BY - SRI ASISH DEB, PRESIDENT
Brief facts of the complainant’s case are that that the Complainant pledged weighing 58.10 gm gold to the OPs 1& 2 for loan purpose whose customer Prospect No. is GL10268445 for her financial need. The said OPs settled that the pledged gold was weighing 58.10 (22Carrat) gm through the Loan account being No. GL10268445. The Loan amount of Rs. 107165/- was granted on 05/11/2018. On attaining the financial solvency, the complainant appeared at the office of the O.P. No.1 for repaying all the dues and take return of the pledged gold on 10/08/2019. But unfortunately the said office informed that they would not refund the said pledged gold for their official problem; it did not mention any date for return of the said pledged gold. The complainant also filed an application for clearance of all the financial dealings and return the pledged gold as early as possible and also stopped the payment of interest on that day that is on 10/08/2019. The OP’s without considering the said application issued a demand notice on 21/08/2019 for clearance of loan as well as pre auction for pledge gold. The Complainant after receiving the notice filed an application before the Additional S.P. at Contai and appeared before the office of the OP No.1 and also made query about this auction letter . Thereafter, the branch office of India Infoline Finance Ltd informed through a letter dated 18/09/2019 that an unfortunate incident of cheating, breach of trust and misappropriation of funds by their employee was detected on or about 26th July 2019 at their Gold Loan branch having address at IIFL Contai Branch. They registered police complaint/FIR on 27th July 2019 being No. 322/2019 at Contai Police Station. That is the cause for non refund of the pledged gold and also assured if they fail to recover the missing gold ornaments then they consented to allow compensation against pledged gold. After that the complainant continuously made correspondence to the OP No.1 but the branch office purposely avoided. Being aggrieved the complainant informed this fact to the OP through a registered letter dated 25/09/2019 and 25/10/2019 but the OP did not take any action in this matter. Complainant is entitled to get the compensation for the pledged Gold along with the compensation for the mental pain, agony and suffer. The cause of action of this case originally has arisen on 25/10/2019 . The complainant has prayed for return of value of pledged gold amounting to Rs. 2,58,500/-, Compensation for mental agony assessed at Rs.30,000/-and Legal Expenses Rs. 7000/-.
The ops have resisted the complaint by filing written version thereof. The sum and summarization of the written version are that the Opposite Parties are doing business on the public money and also, listed on Stock Exchange of Mumbai and NSE and also enlisted under RBI. The Complainant is not a consumer within the meaning of the Consumer Protection Act , so the case is not maintainable in its present form and in law. The consumer had availed pledging services of loan facility on the monthly interest payment by pledging the gold ornaments with the Opposite Party. The complainant has specifically admitted this fact in the present complainant and also being defaulted into payment of loan installments and hence she is not entitled to invoke the jurisdiction of this Hon’ble Forum. The opposite party submit that the considering the averments made in the complaint by the Complainant shows that the issue involved is of rejection of alleged claim which is purely civil nature and hence, the same cannot be entertained before this Hon’ble Forum and required to be adjudicated before Competent Civil Court for leading detail evidence & produce document in respect thereof. As per the terms & conditions annexed to the loan application duly signed & submitted by the Complainant, it contains a clause (9.2) in respect of arbitration proceeding which read as :- “ Any dispute arising out of or in connection with the present loan transaction/agreement shall be settled by Arbitration….under provisions of the Arbitration and Conciliation Act, 1996….”. The complainant avoided it at his whims. This is not maintainable. The complainant had approached the OP company on the pretext of availing the loan facility against the pledge of gold articles and in view thereof, complainant had deposited the gold with IIFL and thereafter, the complainant had filled up gold loan application, account no GL10268445 dated 05/11/2018, and also, signed the terms & conditions governing gold loan facility and DPN which are mentioned overleaf of the loan facility. The copies of the respective loan application along with the terms & conditions governing the usage of gold loan facility were promptly given to the party which can be evident from the of gold articles, based on the then prevalent market rate of the gold ornaments, the complainant had taken the loan facilities to the extent of amount Rs. 107165/- as more particularly mentioned in the suit and the same was required to be repay to the Opposite Party within 04/10/2019, after the date of execution of the terms & conditions of the loan application. As per the terms and conditions of the gold loan agreements, the opposite party company can auction the pledge gold in case the loan or interest is not realized in full, as per RBI norms. It is humbly submitted that from the beginning of the loan account, the complainant went on to be very irregular paying both interest and principal, and thereafter making the loan as Non performing asset as per RBI norms, and this can be reflected from the account statements. The opposite party had time and again through various communications and telephonic calls reminded the Complainant to repay the loan amount but the Complainant had always turned down to the repeated requests made by the Opposite Parties. The complainant knowingly ignored the same. In such an event the opposite party Company wish to state that, such loan account go into overdrawn status and is reflected as a Non Performing asset in the Company’s books. The complainant made payments on 31.03.2019 of Rs. 3545.00, on 27.05.2019 of Rs. 4260.00 and on 22.07.2019 of Rs. 4600.00, out of her total loan amount principal of Rs. 107165, and the accumulated interest as per records. Subsequently, when the complainant paid no heed to the same, opposite party were compelled to send demand notice to recover the money. In this juncture one incident occurred on or around 26.07.2019 at the Opposite Party number 1’s office, wherein, upon internal audit, there were mismatch of total amounts of the gold packets, pointing a serious misappropriation of funds, and subsequently on 27.07.2019, FIR being number 322/2019 was lodged before Officer In Charge, Contai Police Station. The loan interest calculations were immediately stopped after this incident. On 18/09/2019, the opposite party members had intimated the complainant about the same and stated that the gold were insured and compensate as per terms and conditions, and also requested to cooperate. After this, as per insurance laws, based on shared liability, the subject gold ornaments were valued and insurance company proposed a refund of Rs. 62085.00, calculating the accumulated loan value and the evaluated ornaments. This was intimated to the complainant when she visited the branch on 06/11/2019, but she declined to accept. As such ops have prayed for dismissal of the complaint.
Points for determination are:-
1. Is the case maintainable in its present form and in law?
2. Is the Complainant entitled to the relief(s) as sought for?
Decision with reasons
In Points Nos.-1& 2
Both the points, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.
In the instant case complainant Shyamali Giri and one Tarunava Mishra ,Customer Care Executive of op-1 have adduced their respective examination- in chief and both them answered questionnaire and put reply thereof alongwith documents in support of their contentions. The ops have also submitted brief notes of argument.
The Ld Advocate for the complainant has submitted that the op granted Loan amount of Rs. 107165/- on 05/11/2018. On attaining the financial solvency, the complainant appeared at the office of the O.P. No.1 for repaying all the dues and take return of the pledged gold on 10/08/2019. But unfortunately the said office informed that they would not refund the said pledged gold for their official problem. The complainant also filed an application for clearance of all the financial dealings and return the pledged gold as early as possible and also stopped the payment of interest on that day that is on 10/08/2019. The OP’s without considering the said application issued a demand notice on 21/08/2019 for clearance of loan as well as pre auction for pledge gold. Thereafter, the branch office of India Infoline Finance Ltd informed through a letter dated 18/09/2019 informed that an unfortunate incident of cheating, breach of trust and misappropriation of funds by their employee was detected on or about 26th July 2019 at their Gold Loan branch having address at IIFL Contai Branch. The op repudiated the claim of the complainant illegally causing mental agony and unnecessary harassment .The complainant is not a party to the insurance agreement if any entered in between the op and insurer .The op has set instances of unfair trade practice and deficiency of service. According to him the complainant is entitled to get the relief as prayed for.
Per Contra,the Ld Advocate for the op has advanced his argument stating inter alia that the issue involved in this claim is purely civil in nature . As per the terms & conditions annexed to the loan application duly signed & submitted by the Complainant, it contains a clause (9.2) in respect of arbitration proceeding. The complainant avoided it at his whims. The opposite party had time and again through various communications and telephonic calls reminded the Complainant to repay the loan amount but the Complainant had always turned down to the repeated requests made by the Opposite Parties. An incident occurred on or around 26.07.2019 at the Opposite Party number 1’s office, wherein, upon internal audit, there were mismatch of total amounts of the gold packets, pointing a serious misappropriation of funds, and subsequently on 27.07.2019, FIR being number 322/2019 was lodged before Officer In Charge, Contai Police Station. The loan interest calculations were immediately stopped after this incident. On 18/09/2019, the opposite party members had intimated the complainant about the same and stated that the gold were insured and compensate as per terms and conditions, and also requested to cooperate. After this, as per insurance laws, based on shared liability, the subject gold ornaments were valued and insurance company proposed a refund of Rs. 62085.00, calculating the accumulated loan value and the evaluated ornaments. This was intimated to the complainant when she visited the branch on 06/11/2019, but she declined to accept. The op never did unfair Trade practice or deficiency in services .Above all it has been submitted that the instant case is liable to be dismissed.
We have carefully scanned and assessed the evidence adduced by the parties and their supporting documents and considered the rival contentions. Now, it is the settled law that even if there is an Arbitration clause binding in between the consumer and service provider there would be no bar in invoking the jurisdiction of consumer commission. The bundle of facts and the contentions raised by the rival parties clearly show that the instant case is maintainable in its present form and in law.
Indisputably, the complainant pledged gold weighing 58.10 (22Carrat) gm through the Loan account being No. GL10268445. The Loan amount of Rs. 107165/- was granted on 05/11/2018. The ops have not made out any case that the said 22 carat gold suffered or branded with any allegation of impurity of less than 22 carat. The complainant had paid the accrued interest till the date she was ready to redeem the pledge or repay the loan amount. It is further evident that due to misappropriation of the pledged gold from the custody of the ops ,the ops failed to return the pledged gold ornaments to the complainant. There is no fault on the part of the complainant in any manner whatsoever on the said mischief. Even if is taken for granted that ops offered or proposed a refund of Rs. 62085.00, calculating the accumulated loan value and the evaluated ornaments and it was intimated to the complainant when she visited the branch on 06/11/2019, but she declined to accept as the complainant is not a party to the insurance agreement ,if any, entered in between the ops and insurer the complainant was not bound to accept the offer of refund which did not make good her loss .This amounts to illegal repudiation .The ops have set instances of unfair trade practice and deficiency of service. In view of our above observation, we find that the arguments advanced by the Ld Advocate for the ops do not have any leg to stand upon whereas there is substance in the contentions raised by the complainant. The complainant is entitled to get refund of the adequate value of the pledged gold ornaments ,compensation for harassment , interest and litigation cost as follows. From the materials on record it can be ascertained that the market value of the 22 carat gold per 10 gram was Rs.38,390/-as on 5.11.2018. Generally, for gold ornaments making charge is added @18-20% or more over the gold value, so for assessing the loss of 22 carat gold ornaments making charge @18% over the gold value on the lesser side should be added. Market value of the 22 carat gold weighing 58.10 gram was Rs.2,26,502/-.plus making charge 40,770/-,total Rs 2,67,272. Therefore, the refundable amount of gold value stands (RS.2,67,272 –Rs.107165( LOAN AMOUNT) =Rs.1,60,165/- and Compensation for mental agony and harassment Rs.19,835/- alongwith simple interest @9% thereon and ligation cost 5000/-
Thus, both the points are decided in favour of the complainant.
The case succeeds.
Hence, it is
O R D E R E D
That CC/36 of 2020 be and the same is allowed on contest against the OPs.
The Opposite Parties, who are jointly and severally liable, are hereby directed to pay a sum Rs.1,80,000/- (Rs.1,60,165/-as towards pledged gold ornaments value and Compensation for mental agony and harassment Rs.19,835/-) alongwith simple interest @9% from the date of filing till realization thereon, and further ligation cost of Rs. 5000/-in default the complainant will be at liberty to put the order into execution.
Let copy of the judgment be supplied to all the parties free of cost
