Orissa

Cuttak

CC/129/2014

Abdul Salim - Complainant(s)

Versus

The Manager,India Infoline Finance Limited - Opp.Party(s)

T K Mohanty

22 Jul 2016

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.129/2014

 

Abdul Salim,

R/o:Pension Lane,P.O:Buxibazar,

P.S:Cantonment,Dist:Cuttack,Odisha.                                                     … Complainant.

 

Vrs.

1. The Manager,

India Infoline Finance Limited,

12A-10,13^th Floor,Parinee Crescenzo,C-38,& C-39,

G Block,Behind MCA,Bandra Kurla Complex,,

Bandra East,Mumbai.

 

2. The Manager,

India Infoline Finance Limited,

Shree Shree Mandap,Gandhi Chhbak,

At/PO:Nayabazar,P.S:Cauliaganj,

Dist:Cuttack.                                                                                        … Opp. Parties.

 

Present:               Sri Bichitra Nanda Tripathy,Presiding Member.

Smt. Sarmistha Nath, Member.

 

Date of filing: 11.09.2014

Date of Order: 22.07.2016

 

Mr. Bichitra Nanda Tripathy,Presiding Member.

 

                This is a dispute wherein the complainant has alleged deficiency in service and also unfair trade practice on the part of O.P.

1. Shortly the complaint is that on 17.07.2013 the complainant availed a gold loan from the O.P.2 for Rs.48,000/- by pledging some gold ornaments vide gold loan A/c No.GL 2971279.  Two Nos. of necklaces and four nos. of ear rings having gross weight of 28.40 grams and net weight of 26.68 grams were pledged for the purpose.  The rate of interest for the same gold loan was @ 2.30% per month and 27.60% per Annum.  The complainant repaid to O.P.2 a sum of Rs.30,000/- on 03.08.2013 vide receipt No.RNAYA 5454958 and a sum of Rs.20,500/- on 4.3.2014 vide receipt No.RNAYA 7356192.  Thereafter the complainant requested O.P.2 to return his ornaments and O.P.2 wanted to produce his identity proof to get back the ornaments.  On 24.3.2014 the complainant visited the office of the O.P.2, produced his identity proof to get back his pledged ornaments – but could not get back the same since the Manager was absent.  There after although the complainant contacted the O.P.2 several times but the O.P.2 did not return his gold ornaments on same plea or other.  On 21.07.2014 the complainant served a registered legal notice on O.P.2 to get back his gold ornaments but it yielded no result.  Finding no other alternative the complainant took shelter of this Hon’ble Forum. He has prayed to get back his gold ornaments or to pay the cost of gold ornaments at present market rate and also to pay compensation amounting to Rs.1,00,000/- towards mental agony and harassment etc. 
2. Advocate Sri T.K.Mohanty & associates have presented the case for the complainant whereas advocate Sri Jaganath Rath & associates have briefed the matter on behalf of the O.P.2.
3. Analysis of facts.

We have gone through the case carefully and undergone the records/documents submitted by the complainant as well as of the O.P.2.

1. It is learnt that the complainant Mr. Abdul Salim had pledged some gold ornaments  weighinggross weight 28.40 grams.(Net weight – 26.68 Grams) and had availed a gold loan for Rs.48,000/- on 17.7.2013 from O.P.2 i.e. Cuttack Nayabazar Branch of India Infoline Finance Ltd. vide gold loan A/c. No.GL 2971279.  The principal due date was 16.7.2014 (i.e. one year from the date of availing the loan) as per the sanction letter issued by O.P.2 to the complainant for the purpose while sanctioning the loan on 17.7.2013. 
2. On 3.8.2013 the complainant had repaid a sum of Rs.30,000/-. Out of which Rs. 511.00 was paid towards interest and rest Rs.29,489.00 was repaid as part payment against the said loan balance as learnt from receipt No.RNAYA 5454958 dt.3.8.13 issued by the O.P.2 for the purpose.
3. On 4.3.2014 the complainant again repaid a sum of Rs.20,500/- of which Rs.2968/- was paid towards interest and Rs.17,632.00 was repaid towards principal as learnt from the receipt No.RNAYA 7356192 issued by O.P.2 for the purpose.
4. As per the loan agreement (Annex-2) as submitted by the O.P.2 along with their written version dt.9.4.15 it is stated that vide sl. No.3 of the said agreement that “in case of pre-payment of the loan or any part thereof by me the amount will be first adjusted towards cost, charges and interest and then towards principal loan without any prepayment penalties.  The borrower has paid Rs.30,000/- on 3.8.2013 out of which Rs.511.- is paid towards interest and Rs.29,489.00 was repaid towards principal.  The borrower again repaid Rs.20,500/- on 4/3/2014 of which Rs.2968/- was paid towards interest and Rs.17532/- was repaid towards principal.  So it is clear that the complainant/borrower has paid the interest as due till 3.3.2014 amounting to Rs.511.00 + Rs.2968.00 = Rs.3479.00 and Rs.29,489.00 + Rs.17532.00 = Rs.47,021.00 towards principal against his above gold loan availed for Rs.48,000/-  on 17.7.2013.  As such Rs.48,000.00 – Rs.47,021.00 =  Rs.979.00 was loan balance existing as on 4.8.2013 towards principal + interest as applicable till the date of repayment.  This is also confirmed by O.P.2 vide Annexure-1 submitted by them.
5. Vide sl. No.5-e- of the said loan agreement it is also stated that “in the event, I fail to settle the loan or repay interest/installment/principal amount/any other amount, charges (“the Total Outstanding”), post the completion of loan tenure or otherwise IIFL shall issue the notice at my address given in this application by giving 10 days time from the issue of the notice to me for repayment of the Total Outstanding.  In the event I fail to repay the total outstanding even after giving 10 days notice for repayment, my pledged gold articles may be sold by IIFL in a public notice as per IIFL policy.  The auction will be announced to the public by way of the issue of the advertisement on at least two newspapers of which at least one newspaper shall be of a vernacular language and another shall be National daily newspaper.

                                                            xxxxxx

6. Vide Sl. No.5- f- of the said agreement, it is stated that “IIFL reserves the right to sell any of the pledged articles by auction at any point of time even before the expiry of 24 months, if IIFL is convinced that the market price or the maximum realizable value by sale of the pledged articles is likely to come down below or equal to the total amount payable by me, by any of principal, amount of the loan interest and other amounts payable in respect of the loan after serving a notice of 10 days on me at my address given in this application.”
7. It is stated in the written version filed by the O.P. dt.09.04,2015(vide page-4- sl.No.17,  “that in the present case the petitioner willfully and deliberately fail to pay the interest for 365 days continuously.  In view of the specific clause of the agreement, the bank has put the account for auction including the pledged goods recovery amount after following the procedure of law.”
8. O.P.2 has submitted a copy of their letter with Ref. No.GL 2971279/AUC/OSA/Dec-14/03997 dt 3.12.3014 issued to the borrower (complainant) to repay a sum of Rs.1181.00 within 10 days failing which the pledged ornaments will be auctioned.  It was also stated in the said notice that the details of public auction will be announced in the newspapers. (As marked vide Annexure-3).
9. Vide Annex-1 as sub mitted b y O.P.2 along with their written dt.9.4.2015 it is stated that as per accounts statement dt.15.10.2014- the complainant had Rs.979/- as outstanding dues and Rs.231/- towards interest which comes to Rs.1210/- in total.  Interest amount paid by the complainant is also shown as Rs.3479/-vide the said Annexure-1(STAT CARD as on 15.10.2014)

4.Observations.

1. The borrower had a loan balance of Rs.979.00 outstanding as on 15.10.2014 and interest payable was Rs.231.00.  Thus the borrower to repay a total sum of Rs.1210/- as on 15.10.2014.
2. The complainant/borrower had availed a loan of Rs.48,000/- against pledge of gold ornaments value of which will be around Rs.70,000/-(approx.) as on date of sanction.  He had already repaid Rs.29,489/- on 3.8.13 and Rs.17,532/- on 4.3.14 towards principal.  As such he has paid Rs.47, 021.00 towards principal and had paid full amount of interest due till 3.3.2014.
3. Cuttack Nayabazar Branch of India Infoline Finance Ltd.(IIFL) i.e. O.P.2 has perhaps made the auction of such gold ornaments during Decemnber,2014 within 2years from the date of availing of loan i.e. 17.7.2013 knowing fully well that the pledged gold value was around Rs.70,000/-(Approx.) and the loan balance outstanding was only Rs.1210/- including interest.  IIFL(O.P2) has made the auction within 2 years from the date of availing of loan deliberately also knowing fully well that the pledged gold value is much higher than the loan outstanding and in near future also the loan balance cannot be equal to the gold value. Since gold value was around Rs.70,000/-(approx.) and loan outstanding with interest was Rs.1210/- only.
4. They (O.P2) have not published the announcement relating to auction on any of the Local/National newspapers since they have not quoted such events in their written version nor given the Xerox copy of such advertisement published in the newspapers.  This is a clear deviation to their own guidelines by O.P.2.
5. We presume that they have not served the notice on 3.12.14 on the borrower- because the complainant has not received the same.  Such notice must have been served under registered post and not by plain post/ordinary post since it relates to auction of Gold ornaments of the borrower and gold ornaments are attached to the sentiment of the family of the borrower as because gold is treated as the property of woman in the family.
6. The O.P.2 has not replied to the legal notice served by the complainant by Regd. Post on 21.7.2014.
7. At no point of time the interest payable on the said loan A/c was not paid continuously for a period of 365 days since the interest was first paid up to 02.08.2013 vide money receipt No.RNAYA 5454958 dt.3.8.2013 and again paid up to 3.3.2014 to O.P.2 vide money receipt No.RNAYA 7350192 dt.4.3.14 of the O.P.2 and it is also admitted by O.P.2 vide Annex-I submitted by them.  We presume that the auction was made during December,14.  The exact date of such auction is also not declared by O.P.2. Hence O.P.2 is at fault and we allow the dispute against O.P.2.
8. The Annexure-1 given by the O.P along with his written version i.e. Stat.card as on 15.10.2014 indicates that the balance outstanding in the said gold loan A/c was Rs.979.00 and interest need to be paid was Rs.231.00.  Thus a total amount of Rs.1210/- was payable by the complainant/borrower as on 15.10.2014 as per stat.card submitted by O.P.2 for the purpose.  Whereas the said balance as on 3.12.2014 is shown as Rs.1181.00 vide Annexure-3 as submitted b y O.P.  Both the above noted statements as submitted by O.P.2 vide Annex-1 and Annex-3 are contradictory.  Surprisingly the loan balance including interest as on 15.10.2014 is shown more (Rs.1210/-) and the loan balance including interest as on 3.12.2014 is shown less (Rs.1181.00) even if 3..12.14 is a latter date than 14.10.2014 and some amount of interest must have accrued on the existing balance i.e. Rs.979/- for the period from 14.10.2014 to 3.12.2014.  This indicates that O.P.2 has furnished manipulated figure in a hurry.  We observe that such type of work on the part of O.P.2 is of gross irregularity.  O.P.2 has also taken abnormal time to submit their written brief.  We also put it on record that O.P.2 has submitted their written brief on 9.4.15 and have taken time from 16.10.2014 to 8.4.15 i.e. 5 months and 23 days (175 days) to submit such written version. As per kind order of Hon’ble Supreme Court vide 2016(1) OLR (SC)-499 written statement must be filed within 45 days.

                                                        ORDER

Considering the above noted facts and circumstances and also to meet the ends of justice we allow the dispute against O.P.2.

1. O.P.2 will return the complainant all original gold ornaments as pledged by the complainant consisting of two nos. of necklaces and four nos. of ear rings with gross weight 28.40 grams and net weight 26.68 grams, failing which O.P.2 will pay the market cost of the above noted gold ornaments weighing 28.40grams of 22 carrot fitness including making charges of such gold ornaments.
2. O.P.2 will also pay a sum of Rs.20,000/-(Rupees twenty thousand) only towards compensation for mental agony and harassment and also for the injustice caused to the complainant. 
3. From the total amount thus payable by O.P.2 to the complainant as stated above under Sl.No.1 & 2 – O.P.2 may deduct a sum of Rs.1210/-(Rupees one thousand two hundred ten) only  towards balance of said gold loan amount payable by the complainant as on 3.12.2014.  No further interest/charges etc. will be payable by the complainant.
4. No separate order as to costs.

The gold ornaments or market cost of such gold ornaments and compensation as stated above will be paid to the complainant by the O.P.2 within 45 days from the date of receipt of this order by O.P.2, failing which the complainant is at liberty to take shelter of this Hon’ble Forum as per rules of C.P.Act,1986.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 21^st day of July, 2016 under the seal and signature of this Forum.

 

   (Sri B.N.Tripathy )

                                                                                                                                       Presiding Member.

 

 

                                                                                                                                            (Smt. Sarmistha Nath) 

                                                                                                                   Member(W).