Karnataka

Gadag

CC/28/2018

Mahalingappa S/o Shivappa Karigar - Complainant(s)

Versus

Vadiraj S/o Vishnu Rayakar Proprietor Sri Kamaxi Finance - Opp.Party(s)

V.S. Police Patil

10 Jun 2020

ORDER

-::O R D E R::-

 

BY: SMT.C.H.SAMIUNNISA ABRAR, PRESIDENT.

 

1.      The complainant has filed this complaint claiming direction to the OP to return back 13 tolas of Gold which was pledged by him with the OP with Rs.50,000/- compensation, Rs.30,000/- for mental agony and financial loss and  Rs.10,000/- towards expenses and such other relief.

-::Brief facts of the case are as under::-

 

2.      The case of the complainant is that, he has pledged the 13 tolas of gold ornaments with the OP on 15.02.2012 i.e., 2 khade weighing 3 tolas, 2 bangles weighing 6 tolas, gold chain weighing 2.5 tolas, another chain weighing 1.5 tolas and 2 rings and obtained Rs.60,000/-, agreeing to refund within one year with interest @ 14%.  But, complainant failed to do so within the time fixed.  Therefore, the OP issued notice on 24.03.2013.  Thereafter, on 12.04.2013 the complainant paid the entire amount with interest, but the OP did not return the above said gold ornaments and even the OP has not given receipt for having received the amount.  Complainant asked the OP to give receipt, for which the OP told the complainant that, “DzÁAiÀÄ vÉjUÉAiÀÄ ¥ÁªÀw ¸À®ÄªÁV PÉ®ªÀÅ ¢£À £À£Àß ºÀwÛgÀ EgÀ°, EzÀPÉÌ §rØ ºÁQ ¤£ÀUÉ ºÀt PÉÆqÀÄvÉÛÃ£É ªÀÄvÀÄÛ ¤Ã£ÀÄ PÉÆlÖ §AUÁgÀªÀ£ÀÄß ¤£ÀUÉ ªÀÄgÀ½ PÉÆqÀÄvÉÛãɔ.  After few days, complainant asked the OP to return the gold ornaments, but the OP postponed the matter on one or the other reason.  As such, on 02.10.2017 complainant went to give police complaint, but the Police refused to take complaint.  Thereafter, on 26.10.2017, complainant issued notice to the OP through Advocate, OP gave an evasive reply to the said notice.  Complainant is a consumer to the OP, but the OP has done Betrayal of trust with the complainant, which caused mental agony and physical pain, which is a deficiency of service.  The cause of action arose for this complaint in the month of November when the OP issued reply to the notice issued by the complainant.  Hence, the OPs are liable to return back 13 tolas of Gold which was pledged by him with the OP with Rs.50,000/- compensation, Rs.30,000/- for mental agony and financial loss and  Rs.10,000/- towards expenses and such other relief.

  

3.      Registered the complaint and notice was ordered, as such OPs present before the Forum and filed written version, the contents are as follows.

Written Version of the OP

1. The OP contended that complaint of complainant is not maintainable either in law or facts. 
2. It is further submitted that, OP is running jewelry shop under the name and style as Kamakshi Jewellers as well as running a finance business by obtaining license in the year 2005 and lending money on interest as fixed by the Government. 
3. It is further submitted that, on 15.03.2012, complainant for his family problems has obtained loan of Rs.60,000/- by pledging his golden ornaments i.e., chain weighing 23 grams 170 mili and another chain weighing 5 grms for a period of one year.  But, the complainant failed to pay the loan amount within one year.  Therefore, on 10.03.2013, OP issued notice to pay the same and the same was received by complainant on 24.03.2013 and the complainant requested to give some time.  Thereafter, on 12.05.2014, the above said golden ornaments were returned as the complainant paid the amount or Rs.68,420/- along with interest.  It is further submitted that, after taking back the above said golden ornaments from the OP on 19.04.2014, complainant has obtained a loan of Rs.1,95,000/- from Karnataka Bank, Mulgunda by mortgaging the same golden ornaments weighing 121 grams, which is suppressed by the complainant.  The OP himself is the assessor to the above said golden ornaments at the time of sanctioning the loan to the complainant.  It is further submitted that, complainant is not an innocent person, he is an educated person.  It is further submitted that, for his family necessity, complainant intended to sell his agricultural land bearing sy.No.163/2A measuring 3-02 acres situated at Mulgunda village for a sum of Rs.2,85,000/- by entering into a deedless deed on 05.03.2013 before the Sub-Registrar, Gadag and received a sum of Rs.2,50,000/- before the witnesses and the remaining amount of Rs.35,000/- to be paid at the time of sale.  Thereafter, OP requested the complainant several times to register the purchase role with regard to the above said land, but it went vain.  Therefore, the OP filed O.S No.62/2017 before the Principal Civil Judge, Gadag for specific contractual custody, for which complainant filed a false and frivolous written version.  The complainant has filed this false complaint to cause wrong full loss to this OP and to gain wrongful gain to him.    As such, the OP has not committed any deficiency of service and unfair trade practice with the complainant and hence, prayed dismiss the complaint.   

4.      The complainant has filed his affidavit evidence and filed 09 documents.  The OP filed his affidavit evidence and filed 05 documents, which are as follows;

COMPLAINANT FILED DOCUMENTS AS follows

	Particulars of Documents	Date of Document
C-1	Instruction letter
C-2	Postal acknowledgement
C-3	Postal receipt
C-4	Legal Notice
C-5	Reply to notice
C-6 to 9	4 Estimates

 

OP FILED DOCUMENTS AS follows

OP-1	Plaint in O.S No.62/2017
OP-2	Affidavit of OP and other papers
OP-3	Affidavit of complainant in O.S.No.62/2017
OP-4 & 5	Bill Books

 

5.     On the basis of above said pleading, oral and documentary evidence, the following points arises for adjudication which are as follows:

1.       Whether the Complainant proves that, the complaint filed by him is maintainable or not?

2.    Whether the complainant proves that, the complaint filed by him is within time?

3.       Whether the complainant proves that, the OP has committed deficiency of service?

4.       Whether the Complainant proves that, he is entitled for the   

relief?

5.       What order?

6.      Our Answer to the above points are:-

1.  

 

2. Affirmative.

 

3.  

 

4.  

 

5.  

 

REASONS

7.      Point No-1:-  The complainant has filed this complaint against the OP to return back 13 tolas of Gold which was pledged by him with the OP with Rs.50,000/- compensation, Rs.30,000/- for mental agony and financial loss and  Rs.10,000/- towards expenses.  As per the objection filed by the OP that, the complaint is not maintainable under Consumer Protection Act, is to be drawn briefly that, since OP himself admitted in the version that, complainant is the customer of his finance running under Kamakshi Jewelers and Enterprises and submits that, it is a registered finance as per law.  Such being the fact, there is no need to elaborate this point to say the Point No.1 is in affirmative.

8.      Point No-2:-  The second most important discussion have to take is that, the complainant filed a complaint well in time and this is also important point to discuss here is that, as per the complaint, complainant pledged his gold in the year 2012 with the OP.  As per the version of OP, it is submitted that, he had paid the amount in the year 2014.  Anyhow, complainant issued a legal notice in the year 2018, to that, OP answered for the same.  Hence, it is no doubt that, the continuity is existence in this point.  Hence, limitation starts from the date of reply of OP i.e., on 13.11.2017, the complaint is filed on 06.10.2018 that means, the complaint is well in time.  Hence, we answer Point No.2 in affirmative.    

9.      Point No-3 & 4:-   The complainant filed this complaint against the OP seeking relief that, he had pledged his gold with OP and received Rs.60,000/- in the year 2012 on interest base at the rate of 14% and further submits that, he had paid the said amount with interest to the OP in the year 2013, but the OP had not returned the gold and even not issued the amount paid receipt to the complainant.  In the year 2017, complainant approached Police Station complaining the same, but the said Police had not received his complaint.  Further submits that, in the year 2013, the OP issued demand notice to the complainant to pay Rs.60,000/-

10.    On the other hand, OP filed his written version admitting that, in the year 2012, complainant pledged his gold for Rs.60,000/- and he had received it in the year 2014 along with interest from the complainant and further submits that, on 19.04.2014, the complainant pledged his gold in Karnataka Bank not only this gold and including other gold also in total 121 grams and he further submits that, the said fact came to his knowledge while he was went to assess the gold since he is the assessor of Karnataka Bank and he further submits that, the complainant received Rs.1,95,000/- from Karnataka Bank.   OP submits that, there is a suit against the complainant for specific performance.  Hence, he filed the complaint for personal grudge. 

11.    On going through the records on file, it is undisputed that, complainant pledged his gold with OP, but there is a difference in the opinion on the weight of the gold.  As per the complaint, complainant submits that, he had pledged 13 grams of gold with OP, but OP submits that, complainant pledged 23 grams 170 mili gold with him and it is also admitted that, complainant paid the amount and received the gold.  Anyhow, we have to clearly observed the documents produced by the OP while calling the record by the complainant.  Two Books are produced before the Forum pertaining to the business of his Kamakshi Finance, it starts from 09.04.2010 to 15.12.2014.  While cautiously observed the Books, there is no receipts are found pertaining to the gold said to be pledged by the complainant and even OP is also not produced any document to say that, complainant was pledged his gold with him and even OP is failed to produce the amount paid receipt.  As per his written version, he submitted that, complainant paid the amount and received the gold.  If so, what are the things is to be avoided to the OP to produce the documents pertaining to returning of gold.  OP had failed to produce those documents and had not taken good defence against the complaint.  Of course, OP produced the specific performance decree copy of the suit, but the said suit is entirely different to this complaint.  Hence, we cannot consider that document.

12.    Anyhow, complainant had produced the demand notice issued by OP on 10.03.2013 demanding to pay the amount of Rs.60,000/- with interest.  It is somehow matched that, after demand notice, as per the written version, complainant paid the amount to OP.  Hence, we come to the conclusion that, OP had made so much messy things in his business as per the demand notice and as per the submission of OP itself, it is clear that, OP received the amount, but not returned back the gold, it leads to unfair trade practice and deficiency in service.  Hence, we answer Point No.3 in affirmative and Point No.4 in partly affirmative.         

 13.   Point No.5:-        For the reasons and discussion made above, we proceed to pass the following:-

6698606.  

1. The complaint filed by the complainant is partly allowed.   
2. The OP is directed to return back the gold pledged by the complainant i.e., 23 grams and 170 mili to the complainant. 
3. Further OP is directed to pay the amount of Rs.25,000/- towards mental agony and harassment and Rs.2,000/- towards litigation charges.
4. Further OP is directed to pay interest at the rate of 12% on Rs.68,420/-, he said to be received from the complainant from 12.04.2014 within one month, failing which OP is liable to pay interest at the rate of 18% from 12.04.2014 till realization.
5. Send a copy of this order to both parties free of cost.  

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 10^th day of June-2020)

 

 (Shri B.S.Keri)                                        (Smt.C.H.Samiunnisa Abrar)

       MEMBER                                                      PRESIDENT