Sri Ranjan Ray, Ld. Member

FINAL ORDER/ JUDGEMENT

This complaint U/S 2(1(d)(ii), 2(1)(G) and 12 of C.P. Act, 1986, Read with Section 420/406/34 of IPC was initially filed against the Opposite Parties (O.P.s)- 1) Assistant Manager, SBFC Finance Private Limited, City Plaza, 1^st Floor, Opp. Payel Cinema Hall, Sevoke Road, Siliguri, P.O.- Sevoke Road, P.S.- Siliguri, Dist.- Darjeeling, Pin Code- 734001, 2) Branch Manager, SBFC Finance Private Limited, City Plaza, 1^st Floor, Opp. Payel Cinema Hall, Sevoke Road, Siliguri, P.O.- Sevoke Road, P.S.- Siliguri, Dist.- Darjeeling, Pin Code- 734001, 3) General Manager, 103, 1^st Floor, C & B Square, Sangam Complex, Andheri Kurla Road, Village- Chakala, Andheri (East), Mumbai- 400059, 4) Dibyendu Ghosh, SBFC Finance Private Limited, City Plaza, 1^st Floor, Opp. Payel Cinema Hall, Sevoke Road, Siliguri, P.O.- Sevoke Road, P.S.- Siliguri, Dist.- Darjeeling, Pin Code- 734001, 5) Pompa Choowdhury, SBFC Finance Private Limited, City Plaza, 1^st Floor, Opp. Payel Cinema Hall, Sevoke Road, Siliguri, P.O.- Sevoke Road, P.S.- Siliguri, Dist.- Darjeeling, Pin Code- 734001 and 6) Kaushik Das, SBFC Finance Private Limited, City Plaza, 1^st Floor, Opp. Payel Cinema Hall, Sevoke Road, Siliguri, P.O.- Sevoke Road, P.S.- Siliguri, Dist.- Darjeeling, Pin Code- 734001 who did not file Written Version (W.V.) within statutory period and vide Order No.17, dated 09.02.2023 all the O.P.s declared ex-parte. However, vide Order No. 22, dated 21.12.2023 a direction was given to the O.P.s that for the ends of justice they may assist this Commission by filing their evidence, Written Note of Argument (WNA) for disposal of this matter. The O.P.s did not file either their evidence or their WNA in this regard but took part in the argument.

The case of the complainant as per her complaint is as follows-

On 17.03.2021 the complainant visited the O.P. finance company to take some loan by keeping gold as a security and decided to keep her gold with the O.P.S and finally, on 19.03.2021 the complainant kept some of her gold (1 piece of Gold Chain). After verifying the gold ornaments the O.P. decided to give loan to the complainant and issued online documents in the name of complainant being gold loan application form No. 0832100776, AP Code No.AP00346177, Prospect No. PR00883927. The gold details being mentioned in the said documents was- (i) Name of itmes- Chain, (ii) Quantity- 02, (iii) Carat- 22K, (iv) Gross Wt. (gms)- 64.70, (v) Deduction- 0, (vi) Impurity % - 02, (vii) Net Wt. (gms)- 63.41, (viii) RPG (Rs.)- 3164 and the calculated value of the said gold was Rs. 2,00,629/- (Rupees Two Lakh Six Hundred and Twenty Nine) only and the O.P. provided a disbursal loan of Rs. 2,00,050/- (Rupees Two Lakh and Fifty) only to the complainant. The O.P. declared that the loan amount process time is 48 hours and after that they can provide the loan amount in the account of the complainant and the complainant agreed with that. After completion of 48 hours the complainant could not meet with the O.P. as the health condition of the complainant was very critical. After that the health condition of the complainant became very serious and on 23.03.2021 she admitted in the Paramount Hospital Pvt. Ltd., Siliguri and discharged from the said hospital on 06.04.2021. After that, the complainant went to the O.P. as after a long passage of time the O.P. did not provide any loan amount in her bank account but the complainant was shocked to hear that the O.P. had provided the loan amount against the gold to some unknown person in cash who represented the complainant and as a result the complainant did not get any amount from the O.P.s. The matter was duly informed to the Siliguri Police Station and when the I.C. of the said P.S. came to the O.P.’s office, they admitted their fault and asked for some time from the complainant to resolve the issue but till date the O.P.s did not solve it.

In the year March, 2021 the value of gold calculated by the O.P. was mentioned in the column of RPG rate amount and in the Pledge Documents of the gold loan, the tenure of the loan with Principal due date was 13^th December, 2021 with yearly interest of 26% per annum which goes against the RBI Guideline. An interest charged with more than 18% per annum is totally considered as illegal business and accordingly the registration of the business can be cancelled and it proved that the O.P. s are doing an illegal business. The picture of the gold along with the picture of the complainant was taken with other gold was also kept by the O.P. in the Welcome Letter as well as Loan Details Customer Copy. On 3^rd November, 2021 the complainant went to the O.P.’s office to settle the matter and to get back the gold but from the O.P.’S office the complainant got the information that the O.P.s in a pre planned manner had made auction of the gold which was being kept with them. This matter was immediately informed to the Police Station whereby the Inspector in Charge had started a criminal case against the O.P.s in a suo motu basis and not only this, many other customer’s gold had also being auctioned and as a result the Bhaktinagar P.S. had also registered a criminal case on a suo motu basis. Regarding the said auction, when the complainant asked for the gold auction documents from the O.P. they did not provide the same to the complainant intentionally and when the complainant told the O.P. to return her the auctioned money they badly refused to return the same to the complainant. Till date the cost of the gold per grams had been increased a lot and through the said auction the O.P. received more than sufficient amount after closing the gold loan amount but did not pay back any amount to the complainant. Finally, having no other alternative the complainant lodged this case.     

The prayers of complainant are as follows :

1. Arrest of the O.P. for cheating.
2. To pass an order directing the O.P.s to return back the gold ornaments which were being auctioned or return back the amount at today’s gold rate price (Rs. 5,500/- per gram, total gold net weight gram 63.41 which stands Rs. 3,48,755/- only).
3. To pass an order directing the O.P.s to pay the making charges of all the gold ornaments of Rs. 20,000/-.
4. To pass an order directing the O.P.s to return of interest amount of 26% which is being charged by the O.P. from the complainant till date.
5. To pass an order directing the O.P.s to pay the claim of Rs. 1,00,000/- (Rupees One Lakh) only for mental harassment, pain, agony which the O.P. had done to the complainant.
6. Cost of the suit of Rs. 25,000/- (Rupees Twenty Five Thousand) only.
7. Any other award/s as the complainant is being entitled of in this case.

List of Documents filed by the complainant:

1. Photocopy of Gold Loan Slip.
2. Photocopies of Gold Loan Statements.
3. Photocopy of Pledge Documents.
4. Photocopy of Medical Documents of the complainant.
5. Copy of internet Track Reports along with original Postal Receipts.
6. Copy of Non Banking Financial Companies Depositors of Reserve Bank of India.
7. Copy of Acceptance of Deposits by Companies, Section 3 of the Indian Trust Act, 1882 (12 of 1882).
8. Copy of The Bengal Money Lenders Act, 1940.
9. Copy of order passed by the Hon’ble National Commission of India (1996) 1 CPJ 252.
10.  Copy of order passed by the Hon’ble National Commission of India (2002) 2 CPC 602.

Regarding this case, the Opposite Parties (O.P.s)- 1) Assistant Manager, SBFC Finance Private Limited, City Plaza, 1^st Floor, Opp. Payel Cinema Hall, Sevoke Road, Siliguri, P.O.- Sevoke Road, P.S.- Siliguri, Dist.- Darjeeling, Pin Code- 734001, 2) Branch Manager, SBFC Finance Private Limited, City Plaza, 1^st Floor, Opp. Payel Cinema Hall, Sevoke Road, Siliguri, P.O.- Sevoke Road, P.S.- Siliguri, Dist.- Darjeeling, Pin Code- 734001, 3) General Manager, 103, 1^st Floor, C & B Square, Sangam Complex, Andheri Kurla Road, Village- Chakala, Andheri (East), Mumbai- 400059, 4) Dibyendu Ghosh, SBFC Finance Private Limited, City Plaza, 1^st Floor, Opp. Payel Cinema Hall, Sevoke Road, Siliguri, P.O.- Sevoke Road, P.S.- Siliguri, Dist.- Darjeeling, Pin Code- 734001, 5) Pompa Choowdhury, SBFC Finance Private Limited, City Plaza, 1^st Floor, Opp. Payel Cinema Hall, Sevoke Road, Siliguri, P.O.- Sevoke Road, P.S.- Siliguri, Dist.- Darjeeling, Pin Code- 734001 and 6) Kaushik Das, SBFC Finance Private Limited, City Plaza, 1^st Floor, Opp. Payel Cinema Hall, Sevoke Road, Siliguri, P.O.- Sevoke Road, P.S.- Siliguri, Dist.- Darjeeling, Pin Code- 734001 who did not file Written Version (W.V.) within statutory period and vide Order No.17, dated 09.02.2023 all the O.P.s declared ex-parte. However, vide Order No. 22, dated 21.12.2023 a direction was given to the O.P.s that for the ends of justice they may assist this Commission by filing their evidence, Written Note of Argument (WNA) for disposal of this matter. The O.P.s did not file either their evidence or their WNA in this regard but took part in the argument.

Having heard, the Ld. Advocate of both the side and on perusal of the Complaint, and documents filed by the party the following points are taken to be decided by this Commission.

Points for consideration

1) Whether the complainant is a consumer?

2) Whether the case is maintainable under the CP act 2019?

3) Whether this Commission has its jurisdiction to decide this case? 

4) Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?

5) Is the complainant is entitled to get any award and relief as prayed for? If so, what extent?

Decision with reasons

All the points are taken up together for consideration and decision.

Seen and perused the complaint petition by the complainant which is supported by the affidavit, documents filed by the complainant. We are also heard arguments of both the parties in full length.

The complainant resides in Siligui of Darjeeling district and the O.P. No.1, 2, 4, 5 and 6 is also carrying their business in Sevoke Road, Siliguri of Darjeeling. Thus, this Commission has no doubt that the complainant is a very much consumer as per the Consume Protection Act, 1986 and Consumer Protection Act- 2019 and also there is no doubt that this Commission has its territorial jurisdiction to decide this case.

In this instant case, on 19.03.2021 the complainant kept some of her gold and after verifying the gold ornaments the O.P. decided to give loan to the complainant and issued online documents in the name of complainant being gold loan application form No. 0832100776, AP Code No.AP00346177, Prospect No. PR00883927. The gold details being mentioned in the said documents was- (i) Name of itmes- Chain, (ii) Quantity- 02, (iii) Carat- 22K, (iv) Gross Wt. (gms)- 64.70, (v) Deduction- 0, (vi) Impurity % - 02, (vii) Net Wt. (gms)- 63.41, (viii) RPG (Rs.)- 3164 and the calculated value of the said gold was Rs. 2,00,629/- (Rupees Two Lakh Six Hundred and Twenty Nine) only and the O.P. provided a disbursal loan of Rs. 2,00,050/- (Rupees Two Lakh and Fifty) only to the complainant. The O.P. declared that the loan amount process time is 48 hours and after that they can provide the loan amount in the account of the complainant. After completion of 48 hours, the complainant could not meet with the O.P. as the health condition of the complainant became very serious and on 23.03.2021 she admitted in the Paramount Hospital Pvt. Ltd., Siliguri and discharged from the said hospital on 06.04.2021. After that, the complainant went to the O.P. as after a long passage of time the O.P. did not provide any loan amount in her bank account but the O.P. informed the complainant that they had provided the loan amount to some unknown person in cash who represented the complainant and as a result the complainant did not get any amount from them. The matter was duly informed to the Siliguri Police Station and when the I.C. of the said P.S. came to the O.P.’s office, they admitted their fault and asked for some time from the complainant to resolve the issue but till date the O.P.s did not solve it.

In the year March, 2021 the value of gold calculated by the O.P. was mentioned in the column of RPG rate amount and in the Pledge Documents of the gold loan, the tenure of the loan with Principal due date was 13^th December, 2021 with yearly interest of 26% per annum which goes against the RBI Guideline. An interest charged with more than 18% per annum is totally considered as illegal business. The picture of the gold along with the picture of the complainant was taken with other gold was also kept by the O.P. in the Welcome Letter as well as Loan Details Customer Copy. On 3^rd November, 2021 the complainant went to the O.P.’s office to settle the matter and to get back the gold but from the O.P.’S office the complainant got the information that the O.P.s had made auction of the gold which was being kept with them. This matter was immediately informed to the Police Station whereby the Inspector in Charge had started a criminal case against the O.P.s in a suo motu basis and not only this, many other customer’s gold had also being auctioned and as a result the Bhaktinagar P.S. had also registered a criminal case on a suo motu basis. Regarding the said auction, when the complainant asked for the gold auction documents from the O.P. they did not provide the same to the complainant intentionally and when the complainant told the O.P. to return her the auctioned money they badly refused to return the same to the complainant. Till date the cost of the gold per grams had been increased a lot and through the said auction the O.P. received more than sufficient amount after closing the gold loan amount but did not pay back any amount to the complainant.

         In this case, on 12.04.2022 all the O.P.s appeared through V- nama and filed W.V. on 27.06.2023 which is long after the statutory period. Hence, vide Order No.17, dated 09.02.2023 all the O.P.s declared ex-parte. However, vide Order No. 22, dated 21.12.2023 a direction was given to the O.P.s that for the ends of justice they may assist this Commission by filing their evidence, Written Note of Argument (WNA) for disposal of this matter. But the O.P.s did not file either their evidence or their WNA in this regard. However, a special chance was given to the O.P.s vide Order No. 25, dated 12.09.2024 to take part in the argument and on the basis of that the O.P.s took part in the argument.

         During argument the O.P.s argued that they had sanctioned a loan amounting to Rs. 2,00,050/- (Rupees Two Lakh and Fifty) only to the complainant and the said loan amount was disbursed to the complainant by way of cash which was received by the complainant on 19.03.2021 and hence, the delay of processing the loan sanction period does not arise. After availing the loan facility the complainant was under obligation and as per terms and conditions of the loan, the complainant was required to pay the interest on monthly basis without any delay or default. Hence, if there had been any fraudulent activity, then it had been done by the complainant.

         The O.P.s decide the rate of interest as per the guidelines laid by the Reserve Bank of India and at the time of availing the loan the complainant had agreed to the same. In her complaint the complainant stated that she went to the office of the O.P.s to settle the loan but when the complainant herself admitted that she did not receive the loan amount then how does the question of settling the loan arise.

         Regarding the auction, the loan recall notices and the auction notice was served to the complainant and the same was also published in two newspapers and no signature or consent was required at the time of auctioning/ selling of gold ornaments. In this case, the complainant has purposely suppressed the material facts.

 In the case in hand, On 19.03.2021 the complainant kept some of her gold and after verifying the gold ornaments the O.P. decided to give loan to the complainant and issued online documents in the name of complainant being gold loan application form No. 0832100776, AP Code No.AP00346177, Prospect No. PR00883927. The gold details being mentioned in the said documents was- (i) Name of itmes- Chain, (ii) Quantity- 02, (iii) Carat- 22K, (iv) Gross Wt. (gms)- 64.70, (v) Deduction- 0, (vi) Impurity % - 02, (vii) Net Wt. (gms)- 63.41, (viii) RPG (Rs.)- 3164 and the calculated value of the said gold was Rs. 2,00,629/- (Rupees Two Lakh Six Hundred and Twenty Nine) only and the O.P. provided a disbursal loan of Rs. 2,00,050/- (Rupees Two Lakh and Fifty) only to the complainant. Hence, this Commission does not hesitate to hold that the complainant is a very much consumer in this case as per the C.P. Act, 1986 and also as per the C.P. Act, 2019.

In order to prove the case, the complainant has filed its evidence in the form of an Affidavit and in the Written Complainant has specifically corroborated the complaint and has stated on which date she availed the gold loan from the O.P.s, also narrated the gold details on which she availed the gold loan. The complainant has also stated on which date she went to the O.P.s for demanding the gold/ amount in respect of her loan from O.P.s. The Complainant has also stated in her evidence that the complainant went to meet the O.P.s to get the gold/ amount in respect of her loan but the O.P. did not make any payment till today.

At the time of argument Ld. Advocate of the complainant submits that the complainant has been able to prove its case against the O.P.s not only through her Written Deposition but also by producing documents.

The complainant had filed this case within the limitation period and thus this case is very much maintainable under the C.P. Act, 1986 and also under C.P. Act, 2019.

In view of above discussion and other materials on record it has also observed by this Commission that the complainant had filed this case within the limitation period and hence, we are of the view that this Commission has sufficient Jurisdiction to entertain this complaint as a consumer dispute and thereby this case is maintainable.

In the case in hand, as per documents and evidence filed by the complainant, there is no dispute that on 19.03.2021 the complainant kept some of her gold and after verifying the gold ornaments the O.P. decided to give loan to the complainant and issued online documents in the name of complainant being gold loan application form No. 0832100776, AP Code No.AP00346177, Prospect No. PR00883927. The gold details being mentioned in the said documents was- (i) Name of itmes- Chain, (ii) Quantity- 02, (iii) Carat- 22K, (iv) Gross Wt. (gms)- 64.70, (v) Deduction- 0, (vi) Impurity % - 02, (vii) Net Wt. (gms)- 63.41, (viii) RPG (Rs.)- 3164 and the calculated value of the said gold was Rs. 2,00,629/- (Rupees Two Lakh Six Hundred and Twenty Nine) only and the O.P. provided a disbursal loan of Rs. 2,00,050/- (Rupees Two Lakh and Fifty) only to the complainant.

It is also not denied/ disputed by the O.P. that the complainant did not deposit the gold to the O.P.s. It is also admitted fact that, the O.P.s on receiving the gold ornaments from the complainant issued online documents in the name of complainant being gold loan application form No. 0832100776, AP Code No.AP00346177, Prospect No. PR00883927. to the complainant.  

The complainant tried to get her legitimate claim but the O.P.s failed to settle her said legitimate claim.

It is also clear from the documents and evidences filed by the complainant that on 23.03.2021 she admitted in the Paramount Hospital Pvt. Ltd., Siliguri and was discharged by the said hospital on 06.04.2021.

From the documents and evidences it is clear that on 19.03.2021 the complainant kept some of her gold and after verifying the gold ornaments the O.P. decided to give loan to the complainant and issued online documents in the name of complainant being gold loan application form No. 0832100776, AP Code No.AP00346177, Prospect No. PR00883927. The calculated value of the said gold was Rs. 2,00,629/- (Rupees Two Lakh Six Hundred and Twenty Nine) only and the O.P. provided a disbursal loan of Rs. 2,00,050/- (Rupees Two Lakh and Fifty) only to the complainant. During argument, to establish the point of no delay of loan processing, the O.P.s submitted that the said loan amount, i.e., Rs. 2,00,050/- (Rupees Two Lakh and Fifty) only was disbursed to the complainant by way of cash which was received by the complainant on 19.03.2021 and hence, the delay of processing the loan sanction period does not arise. But the cash transaction is not acceptable. Moreover, the O.P.s failed to prove that he was disbursed the said loan amount to the complainant by the way of cash and in support of this the O.P.s did not produce any evidence.

During argument, to establish the point of auction of said gold of the complainant, the O.P.s argued that the loan recall notices and the auction notice was served to the complainant and the same was also published in two newspapers and no signature or consent was required at the time of auctioning/ selling of gold ornaments but in this case the O.P.s also failed to provide documents to prove this fact. The O.P.s never tried to prove his statements by the way of documentary evidence or any other evidence. So, the argument of the O.P.s without documents or evidences not believable at all.

Here, this Commission follows the decision referred in “National Commission Disputes Redressal, Hdfc Bank Limited vs. Sharmila Das Gupta on 28 June, 2018” where it clearly stated - “It is significant to mention that in the entire record there is absolutely no documentary evidence filed by the Bank to establish the actual rate, on which the gold was sold; what was the market rate as on date of the auction; and, further the procedure that was followed during the auction process. A perusal of the record does not anywhere show that a notice was issued to the Complainant prior to the auction to have given an opportunity to her to exercise the option whether to participate in the auction or not. This is against the principles of natural justice and audi alteram partem. Hence, we are of the view that the conduct of the Bank in auctioning the gold without prior notice to the Complainant amounts to unfair trade practice.”

Follows this judgment, this Commission has no doubt to hold that the O.P.s (SBFC Finance Private Limited) has not followed all the rules and regulations before selling of said article.

In this case, after perusing all the documents, it is established that there was no document to show the actual rate on which the gold was sold, the auction notice was served to the complainant and the same was also published in two newspapers, what was the market rate of the said gold as on the date of the auction and further the procedure that was followed during the auction process and the record does not anywhere show that a notice was issued to the complainant prior to the auction to have given an opportunity to her to exercise the option whether to participate in the auction or not. Thus, it is very much clear that there was an unfair trade practice in the part of the O.P.s.

The complainant is entitled to get Rs. 2,00,050/- (Rupees Two Lakh and Fifty) only from the O.P.s. In this case, the O.P.s are liable jointly and severally.    

Hence, it is, therefore,

O R D E R E D

That the Consumer Case No. 82/2021 be and same is allowed on contest against the O.P.s (SBFC Finance Private Limited) with cost.

The O.P.s are directed to pay the amount of Rs. 2,00,050/- (Rupees Two Lakh and Fifty) only to the complainant along with a simple interest @ 12% per annum within 45 (Forty Five) days from the date of filing of this case, i.e., from 16.11.2021. The O.P.s are also directed to pay Rs. 1,00,000/- (Rupees One Lakh) only for mental pain, agony and harassment and Rs. 25,000/- (Rupees Twenty Five Thousand) only for litigation cost to the complainant. The O.P.s are also directed to deposit Rs. 10,000/- (Rupees Ten Thousand) only to Consumer Legal Aid Account of this Commission within 45 (Forty Five) days from the date of this order, i.e., from 12.12.2024. The O.P. shall pay the entire amount through an account payee cheque within 45 (Forty Five) days from the date of this order, i.e., from 12.12.2024, in default the complainant will be at liberty to execute the award as per law.

Let a copy of this judgment be given to the parties directly or through their representative Ld. Advocate for compliance free of cost.