IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 24th day of August, 2019.
Present: Sri. Manulal.V.S, President
Smt..Bindhu.R, Member
CC No. 141/14(Filed on 31/05/2012)
Complainant : Lal
S/o Ramakrishnan,
Lal Nivas, Vengaloor
Thodupuzha.
(Adv. Akash K.R)
Vs
Opposite parties : 1) Manappuram General
Finance&Leasing Ltd., Opp.Private
Bus stand, Kaloor, Ernakulam.
2) Manappuram General Finance &
Leasing Ltd., Opp.Federal Bank,
Thodupuzha.
(OP 1&2 Adv. V.T.Rejimon)
O R D E R
Sri. Manulal.V.S, President
The complainant case is as follows:-
The complainant had borrowed a loan from the 2nd opposite party by pledging gold. The 2nd opposite party’s has published an advertisement stating that the gold loan is available from them at the rate 1% per month for Rs.100/-. Attracted by the advertisement, the complainant approached the 2nd opposite party for a loan. The manager of the 2nd opposite party made to believe the complainant that there is only a very low rate of interest and there would be no increase in the interest rate. Believing the advertisement and assurance given by the manager of the 2nd opposite party the complainant availed a loan of Rs.42,700/- from the 2nd opposite party by pledging gold ornaments. The complainant further states that he had been paying the interest regularly. But to the quiet dismay to the complainant on 07/08/2008 the 2nd opposite party issued a notice to the complainant stating that the period of loan would terminate on 20/10/2008 and demanded that the full and final settlement of loan on or before 25/10/2008. On receiving the notice complainant approached the 2nd opposite party, then the 2nd opposite party demanded as exorbitant rate of interest. Complainant paid Rs.1184/- to the loan account. The 2nd opposite party again issued a notice to the complainant that the loan period will end on 13/10/2008 and demanded to redeem the gold on or before 20/10/2008. Then the complainant approached the 2nd opposite for closing of loan the 2nd opposite party demanded exorbitant interest than the rate assured by them. Complainant issued a lawyer’s notice to the opposite party. But opposite parties did not take any steps to redress the grievance. The act of the opposite parties amounts to deficiency in service and unfair trade practice. Hence the complaint.
The opposite parties filed joint version and contented as follows:-
The opposite party is a non-banking finance company registered with the RBI under the provisions of Chapter III B of the RBI Act 1934. There is only debtor and creditor relationship between the complainant and opposite party and this petition is not maintainable. Opposite party further states that complaint is hit by Order 9 Rule 9 of CPC since the same petition was dismissed by another Forum. The opposite party never made an advertisement offering interest rate of 1% for Rs.100/-. The complainant availed a loan of Rs.42,700/- from the opposite party by pledging gold ornaments on 7/8/2008. But the opposite party never assured the interest rate 1% at the time of availing loan. The complainant himself selected the scheme and he had admitted all terms and conditions of the agreement while availing the gold loan. The complainant is fully aware of the rate of interest, as such rates are disclosed to the complainant at the availing of loan. The rate of interest applicable is clearly mentioned in the pawn ticket issued to the complainant. As a matter of contract between the complainant and opposite party, the complainant is bound to pay the loan amount alongwith the interest as per the loan agreement. The complainant is trying to escape from his responsibility of paying the agreed amount by making false allegations. There is no deficiency of service or unfair trade practice from opposite parties. Hence the opposite parties prayed for the dismissal of complaint with the cost of opposite party.
On the basis of complaint, version and records we framed the following issues for consideration.
- Whether the complaint is maintainable?
- Whether there is any deficiency in service from the side of the opposite parties?
- Reliefs and costs?
Point No.1
Originally this complaint is filed before the CDRF Idukki and vide order in TP 03/2014 the Hon’ble State Consumer Disputes Redressal Commission transferred this case to this Forum. The case of the complainant that the complainant initially filed a complaint before the CDRF Ernakulam and it was dismissed by the learned forum for default. That order was set aside by the Hon’ble State Consumer Disputes Redressal Commission in appeal. The learned CDRF later found that the CDRF Ernakulam has no jurisdiction and returned the complaint with a direction to file before appropriate forum. Though the complainant challenged order an appeal, but failed. Then this complaint is filed. The opposite party contented that the complaint is hit by Order 9 Rule 9 of CPC. In Indian Machinery Company Vs. M/s. Ansal Housing & Construction Ltd the Hon’ble Supreme Court has observed
“Thus there is no provision parallel to the provisions contained in Order 9(1)CPC which contains a prohibition that if a suit is dismissed in default of the plaintiff under Order 9 Rule 8, a second suit on the same cause of action would not lie. That being so, the rule of prohibition contained in Order 9 Rule 9(1)CPC cannot be extended to the proceedings before the District Forum or the State Commission. The fact that the case was not decided on merits and was dismissed in default of non-appearance of the complainant cannot be overlooked and, therefore, it would be permissible to file a second complaint explaining why the earlier complaint could not be pursued and was dismissed in default. In the light of apex courts decision we are in the opinion that there contention raised by the opposite party could not sustain. Another contention raised by the opposite party is that there is only a debtor and creditor relationship between the complainant and opposite party. Both the parties admitted that the complainant availed the service of the opposite party by availing loan from opposite party by pledging the gold ornaments. Thus we find that point No.1 in favour of the complainant and answered accordingly.
Point No.2
There is no dispute in the fact that the complainant availed loan from the opposite party by way of pledging gold ornaments and received the loan amount. It is submitted by the complainant that he approached the 2nd opposite party attracted by Exhibit A1 and A1(a) advertisement in the newspaper that they were giving loan with 1% interest for Rs.100/-. Thereafter 11-9-08 the complainant paid Rs.1184/- vide A2 receipt. On 7-8-2008 the 2nd opposite party issued A5 notice stating that tenure of loan would end on 13-10-2008 and demand to redeem the gold before 20-10-2008, otherwise the opposite party would take the step to sell the gold on auction without any further notice. Ext. A3 is the notice issued by the 2nd opposite party stating that period of loan will end on 18-10-2008 and demanding to close the loan before 25-10-2008. On 20-10-2008 the complainant remitted Rs.1,501/- to the opposite party vide Ext.A3. The specific case of the complainant is that when he approached the 2nd opposite party for the closure the loan, the 2nd opposite party demanded exorbitant rate of interest than in Ext.A1 and A1(a) advertisement. The opposite party denies the publication of Ext.A1 and A1(a). Though, the PW1 deposed in the affidavit that Ext.A1 and A1(a) is an advertisement published in Manorama daily, the document does not bear the date of publication. On perusal it can be seen that Ext.A1 and A1(a) is only the bottom portion of the piece of news paper. Our predecessors marked Ext.A1 and A1(a) is subject to proof. The complainant did not take only steps to prove the same. So we are in the opinion that complainant is failed to prove the Ext.A1 and A1(a) advertisement..
The specific case of the opposite party is that the complainant himself selected the scheme of the loan and admitted the terms and conditions of the agreement. Exts.A8 and A9 is the terms and conditions of the loan and pawn tickets respectively. In Ext.A9 it is recorded that the scheme of loan as(X). As per Ext.A8 terms and conditions of the loan agreement, the agreed rate of interest is 26.88% per annum. It is stated by the opposite parties that they are non-banking financial company registered under the provision of chapter 111 B of RBI Act 1934 and they are charging interest, risk interest on agreed by the parties, as per the fair practice code formulated by them in response to the guidelines of RBI. It is contented by the opposite parties that there is no deficiency in service or unfair trade practice by them and the complainant is bound to pay interest @ 26.88% per annum as agreed in Ext.A9. When we peruse the Ext. A8 and A9, the term of loan is for one month with an interest rate of 26.88% per annum. That means Rs.11,477.66 for one year and Rs.956.48 per month. As per Ext.A2, complainant has paid Rs.1184/- on 11/9/2008, that is an excess amount of Rs.227.48/-. Ext.A3 proves that on 20/10/2008 the complainant remitted Rs.1501/- which is also an excess Rs.544.52 than the agreed rate of interest. The opposite party did not adduce any evidence on which basis they collected the excess amount and under which head they debited the same. Though the DW1, who is the present manager of 2nd opposite party, deposed that the ledger and pawn tickets are the authentic records regarding the loan account, the ledger is not produced before this forum. As per clause No.2 of Ext.A8 opposite party is entitled to realize 2% penal interest for late payment. But opposite party is not adduced any positive evidence regarding to the amount they collected as penal interest. Though the Exts. A2 and A3 prove that the opposite party has levied excess amount from the complainant, the opposite party has not explained under which head the excess amount is debited. Since the opposite party did not explain under which head the excess amount has been debited, we can inter that opposite party has received the interest than the agreed rate of interest. Even though the complainant is bound to pay the interest as 26.88% per annum, levying excess interest amounts to deficiency in service. Therefore we would like to find that the opposite party has committed deficiency in service.
In the result the complaint is allowed in part and we pass the following orders.
The opposite parties are directed to receive the loan amount with interest at the rate of 26.88% per annum from complainant till 31-5-12, the date of filing of this complaint and thereafter 14% per annum and return the gold ornaments pledged by him.
The parties are directed to suffer their respective costs.
Pronounced in the Open Forum on this the 24th day of August, 2019
Sri. Manulal.V.S, President Sd/-
Smt..Bindhu.R, Member Sd/-
Appendix
Witness examined on the side of the complainant
PW1-Lal R. Kallipa
Exhibits marked on the side of the complainant
A1- is paper cutting of manoramma daily
A1(a) is the paper cutting of manorama daily
A2-is receipt dtd 11-9-2008
A3- is receipt dtd 20-10-2008
A4- is the letter dtd 7-8-2008
A5-is the is the letter dtd 7-8-2008
A6-is the copy of lawyer’s notice dtd 10/11/2008
A7-is the postal receipt
A8-is the copy of terms and conditions
A9-copy of pawn ticket
Witness examined on the side of the Opposite party
DW1-Priyalal N.G
By Order,
Senior Superintendent
