THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
C.C.253/2006
Dated this the 5th day of August, 2016
(Smt. Rose Jose, B.Sc, LLB. : President)
Smt.Beena Joseph, M.A : Member
Sri. Joseph Mathew, M.A., L.L.B. : Member
ORDER
Present: Joseph Mathew, Member:
This petition is filed under Section 12 of Consumer Protection Act, 1986.
The case of the petitioner is that, he had availed gold loan for Rs.3,06,550/- from the opposite party’s Finance Company by pledging 608.50 gms. of gold ornaments on various occasions during the period from 08/01/2004 to 21/03/2005. On 16/02/2006 he approached the 2nd opposite party to take back the entire gold pledged after clearing the total loan amount with interest. Then the 2nd opposite party told him that the entire gold were sent to their Head Office at Ernakulam for some sort of verification and he can take it back by the end of the month. Thereafter though he had approached them for many times to take back the pledged articles they didn’t return the same till date.
Thereupon he sent a lawyer notice dated 05/05/2006 demanding to return the ornaments after accepting the loan amount and interest. The opposite parties received the notice but they didn’t return the gold or even send a reply to that notice. According to the petitioner the market value of the pledged gold would come more than Rs.5,00,000/-. The said act of the opposite parties amounts to unfair trade practice and also deficiency in service on their part and that caused heavy financial loss, mental agony and other hardships to him. Hence this petition is filed for getting an order directing the opposite parties to return him the pledged articles after receiving the loan amount with legally admissible interest and to pay Rs.50,000/- as compensation for his sufferings and Rs.1,000/- as cost of the proceedings.
The opposite parties filed version with the following contentions. It is admitted that the petitioner had pledged gold ornaments with them on the dates starting from 08/01/2004 and ending with 21/03/2005 and received the said amount. it is stated that in item No. 1, the weight of gold pledged was only 128.59 gms. against the statement of the petitioner that it was 132 gms.
According to them, as per the general conditions stipulated by the company and agreed by the pledger, it is the duty of the pledger to pay and redeem the pledged articles in the 12th month of the loan, but the petitioner has not complied with the said stipulation. It is stated that the petitioner had previously taken loans several times by pledging ornaments and as a regular customer he very well knows the practice and procedural formalities of the company. They have sent registered notice informing him that, if the loan is not closed, the ornaments will be sold without further notice. Though he had received all the notices he didn’t approach them and therefore they have effected conversion in the ordinary course of business which is done at their Head Office at Ernakulam. It is further stated that they are doing money lending business and not running Jwellery shop and so it is not practical for them to keep all the pledged ornaments left without redemption safe in their custody indefinitely.
It is further stated that the petitioner had contacted them only thorough the registered lawyer notice dated 10/05/2006 for the first time after the last transaction dated 21/03/2005. Once the period of waiting is over and the pledged items are converted into money, the petitioner has no right to demand return of the ornaments. It is their experience that some clever loanees keep quiet for the said period and later after really knowing that the pledged items are disposed off and if the market rate of the gold is on the ascendency come forward with claims of this sort as an experiment. They are doing business under the R.B.I. directions from time to time. This petition is filed as an experiment with ulterior motive to attain undue financial gain. There is no unfair trade practice or any deficiency in service on their side and they are not liable to return the pledged ornaments or compensate the petitioner as alleged. Hence prayed to dismiss the petition with their cost.
The matters to be decided are:
Whether there is any unfair trade practice or deficiency in service on the part of the opposite parties?
Reliefs and cost if any?
Evidence consists of the affidavits filed by both the parties, Ext. A1 to A8, B1 to B3, and deposition of PW1, PW2 and RW1.
During the course of the proceedings the petitioner expired and as per the order in I.A. No.217/2009 his legal heirs were impleded as supplemental petitioner 2 to 5 in the petition.
Point No. 1: It is argued by the learned counsel for the opposite parties that the terms and conditions of the gold loan is clearly written on the overleaf of the loan receipts and as per condition No. 2, agreed to by the pledger by signing at the bottom, it is the duty of the pledger to pay and redeem the pledged articles within 13 months of the loan and if it is not done, they are entitled to put the articles on auction without any further notice to the pledger and realize the amount due with interest and cost from the sale proceeds. They have issued registered demand notices with A/d cards pertaining to all the 16 gold loans, but the petitioner though received the notices didn’t turn up to redeem the pledged ornaments after paying the loan amount and interest or to renew the same by paying interest. They produced Ext. B2 series to prove the same. They also produced Ext. B3 ie. the copy of the statement showing the amounts due with interest and the amounts recovered by the auction. This shows that the amounts recovered was less than the amounts due from the petitioner.
According to the opposite parties the gold was auctioned on 25/03/2006 and it was only on 10/05/2006 the petitioner issued the lawyers notice for the first time demanding return of the pledged articles. But once it was auctioned the petitioner has no right to demand the same back.
Though the petitioner stated that on 16/02/2006 he had approached the 2nd opposite party for taking back the pledged ornaments after paying the amount with interest, no evidence was adduced by him to prove the same. Ext. A1 series are the receipts pertaining to each of the 16 loan amounts and in each receipts the amount taken as loan, its normal interest rates, penal interest on default and also terms and conditions of the loan agreement are all clearly printed on it. So it is the duty of the petitioner to remit at least the interest of the loan amounts within the time period and to get the loans renewed in order to avoid auction. But this was not done by him. The petitioner produced the copy of the petition given to the Regional Manager of the 1st opposite party company requesting him to direct the 2nd opposite party to return the ornaments after accepting the loan amount with legally permissible interest. This was marked as Ext. A2. In cross examination he deposed that even after receiving Ext. A2 petition the opposite party has not take any steps in this regard. Ext. A2 is dated 05/08/2005. If the petitioner is having any dis-agreement with the terms and conditions of the loan or interest rates or to the response of the opposite parties and is really interested in taking back the articles, then he can very well issue a lawyer notice to the opposite parties soon after he came to know that the opposite parties are not ready to make any adjustment in the interest rates even after receiving Ext. A2 application or can file a complaint before the Forum and then the Forum would have been able to take necessary action in this regard. But this was not done by him. So also the petitioner’s daughter Renjitha during cross examination (PW2) deposed that she was well aware of the gold transaction of her father. Even then neither she nor any of the legal heirs of the petitioner was seen approached the opposite party before the auction took place and offered the entire amount to take back the ornaments or to renew the same by paying the interest.
All these show the careless and negligent mentality of the petitioner and his legal heirs in this aspect. No satisfactory explanation was given by them, why they kept ‘mum’ for all these times. Law can help only those who are vigilant in their transactions and not those who are dormant.
Considering all the facts stated and after going through the documents on record, we are of the view that, as the opposite parties are doing business on gold loans, they cannot keep all the pledged ornaments left without redemption in their safe custody indefinitely. They can auction the articles for the recovery of the amount and interest due under the loan after making demand for the payment of the same. In these circumstances it cannot at all be stated that the opposite parties had committed any sort of unfair trade practice or deficiency in service on their side as alleged. Point No. 1 found accordingly.
Point No. 2: In view of the findings in Point No. 1, the petition is liable to be dismissed and the petitioner is not entitled to get the reliefs prayed for in the petition.
In the result, this petition is dismissed. No order as to cost.
Dated this the 5th day of August, 2016
Date of filing: 12/07/2006
SD/-MEMBER SD/- PRESIDENT SD/- MEMBER
APPENDIX
Documents exhibited for the complainant:
A1. Receipt issued by the opposite party (15 No.s in series)
A2. Copy of letter sent to the opposite party
A3. Period wise outstanding gold loan report as on 04/8/2005
A4. Period wise outstanding gold loan report as on02/12/2005
A5. Letter received from opposite party
A6. Acknowledgment card
A7. Postal receipt
A8. Letter received from the opposite party
Documents exhibited for the opposite party:
B1. Blank specimen printed inland letter sent by registered post with A/d.
B2. Gold loan agreement (15 No.s in series)
B3. Statement of account of Gold loan availed by the complainant
Witness examined for the complainant:
PW1. Ravindran Nair (Complainant)
PW2. Renjitha (Complainant)
Witness examined for the opposite party:
RW1. Balan, Badorath House, P.O. Nanminda
Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
