By Sri. Chandran Alachery, Member:
The complaint is filed under section 12 of the Consumer Protection Act for an order directing the Opposite Party to credit the amount remitted by the Complainant on 10.02.2015 to the chit account of the Complainant to credit the future payments also to the chit account of the Complainant and to pay a sum of Rs.10,000/- towards compensation to the Complainant and Rs.1,000/- as cost of the proceedings.
2. Complaint in brief:- The Complainant is a consumer of Opposite Party and the Complainant joined into a chit by No.9/13 and chittal No.32 with the Opposite Party in the year 2013. The Complainant is remitting installments regularly without any defaults. On 05.02.2013, Complainant taken a gold loan for Rs.2,10,000/- from the KSFE Ltd., by pledging gold ornaments of him. The Complainant could not remit the loan amount in time and the KSFE Ltd. Sent notice to the Complainant stating that the Gold ornaments will be sold in auction. The Complainant had not raised any objection for the same as he had no other option to pay back the loan amount and take back the gold ornaments. The Complainant was under the impression that the KSFE Ltd., has conducted the auction sale of the gold ornaments of the Complainant and they obtained the amount due. While being so in the month of December 2014 the Complainant got a notice from KSFE Ltd., Sulthan Bathery stating that they could not sell the Gold ornaments in auction and they further stated in the notice that they will transfer the interest amount from the chitty account of the Complainant to the gold loan account of the Complainant. When the Complainant approached Opposite Party to remit chitty instalment on 10.02.2015 the Opposite party was not ready to accept the amount. The act of Opposite Party is unfair trade practice. The Opposite party had no right to deviate the amount remitted in chitty account to gold loan account. These two transaction are entirely different.
3. On receipt of complaint, notice was issued to Opposite party and Opposite party appeared before the Forum and filed version. In the version of Opposite party, the Opposite Party stated that the Complainant had availed a gold loan of Rs.2,10,000/- at an interest rate of 14% per annum. As per the loan agreement the Complainant has to close the loan account and take back the pledged ornaments on or before 04.08.2013. But the Complainant did not act upon. The Opposite party has sent notice and telephonic follow up during the period of one year. The complainant was given maximum amount of the price of the Gold at the time of pledging and subsequently the price of the gold is decreased and now the Opposite Party could not sell the Gold ornaments in auction because the price of gold ornaments are lesser than the loan amount. The Opposite party could not get the loan amount and interest fully. The Complainant with bad intention not repaying the loan amount with interest and he is cheating the Opposite Party. On 08.12.2014, the Opposite party send a notice to the Complainant stating that if Complainant fails to pay the gold loan, the Opposite Party will be compelled to transfer the required amount from the chit account of the Complainant to update the loan account. But there was no response from the Complainant and on 06.02.2015, the Opposite party debited Rs.65,000/- in the chitty account and credited to suspense account. The Complainant has regularly remitting the chit subscription and he has no intention to repay gold loan. All other allegations in the complaint are denied by Opposite party. More over the Forum have no jurisdiction and the matter is to be dealt with by arbitrator as per terms.
4. On perusal of complaint, version and documents, the Forum raised the following points for consideration.
1. Whether there is deficiency of service from the part of Opposite party?
2. Relief and cost.
5. Point No.1:- The complainant filed proof affidavit and is examined as PW1 and documents are marked as Exts.A1 to A5. The Opposite party also filed proof affidavit and the Opposite party is examined as OPW1 and Exts.B1 to B9 is marked. Ext.A1 is the copy of chitty pass book of Complainant which shows regular subscription payment made by Complainant from 13.02.2013 to 13.01.2015. Ext.A2 is the Gold loan card which shows that the Complainant had availed Rs.2,10,000/- as Gold loan. Ext.A3 notice shows that the Opposite Party could not make auction due to less price of Gold and the Opposite party is going to adjust the required amount from chitty account. Ext.B1 is the Gold loan application of Complainant. Ext.B2 documents are the copy of Ext.A3 document. Ext.B5 is the copy of notice issued by Opposite party to the Complainant dated 19.08.2014 which shows that if amount is not remitted, the Opposite party will take steps to auction the gold ornaments. The case of the Complainant is that the Complainant was under the impression that after sending of auction notice the Opposite party had conducted the auction sale of Gold ornaments of the Complainant and obtained the amount due from him. So the Complainant not responded to the notice later. But again the complainant got a notice from the Opposite party in the month December 2014 ie Ext.B2 notice stating that the Opposite party could not auction the Gold ornaments and the Opposite party is going to adjust the amount from transferring required amount from chitty account to update the Gold loan account. The case of Complainant is that the Complainant went to the Office of Opposite Party to remit chitty account on 10.02.2015, but the Opposite Party did not receive chitty subscription amount from the Complainant. On going through Ext.B1 document, among the terms and conditions of Gold loan, there is a clear clause that if gold loan amount with interest is not paid within the specified time, without previous notice, the pledged gold items will be auctioned and the auction price will be appropriated to the gold loan account. If there is any balance after appropriation, it will be given back to the Complainant. Even if there is such a clause, the Opposite Party had not taken any steps to auction the Gold ornaments. The Opposite party got sanction from Regional Office, Kannur to auction sale the Gold ornaments pledged as guarrantee by the Complainant as per sanction letter Ext.A8 document on 24.09.2014. Ext.B2 notice was issued by the Opposite party to the Complainant on 08.12.2014 where in it is stated that the Opposite party could not auction the Gold ornaments due to less value of gold. By analysing these documents, the Forum found that the Opposite Party did not take any steps to auction the gold ornaments but straight way adjust required amount to update loan account from chitty Account of the Complainant. The Opposite party produced news papers showing the value of Gold prevailed in the year 2014. These news paper cuttings are marked as Ext.B9 series. The Opposite parties contention is that the Opposite party did not receive sanction from the head office for auction sale until 24.09.2014. As per Ext.B8, sanction is received on 24.09.2014. The Opposite Party could very well auction the Gold ornaments after sanction at a better price. On going through Ext.B9 series in Ext.B9(a) ie the paper publication on 11.03.2014, the value of Gold for 8 grams was Rs.22,520/-. If Opposite party make auction sale on that day, the Opposite Party will get Rs.2,65,286/- for 11.78 grams of Gold pledged by the Complainant. It is after 13 months from the date of availing loan. The Complainant ready to pay Rs.2,41,850/- only with principal loan amount and 14% interest for 13 months. As per Ext.B1 document, the Opposite party can take steps for auction sale immediately after the expiry of 6 months if there is no remittance of principal of interest. If opposite party take steps to auction sale the Gold ornaments after receiving sanction on the available best price on 11.12.2014, the Opposite Party may get Rs.2,22,200/- as sale price. The Complainant have to pay Rs.2,63,900/- as principal and interest till that day. The Opposite party can take legal action to get the balance amount from the Complainant. But Opposite Party did not take any steps for auction sale during the whole period. But the Opposite party adopted the method of lien and adjusted the amount for chitty loan and created a suspense account which resulted the non payment of subscription amount by the complainant in chitty account. The Forum analysed that even if the Opposite Party is conducting chitty and making payment and receiving payments and dealing money transaction, the Opposite Party firm is known to be a non-banking company. A non banking company cannot use the right of bankers lien. The Opposite party cannot adjust any amount for chitty account towards Gold loan account. These two accounts are different. In Gold loan account, the Opposite party have security in the Form of Gold to reimburse the loan amount. But instead of doing it, the Opposite Party adopted bankers lien which the Opposite Party actually do not have. The Opposite party did not produce any authority to prove that the Opposite Party had banker lien. It is true that the value of Gold is less now a days, the Complainant cannot be held responsible for that. If any loss that may sustain to the Opposite Party, the Opposite party alone is responsible for that. The Opposite party did not take any step to auction the Gold in time. The Complainant is not liable for the loss sustained to the Opposite party due to Opposite party's fault. So by analysing the entire evidences, the Forum is of the view that there is deficiency of service from the part of Opposite Party in transferring chitty subscription amount to suspense account without the permission of the Complainant. Point No.1 is found accordingly.
6. Point No.2:- Since point No.1 is found in favour of Complainant, the Complainant is entitled to get cost and compensation.
In the result, the complaint is partly allowed and the Opposite Party is directed to credit the amount remitted by the complainant and credit the future payments also in to the chit account of the Complainant. The Opposite party is at liberty to auction the Gold ornaments and adjust towards Gold Loan amount. The Opposite party is also directed not to take any steps in future to recover any amount towards Gold loan. The Opposite Party is directed to pay Rs.3,000/- (Rupees Three thousand) only as compensation and Rs.2,000/- (Rupees Two thousand) only as cost of the proceedings. The Opposite Party shall comply the order within 30 days from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Forum on this the 11th day of September 2015.
Date of Filing:16.03.2015.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:
PW1. Babu. M.K Complainant.
Witness for the Opposite Party:
OPW1. George Sebastian. Manager, K.S.F.E Ltd., Sulthan Bathery Branch.
OPW2. Sonny. T.U. Assistant Manager, K.S.F.E, Sulthan Bathery.
Exhibits for the complainant:
A1.(6 Pages) Chitty Pass Book.
A2. Copy of Gold Loan Card and Notice.
A3. Letter. dt:08.12.2014.
A4. Receipt. dt:13.01.2015
A5. Receipt. dt:10.02.2015.
Exhibits for the opposite Party.
B1. Copy of Letter. dt:05.02.2013.
B2. Copy of Letter dt:08.12.2014.
B3. Personal Ledger of Gold Loan Account No.37423. dt:17.04.2015.
B4. Subscriber Ledger.
B5. Copy of Letter. dt:19.08.2014.
B6. Copy of Letter. dt:11.12.2014.
B7 series Letter and Statement.
B8. Letter. dt:24.09.2014.
B9 series (10 Pages) News Papers.
