BEFORE THE III ADDITIONAL BANGALORE URBAN
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
BENGALURU – 560 027.
DATED THIS THE 23rd DAY OF MAY, 2022
CONSUMER COMPLAINT NO.2457/2017
PRESENT:
SRI.RAJU K.S,
SMT.REKHA SAYANNAVAR,:MEMBER
Sri.Maruthi A,
S/o late Chikka Anjinappa Reddy,
Aged about 28 years,
Residing at No.44,
Horamavu Main Road,
Makuntamma Nagar,
Bengaluru-560043.
Represented by his
Power of Attorney Holder,
S/o Sanjeev Reddy,
Aged about 35 years,
Residing at No.22,
Vijaya Bank Colony,
R.M.Nagar Main Road,
(Rep by Sri.K.G.Sathisha, Adv)
V/s
India Infoline Finance Limited (HFL),
No.69/A, 1st Floor,
Nanjappa Garden Main Road,
Kalyan Nagar post,
Represented by its Branch Manager. ..…OPPOSITE PARTY
(Opposite party Rep by Sri.Sumiaya Rehman, Adv)
******
//JUDGEMENT//
BY SRI.SHIVARAMA K, PRESIDENT
The complainant has filed this complaint u/s 12 of the Consumer Protection Act-1986 seeking for a direction to the opposite party to return the Gold chain weighing 23.80 gram and Gold Ring weighing 5.20 gram after receiving principal amount of Rs.56,150/- with interest as on 16.11.2016 and pay further damages of Rs.50,000/- towards mental agony and such other reliefs as this Commission deems fit.
2. It is not in dispute that the opposite party is a financial services conglomerate work by providing loan on gold. Further it is not in dispute that the complainant had approached the opposite party in the month of July-2016 and had pledged the above stated gold with the opposite party and had borrowed loan of Rs.56,150/-.
3. It is the further case of the complainant that the loan would be valid for one year and the complainant could close the loan at any time within one year on 16.11.2016 and when he visited the office of the opposite party to repay the loan amount and to take back his gold ornaments, the opposite party did not give any satisfactory reply. Further the said gold ornaments of the complainant were ancestral and he had emotional attachment with it. Since the opposite party did not return the gold ornaments, it amounts to deficiency of service on the part of the opposite party and unfair trade practice. Since the complainant had no other alternative, he had issued legal notice on 24.01.2017 for settlement of the loan amount and for return of the pledged ornaments, but the opposite party failed to return the pledged ornaments. Hence, the complaint came to be filed for the reliefs sought.
4. It is the further case of the opposite party that the complainant failed and neglected to repay the loan amount and the opposite party had issued a notice dt.05.11.2016 recalling the complainant to pay the outstanding sum of Rs.59,983/- and failing which gold ornaments would be auctioned. Further the opposite party had also issued another notice dt.06.12.2016 recalling the complainant to pay the outstanding sum of Rs.62,006/- failing which gold ornaments would be auctioned. Since, the complainant did not contact the opposite party, the opposite party had sold the ornaments and it was found that, after appropriating the proceeds of auction sale, a sum of Rs.2,176/- was in excess and hence a letter dt.10.01.2017 was intimated to the complainant by the opposite party to collect the refund.
5. It is further contended that the complainant is not a ‘Consumer’ within the meaning of 2(d) of Consumer Protection Act, 1986 and the remedy of the complainant if any is in elsewhere and the proceedings of the opposite party was not improper in selling the pledged articles has to file a suit for damages or recovery of articles. Hence, it is sought to dismiss the complaint.
6. To prove the case, the power of attorney holder of the complainant had filed affidavit in the form of his evidence in chief. The representative of opposite party had also filed affidavit in the form of his evidence in chief. Both parties have produced xerox copies of the documents.
7. Heard the arguments and the counsels for both parties have filed their respective written arguments.
8. The points that would arise for consideration are as under:
i) Whether the complaint is maintainable ?
ii) Whether there is deficiency of service on the part of the opposite party ?
iii) Whether the complainant is entitled for the
compensation as sought ?
iv) What order ?
9. Our findings on the aforesaid points are as follows:
Point No.1 : In negative
Point No.2 : In negative
Point No.3 : In negative
Point No.4 : As per the final order for the following;
REASONS
10. POINT NO.1 to 3:- In order to avoid the repetition of facts and all the points are interlinked, I have discussed all the points together. The complainant had produced the power of attorney authorizing one Sri.S.Ashok, to represent the case. Further the opposite party has also produced the authorization letter of the representative of opposite party to appear in the case. The power of attorney holder of the complainant (PW1) and the representative of opposite party (RW1) have filed their respective affidavits in the form of their evidence in chief. They have reiterated the fact stated in their respective pleadings, in the affidavits filed. It is the contention of the learned counsel for the complainant, in the written arguments that the complainant did not receive any letters or notices from the opposite party with regard to auctioning of the gold ornaments. Hence, there was deficiency of service on the part of the opposite party. There is no dispute with regard to the pledging of ornaments and the availment of the loan by the opposite party. It is the contention of the learned counsel for the opposite party as stated in the written arguments filed that the complainant is not a ‘Consumer’ within the meaning of Section-2(d) of Consumer Protection Act, 1986. On perusal of Section 2(d) of Consumer Protection Act, 1986, it appears that the pledging of gold ornaments would not be within the meaning of the said provision. Further Section-176 of Contract Act, empowers the Pawnees’ to sell the thing pledged, on giving the pawner reasonable notice of the sale, in case, the pawner makes default in payment of the debt. It is not in dispute that the ornaments were pledged on 01.08.2016. Further in the documents produced by the complainant, it appears that the principal amount was due on 30.06.2017. The complainant has also produced office copy of the notice issued to the opposite party on 23.01.2017. The said notice was served on the opposite party. Further the opposite party had also produced the paper application of the auction notice with regard to the Gold articles published in Hosa Digantha on 06.12.2016.
11. In support of the contention, the counsel for the opposite party had relied the judgement rendered by the Hon’ble National Consumer Disputres Redressal Commission, New Delhi in Revision Petition No.423/1996 in between Standard Chartered Bank V/s P.N.Tantia and others. In the said judgement, the fact of the case was that the complainant had pledged their shares of different companies for availing of advance/over draft facilities. In the said judgement, it is held that it is in the discretion of the pawnee either to file suit for recovery of the debt and retain the pledged goods as collateral security or in the alternative to sell the pledged goods after giving reasonable notice to the pawner. Further the relationship is of a creditor and a debtor so far as pledged shares were concerned. As such, the question of hiring of service of the Bank would not arise in such an eventuality. Hence, the Hon’ble National Commission has held that the complainant was not a ‘Consumer’. Further the counsel has also relied the judgement rendered by Kerala State Consumer Dispute Redressal Commission, Thiruvananthapuram, in between Muthoot Bankers V/s N.Shadadharan dt.12.11.1999 in Appeal No.617 and 764/1998. In the said case, the fact was that the complainant had pledged gold ornaments and had availed the loan and the opposite party had auctioned the pledged items for that the complainant had filed the complaint for return of pledged articles and alleged that there was deficiency of service on the side of the opposite party. The Hon’ble State Commission of Kerala had held that the relationship between the complainant and opposite party was a debtor and creditor and the commission has no jurisdiction to entertain the complaint and the matter had to be entertained only by a civil court.
- We feel the facts in the cited judgements and facts of the case on hand are similar. Therefore, the complainant cannot be a ‘Consumer’ within the meaning of Section-2(d) of Consumer Protection Act, 1986 and the complaint is not maintainable. Since the complaint is not maintainable, the question of looking over the deficiency of service alleged by the complainant and the amount claimed by the complainant does not arise. Accordingly, we answer point No.1 to 3 in negative.
- POINT No.4:- In view of the discussions made above, We proceed to pass the following;
-
The complaint is dismissed. No order as to costs.
Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.
(Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 23rd day of May, 2022)
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA, K)
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//ANNEXURE//
Witness examined for the complainants side:
Sri.Ashok S, GPA Holder of the complainant has filed his affidavit.
Documents marked for the complainant side:
1. General Power of attorney dt.28.02.2017.
2. Copy of the loan sanction letter given by the opposite party.
3.Copy of the legal notice dt.23.01.2017 issued by the complainant.
4. Copy of the postal receipt and acknowledgement.
Witness examined for the opposite party side:
Sri.Priyadarshini Sunil, Branch Manager of opposite party.
Documents marked for the Opposite Party side:
1. Copy of letter of Authorization dt.04.12.2017.
2. Copy of application form dt.01.08.2016 and terms and conditions.
3. Copy of demand notice dt.05.11.2016 & 06.12.2016.
4. Copies of paper publication.
5. Copy of excess refund notice dt.10.01.2017.
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA, K)
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