JUSTICE SUDIP AHLUWALIA, MEMBER

2. The factual background, in brief, is that the Complainant deposited gold jewellery worth Rs.88,139.50/- with the Petitioner and received Rs.78,000/- as the loan amount. On 09.07.2011, the Complainant approached the Petitioner to repay the loan amount with interest and retrieve the jewellery. However, the Petitioner was unable to return the jewellery at that time, citing an objection from the Opposite Party No. 2. Despite the receipt for the jewellery being in the Complainant's name, the Petitioner indicated that the third-party claim by the Opposite Party No. 2 created a legal impediment to the immediate release of the items. The Complainant insisted on the return of the jewellery, stating that the objection from the Opposite Party No. 2, a third party to the transaction, should not prevent the Petitioner from handing over the jewellery. The Complainant remained ready and willing to repay the loan to retrieve the jewellery but did not receive a response after sending a Legal Notice dated 14.07.2011. Aggrieved with deficiency in service and unfair trade practices on the part of the Petitioner, the Complainant filed his complaint before the Ld. District Forum, Delhi (East).

3. The District Forum vide its Order dated 19.06.2014 allowed the Complaint and directed the Petitioner to return to the Complainant the total amount of gold i.e. 51.3 grams after taking back the principal amount of Rs. 78,000/- with interest from 10.052011 to 09.07.2011, and in the alternative, the cost of gold at the market price as on the date of the Order with interest @ 9% p.a from the date of filing till its realization, and Rs. 75,000/- towards mental agony. The Petitioner then filed its Appeal before the Ld. State Commission, which modified the Order of the District Forum to the extent of reducing the compensation to Rs. 20,000/-, and upheld the remaining directions under the Order. The relevant extracts of the impugned Order are set out as below -

“10. It is admitted by the appellant/OP that the respondent/complainant had visited their office for discharge of its liability by paying principal amount along with interest on 09.07.2011. There is a letter on record signed by Chaudhary Durga Rao, Head Branch of appellant/OP wherein the respondent/complainant had been asked to come on 10.07.2011 for the release of the gold articles. There is a dispute about the visit of respondent/complainant on 10.07.2011 to the office of appellant/OP. There is also a courier receipt on record showing legal notice dated 14.07.2011 having being sent to appellant/OP wherein it is stated that the gold jewellery be released within 7 days. The appellant/OP has denied having received any such notice. There is no mention in this notice that the respondent/complainant had visited the office of appellant/OP on 10.07.2011 as is alleged. In these circumstances it can't be said that the respondent/complainant visited the office of appellant/OP on 10.07.2011 as is alleged.

11. As per the loan agreement between the parties, the appellant/OP was at liberty to auction the pledge gold if the customer fails to pay the loan and interest within one year from the date of loan availed. It is contended that prior to auction appellant/OP was required to serve a registered notice upon the respondent/complainant. It is contended that a notice u/s 176 of the Indian Contract Act, 1872 was sent to respondent/complainant on 17.05.2012 and was informed that if he failed to settle the pledge within 15 days of receipt of notice, gold would be auctioned for release of the amount due to the company.

12. We have perused the record of the Ld. District Forum. There is no notice dated 17.05.2012 having being sent to respondent/complainant as is alleged in written statement. There is only one postal receipt dated 12.05.2012 on record. The alleged notice dated 17.05.2012 could not have been sent on 12.05.2012. In evidence by way of affidavit it is stated that two registered letters were sent to respondent/complainant, one dated 14.01.2012 and other dated 12.05.2012. Perusal of record shows that both are received back unserved with the report "addressee does not reside at given address". Meaning thereby the aforesaid letters were not served on the respondent/complainant.

 

13. Ld. Counsel for the respondent/complainant has shown us pledge form on record whereby the respondent/complainant had pledged the gold as security to the loan. In the said form the signature of Branch Head of appellant/OP is also there. The address of the respondent/complainant mentioned therein is as under;

“Mohd. Akbar

Mohd. Shafi

7 Gali No. ward No. 8

Old Brij Puri, Parwana Rd D.51

Radha kishan Mandir

Krishna Nagar

Delhi”

 

Whereas the alleged letters/notices were sent at the address which is a under:

“Mohd. Akbar

Mohd. Shafi

99/1, Block D New Govind Puri

Near Radha Krishna Mandir

Krishna Nagar-110051

East Delhi

Delhi 

0921343 1528”

 

14. Further the Mobile Number of respondent/complainant is also mentioned in the pledged form when the notices/letters were received back unserved, the appellant/OP could have intimated about the auction of the gold jewellery to respondent/complainant on his mobile number. Since the notice has not been served upon the respondent/complainant, it cannot be said that the statutory requirement of sending the notice was met in this case. The finding given by the Ld. District Forum that requisite notice was not served upon the respondent/complainant is correct. We find lack of bonafides on the part of appellant/OP. We find no reason to disagree with the finding given by the Ld. District Forum that appellant/OP has defaulted in complying with their own terms and conditions and has sold the gold of respondent/complainant for their own benefit.

15. The direction given in impugned orders are upheld except the compensation amount, we find that the same is on higher side, we reduce the same to 20,000/-.

The impugned order stands modified to aforesaid extent only.

Appeal stands disposed of accordingly...”

4. Ld. Counsel for Petitioner has argued that after availing the loan facility, the Respondent failed to adhere to financial discipline and defaulted in paying interest. When the Respondent visited the Petitioner’s office on 09.07.2011, transactions could not be carried out due to network issues. The Respondent was requested in writing to return on 10.07.2011 for transaction-related matters but did not do so, nor did he service the loan facility afterward. Despite periodic notices, the Respondent did not approach the Petitioner for redemption of the pledged gold after the loan tenure ended. Two statutory auction notices dated 14.01.2012 and 12.05.2012 were sent to his address through registered post, calling upon him to settle the pledged gold within 15 days, failing which it would be auctioned to satisfy the loan account dues. The notices, sent to the address on the Voter ID card submitted as address proof, were returned with remarks such as ‘no such person in the house’ and ‘left’; That after the maturity period, the Respondent chose not to redeem the pledged gold within the notice period, leading to its auction on 07.12.2012 at a rate of Rs. 2778/- per gram, realizing a total amount of Rs. 1,19,711/-.  A surplus of Rs. 139/-, after deducting postal charges, was sent to the Respondent; That the Fora below failed to appreciate the various objections regarding the maintainability of the proceedings. The relationship between the parties is that of a Creditor and Debtor, not of a Consumer; That the auction of the pledged gold was conducted as per the agreement, and is recognized by law under Section 176 of the Contract Act, which states that where the pawnor  defaults on payment of debt or performance at the stipulated time or promise for which the goods were pledged, the pawnee may sell the pledged item after giving the Pawnor reasonable notice of the sale. The Petitioners issued two Notices dated 14.01.2012 and 12.05.2012 by properly addressing, pre-paying, and sending the letters containing the Notice. Thus, there was deemed service of the Notice by virtue of Section 27 of the General Clauses Act, 1897.

5. Ld. Counsel for Respondent has argued that the Petitioner’s claim that the Respondent failed to discharge his obligation to clear the loan within one year is false. The Respondent visited the Petitioner’s office on 09.07.2011 and was ready and willing to discharge his obligation, but it was not possible due to the Petitioner’s actions; That the Notices sent by the Petitioner were addressed to a location that did not belong to the Respondent and were returned unserved with the report “addressee does not reside at given address.” The Petitioner failed to provide any document or notice that could prove the Respondent was informed about the forfeiture condition, the date of auction, or any prior notice before the gold was auctioned; That the State Commission, in agreement with the District Forum, rightly allowed the Complaint; That the gold items auctioned by the Petitioner held emotional value for the Respondent, as they were ancestral and more than 50-60 years old. Therefore, the Petitioner should be directed by this Commission to return the gold items.

6. This Commission has heard the Ld. Counsel for Petitioner and Respondent, and perused the material available on record.

7. In para No. 13 of the impugned Order, which has been reproduced above, it is seen that the address of the Complainant/Respondent in his Pledge Form, which was a part of his Application for Gold Loan, was different from the address on which the Notices were allegedly sent to him, and which thereafter came back as unserved. Even otherwise, according to Clause 6 of the Loan Agreement Cum Pawn Ticket dated 10 May 2011, which is Annexure-P6-B of the Revision Petition, it is seen that the address for all communication was to be the one furnished in that very Application Form, if not intimated to the Company regarding any subsequent change of address in writing, and under acknowledgement from the Company. But in spite of this condition, the Company (i.e., the Petitioner) sent its alleged Notices on a different address thereby violating its own condition. Both the Ld. Fora below were therefore justified in holding that the version of the Opposite Party/Appellant was not acceptable.

8. Even otherwise, it is well settled that in its revisional jurisdiction, this Commission cannot go into re-appreciation of evidence in a case of concurrent findings, and the scope available to this Forum in its revisional jurisdiction is very limited. The Hon’ble Apex Court in “Rajiv Shukla Vs. Gold Rush Sales and Services Ltd. & Anr., Civil Appeal No. 5928 of 2022, decided on September 8, 2022”; in this regard has observed inter alia –

 “7.1 At this stage, it is required to be noted that on appreciation of evidence on record the District Forum as well as the State Commission concurrently found that the car delivered was used car.  Such findings of facts recorded by the District Forum and the State Commission were not required to be interfered by the National Commission in exercise of the revisional jurisdiction.  It is required to be noted that while passing the impugned judgment and order the National Commission was exercising the revisional jurisdiction vested under Section 21 of the Consumer Protection Act, 1986.  As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.  Thus, the powers of the National Commission are very limited.  Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction.  In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record.  Therefore, while passing the impugned judgment and order the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21 (b) of the Consumer Protection Act.”

 

9. Again in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., Civil Appeal No. 2588 of 2011, decided on 18.3.2011, the Apex Court had set aside the decision of this Commission by virtue of which the concurrent decisions of the Ld. District Forum and the State Commission, which had gone in favour of the Complainant, were set aside with the following observations –

“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.  The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts.  This is not the manner in which revisional powers should be invoked.  In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed.  It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”

 

10. Consequently, this Commission finds no grounds whatsoever to interfere with the concurrent decisions of both the Ld. Fora below.  The Revision Petition is therefore dismissed.  Parties to bear their own costs. 

11. Pending application(s), if any, also stand disposed off as having been rendered infructuous.