IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Thursday the 28th day of September, 2017
Filed on 25.06.2014
Present
1. Smt. Elizabeth George (President)
2. Sri. Antony Xavier (Member)
3. Smt.Jasmine.D. (Member)
in
C.C.No.164/2014
between
Complainant:- Opposite Party:-
Sri. Suresh.T.N The Branch manager
Thunduparambil HDFC Bank Ltd.
Swarnagarbha 1st Floor, Thottungal Building
Thriuvambady, Alappuzha East of Convent Square junction
(By Adv.R.R Rajendraprasad) Alappuzha
(By Adv.T.Rajesh)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The complainant is the absolute owner in possession of the petition schedule 277.100 grams sovereigns of gold ornaments. The complainant was in dire need of money, he pledged petition schedule gold ornaments on 31.08.2013, he availed a loan of Rs. 5,61,600/- from the opposite party. At the time of transaction with the opposite party, the complainant was directed to repay the amount with interest at the rate of 10% per annum. As per the agreement the period of loan is one year. It is submitted that the complainant took the loan on a condition that he would remit back the amount from his business. But unfortunately the business of the complainant was derailed and he is facing financial crisis. But the complainant remitted the interest without any default. During the months of February 2014 complainant approached the opposite party for the renewal of said loan. Then the opposite party asked to affix his signature on certain printed papers and complainant fixed his signature without knowing the meaning or its contents. There after complainant came to know that opposite party trying to sell the gold ornaments without the consent of the complainant. Complainant sent a legal notice to opposite party for granting time for renewal of gold loan. Complainant is entitled to get back the gold ornaments from the opposite party and he is ready to pay the amount as per the statement of account. Alleging deficiency in service on the part of the opposite party, the complaint is filed.
2. The version of the opposite party is as follows:-
Complainant has no right to demand renewal of the loan as a matter or right as the tenure of the loanees only for 6 months. The averment that this opposite party procured the signature of the complainant is all incorrect statements and hence denied by the opposite party. The opposite party had in fact followed all the formalities including issuance of registered notices prior to the initiation of steps to sell the gold ornaments. The averment that sale notice was published without complying with the procedure of the loan agreement is also contrary to real facts and hence denied by the opposite party. There is no deficiency in service as alleged by the complainant. The complainant is not entitled to get back the gold ornaments unless repays the entire amount due.
3.. The complainant was examined as PW1. Two witness were examined as PW2 and PW3. The documents produced were marked as Ext.A1 to Ext.A3. Documents produced by the opposite party were marked as Ext.B1to Ext.B6.
4. . Points for consideration are:-
1) Whether there is any deficiency in service on the part of the opposite party?
2) If so the reliefs and cost?
5. It is an admitted fact that complainant pledged his gold ornaments on 31/8/2013 for Rs. 5,61,600/- with the opposite party. According to the complainant, as per the agreement the period of loan is one year. But he came to know that opposite party is trying to sell the said ornaments without his consent. So he sent legal notice to the opposite party on 20/6/2014 for granting time for renewing the loan. But the opposite party published an advertisement in Maadhyamam daily for the auction of the gold ornaments of the complainant. Along with the complaint, complainant filed a petition as IA/No.92/2014 to restrain the opposite party from auctioning or forcefully taking possession of the gold ornaments of the complainant and this Forum allowed the petition. Opposite party filed version stating that the tenure of the loan was for 6 months. Since the complainant failed to take back the gold ornaments, the opposite party followed all the formalities including issuance of registered notices prior to the initiation of steps to sell the gold ornaments. Complainant was examined as PW1 and two witness were examined as PW2 and PW3. The documents produced were marked as Ext.A1to Ext.A3. Opposite party also produced documents Ext. B1 to B6. When the case posted for hearing complainant continuously prays and hence this Forum vacated the injunction order in IA/No.92/2014 and again adjourned the case for hearing. Thereafter complainant filed an amendment application and it was also allowed.
6. When the stay order was vacated the opposite party conducted auction after sending notice to the complainant and the gold ornaments pledged was sold in the auction on 9/3/2016. As per Ext.B1 the loan agreement, the amount was Rs. 5,61,600/- with 13% interest per annum and the date of loan agreement is 31/8/2013. The tenure of the loan was 180 days.
7. Though the complainant has a case that the amount claimed by the opposite party is not correct no effort was taken to prove the same either by producing any document or even a statement of account to prove that there is any mistake in the calculation. It is pertinent to notice that inspite of the fact that auction was conducted after vacating the stay order, the opposite party did not produce auction report to prove the procedure adopted to conduct the auction in order to show that the auction was legal and proper in all respect. The complainant also did not take any further steps to stop the auction ie, by filling an appeal against the order vacating the stay or by setting the account with the opposite party or by depositing the amount in this Forum.
In these circumstances stated above, this Forum is of considered opinion that it will be just and equitable to ascertain the actual amount due to the opposite party as on the date of auction as per the terms of agreement and also the market value of gold ornaments sold on such date and if any surplus amount is found in the market value of the gold, the opposite party is directed to pay the amount long with interest at the rate of 13% per annum to the complainant till its realization, failing which the complainant is allowed to realize the same from the opposite party and its assets by executing this order. The order shall be complied within one month from the date of the receipt of this order.
Dictated to the Confidential Assistant transcribed by her correct by me and pronounced Forum on this the 28th day of September, 2017
Sd/- Smt.Elizabeth George (President) :
Sd/- Sri. Antony Xavier (Member) :
Sd/- Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Suresh.T.N (Witness)
PW2 - K.C.Murukan (Witness)
PW3 - Arun,K(Witness)
Ext.A1 - Copy of the legal notice issued to the opposite party
Ext.A2 - Copy of the Postal receipt
Ex.tA3 - Original of the news paper dated 22/6/2014
Evidence of the opposite party:-
Ext.B1 - True copy of the loan agreement executed by the opposite party dtd. 31/8/13.
Ext.B2 - True copy of the notice dtd.21.3.2014.
Ext.B3 - True copy of the another notice dtd. 9/4/2014.
Ext.B4 - True copy of the sale notice was issued dtd 21/4/2014.
Ext.B5 - Acknowledgement showing receipt
Ext.B6 - Acknowledgement showing receipt of Ext.P4 by the complaint
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- br/-
Compared by:-
