The Respondent as complainant filed a complaint before the District Forum, Chennai (North) alleging deficiency against the opposite party to return the 20 grams jewels of complainant, to pay a sum of Rs.30,000/- towards the compensation for mental agony, to pay a sum of Rs.1,000/- towards the costs. The District Forum, allowed the complaint against the opposite party. Against the said order, this appeal is preferred by the opposite party, praying to set aside the order of the District Forum, Chennai (North), dated 11.06.08 in C.C.No.01/2007.
This appeal coming before us for hearing finally on 27.05.2011, upon hearing the arguments of the counsel on appellants side and perused the documents, written submissions as well as the order of the District Forum, this Commission made the following order :-
A.K.ANNAMALAI, PRESIDING MEMBER JUDICIAL
1. Opposite party is the appellant.
2. The Respondent/complainant filed a complaint against the opposite party for the direction of return of 20 grams of jewels of the complainant and Rs.30,000/- towards compensation for mental agony and for Rs.1,000/- as costs and Rs.2,000/- towards advocate fee from the opposite party.
3. The brief details of the complaint are as follows :- Complainant pledged his relatives gold necklace weighing 20 grams on 30.9.04 for a sum of Rs.5,000/- due to the urgent need of money to his family and taking advantage of the complainants poverty, the opposite party charged the rate of interest is 36% p.a. But there is no way than to accept usurious interest and with intent to redeem his jewels, he had accepted and received a meager amount. Complainant was paying the interest till the month of June 2005 and later he could not pay the interest and asked time to redeem the jewel and the opposite party have also granted time since he is residing in the same building where the opposite party is running the pawn broker shop. In the month of February 2006, when complainant approached the opposite party to redeem the jewel, to his shock and surprise, the opposite party said that the jewel was sold in auction and advised him to approach some one in Kodambakkam and redeem his jewels from him and accordingly he visited Kodambakkam, but there was no such person and thereafter the opposite party did not give any apt reply to the complainant and avoiding and evade to meet the complainant. The opposite party has cheated him by refusing to return his 20 grams jewels by receiving the amount due and opposite partys practice in the trade is unfair and it is nothing but a deficiency of service. The opposite party has no right to retain or auction the jewel of the complainant without giving any prior notice to him and he cannot act on the complainants property as if his own property. Complainant sent a legal notice dated 17.5.06 and the same was received, but the opposite party replied that jewels were sold in public auction. The complainant in spite of his approach, the opposite party failed and neglected to return the jewels.
4. The opposite party denied the allegations of the complainant in the written version and stated Complaint is not maintainable either in law or on facts of the case and is liable to be dismissed. The relationship between the complainant and opposite party is that of Pawner and Pawnee, thus the complainant is not a consumer. Opposite party denies that the rate of interest is not usurious interest. Complainant neither paid the principal nor the interest. He is only a defaulter and redemption it could be enforced only before the Civil Court of law. Complainant did not pay the interest and the principal within the time agreed upon, the jewel pledged by the complainant were sold by way of public auction on 15.2.06 through Bafna Auctioneers, A Government approved auctioneer, after following all the procedures laid down by the law as per the provisions of Tamil Nadu Pawn Brokers Act 1943. The auctioneer sent a notice to the complainant before the auction but the same was returned unserved with postal endorsement âNo Such Personâ. The Auctioneer effected paper publication two times about the public auction and after getting proper permission from appropriate authorities, the auction was conducted in the presence of the Executive Deputy Tahsildar, Egmore-Nungambakkam Taluk, Chennai on 15.2.06. The opposite party after coming to know that the auction notice sent by auctioneer was returned unserved, informed the complainant almost every day about the amount due and even on the date of auction the opposite party informed the complainant to approach the auctioneer and redeem his jewel by paying the amount due. The complainant preferred a complaitn with H1 Washermenpet Police Station and the police authorities after due enquiry, advised the complainant to receive the surplus amount as the opposite party has followed the rules and regulations in auctioning the pledged jewels. The complainant refused to accept the same and the police authorities advised him to approach the Civil Court to work out his remedy. The opposite party informed the complainant that after deducting the sum payable by the complainant along with the auction expenses from the sale proceeds of Rs.10,200/- the surplus is with him and the complainant may come and collect the same. The complainant did not turn up to collect the same. The complaint filed is devoid of merits and is liable to be dismissed.
5. On the basis of both sides materials and after an enquiry the District Forum allowed the complaint by directing the opposite party to return the 20 gram of jewel of the complainant after deducting the principal and interest a accrued there to as per the receipt and to pay a sum of Rs.5,000/- as compensation and Rs.1,000/- as costs.
6. Aggrieved by the order of the District Forum, the appellant has come forward with this appeal and in the grounds of appeal among other things it is stated that the complainant is not a consumer since the transactions between the parties relates to pledging of jewel as Pawner and Pawnee and the District Forum wrongly entertained the complaint and as the opposite party under the Pawn Brokers Act acted lawfully after giving notice publication etc., by auctioning the defaulters jewels in public auction in order to realize the loan amount there cannot be any deficiency of service by the opposite party. It is not correct that the opposite partys absence without informing the complainant amount to deficiency of service. Hence the complaint to be dismissed.
7. When the appeal is taken up for final hearing before this Commission on and even prior to that for several hearings the respondent/complainant remained absent and no representation was made on behalf of him.
8. In the absence of complainant/respondents arguments after hearing the appellant side submissions and upon perusal of materials, placed documents before this Commission the order is being passed on merits. It is the admitted case of both sides that the complainant has pledged his jewels weighing 20 grams with the opposite party and as he has defaulted in payment the jewel was auctioned in public auction through the authorized auctioneer Bafna Traders, after getting permission from the concerned authority which are all proved by the opposite party through Exhibits B1 to B4. According to the document Exhibit B2 permission for public auction was granted by the District Collectors Office under the Pawn Brokers Act 1943 and the rules under 1944. In those circumstances it is the contention of the complainant that those notices were not served to him and thereby there was deficiency of service and for that the opposite party side filed the postal proof as Exhibit B3 in which postal notice was returned as no such person, the Postal address given as per the same address furnished in the complaint itself. In those circumstances, it is evident that the opposite party acted in a bonafide manner. Whether the complainant is not a consumer as alleged by the appellant is to be considered. While taking in to consideration of the appellants contention the learned counsel for the appellant has relied upon the ruling reported in (1) 2000 CPJ 308 by the Kerala State Consumer Disputes Redressal Commission, Trivananthapuram in which it is held under the transaction of loan obtained by pledging ornaments and for which interest on loan not paid and the ornaments sold in auction there were only creditor and debtor relationship and there was no relationship of consumer and thereby complaint was not maintainable and the matter to be entertained only by Civil Court. This ruling was passed by relying other cases reported in,
(1) III (1997) CPJ 3
(2) 1996 (2) CPR 44
(3) 1997 NCJ 289
(4) 1996 NCJ 289
and those rulings are relevant in our case also and in this case the complainants relationship with the opposite party is only as Pawner and Pawnee and under the provisions of Pawn Brokers Act the opposite party acted regarding the auctioning of jewels in which if any lacuna or defect or malpractice is suspected or alleged by the complainant his remedy lies only with the Civil Court and not before the Consumer Forum. On this ground alone the complaint has to be dismissed and the District Forum allowed the complaint erroneously without considering all those aspects as discussed above. In the circumstances the appeal deserves to be allowed by setting aside the order of the District Forum.
9. In the result, the appeal is allowed, the order of the District Forum, Chennai (North) in C.C.No.01/2007, dated 11.06.08 is hereby set aside and the complaint is dismissed. There will be no order as to cost in this appeal.
10. The Registry is directed to hand over the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.