BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD                                        :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  : MEMBER

C.C. No. 409/2011 Filed on 28.12.2011

Dated: 15.07.2014

Complainant:

 

Saseendran Nair, S/o Chandrasekhara Pillai, ‘Aswathy’, T.C No. 19/72, Thirumala P.O, Thiruvananthapuram-6.

 

                    (By adv. Neyyattinkara N. Mohanachandran)

Opposite party:

 

The Branch Manager, Manappuram General Finance & Leasing Ltd., Karamana Branch, Thiruvananthapuram-2.  

 

   (By adv. Asok Kumar. J.S)

 

This C.C having been heard on 05.07.2014, the Forum on 15.07.2014 delivered the following:

ORDER

SRI. G. SIVAPRASAD:  PRESIDENT

The facts leading to filing of the complaint are that complainant had pledged 36.2 gm of gold ornaments with the opposite party, the Branch Manager, Manappuram General Finance & Leasing Ltd., Karamana Branch on 19.12.2009 and obtained an amount of Rs. 53,400/-, that complainant was ready and willing to pay Rs. 53,400/- with interest to opposite party, but opposite party demanded huge interest and complainant could not take back the gold ornaments, that lastly, when complainant approached the opposite party on 19.08.2011 to get back the ornaments, opposite party stated that the gold ornaments were sold in auction in the month of June 2011, that before selling the gold ornaments in auction opposite party had not served any notice to the complainant, that there is clear violation of the principles of natural justice on the part of the opposite party.  Hence this complaint to direct opposite party to return the gold ornaments after receiving the pledged amount with interest from the complainant, along with compensation and cost. 

Opposite party, on being served, entered appearance and filed its version contending interalia that the averment in para 1 of the complaint is correct, that complainant never approached the opposite party to take back the gold ornaments, that complainant was not ready to release the gold even after the loan period is over and after several demand notices was sent to him, that the gold ornaments were sold through auction sale on 14.05.2011, after complying all legal formalities, that opposite party had given sufficient time to complainant for the repayment of the loan amount and to release the gold ornaments. There is no deficiency in service or unfair trade practice on the part of the opposite party.  Hence opposite party prayed for dismissal of the complaint with cost.   

The points that arise for consideration are:-

1. Whether there is deficiency in service on the part of the opposite party?

2. Whether the complainant is entitled to the reliefs as prayed for?

In support of the complaint, complainant has filed proof affidavit and has marked Exts. P1 to P4.  In rebuttal, opposite party has filed proof affidavit and has marked Exts. D1 to D9.

Points (i) & (ii):- There is no dispute on the point that complainant had pledged 36.2 gms of gold ornaments with the opposite party on 19^th December 2009 and obtained an amount of Rs. 53,400/-.  There is no dispute on the point that opposite party had issued cash receipt to the complainant on the same day itself.  It has been the case of the complainant that when complainant approached the opposite party to take back the gold ornaments, the opposite party demanded huge interest and hence he could not take back the said ornaments.  It is pertinent to note that complainant has not mentioned in the complaint the date on which he approached the opposite party to take back the said ornaments.  What has been mentioned in the complaint is that lastly he approached the opposite party on 19.08.2011, on that date, it came to the notice of the complainant that the pledged gold ornaments were sold in auction in the month of June 2011.  The very case of the complainant is that opposite party had not served any notice to him and opposite party had violated the terms and conditions of the contract between parties.  Complainant has led evidence by oral testimony of PW1 and Exts. P1 to P4.  Ext. P1 is the customer copy of the pledge.  Evidently by Ext. P1 complainant had pledged 36.2 gms of gold ornaments and received Rs. 53,400/- from the opposite party.  Ext. P2 is the copy of the advocate notice dated 01.09.2011 addressed to opposite party.  Ext. P3 is the copy of the advocate notice.  Ext. P4 is the copy of the acknowledgement card.  Complainant has been cross examined by the opposite party.  During cross examination, PW1 has admitted Exts. D1 to D5.  Ext. D1 is the original pawn ticket.  PW1 has admitted his signature seen in Ext. D1.  In Ext. D1 the name of the complainant mentioned as Sasidharan Nair.  As per Ext. D1 the reset period is 30 days.  During the reset period, rate of interest is 24%.  At the bottom of Ext. D1, it is written that interest after reset period – 31 to 90 days 27% per annum, 91 and above days 30% per annum.  PW1 has admitted the signature seen in Ext. D2.  As per Ext. D2 the pledge period is one month.  As per Ext. D2, if complainant fails to release the pledge after the pledge period, the same will be sold in auction, the said instruction was admitted by the complainant.  PW1 has also admitted the signature seen in Ext. D3 promissory note.  A perusal of Ext. D3 reveals complainant has promised to pay a sum of Rs. 53,400/- with interest at the rate of 24% for the first one month.  Particulars of auction such as registered notice dated 06.07.2010, notice of sale dated 18.01.2011, Auction held on: 14.05.2011, amount credited to loan account: Rs. 72,953/- and balance due from pawner: Rs. 6,896/- are recorded in Ext. D3.  During cross examination when asked about the address seen in Ext. P1, PW1 deposed that address is correct except those written as ‘Aswathy Nair’.  When asked whether that mistake was informed to opposite party, PW1 deposed, “not informed”.  PW1 had admitted that the original of Ext. P1 is with him.  Further PW1 has admitted that the phone number written on Ext. D1 is his phone number.  PW1 has also admitted that opposite party had contacted him over phone, thereupon he went to opposite party’s office and paid interest also, but to corroborate the same, no documents furnished by PW1.  PW1 has admitted that the address shown in pawn ticket and the address shown in Ext. D4 and D5 are one and the same.  Though PW1 agreed to produce the voters ID, the same was not produced before the court.  Complainant’s case is that no notice was served to him by the opposite party before auction.  PW1 denied the suggestion put up by the opposite party that notice was issued by opposite party in the address given by the complainant.  It is pertinent to point out that the address mentioned in Ext. P1, D4 and D5 are one and the same.  Ext. P1 is in the custody of the complainant.  Complainant never approached the opposite party for correction of address, nor complainant issued any letter to that effect to the opposite party.  Complainant has no case that opposite party had written wrong address when complainant tendered correct address.  The very case of the complainant is that opposite party had sold gold ornaments pledged in auction without serving notice to him and thereby opposite party has violated the terms and conditions of the contract.  Ext. D6 is the reply notice dated 24.09.2011 to notice dated 01.09.2011 issued by the complainant.  Ext. D7 is the copy of the statement of account as on 24.09.2012 issued by the opposite party.   Ext. D8 is the Mathrubhumi daily dated 10^th May 2011.  A perusal of Ext. D8 reveals that opposite party has published auction sale notice in Ext. D8.  Ext. D9 is the auction sale details.  As per Ext. D9 opposite party had incurred a loss of Rs. 6,896/- by auction sale.  Opposite party has been cross examined as DW1 by the complainant.  During cross examination, opposite party has admitted that in Ext. D8 the name of pawner or pawn No. not mentioned.  DW1 has added that prior to Ext. D8, notice was sent to complainant and auction date and time was also published in the concerned branch office.  DW1 denied the suggestion put by the complainant that complainant came to know the auction of pledged ornaments only when he approached the opposite party to take back the pledged ornaments.  DW1 has deposed that opposite party has contacted the complainant through notice by post and also over phone.  DW1 has further deposed that auction sale was done by opposite party after meeting all legal formalities.  It is pertinent to point out that PW1 has deposed that the phone number written in Ext. D1 is his phone number and opposite party had contacted him over phone and thereupon he went to opposite party’s office and paid interest.  Thus evidently opposite party had contacted the complainant over phone, but there is no material on record to show that complainant had remitted interest to opposite party.  The burden of proof would lay on the part of the complainant.   Complainant failed to do so.  Further as regards address seen in Ext. P1, D4 and D5, all are one and the same.  Complainant has admitted that the original of Ext. P1 is with him.  It is pertinent to note that Ext. P1 was issued by opposite party at the time of pledging.  It is the duty of the pledger to verify the address mentioned in the pledge receipt issued by the opposite party and get the pledge receipt corrected, if any mistakes crept in it.  Complainant has no case that opposite party has written wrong address.  Exts. D4 and D5 would show that opposite party had sent notice to complainant in the address shown in Ext. P1.  We cannot afford to overlook the contention of the opposite party that sufficient time was given to the complainant by the opposite party for repayment of the loan amount and complainant willfully ignored the repeated intimation to release the pledge and as pledged gold is the only security for the loan advanced by the opposite party, opposite party had no other option than to sell the gold ornaments for realization of the amount due in action, after complying all formalities on 14.05.2011.  As per Ext. P1, reset period interest is 24%.  After reset period, rate of interest would vary.  Complainant has never produced any paper to show that he had remitted interest to opposite party.  On going through the complaint, version, evidence available on record and on hearing the arguments of both the parties, we are of the view that opposite party had acted as per terms of the agreement after complying all legal formalities.  Complainant has failed to establish his case.  There is nothing on record to attribute any deficiency in service on the part of opposite party.  Hence we find complaint has no merits at all which deserves to be dismissed. 

In the result, complaint is dismissed.  Parties shall bear and suffer their respective costs.      

 

 

 

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. 

 

          Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of July 2014.

 

Sd/-

G. SIVAPRASAD                   : PRESIDENT

 

          Sd/-

R. SATHI                      : MEMBER

 

          Sd/-

                                                                        LIJU B. NAIR                : MEMBER

 

 

jb

 

 

 

 

 

 

C.C. No. 409/2011

APPENDIX

  I      COMPLAINANT’S WITNESS:

          PW1  - Saseendran Nair

 II      COMPLAINANT’S DOCUMENTS:

          P1     - Customer copy of the pledge

P2     - Copy of advocate notice dated 01.09.2011.

P3     - Copy of postal receipt

P4     - Copy of acknowledgement card

III      OPPOSITE PARTY’S WITNESS:

          DW1 - Jaya Raj

 IV     OPPOSITE PARTY’S DOCUMENTS:

D1     - Original Pawn Ticket

          D2     - Conditions of pledge

          D3     - Loan receipt dated 19.12.2009.

          D4     - Registered letter with A/D issued by opposite party

          D5     - Registered letter with A/D issued by opposite party

          D6     - Reply notice dated 24.09.2011

          D7     - Copy of statement of account as on 24.09.2012 issued by O.P

          D8     - Mathrubhumi daily dated 10.05.2011

          D9     - Auction sale details

                                                                                                     Sd/-

PRESIDENT

jb