THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
C.C.543/2013
Dated this the 11th day of August 2014.
( Present: Sri. G. Yadunadhan, B.A., LLB. : President)
Sri. L. Jyothikumar, B.A., LLB. : Member
Smt.Beena Joseph, M.A : Member
ORDER
By G.Yadunadhan, President:
The case of the complainant is that complainant had pledged gold ornaments and availed a gold loan of Rs.85,000/- and another loan availed on 28/06/12 of Rs.95,000/-. On 29.06.2012 the complainant availed a gold loan of 5,30,500/- by pledging gold ornaments .Thus the complainant availed a total loan amount of Rs.7,10,500/-by pledging gold ornaments for the sufficient amount of security. At the time of availing the gold loan the first opposite party assured the complainant that they will charge the interest on the loan as fixed as per the Money Lenders Act. The complainant believed the words of the opposite party and availed the gold loan. The opposite party also assured to the complainant that the unconscionable rate of interest printed on the pawn tickets are need not be paid by the complainant and the opposite party will collect only the interest at the rate leviable legally. Subsequently on 01.06.2013 the complainant approached the opposite party for redemption of the pledge by paying the full amount along with interest. At that time the opposite parties demanded the unconscionable rate of interest as printed on the pawn tickets. In exercise of the powers conferred by section 7 of the Kerala Money Lenders Act 1958(Act 35 of 1958), the Govt.of Kerala fixed the rate of interest leviable under Sub section I of Section 7 of Kerala Money Lenders Act . Hence the opposite party could not collect interest in excess of the rate of prescribed under the Act. Thereafter the complainant approached the opposite parties several times for redeeming the gold loan by paying the amount along with interest legally recoverable by them. But the first opposite party delayed the matter deliberately by one way or other demanded excess amount as interest. There is no basis for refusing to redeem the loan by accepting the amount and interest from the complainant. There is serious deficiency of service on the part of the opposite parties. The opposite party failed to fulfill the legal obligations due to the arbitrary acts of the opposite party. Therefore complainant claiming Rs.1,00,000/- towards the mental pain suffered by the complainant, in addition to the other reliefs as claimed herein and directing the opposite party to receiving the loan amount along with 12% interest and also return the gold ornaments to the complainant along with cost.
Opposite parties have serving notice entered in appearance and filed their version stating that complainant is not a consumer as defined under section 2(1)(d) of the Consumer Protection Act. The complainant has not purchased any goods or availed any services from the opposite party. Complainant had borrowed loan from the company by pledging gold ornaments as security for the loan and the relationship between the complainant and the opposite party is one the ‘debtor’ and ‘creditor’ and as such the transaction is only a contract and does not fall within the purview of Consumer Protection Act and on this ground alone the complaint is liable to be dismissed. The opposite party is a non Banking Finance company registered with the reserve bank of India under the provisions of Chapter III B of Reserve Bank of India Act 1934 and it is licensed to conduct financial business as per provisions of the said Act. The registered Administrative office of the company is situated at ‘Manappuram House, Valapad PO, Thrissur. It has a branch at Kozhikode near Mofusal bus stand. The complainant pledged gold ornaments weighing 34.30 grams and availed a loan of Rs.85,000/- on 28.06.2012 pledge No.0230410700744253, gold ornaments weighing 39.60 gms and availed a loan of Rs.95,000/- on 28.06.2012 vide pledge No.0234010700744253 and gold ornaments weighing 228 gms and availed a loan of Rs.5,30,500/- on 29.06.2012. The complainant had availed the above loan under schemes Swarna Mitra(MX) the rate of interest is 20%and the tenure of the loan is one year. The complainant has to remit the interest amount within the loan tenure avoiding penal interest. In case of default the increased rate of additional 3% is applicable after the expiry of the loan tenure. Pawn ticket duly signed by the complainant and the Branch Manager of the opposite party was issued to the complainant clearly mentioning the interest, penal interest, tenure of the loan and the terms and conditions of the loan etc. All the terms and conditions of the schemes are explained in the customers before they select the scheme and the complainant is well aware of the scheme. The loan was availed on 28.06.2012 and 29.06.2012 respectively and therefore the period of loan expires on 27.06.2013 & 28.06.2013.The opposite party had duly informed the complainant to pay the loan amount with interest by periodic notices and over phone and SMS etc. But the complainant never approached the opposite party for clearing the debt and taking back his ornaments. Hence the allegation in Para 4 is denied by this opposite party. The opposite party issued a registered auction notice on 07.07.2013 intimating about the public auction for sale of the above pledged ornaments. The list of the pledges which were send for auction, had also been displayed in the notice board in the branch. More over, the opposite party directly contacted the complainant and intimated him the auction of the pledged gold. Inspite of the best efforts of the opposite party complainant did not come forward to pay any amount either to redeem the pledged gold or to make any payment towards the loan account. Since the complainant will fully ignored the opposite party repeated notice regarding the release of pledged ornaments, the opposite party was constrained to sell the gold ornaments after complying with all legal formalities as per the terms and conditions of the loan agreement. The gold was auctioned for an amount of Rs.7,31,525/- after adjusting the sale value to the outstanding due amount of the complainant Rs.8,85,541/-. It was observed that Rs.1,54,016/- is remaining as sale loss. The complainant is liable to pay such sale to the opposite party as per the terms of the loan agreement. The opposite party has acted only as per the express terms and conditions of the loan and in accordance with law. When there is an agreement entered into between the complainant and opposite party and the complainant violated the terms and conditions of same is in no way and at any point of time entitled to any claim with respect to the said transaction. In this case complainant had violated the terms of the loan agreement. Therefore, there is absolutely no deficiency of service and the complainant is not entitled to any relief in this case. Hence the complaint may be dismissed with cost.
Points for consideration
- Whether any deficiency of service on the part of opposite party?
- Whether the complainant is entitled to get any compensation from the opposite party? If so what is the relief and cost.
After filing the complaint on 25.11.2013 notice were issued from the Fora for appearance of the complainant and opposite party on 21.12.13. From the day itself complainant was absent opposite party No.1 & 2 appeared and permission time for filing version. From there onwards six consecutive postings complainant was continuously absent. Opposite party filed their detailed version. On terms of the complaint Complainant availing a loan admitted a total amount of Rs.7,10,500/- availed loan from the opposite party by pledging gold ornaments. While taking of the loan complainant admittedly entered with an agreement that the scheme of loan is named as Swarna Mitra, the rate of interest is 20% and the tenure of the loan is one year. The complainant has to remit the interest amount within the loan tenure avoiding penal interest. In case of default the increased rate of additional 3% is applicable after the expiry of the loan tenure. It is duly signed by the complainant and branch manger of the opposite party and also issued a pawn ticket to the complainant clearly mentioned the interest, Penal interest, tenure of the loan and also terms and conditions of the loan. These are all admitted by the complainant after thoroughly understood all these aspects complainant was never approached to the opposite party . No evidence to show that complainant was approached to the opposite party for taking back the gold ornaments by paying the entire amount along with interest. As per version of opposite parties opposite party arguing that ornaments pledged public auction for sale by the opposite parties issuing notices on 07.07.2013 and displayed in the notice board of the branch office. More over opposite party directly contacted the complainant and intimation regarding the above pledged gold ornaments, all the efforts of the opposite party complainant did not come forward to pay any amount either to redeem the pledged gold or to make any payment towards the loan account. No contra evidence issued by the complainant to substantiating their evidence if there is an admitted agreement between them. Opposite party has a right to act upon them by considering the complaint and version and showing two receipts produced by the complainant . Opposite party complied all the formalities no deficiency of service on the part of opposite parties as alleged by the complainant. Therefore complaint is liable to be dismissed.
Pronounced in the open court this the 11th day of August 2014.
Date of filing:25.11.2013.
SD/-PRESIDENT SD/- MEMBER SD/-MEMBER
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
