SRI.K. VIJAYAKUMARAN, PRESIDENT.

            Complaint seeking release of pledged  gold ornaments, compensation costs etc.,

          The averments in the complaint can be briefly summarized as follows:

          The complainant pledged golde ornaments with the 2^nd opp.party on 17.12.2004  and availed a loan of Rs.13,600/-  under account No.8549.   Complainant had remitted monthly interest without any default  up to 12.10.2005 and all the amounts remitted by the complainant  were adjusted towards interest by the 2^nd opp.party.  However the complainant was not

given any receipt for having received  such amounts.   Thereafter the complainant  could not remit any amount due to financial difficulties.  On 8.10.2006 when  the complainant approached the 2^nd opp.party for redeeming the pledged gold ornaments, on receiving a notice from the 2^nd opp.party in this regard he was made to believe that the items are  under the  custody of the first opp.party and that the same would be returned on 6.2.2006.  When the complainant went on 6.2.2006 the 2^nd opp.party  at the instances of the first opp.party calculated a huge sum as interest.  Inspite of this, the complainant was ready to remit the amount but the 2^nd opp.party was not willing to release the gold ornaments with lame excuses.  Thereafter  on several occasions the complainant approached the 2^nd opp.party for redeeming the pledged items without success.  On 26.4.06  when the complainant approached the 2^nd opp.party he was directed to come  after receipt of notice .  On believing the words  the complainant  returned home.   Thereafter the complainant received a registered notice from the 2^nd opp.party for taking back the gold ornaments.   When the complainant approached the opp.party they refused the return the  gold ornaments alleging that  the complainant   has filed a complaint before the Legal Service Authority.   Thereafter the opp.parties  said that the gold ornaments along  with other pledged items will be returned through  a  conciliation  before the Legal  Service Authority.  Thereafter the opp.parties did not appear before the Legal Services Authority.  The complainant thereafter was compelled to file this complaint.  Hence the complaint.

          The opp.parties filed a joint version contending, that the complaint is not maintainable either in law or on facts.   This Forum has no jurisdiction to entertain this complaint.   Since the transaction alleged is a pledge there is only a debtor creditor relationship which   does not fall within the ambit of Consumer Protection Act.  It is admitted that the complainant pledged gold ornaments with the 2^nd opp.party.   The complainant was a gross defaulter and he has not remitted monthly interest as per the contract.   If  he had remitted any amount proper  receipts will be issued to him  When the repayment was defaulted  notice under ordinary post was issued to the complainant on 18.4.2005.  Since there is no response a notice  under certificate of posting was issued on 2.9.05..  Finally a registered notice was issued on 20.12.2005.  As per the terms and conditions between the complainant and the opp.parties  it is the duty of the person who pledges the gold ornaments to take  back the pledged article within six months  or else, the creditor  has every right to auction  the pledged articles..   The  complainant has availed the  loan on 17.12..2004 and the articles were auctioned only on 17.3.2006.  The opp.parties had given  much time to the complainant  for redeeming the gold ornaments.  The complainant did not approach the 2^nd opp.party on 8.1.2006  as alleged.   The averments in para  4 of the complaint  is only an imagination and hence denied.   The complainant has also approached  the Legal Service Authority, Kollam and the opp.parties explained the actual facts on the first day itself to the Legal Service Authority.   The averments in para 5 to 9  are false and hence denied.   The opp.parties are working as per the provisions  of the Companies Act.  The complainant  has no right to compel the  opp.parties to keep the pledged articles  to an indefinite period, so as to cause  hindrance to business  of the opp.parties.   The reliefs sought in the complaint are not  allowable.  Hence the opp.parties prays to dismiss the complaint.

          Points that would arise for consideration are:

1.     Whether the complaint is maintainable before this Foru?

2.     Whether the alleged auction of the pledged gold is in accordance with the law?

3.     Whether there is deficiency in service on the part of the opp.parties?

4.     Reliefs asnd costs.

For the complainant PW.1. is examined. Ext. P1 and P2 are marked.

For the opp.parties DW.1 is examined.   Ext. D1 and D2  are marked.

POINT;

The contention of the opp.party is that the complaint is not maintainable as the transaction between the complainant and the opp.parties is a pledge and the relationship between the parties is  debtor  creditor and therefore  this Forum  has no jurisdiction to entertain this complaint .  That the arguments cannot be accepted.  The Tamil Nadu Consumer Disputes Redressal Commission in the decision reported in [1] [2009] CPJ 109. relying on the decision of the Apex Court reported in 2[2000] CPJ II has held  that a complaint seeking to redeem the pledged items would come within the purview of Consumer Protection Act.

The Kerala State Commission in an identical case  in which the opp.party herein was  the opp.party therein has held  that a complaint seeking redemption of pledged gold ornaments is maintainable [Appeal No.203/07].  So we have no hesitation to  hold that the complaint is maintainable before this Forum.  Point found accordingly.

Points 2 and 3

          The specific case of the complaint is that he has approached the opp.parties on several occasions on receipt of  Ext.P1 notice   for redeeming the gold ornaments pledged with the opp.party, but the opp.parties evaded from returning the gold ornaments saying one reason or another.   It is further contended that the opp.parties have  charged exorbitant interest against law and asked   the complainant to remit huge amount for redeeming the gold ornaments which is deficiency in service on their part..  The contention of the opp.parties is that the complainant never turned up for redeeming gold ornaments pledged, even after several notices and therefore finally they issued Ext.P2 notice  by registered posts which was accepted by the complainant, and even after that  there was no response from the complainant and therefore they have  auctioned the  pledged ornaments evidenced b y Ext. D2.

          Ext. D2  is produced to prove that the opp.parties have auctioned the gold ornaments pledged by the complainant.  However Ext. D2  is not properly proved.   DW.1 through whom Ext. D2 was proved has admitted in cross examination that he does not know anything about  Ext. D2.  To a pointed question by    the learned counsel for the complainant “ D2sr dkyjv\vk rjb\bX]\ eyulR Lyjujh\h?   the witness stated  Th\h;    Ext. D2  prove svu\ulR dqjujh\h.  Ext. D2 H Qe\ej}jgj]kr\r Samul Auction Officer Llnk\;  To another question Samuel sRy Qe\ek\ Llnk\ Tsfr\rk\ eyulR dqjukSal? [a] Th\h;.  So no credibility can be attributed to Ext. D2 to come in to a conclusion that the gold ornaments  pledged by the complainant  were auctioned as per Ext. D2.  It is also pertinent to note that  in the version the opp.parties  have stated that the gold ornaments have been auctioned  on 17.3.2006.  If that be so it is clear that Ext. P1 notice was issued after conducting the alleged auction.  Ext.P1 shows that the  notice is dated 8.4.2006.  In Ext. D2 the names and address of 3 persons are shown as bidders that there is nothing to show that they have been present or participated in the auction.   Ext. D2 does not contain even their signature.  The learned counsel for the complainant would argue that the procedure prescribed for conducting auction has not been observed by the opp.party and there is force in that contention.   As pointed out earlier.   Ext. D2 has not been properly proved and no credibility can be attributed to it.  In these state of affairs we are of the view that Ext. D2 cannot be relied on to come to any conclusion that auction of the gold ornaments of the complainant has been conducted

          It is an admitted fact that  the opp.party is functioning under the Reserve Bank of India guidelines.  Ext. D1 shows  that an exorbitant rate of interest is being levied.  An institution functioning as per the Reserve Bank of India guidelines can charge  interest only in accordance with the Reserve Bank of India guidelines.  It is obvious from  Ext. D1 that the interest levied by the opp.party is not in accordance with the Reserve Bank of India guidelines.  However either side had not produced to prove what is the  rate of interest as per the Reserve Bank of India guidelines.  On a perusal of entire evidence in this case we are of the view that there is deficiency in service on the part of the opp.parties.  Point found accordingly

          In the result the complaint is allowed , directing the opp.parties  to return the gold ornaments pledged by the complainant as per Ext.  D1 on receiving the loan amount and interest as per the Reserve Bank of India guidelines.   If the gold ornaments happened to be auctioned already  the  value of the gold ornaments at the prevailing market value will be given to the complainant.   The complainant is also allowed Rs.2500/- towards compensation and costs.  The order is to be complied with within one month from the date of this order.

            Dated this the  23^RD     day of November, 2009.

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I N D E X

List of witnesses for the complainant

PW.1. – N. Sudhesan

List of documents for the complainant

P1. – Notice

P2. – Receipt dated 17.12.2004

List of witnesses for the opp.parties

DW.1. – Sukumaran Nair

List of documents for the opp.parties

D1. – Receipt

D2. – Details of Gold Loan auction.