PER MR SUBHASH CHANDRA, PRESIDING MEMBER

        This review petition filed under section 21(b) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order of the State Consumer Dispute Redressal Commission, West Bengal (in short, ‘State Commission’) in First Appeal No. 1195 of 2013 dated ­­­­08.10.2013 dismissing the appeal against the order of the District Forum, Barasat, North 24 Parganas (in short, ‘District Forum’) dated 08.10.2013 in Complaint No. 258 of 2013.

 2.    In brief, the facts of the case are that the respondent approached the petitioner who is a company under the Companies Act, 1956 engaged in the business of providing loans against the pledge of gold ornaments at its Sodepur branch office, District North 24 Parganas and obtained a loan of Rs 3,50,980/- by pledging various gold ornaments weighing 366.8 gms (gross, including stones)/net 308.31 gms on different dates between 03.07.2009 and 10.07.2009. The terms and conditions of the said loan required full repayment on or before 12 months failing which the pledged items would be sold by auction. As no repayment was done by August 2010 registered auction notices were issued on 18.02.2011 and 21.02.2011 which were returned with endorsement ‘left’. All but one ornaments pledged were auctioned on 24.05.2011 after a further period of 10 months from the date of expiry of the pledge.  The surplus sum of Rs.1,04,021/- was sent to the respondent which was material undelivered. It is the petitioner’s case that they have acted as per the terms and conditions of the scheme under which the loan was provided and have therefore prayed for setting aside of the State Commission’s order in so far as it relates to directing them to hand over the pledged gold ornaments against the repayment of the loan amount. 

3.     The order of the District Forum dated 08.10.2013 in Complaint No. 258 of 2013 reads as below:

“In view of our above finding, the petition of complainant under section 12 of the Consumer Protection Act, 1986 is liable to be allowed and is allowed accordingly, hence ordered:

That the OPs are jointly and severally directed to hand over all the pledged ornaments, given in security to the OPs as per acknowledged granted by them, to the complainant on payment of principal amount together with interest accrued thereon at the agreed rate of interest to be calculated upto the date of filing of this case from the date of taking loan in respect of the respective loan account within one month from the date of completion of the calculation of the total dues.

The calculation of the total dues has to be completed within a month from the date of this order. The compensation and the litigation cost taken together is assessed at Rs.25,000/- which will be paid by OPs to the complainant on the date of settling the account of loan account.”

4.     The impugned order of the State Commission in FA 1195 of 2013 is as follows:

“According to section 176 of the Indian Contract Act, 1872 before putting pledged goods on sale, pawnee has to give a reasonable notice to debtor, before the actual action. The owner or pledge should have an opportunity to redeem the pledged goods. When the notice appears to be defective one which does not contain any signature or seal of the pawnee company and it is only in a printed form written in “Hindi” language and further no application was made to the public for such auction, it was a clear deficiency on the part of appellant company.

Therefore, on evaluation of materials on record we find both the parties were in default in complying with the agreed terms and conditions arrived at in between them at the time of giving or taking loan. Since the appellant company have failed to prove that the ornaments kept in mortgage by the respondent was sold in auction we think the learned District Forum was quite justified in allowing the consumer complaint with a direction upon the OPs to hand over all the pledged ornaments to the OPs on payment of principal amount together with interest accrued thereon.

However, we do not subscribe the view of the learned District Forum in imposing compensation and litigation costs upon the appellants/ opposite parties in as much as there was negligence on the part of both the parties. Had respondent been careful in repayment of loan with interests within the time frame this litigation could have been avoided and as such we do not find any justified for assessment of Rs.25,000/- as compensation and litigation costs. Accordingly, this part of order is liable to be set aside.

For the reasons aforesaid, the appeal is allowed on contest in part but without any order as to costs.

The impugned judgment is modified to the extent that the appellants being OP’s jointly shall hand over all the pledged ornaments given in security to them the respondent/ complainant on payment of principal amount together with interest thereon to be calculated till the date of filing of this complaint from the date of taking loan within one month from date.

In the event failure on the part of appellants to comply with the order, the respondent/ complainant shall have liberty to execute the same before the learned District Forum in accordance with sections 25 and 27 of the Act”.

5.     The petitioner is now before this Commission by way of a revision petitioner with a prayer to set aside this order of the State Commission as being wrong, erroneous and unsustainable on the grounds that the finding of the State Commission in respect of the auction notice being in Hindi and non-publication of the notice is bad in law as there is no form of publication prescribed under section 176 of the Contract Act. It is also contended that the lower fora have failed to appreciate the terms and conditions of the agreement including clause 6 making it obligatory for the respondent to convey any change in address. As the petitioner exercised due diligence in intimating the respondent by way of notices, he had acted correctly in terms of the terms of the agreement. The order is not implementable as all the pledged gold ornaments except one are already auctioned. 

6.     The respondent has submitted that the petitioner is liable for deficiency in service as the respondent refused to settle the loan against the pledged gold on some pretext of the other even though he was willing to settle the same. He sent a notice to the respondent by speed post on 20.04.2012 seeking return of the gold ornaments against repayment which was not honoured by the petitioner. It is averred that the intimation of auction by the petitioner was in Hindi and he could not comprehend the same as he does not know the language. He submits that the order of the District Commission dated 08.10.2013 in his favour is a valid order. It is contended that the petitioner is not a consumer under the definition of the Act. It is averred that as there are concurrent findings of the District Forum and State Commission, and as there is no jurisdictional error prima facie in the order, this Commission lacks jurisdiction in the matter in terms of the judgment of the Supreme Court in Rubi (Chandra) Dutta Vs. United India Insurance Company Limited (2001) 11 SCC 269.

7.     We have heard the learned counsel for both the parties and perused the records carefully. The parties filed their written synopsis. Parties argued on the lines of the written synopsis. The petitioner has argued that there is no deficiency in service as the relationship between the parties is that of debtor and creditor and the cause of action does not fall within the meaning of Section 2(1)(g) and (e) of the Act. As the respondent did not repay the borrowed amount, the petitioner auctioned the pledged gold after duly intimating the respondent and even sending the surplus of Rs.1,04,021/- to him which was received back undelivered.      

8.     Heard the learned counsels for the revisionist and the petitioner in person and perused the records carefully. In the instant case there are concurrent findings on facts by the District Forum and the State Commission in favour of the respondent/complainant. The revision petitioner has urged the same grounds that he had urged in the lower fora and relied upon the evidence led by him before the District Forum as well as the State Commission.

9.     This Commission in exercise of its revisional jurisdiction Commission is not required to re-assess and re-appreciate the evidence on record. The findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the fora below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 26 (b) of the Consumer Protection Act, 1986 is therefore, limited to cases where some prima facie error appears in the impugned order. Different interpretation of same sets of facts has been held to be not permissible by the Hon’ble Supreme Court.

10.   The Hon’ble Supreme Court in Rubi (Chandra) Dutta (supra), has held as under:

“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.”

11.   The Hon’ble Supreme Court has reiterated this principle in the case of Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors – (2016) 8 Supreme Court Case 286 and held as under:

“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”

12.   The Hon’ble Supreme Court in T Ramalingeswara Rao (Dead) Through LRs and Ors vs N Madhava Rao and Ors, dated 05.04.2019 has again held as under:

“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

13.   It is apparent that the petitioner has challenged the impugned order on the very same grounds which were raised before the District Forum as well as the State Commission in the appeal. Concurrent findings of facts of these two foras are based on evidences led by the parties and documents on record. The present revision petition is therefore an attempt by the petitioner to urge this Commission to re-assess, re-appreciate the evidence which cannot be done in revisional jurisdiction.

14.   Foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner. It is apparent that the fora below have based their findings on evidence on record. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse. 

15.   In view of the settled proposition of law that where two interpretations of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction, I, find no illegality or infirmity or perversity in the impugned order. The present revision petition is, therefore, found to be without merits and is accordingly dismissed.