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Govt. of West Bengal
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION –NADIA
170, DON BOSCO ROAD, AUSTIN MEMORIAL BUILDING
KRISHNAGAR, NADIA, PIN 741101, Telefax (03472) 257788
PRESENT : Shri dAMAN pROSAD BISWAS, PRESIDENT
: SMT MALLIKA SAMADDAR MEMBER
: SHRI NIROD BARAN ROY CHOWDHURY MEMBER
Case No. CC/36/2021
COMPLAINANT :1. Sajida Mondal
W/o. Raosan Ali Mondal
Vill. Banpur Math Para
P.O. Banpur, P.S.Krishnaganj,
Dist. Nadia, Pin-741507.
V-E-R-S-U-S
OPPOSITE PARTIES / 1.Manager,
Unimoni Financial Services Ltd,
Bagula Branch,
Ground Floor, Khatian No.11 (Kree).
Hanskhali Road, Vill & P.O. Baguli,
P.S. Hanskahli, West Bengal, Pin-741502.
Ld. Advocate(s)
For Complainant: Makbul Rahaman
For OP/OPs : Tathagato Biswas
Date of filing of the case :10.03.2021
Date of Disposal of the case :23.08.2023
Final Order / Judgment dtd.23.08.2023
Complainant above named filed this complaint against the aforesaid opposite party u/s 35 of the Consumer Protection Act, 2019 praying for refund of 7.80 grams gold which has sold without the notice to the complainant,
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compensation amounting to Rs.20,000/-, cost of the case as 10,000/- and other reliefs.
She alleged that she took one loan from the OP on 05.11.2019 vide no.1770494 and on that time mortgaged 7.80 grams gold. On 01.06.2020 complainant paid some amount as interest due to Covid-19 Pandemic, complainant did not pay the amount of the loan within due time. On 15.12.2020 complainant went to the office of the OP then OP informed that her gold has sold. Hence the complainant filed this case.
OP contests the case by filing a W/V. He denied the entire allegations, made in the petition of complaint. He further stated that OP is a finance company under the company Act, 1956 and got the licence of RBI to provide gold loan. Complainant has applied for gold loan before the OP Bagula Branch. On 05.12.2019 loan amounting to Rs.18,500/- was sanctioned in favour of the complainant vide loan account no.1770494 with the condition of repayment of the same by 28.11.2020. Complainant failed to repay the loan amount within due date. OP sent notice on several times to the complainant and those notices were duly served upon the complainant. But complainant did not turn back. On 14.12.2020 OP sent a notice to the complainant by instructing to repay the due amount within 7 days else the gold will be auctioned. It was also informed that details of the auction will be published on local Daily Newspaper but complainant did not turn up to repay the due amount of the said loan. After expiry of the time period of the aforesaid notice, aforesaid gold was auctioned at the regional office on 22.12.2020. He prays for dismissal of the case.
Trial
During trial complainant filed affidavit in chief.
OP filed questionnaire and complainant filed answer.
OP filed affidavit in chief. Complainant filed questionnaire and OP filed reply.
Documents
Complainant filed the following documents.
- Original copy of pledged document ............(One sheet)
- Original copy of part payment............(One sheet)
OP filed the following documents.
- Original copy of Gold Loan Application Form dated 05.12.2019..........(One sheet)
- Original copy of Pledge Document (Branch copy)..........(One sheet)
- Photo copy of Ornament of Sajida Bibi..............(One sheet)
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- Original copy of Demand promise to pay Mole dated 05.12.2019.....(One sheet)
- Original copy of Gold Loan..........(One sheet)
- Original copy of document of Unimoni...........(One sheet)
- Original copy of demand notice on loan account dated 05.12.2019..........(One sheet)
- Original copy of document of Unimoni..........(Three sheets)
- Xerox copy of Voter Card of Sajida Mondal..........(One sheet)
10)Original copy of Public Notice issued by Unimoni Financial Services Limited dated 22.12.2020............(One sheet)
11)Original copy of Postal Track Report.............(Two sheets)
12)Xerox copy of document By Registered Post/AD to complainant.........(One sheet)
13)Computerised copy of Financial Services Ltd dated 31.07.2020.........(One sheet)
14)Xerox copy of document By Registered Post/AD to complainant..........(Three sheets)
15)Computerised copy of letter for Principal Due Notice issued by OP to Complainant..........(One sheet)
16)Xerox copy of document by Registered Post /AD........(Two sheets)
17)Computerised copy of Financial Services Ltd dated 01.07.2020..........(One sheet)
18)Xerox copy of document by Registered Post/AD..........(One sheet)
19)Computerised copy of Financial Services Ltd. dated 14.12.2020..........(One sheet)
20)Xerox copy of document by Registered Post/AD.........(One sheet)
21)Xerox copy of Track Report.........(Two sheets)
22)Original copy of Tax Invoice dated 26.12.2020..........(Two sheets)
Brief Notes of Argument
Complainant filed BNA. OP filed BNA.
Decision with Reasons
On perusal of affidavit in chief of the complainant, we find that she took one loan from the OP vide loan account no.1770494 and on that
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time mortgaged 7.80 grams gold and OP took the possession of the said gold. OP in his W/V and affidavit in chief admitted the said fact.
On perusal of documents filed by the complainant, we find that she mortgaged 7.80 grams gold before the OP.
On perusal of the document filed by the complainant, we also find that complainant took loan of Rs.18,500/-. OP also admitted the said fact in his W/V.
On perusal of document filed by the complainant, we also find that complainant paid Rs.1,110/- on 01.06.2020 she also paid Rs.1,110/- on 28.11.2020. Complainant stated in her affidavit in chief that she could not pay entire amount of the loan account due to Covid-19 Pandemic. OP denied the said fact. OP put the question to the complainant whether he can produce any document to show that she asked for any accommodation during Covid-19 Pandemic. Complainant gave the answer as “Yes” but complainant failed to show any document regarding the claim of accommodation during Covid-19 Pandemic.
On perusal of question no.5 of the interrogatories filed by the OP, we find that OP put a question to the complainant whether complainant complied the terms of agreement of loan or not. In reply complainant stated in “Yes”.
On perusal of loan agreement produced by the OP, we find that complainant was agreed to pay the loan within 28.11.2020. But within 28.11.2020 complainant paid only Rs.2,220/-.
Ld. Adv. for the OP argued that complainant violated the terms and conditions of the loan account, so OP has the authority to sale the gold of complainant on auction. Regarding this matter, OP sent a notice to the complainant but same has not served upon the complainant due to insufficient addressed.
He further argued that complainant at the time of taking loan gave insufficient address before the OP and for that reason said notice was not served upon the complainant. He produced Postal Track report in respect of consignment (Speed Post) vide no.RM9311112581N which was sent to the complainant by the OP on 04.01.2021.
On perusal of another consignment (Speed Post) vide no.RM8869960881, we find that item has returned to the OP. OP produced one copy of envelop relating to consignment no.RM9207625361N. OP did not file any track report or Postal Receipt in respect of the said envelop.
On perusal of document filed by the OP, we find that complainant stated her addressed before OP as Sajida Mondal, Mother’s name Jaheda Bibi. He produced copy of Voter Card before the OP which contains name of her husband as “Raosan”. But curious enough that OP sent
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notice to the complainant without mentioning her Mother’s name and husband name, the reason best known to him. If husband’s name does not mention then it will be difficult to trace out a female in the interior village by the Postman.
So, it is clear before us that OP wilfully did not mention the full address of the complainant over the envelop so that it can be served upon the complainant.
Ld. Advocate for the OP argued before this Commission that OP gave paper publication regarding auction sale of the aforesaid gold. Perused the said paper publication, we find that publication has made over two newspapers. In the publication only loan account has mentioned as 1770494.
Now the question comes before this Commission that only mentioning the account number in the paper publication which has made is sufficient and compliance of necessary direction of the concerned Rules?
In this Context We have carefully gone through The Security Interest Enforced Rules framed by Ministry of Finance and Company Affairs (Department of Economic Affairs) (Banking Division) dated 20.09.2018 Rule 4 has been framed relating to sale of movable secured asset. As per rule 4 one authorised officer will be entrusted for the said purpose. He shall take the possession of movable property. Authorised officer shall take possession of such movable property in presence two witnesses. After preparing Panchnama in appendix I. Authorized officer shall make or cause to be made an inventory of the property and copy of such inventory be handed over to the borrower. Borrower shall be intimated by notice. Authorized officer shall obtain the estimated value of the movable secured assets and thereafter, if considered Authorized officer, fix in consultation with the secured creditors the reserve price of the assets to be sold in realisation of the dues of the secured creditor. In rule 6 methods of sale has been described. Authorized officer shall serve to the borrower a notice of 30 days for sale of the movable secured asset under sub-rule (1). He shall cause a public notice in the format given in appendix II-A to be published in two leading news papers including one in vernacular language having wide circulation in the locality.
In this context, we have carefully gone through appendix II-A. As per the said format paper publication shall contain the date of sale, recovery amount, name of borrowers, name of guarantors, reserve price and the urnest money deposit. Said format also contain the details of the link for correspondence.
In the present case no such documents have produced before us in support of the fact that OP complied the aforesaid directions as per aforesaid rules.
In absence of any such document we have no other alternative but to hold that OP violated the aforesaid rules.
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In view of aforesaid discussion, it is clear before us that OP did not follow the necessary guidelines before sale of aforesaid gold by the way of auction.
It is clear before us that OP violated the necessary provisions of aforesaid Rules.
On perusal of record, we find that complainant is a consumer and OP is a service provider.
Having regard to the aforesaid facts and circumstances of this case materials on record , we are of the firmed view that aforesaid act of the OP are nothing but deficiency in service.
Accordingly, complainant has established his grievance by sufficient documents and she is entitled to relief as per his prayer.
In the result, present case succeeds.
Hence,
It is
Ordered
that the present case be and the same is allowed on contest against the OP with cost of Rs.5,000/- (Rupees five thousand) to be paid by OP in favour of the complainant.
OP is directed to pay the value of 7.80 grams gold as on this day after deducting the amount of the loan account as on 22.12.2020 (that is the date of alleged auction of gold ) within 45 days from this day failing which complainant shall have liberty to put this order into execution.
OP is further directed to pay compensation amounting to Rs.10,000/- (Rupees ten thousand) in favour of the complainant within 45 days from this day failing which aforesaid amount shall carry interest at the rate of 9% per annum from this day to till the date of actual payment and complainant shall have liberty to put this order into execution.
Let a copy of this final order be supplied to both the parties as free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
We concur,
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MEMBER MEMBER
(NIROD BARAN ROY CHOWDHURY) (MALLIKA SAMADDAR)
