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Judgment
M. Shreesha, J
Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (in short "the Act") is to the order dated 17.07.2014 in Revision Petition No. 35 of 2014 passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (in short "the State Commission"). By the impugned order, the State Commission has concurred with the finding of the District Consumer Disputes Redressal Forum-II, Vijayawada (for short "the District Forum") but modified the order and directed the Opposite Parties to pay an amount of Rs. 40,00,000/- to the Complainant.
Briefly stated, the facts of the case are that the Complainant availed a gold loan of Rs. 7,25,000/- from the second Opposite Party i.e. Vijayawada Branch of the first Opposite Party and for the same he pledged around 1014.1 grams of gold with the Opposite Party. The agreed interest rate was 19.5% p.a. and the second Opposite Party deducted Rs. 11,817/- towards first installment on the date of pledge itself. Thereafter the Complainant suffered from a heart ailment and was hospitalized and so he could not pay the instalments. On 09.07.2008, he approached the second Opposite Party and expressed his desire to make the payment. He was told that his representation would be send to the First Opposite Party but he did not receive any reply till the date of filing of the Complaint. He came to know that the auction of his gold ornaments would be held on 30.10.2008. The Second Opposite Party forcibly obtained two blank cheques from the Complainant out of which one was of ING Vysya bank bearing No. 917281 and another was of Andhra bank. The First Opposite party sent a legal notice dated 04.11.2008 to him alleging therein that the cheque, issued by the Complainant, for the amount of Rs. 3,00,000/-, was dishonoured after its presentation and demanded him to pay the cheque amount within 15 days, failing which the First Opposite Party would start legal proceedings against him. Hence the Complainant approached the Second Opposite Party and requested them to take immediate action on his representation dated 09.07.2008. However, the Second Opposite Party dragged the matter on one pretext or the other. The Complainant came to know through the newspaper "Andhra Jyoti Krishna" Main Edition dated 14.10.2009 that his ornaments would be auctioned on 30.10.2009 at 11.00 a.m. On receipt of this information, the Complainant again approached the Second Opposite party and asked about the said development, but the Second Opposite Party did not pay heed to him.
The Second Opposite Party filed their Written Version, stating that the Complainant promised to repay the loan within three months and payment of stipulated interest every month regularly without any default. He voluntarily paid the 1st month stipulated interest amount on the date of availing of the gold loan. He promised to repay the loan by 16.05.2007. Thereafter, the Complainant did not choose to pay the monthly interests or the loan amount as agreed upon or as promised and that too in spite of many demands on behalf of the Opposite Party. The Second Opposite Party issued Notices on 14.06.2007, 17.08.2007, 17.09.2007 and on 14.02.2008 to the Complainant for repayment of the loan amount but there was no response from him. On 09.07.2008, he made a representation stating therein that he was ready to make the payment but thereafter he did not turn up. On 09.09.2008, the Opposite Party issued a personal auction notice requesting the Complainant to clear the liability on or before 23.09.3008 failing which a public auction would be held. On 28.09.2008 Complainant approached the Opposite Party and issued a cheque for Rs. 3,00,000/- towards the part payment of the due amount. However, on presentation the said cheque was dishonoured on 15.10.2008 with an endorsement "account closed." It is stated that the Complainant instead of repaying the loan, filed a Consumer Complaint before the District Forum.
The District Forum based on the evidence adduced allowed the Complainant No. 214 of 2009, directing the Opposite Parties to return all the gold items under gold account No. F572 after the Complainant deposited the balance amount of Rs.92,261/-. The Complainant was given time till 31.12.2012 to deposit an amount of Rs.91,261/-. The Opposite Parties were directed to comply with the order of handing over all the gold items pledged by the Complainant on or before 15.01.2013.
Aggrieved by this order, the Opposite Parties preferred First Appeal No.184 of 2013 before the State Commission and the State Commission modified the order of the District Forum and allowed the Appeal in part directing the Complainant to pay an amount of Rs. 9,38,311/- with interest @ 19.5% per annum from 17.07.2008 till 29.11.2012. The Complainant deposited a sum of Rs. 11,88,235/- Rs. 10,95,974/- + Rs. 92,261/-) by 29.12.2012 the balance amount was directed to be deposited after deducting the amount deposited by him and the Opposite Parties were directed to return all the pledged gold items after receiving this amount. This order was questioned before the National Commission through Revision Petition which dismissed the same. Matter was then carried before the Hon'ble Supreme Court where the SLP was dismissed and therefore the order passed by the District Forum and modified by the State Commission attained finality.
While the matter stood thus, the Complainant deposited an amount of Rs. 3,88,780/- on 21.03.2014 and Rs. 94,765/- on 26.03.2014 before the District Forum and filed I.A. No. 74 of 2014 claiming return of the pledged gold ornaments. This IA was again challenged by the Opposite Parties stating that they are not aware of any proceedings either before the National Commission or before the Supreme Court and that no notices were received by them and that as the Complainant did not deposit the amount within the time stipulated, the Opposite Parties after issuing a notice auctioned the subject gold ornaments. The gold was auctioned on 20.2.2014 for an amount of Rs. 26,17,813/-. The same was informed to the Complainant to collect the balance of the sale proceeds after deducting the amounts due. The Second Opposite Party contended in the Revision Petition filed before the State commission that the gold ornaments were not in existence and therefore the order of the District Forum cannot be complied with.
The State Commission after going through the entire evidence on record modified the order of the District Forum and directed the Opposite Parties to pay an amount of Rs. 40 lakhs to the Complainant taking into consideration the present market value of the gold.
The Learned Counsel appearing for the Revision Petitioner on a suggestion from the Bench as to whether the matter could be settled, submitted on instructions that they were ready and willing to pay additionally an amount of Rs. 5 lakhs in addition to the Rs. 20 lakhs already deposited in terms of the entirety of the order of this Commission, in order to put a quietus to the entire issue.
The Complainant appeared in person refused this offer stating that they had undergone a lot of mental agony and harassment on account of the unfair trade practice adopted by the Opposite Parties herein and submitted that no Auction Notice was served on them; that no evaluation report was filed by the Petitioners/Opposite Parties and that the pledged gold was ancestral property which has lot of sentimental value and therefore sought for dismissal of this Revision Petition with exemplary costs.
The contention of the Counsel for the Revision Petitioner that the Complainant had got deposited the balance amount within the 'time frame fixed' by the District Forum, is unsustainable as the District Forum order does not mention any fixed time for depositing the balance amount by the Complainant. When there was no 'fixed time stipulated' in the order of the District Forum, the Revision Petitioner herein ought to have brought to the notice of the State Commission before conducting the auction and selling the subject gold ornaments. Instead no permission was sought for from the State Commission before the conduction of auction. As can be seen, from the record despite several attempts made by the Complainant and despite paying the amounts there was no response from the Opposite Parties. The perusal of the representation made by the Complainant on 09.07.2008 evidences that he was ready to repay the laon amount with interest but the Opposite Parties having received the representation remained silent. The Fora below have rightly considered the statement of the Branch Manager R. Sridhar Madhav in his Affidavit and have observed that the Revision Petitioner had sold the gold ornaments without intimating the Fora below. The Complainant had filed a Calculation Memo showing the gold value along with the stone value and making charges etc., which is detailed in the table below:
S. No.
Details
Nos.
Gross weight
Stone
Net Weight
Gold value
Stone value
Making charges
Total
1
Bangle
30
415.1
0
415.1
Navratnal 2 Rings
2,10,000
2
Bangle SW stone
6
139.6
8
131.6
Kempulu
1,70,000
3
Bracelet
1
53.8
0
53.8
Diamonds (small)
32,000
4
Ring W stone
4
29.1
4
25.1
Yduram
36,000
5
Stud W stone
12
29.1
4
25.1
Yduram
36,000
6
Ring
8
44.9
0
44.9
Rubys
70,000
7
Locket
8
14.8
0
14.8
Mayura Neelam
70,000
8
Koluse
2
41.6
0
41.6
Pusharagam
36,000
9
Necklace
1
18.8
0
18.8
& other sone
20,000
10
Male
2
43.1
0
43.1
Value of Rupees
60,000
11
Matty
4
15.7
0
15.7
13,00,000
28,000
12
Chain W locket W stone
2
36.7
8.8
27.9
Above 20,00,000
46,000
13
Chain
2
69.2
0
69.2
Below
25,000
14
Chain W/o Hook
1
31.8
0
31.8
25,000
15
Locket W Stone
3
33.1
0.8
32.3
30,000
84
1013.8
27.8
986
28,70,500
13,00,000
9,08,000
50,78,500
The Learned Counsel appearing for the Revision Petitioner vehemently submitted that the Auction Notice was sent to the Complainant on 08.02.2014 and a paper publication was given on 11.02.2014 and that auction took place only on 20.02.2014. The Complainant has categorically denied receipt of the Auction Notice. Additionally, these notices ought to have been brought to the notice of the Executing Court before taking any such steps as, at the cost of repetition, there was no time frame fixed for the deposit of the balance amount by the Complainant.
It is an admitted fact that the subject ornaments were sold for an amount of Rs.26,76,830/-
For the afore-noted reasons, we do not see any illegality or infirmity in the findings given by both the Fora below that the auction conducted by the Revision Petitioner amounts to unfair trade practice as it was done without taking permission of the executing court. The State Commission has rightly taken the value of the gold together with making charges and the mental agony and harassment undergone by the Complainant before awarding a consolidated amount of Rs.40 lakhs. We do not find any reasons to interfere with the well-considered order of the Fora below and therefore, this Revision Petition is dismissed. Needless to add, the amounts deposited shall stands adjusted in the decretal amount.