. It is printed on the Ex.B2 document which is signed by the complainant at the time of taking the loan. As per the terms and conditions between the both parties which is marked as Ex.B1 document the opposite party shall have a right to sell the gold ornaments at the risk of borrower either by public or private arrangement at any time after two weeks from the date of issuing the sale notice and adjust the net proceeds of such sale of amounts due to the company in respect of the loan. And even as per Ex.B4 document which is the account extract of the complainant which clearly establishes that the complainant did not pay even a single rupee after taking loan from the opposite party. A defaulter cannot claim a right over his financer. In the instant case the opposite party has given sufficient time and notice to the complainant but the complainant has neglected in repaying the loan amount. Hence we are of the view that the opposite party has not committed any deficiency of service to the complainant.
10. In the result the complaint is dismissed without costs.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 3rd day of September, 2012.
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MALE MEMBER LADY MEMBER PRESIDENT (FAC)
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR ANANTAPUR
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
ON BEHALF OF THE COMPLAINANT:
NIL
ON BEHALF OF THE OPPOISITE PARTIES
-NIL-
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1Office copy of notice dt.08.06.2011 got issued by the counsel for the
complainant to the opposite party.
Ex.A2 Postal acknowledgement singed by the opposite party
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY
Ex.B1 DPN cum terms and conditions dt.06.06.2009.
Ex.B2 Carbon copy of receipt dt.06.06.2009 for Rs.16,000/-.
Ex.B3 Postal acknowledgement singed by the complainant.
Ex.B4Photo copy of statement of account dt.21.10.2011 issued by the opposite
party to the complainant.
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MALE MEMBER LADY MEMBER PRESIDENT (FAC)
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR ANANTAPUR
