Order No. -23 Dt.-30/06/2015
Shri Asoke Kumar Das,President
Case of the complainant in a nutshell is that on 30/08/’12 he took loan of Rs.1,50,000/- from the OPs against gold ornaments valued at Rs.4,50,000/- vide Gold Loan A/c No.-1668016. He has repaid a portion of the said loan upto Sep.-’13. On 05/09/’13 he requested to OP 1 to intimate him the outstanding balance of his said loan as he was willing to take back his ornaments after payment of his dues. The complainant visited the office of OP no.1, 3 to 5 times to repay his loan and on the date of his last visit the OP1 refused to deposit his out-standing dues and to return back his ornaments. There after the complainant visited office of OP1 time and again but invain. On 06/01/14 he gave legal notice to OP for return back his ornaments after receiving his outstanding dues, but no fruitful result came out.
Hence this case.
The OPs have contested this case by filing aW/V, denying and disputing the claim and contention of the complainant with prayer for dismissal of this case. Their specific stand is that the case is not maintainable as there is arbitration clause in the loan.agreement and that the complainant had no intention to repay the loan. So, they served a notice upon the complainant on 05/07/’13 to recall the loan and sale and on 25/09/’13 the gold ornaments pledged by him were sold in public auction and his loan account was closed.
-:: Points of consideration::-
- Is the case maintainable both in law & facts?
- Is the complainant is a consumer?
- Are the OPs guilty for unfair trade practice as alleged?
- Is the complainant entitled to the reliefs as prayed for?
-:: Decision with reasons::-
All points are taken up together for consideration and decision.
Seen and perused the pleading of the parties which are supported by affidavit, the annexure, the documents filed by the parties at the time of hearing, and the W/A filed by the parties. We have hard oral arguments advanced Ld. Lawyers of the parties.
Now after due consideration of aforesaid and the arguments of Ld. Lawyer of both sides we find that admittedly complainant took loan of Rs.1,50,000/- from OPs on 03/08/’12 against his gold ornaments (gross weight 47.40+12.40+18.10 & net weight 42.85+11.11+16.11) @2.49% interest. Admittedly due date of payment of principal was on 29/08/’13 and due date of payment of interest was on 29/11/’12. Admittedly the complainant has paid Rs.23,000/- to OP against his said loan upto September-2013. We find from the sanction letter, Serial no. 1473432 dt.30/08/’12, issued by the OP, that in case the borrower fails to repay the loan, the pledged gold articals may be sold in public auction by the OP by 10 days prior Notice to the borrower. But no such Notice was given to the complainant by the OPs. From the W/V we find that the OPs have claimed that they served Notice to recall the loan and sale upon the complainant on 05/07/’13 i.e. Long before the date of expiry of due date for deposit of principal amount although they received from the complainant Rs.23,000/- in total on 23/04/’13, 29/06/’13, 26/07/’13, 13/08/’13, 31/08/’13 & 05/09/’13 as it appears from the documents filed by the complainant. So, there is no doubt that the alleged Notice of recall & sale served upon the complainant by the OP was not proper and legal. There fore the auction sale of the pledged ornaments of the complainant by the OPs was not proper & legal as the OPs had no right to sale the pledged ornaments of the complainant/borrower before expiry of the date of deposit of principal and without serving 10 days prior Notice upon the complainant/borrower in the event of his failure to repay the loan. That apart we find no agreement was signed in between the borrower/complainant and the Branch Manager, or any Office Bearer, Director of the OP, IIFL regarding complaint’s Gold Loan A/C no.-1668016. We find that the Branch Manager, OP, IIFL issued a sanction letter bearing Serial No.-1473432 on 30/08/’12 in the name of the complainant, where in the Branch Manager sanctioned Rs.1,50,000/- in favour of the complainant against his gold ornaments(6items) as we find from the photo of those ornaments in the said sanction letter. In the revers page of the said sanction letter there are certain terms&conditions but here only the complainant/borrower has put his signature and the neither the Branch Manager nor any Office Bearer, Director of OP company put signature on it. These terms&conditions are not written on any stamp paper. So, it can’t be a termed as and ”agreement”. On plain reading of its point no.16 we find that this point is vague and suffers from transparency and it is included/incorporated with a view to harass and to cheat the borrower. Because the name of the arbitrator is not maintained here, venue not mention here and only the OP has given authority to select / appoint the arbitrator. In our considered opinion these two vital matters were unilaterally included by OP company ignoring the right and the say of the borrower. So, we find no reason to give any importance on OP’s claim of “Arbitration and consideration Act”. 1996. It will not out of placed to mention here that the complainant is very much eager to get back his pledged ornaments after payment of his outstanding dues of Gold Loan and he has already paid to OP Rs.23,000/- out of which Rs.13,050/- was interest upto November-2012 @2.49% and the rest amount Rs.10,050/- was principle.
In this view of the matter we find sufficient reason to hold that this case is well maintainable and that the complainant is consumer of OP company, IIFL and that the OPs are guilty for unfair trade practice and accordingly the complainant is entitled to the reliefs specified below.
All the points are disposed off.
In the result the case succeeds.
Hence, it is
-::ORDERED::-
That the case is allowed in part on contest with cost of Rs.2,000/-(Rupees two thousand)only.
The complainant do get an award of Rs.3,10,050/-(Rupees three lakh ten thousand and fifty)only (4,50,000/- -1,50,000/-+10,050)=3,10,050/-against the OPs.
The complainant do get further award of Rs.8,000/- against the OPs in the head of his harassment, mental pain and agony & unfair trade practice by the OPs.
The OPs are hereby directed to pay to the complainant a total sum of Rs.(2,000+3,10,050/-+8,000/-)=Rs. 3,20,050/-(Rupees three lakh twenty thousand and fifty)only in total within 30 days from the date of this order failing which it will carry interest @8% p.a. till realization of the same and the complainant shall be at liberty to put this order into execution in according with law.
Let free copy of this order be supplied to the parties forthwith as per provision of Rule 5(10), W.B. Consumer Protection Rule 1987.