DATE OF FILING: 01.06.2016
DATE OF DISPOSAL: 22.05.2018
Sri Purna Chandra Tripathy, Member:
The complainant Rajesh Kumar Padhy has filed this consumer complaint Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Parties ( in short the O.Ps) and for redressal of his grievance before this Forum.
2. Briefly stated, the case of the complainant is that on 19.07.2014 the complainant availed loan by mortgaging his gold ornaments and the O.P.No.1 agreed to sanction a loan of Rs.50,000/- only against pledges of gold ornaments weighing 27.600 grams i.e. Chains-2 ( Wt.27.600 grams Nwt: 26.200 grams @ 1917/9). The said loan against mortgage of gold bears loan account No.006179 dated 19.07.2014. The complainant during subsistence of the loan period paid a sum of Rs.12,769/- only towards interest of loan advanced to O.P. In the month of April 2016 the complainant approached the O.P.No.1 to close the loan amount with up-to-date interest. The O.P.No.1 replied the complainant that the gold ornaments pledged by him have been auctioned on 28.03.2016. The complainant when challenged the said auction how they auctioned the said gold ornaments without any notice or information to him, in response the O.P. remained silent over the matter. The O.Ps have never noticed him regarding auction nor sent any demand notice against the loan nor has sent any of notice to recall the loan. Thereafter finding no way out the complainant sent a legal notice on 15.05.2016 through his advocate for release of the mortgaged gold ornaments by receiving the loan amount with up-to-dated interest. The copy of the said notice was also sent to O.P.No.2 and 3 for information and necessary action. On 20.05.2016 the O.P.No.1 replied the complainant advocates notice with some vague, false and baseless grounds justifying the auction. The O.P.No.2 & 3 remained silent without any response to the advocate’s notice till date. The complainant visited the office of O.P.No.1 for the payment of installment as admitted by the O.Ps but O.Ps have not once uttered to regularize the loan if it is was outstanding. The O.Ps have not issued any notice to the complainant to either recalling the loan account or default of installment. The O.P. has not sent any notice to the complainant that the pledged gold will be auctioned and after auctioning the gold the O.Ps have not informed the complainant the gold has been auctioned. Furthermore the reply to the advocate notice, the O.Ps has mentioned that they have noticed the complainant may times is false and baseless which is denied by this complainant. The due date of loan expires on 18.07.2015, the O.Ps have neither recalled the loan nor renewed the same. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to return the pledged gold receiving the loan amount without interest after 18.07.2015, compensation of Rs.25,000/- for harassment and Rs.10,000/- towards cost of litigation in the best interest of justice.
3. Upon notice the O.Ps filed version through his advocate. It is stated that the complainant obtained a loan of Rs.50,000/- by pledging his gold ornaments (two chains) weighing 27.600 gram is true and on the same day the complainant agreed, understood and accepted the terms and conditions of the said gold loan and accordingly the complainant signed on pledges receipt alongwith demand notice and personal loan in full and final satisfaction. On 10.07.2015 the complainant has paid a sum of Rs.12769/- towards interest and he knows very well that the gold loan scheme is for twelve months and this scheme will be completed on 18.07.2015 which is clearly reflected in clause No.1 of terms and conditions pledge form/receipt. It was the duty and obligation of the complainant to close the loan account on 18.07.2015. This loan being fixed for 12 months and on demand, the O.Ps issued a regd. Legal notice dated 20.02.2016 through their advocate Ajaya Kohali of New Delhi in correct address to the complainant on 25.02.2016 demanding repayment of the loan on or before 16.03.2016 and further stating that if failed to repayment then the jewel pledged by the complainant will be sold in auction at first party complainant’s office at Berhampur on 19.03.2016 and in further in case of failure of auction at Berhampur, then it will be held at second party’s office at Bhubaneswar on 28.03.2016. The complainant received the said notice on 02.03.2016 and the postal endorsement of such receipt of notice is annexed. Though the complainant received this demand legal notice but he remained silent in this matter without reply. On or before effecting the auction sale of the jewel ornaments neither the complainant nor his any authorized person of the said complainant approached the O.Ps and repaid the amount. In such situation the O.Ps sold the pledged gold ornaments of the complainant in auction. The O.Ps issued notice 25.02.2016 as the loan being a demand loan for 12 months to the complainant in correct address stating therein for repayment of loan amount and if failed the pledged ornaments will be auctioned as dates and times are given in the said notice but the complainant remained silent and did not approach the O.Ps on or before 28.03.2016 despite of receipt of the said notice. It is crystal clear under Sections 176 and 177 of the Contract Act, 1872 that the O.Ps are entitled to bring the pledged gold ornaments of the complainant for sale for the recovery of the amount due under the loan after making a demand for the payment of the same. The demand having been made by the O.Ps for repayment of loan and before the sale took place neither the complainant or his authorized persons approached the O.Ps and repaid the loan. In such circumstances the O.Ps have never committed any sort of deficiency in service. Hence the O.Ps have prayed to dismiss the complainant’s case.
4. On the date of hearing of the consumer complaint learned counsel for the complainant and O.Ps are present. We heard argument from both sides at length. We perused the complaint petition, written version, written arguments, and citation placed on the case record. It reveals from the record that the complainant availed the gold loan on 19.07.2014 and the repayment period for the said loan was for 12 months. As the complainant did not repay the loan within the stipulated period as such the O.P.No.1 issued the demand notice to the complainant on 20.02.2016 which was served to the complainant on 02.03.2016. But it is pertinent to mention here though the repayment terms of the loan expired on July 2015. But the O.P. has not issued the notice to the complainant. It also reveals that the complainant has already paid Rs.12,769/-dated 10.07.2015 to the O.P. which is after one year of availing loan stating therein repayment of the loan amount failing which the pledged gold ornaments would be auctioned. The plea of the complainant that for the first time he got to know in the month of April 2016 that the gold ornaments has been auctioned on 28.03.2016 cannot be accepted.
5. Further it also reveals that the O.Ps have sold/auctioned the gold ornaments without publication of advertisement in the local newspaper though as per RBI guideline it is mandatory to publish the advertisement for auction of the pledged gold ornaments in two local news papers but the O.Ps have failed to do so. It is also pertinent to mention here that the O.Ps have not intimated the complainant after sale/auction of the pledged gold ornaments as to whether the pledged gold ornaments sold/auctioned in less price or higher price from the loan amount.
6. On foregoing discussion, it is clear evident that the O.Ps are negligent in rendering proper service to the complainant. Hence in our considered view, there is deficiency in service on the part of the O.Ps.
7. In the result, the complainant’s case is allowed on contest against the O.Ps. The O.Ps are jointly and severally liable as such they are directed to refund the surplus price if any at the time of auction/sale of the pledged gold ornaments as per RBI guidelines alongwith 8% interest to the complainant. Further the O.Ps are also directed to pay Rs.5000/- towards compensation for mental agony alongwith Rs.2000/- towards cost of litigation to the complainant. The O.Ps shall comply with the orders within one month from the date of receipt of this order failing which all the dues shall carry 14% interest per annum.
The order is pronounced on this day of 22nd May 2018 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of www.confonet.nic.in for posting in internet. Thereafter the file be consigned to record room.
