Kerala

Idukki

CC/15/149

Piyyamma Jose - Complainant(s)

Versus

The Manager Thomman Finance - Opp.Party(s)

26 Jul 2019

ORDER

DATE OF FILING :22/04/15

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 26^th day of July 2019

Present :

SRI. S. GOPAKUMAR PRESIDENT

SMT.ASAMOL P. MEMBER

CC NO. 149/2015

Between

Complainant : Piyamo Jose,

Vattakkalam House,

Kolani P.O., Thodupuzha

(By Adv: K.M.Sanu)

And

Opposite Party : The Manager/Proprietor,

Thommans Finance,

Choorappuzha Tower, Pala Road,

Thodupuzha, Thodupuzha P.O.

(By Adv: Johnson Joseph)

 

O R D E R

SRI. S. GOPAKUMAR (PRESIDENT)

 

          The case of the complainant is that, 

 

          Complainant availed a gold loan of Rs.4,04,380/- from opposite party finance by pledging 254.290 grams of gold on 23/03/2011.  In this loan she remitted some amount on 10/09/11, and took one mala and again pledged rest of the gold ornaments weighing 228.110 grams and availed loan of Rs.4,18,000/-.  She remitted a total interest of Rs.1,50,000/- in the loan.  When the complainant approached the opposite party to close the loan account, the opposite party demanded 8 Lakhs rupees as loan dues.  Hence the complainant returned from the opposite party’s office. Subsequently she received a notice from opposite party stating that the opposite party auctioned her gold ornaments and demanded Rs.1,67,805/- as the balance loan dues.

 

Against this notice complainant issued a legal notice to the opposite party.  In reply to this notice opposite party informed that they are ready to return the gold ornaments if the complainant ready to pay Rs.6,54,811/- as loan dues.

 (Cont.....2)

 

-2-

Thereafter the complainant again remitted an amount of Rs.32,550/- by way of interest in this loan account.

 

The complainant further averred that, the opposite party imposed a huge rate of interest against they agreed, illegally, they have no authority to impose such high rate of interest against the norms.  The complainant further stated that she is ready to repay the loan amount along with normal rate of interest.  The pledged ornaments are adorned her at the time of her marriage and it include her thali mala also.  Hence the opposite party is bound to return it.

 

Alleging deficiency in service and unfair trade practice in the above said act of the opposite party, complainant filed this petition seeking relief such as to direct the opposite party return the gold ornaments by settling the amount with interest as per law, and further direct the opposite party to pay compensation for mental suffering and to pay litigation cost.

 

Upon notice opposite party entered appearance and filed detailed written version denying the allegation in the complaint.  Opposite party further contented that, they auctioned the pledged gold ornaments after complying all the proceedings and intimated the matter properly to the complainant.    Hence opposite party is not bound to return the gold ornaments to the complainant.  Opposite party further contented that at the time of availing the loan, the complainant is well aware that the rate of interest is 18% and loan duration is 6 months when the complainant defaulted in paying the interest in the stipulated period, the opposite party intimated him through notices and through telephone for paying the interest.  Thereafter opposite party issued a demand notice to the complainant stating that if the complainant not closing the loan account, they will auction the gold ornaments on 24/08/13.  Even though this notice was received by the complainant on 06/08/13 she has not cared to close the loan account.  Hence the oposite party auctioned the gold ornaments for Rs.4,87,000/- and adjusted this amount to the loan account of the complainant.  As on that date the balance amount due in the loan account is Rs.1,67,811/- and the complainant is bound to pay it.

(Cont.....3)

 

-3-

 

Opposite party further contented that opposite party has intimated the complainant that, if the complainant remits the entire loan amount, opposite party will make arrangement to take back the gold ornaments from the auction purchaser.   But the complainant was not amenable for that.

 

Opposite party further contented that opposite party has not demanded Rs.8 Lakhs at any point of time as loan dues from the complainant and more over opposite party is forced to auction the gold ornaments due to the non complaince of the loan agreement by the complainant.

 

Hence there is no question of any deficiency in service or unfair trade practice arises, and the complaint is liable to be dismissed.

 

During the course of trial complainant filed a petition, for directing the opposite party to produce the loan ledger and statement of her loan account from the month of March 2011, before the Forum.  This petition was numbered as IA 161/15.  After hearing both sides, the Forum allowed the petition and directed the opposite party to produce the documents stated in the petition.

 

Evidence adduced by the complainant by way of proof affidavit and documents.  Complainant was examined as PW1 and Ext.P1 to Ext.P4 were marked.  Ext.P1 is the copy of pledged receipt 4 in numbers.  Ext.P2 is the copy of pledged receipt dated 10/09/11, Ext.P3 is the lawyer notice, Ext.P4 is the reply notice.

 

From the opposite party side opposite party produced copy of auction notice dated 24/08/13 marked as Ext.R1, copy of pledge receipt dated 10/09/11 marked as Ext.R2, postal receipt and AD card marked as Ext.R3, copy of statement and copy of ledger for the month of March 2011 are marked as Ext.R4 series.

 

Heard both sides,

 (Cont.....4)

 

-4-

          The point that arose for consideration is whether there is any deficiency in service from the part of opposite parties, and if so, for what relief the complainant is entitled to?

 

The Point:- We have heard the counsel for both sides and had perused the documents, it is an admitted fact that complainant pledged her ornaments to the opposite party on 10/09/11 and availed a loan of Rs.4,18,000/-.  As per the statement of account that opposite party produced as demanded by the complainant, and marked as Ext.R4 series, complainant paid an amount of Rs.32,550/- from 10/11/2011 to 02/08/14 by way of interest towards the loan account.  It is also an admitted fact that the opposite party intimated the matter of auction to the complainant through Ext.R1 auction notice, and the notice was properly served to the complainant on 06/08/2013.  It is evident from Ext.R3 postal receipt and AD card.  After waiting for 22 days, the opposite party auctioned the gold ornaments, and as per records opposite party received Rs.4,87,000/- by way of auction and credited the amount to the loan account of the complainant on 12/09/14.  On that date of loan account of the complainant shows Rs.1,67,805/- as loan dues.

 

Here the pertinent question arises that, how the opposite party calculated the rate of interest and from which documents opposite party substantiated it.

 

For clarifying his doubt complainant demanded to produce the ledger of the year 2011 and statement of account.  In return to it opposite party produced a calculation of interest paid by the complainant and copy of the page No.59 of the ledger.  The entries in the ledger towards the name of the complainant shows the loan amount, interest paid, the credited auction amount and balance loan dues.  On perusal of the documents Forum found that, this document is not sufficient to clear the doubt of the complainant in calculating the interest.  Opposite party is bound to disclose the calculation of interest in the loan account from the date of loan and till the date of auction.  The complainant is demanded such a documents through her interim application.  More over opposite party has not produced any documents to convince the Forum that when the gold ornaments are auctioned or who is the auction purchaser, what is the actual price of gold per gram on the date of auction.

 (Cont.....5)

-5-

The statement of loan account from 10/09/11 to the date of auction is a necessary document to strengthen the version of the opposite party.  It is the primary documents to ascertain that how this much amount is arrived in this account as interest.    Without perusing the documents Forum is not in a position to consider the contentions of the opposite party that stated in the reply version.  The non- production of the statement of loan account created doubt in calculating the interest and demanding of Rs.1,67,805/- as balance loan dues.  It is the duty of the opposite party to counter the allegation of the complainant with clear and cogent evidence.  Due to the absence of valid evidence on the part of the opposite party to challenge the averment of the complainant, the version of the complainant is acceptable and believable.

 

On the basis of above discussion Forum is of a considered view that complainant is established her case by way of oral and documentary evidence.  Hence complaint allowed.  Opposite party is directed to close the loan account of the complainant and withdrawn from further proceedings for the recovery of the balance loan amount.

 

Pronounced in the Open Forum on this the 26^th day of July, 2019.

 

Sd/-

SRI. S. GOPAKUMAR (PRESIDENT)

Sd/-

SMT. ASAMOL P. (MEMBER)

 

 

 

 

 

 

 

 

 

 

 

 

 

(Cont.....6)

-6-

 

APPENDIX

 

Depositions :

On the side of the Complainant :

PW1 - Piamma Jose

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1 - The copy of pledged receipt 4 in numbers

Ext.P2 - The copy of pledged receipt dated 10/09/11

Ext.P3 - The lawyer notice

Ext.P4 - The reply notice.

On the side of the Opposite Party :

Exr.R1 - Copy of auction notice dated 24/08/13

Ext.R2 - Copy of pledge receipt dated 10/09/11

Ext.R3 - Postal receipt and AD card

Ext.R4 series - Copy of statement and copy of ledger for the month of

March 2011

 

Forwarded by Order,

 

 

SENIOR SUPERINTENDENT