BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the  31^st day of May, 2016

PRESENT

        SMT. ASHA SHETTY           :  HON’BLE  PRESIDENT 

        SMT.LAVANYA M. RAI        :   HON’BLE MEMBER                                        

COMMON ORDER IN

CONSUMER  COMPLAINT NO.333, 334, 335, 336,

337, 338 & 339/2015.

Cases Admitted on 19.09.2015

Lakshmi K.,

W/o Achutha K., Aged about 65 years,

Prashantha Nilaya, Ramdas Nagar, Post Kasaragod,

Kasargod Dist.

(Sri Gopalakrishna K.R., Advocate for complainant)

……………… Complainant in CC No.333/2015           

Chethana K.

W/o Ravichandra, Aged about 45 years,

Hosmane House, Arikkady Post,

Kumbla, Kasargod District.

(Sri Gopalakrishna K.R., Advocate for complainant)                                                    ……………… Complainant in CC No.334/2015

Divyashree

W/o Lavakumar, Aged about 34 years,

Sharma Nilaya, Bhaskar Nagar,

Kumbla Post, Kasargod District.

(Sri Gopalakrishna K.R., Advocate for complainant)

……………… Complainant in CC No.335/2015

A.S.Prabhavathi,

W/o Krishna P.,

Aged about 53 years,

Perne House, Post Kannur,

Kumbla, Kasargod District.

(Sri Gopalakrishna K.R., Advocate for complainant)

……………… Complainant in CC No.336/2015

Ashitha J.,

W/o Ramachandra,

Aged about 40 years,

Gowrishankara Nivasa,

Bedradka, Kasargod Post,

Kasargod District.

(Sri Gopalakrishna K.R., Advocate for complainant)

……………… Complainant in CC No.337/2015

Gopalakrishna Acharya,

S/o Damodara Acharya, Aged about 60 years,

D.P.Tailor, Bus Stand, Building Kumbla,

Kumbla, Kasargod District.

(Sri Gopalakrishna K.R., Advocate for complainant)

……………… Complainant in CC No.338/2015

Vikesh Kumar,

S/o Pramod, Aged about 32 years,

Kaniphresha Kripa, Post Ednad,

Naikapp, Kumbla,

Kasaragod Dist.

(Sri Gopalakrishna K.R., Advocate for complainant)

……………… Complainant in CC No.339/2015

VERSUS

1.     Seven Hills Vividhodhesha Souharda

Co operative Ltd.,

          Gold Square Building,

Near Service Bus Stand,

Mangalore 1.

Represented by its President/Managing

Director G.Narayanappa

2.     Aggri Hills Forms Estate India Pvt. Ltd.,

          No.68, 1^st Floor, Bagalur Road,

          Krishnagiri Dist.

          Hosur, Tamilnadu   635109.

          Rep. by G.Narayanappa,

          President/Managing Director.

3.     Sri Y.Kumar,

          Deputy Chief Manager,

          Karnataka State Souhardha Co-op. Ltd.,

          Nirmana Bhavana, Dr.Rajkumar Road,

          1^st Block, Rajajinagar, Bangalore – 560010.

          Special Officer for Seven Hills,

          Vividhodhesha Souhardha Co op. Ltd.

(Opposite Party No.1 & 2 : Exparte,

Sri Y.C.Suresh, Advocate for the Opposite Party No.3)

……. Opposite Parties in CC No. 333, 334, 335, 336, 337, 338 & 339/2015

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. ASHA SHETTY:

I.       1. The above complaints are filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the common Opposite Parties claiming similar reliefs.  In order to save the time as well as for the sake of convenience, we have taken up all the cases together and passed common order as under:-

The brief facts of the case are as under:

The complainant submits that one agent of 1^st Opposite Party Smt. Puspalatha W/o Sudhakara R/o Kanipuresh House, Naikapu, Edyade, Post Kumble deposited the fixed amount with Seven Hills Vividhodesha Souhardha Co-Operative Ltd for the plan as detailed in the table below, were issued in the name of complainants by the 1^st Opposite Party from its branch at Puttur, at the time of commencement by stating that the maturity value of the Fixed Deposit Receipts will be as detailed in the table below.

   As per the receipts given by the Opposite Party No. 1 the complainants would be provided with some property within the date of maturity i.e. 18.08.2015. On the failure of the same the amount originally deposited will be paid with interest including the interest at the time of maturity date.  That after the fixed date the Opposite Party No. 1 has not fulfilled his agreement and indulged in unfair trade practice.

The complainants further submit that after the maturity date complainants orally requested with the Opposite Party No. 1 and also with Opposite Party No. 2 for return of the deposit amount.  The Opposite Party No. 2 has switched off her mobile and not giving any response. The Opposite Party No. 1 is also not responding for the call from the complainants.

But both the Opposite Parties failed to pay the amount and the Director/Authorized Signatory of Opposite Party which they has promised with the complainants that they will pay. In-spite of several requests by the complainants the Opposite Party failed to pay the agreed amount. The complainants finally visited the Opposite Parties Mangalore branch/office. But to the utter surprise, Opposite Party’s Office has been closed down.  Even Opposite Party No. 2 is also not responding to the continuous phone calls of the complainants which amounts to deficiency in service.

Hence the above complaint filed U/sec 12 of the Consumer Protection Act1986 (herein after referred to as the act) seeking direction from this Forum to the opposite parties to pay the maturity value with interest at the rate of 18% per annum from the date of maturity till payment alongwith compensation and cost of the proceedings.

II.      1. Version notices served to the Opposite Parties. Inspite of service of notices to Opposite Party No.1 and 2, not appeared nor represented, hence placed exparte.

Opposite Party 3 appeared through their counsel and filed version stating that the Board of Committee of 1^st Opposite Party Co-operative is not existing and in the place of Board 3^rd Opposite Party has been appointed as a Special Officer by the Karnataka State Souharda Federal Co-operative to discharge the duty of Board and to take steps to form new Board Committee as per the provisions of the Karnataka State Souharda Sahakari Act, 1997.  This Opposite Party is taking steps for formation of new Board Committee.  This Opposite Party after taking charge as Special Officer came to know that 1^st Opposite Party had received deposits from the depositors and there is no liquid fund in the Co-operative to repay the maturity amount of the said deposit.  It is stated that they have put Co-operative Fund in various immovable properties either as advance or investment therefore they could not repay the maturity amount to the depositors.   It is further stated that only after getting liquid fund, this Opposite Party can make the payment to the depositors.  Hence, there is no deficiency on the part of this Opposite Party and sought for dismissal of the complaint. 

III.     1. In support of the above complaints, all the respective Complainant has been examined as CW-1 and produced documents got marked under the ‘Ex.C’ series detailed in the annexure here below.   In support of the Opposite Party No.3, one Kumar Y. S/o Yogeshappa, Nirman Bhavan, Dr.Rajkumar Road, 1^st Block, Rajajinagar,            Bangalore-560010 (RW-1) filed affidavit and no document produced by him.  Heard the arguments.

          In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the complaints filed by complainants are maintainable?
2. Whether the Complainants proved that the Opposite Parties committed deficiency in service?
3. If so, whether the Complainants are entitled for the reliefs claimed?
4. What order?

          We have considered the notes/oral arguments submitted by the learned counsel for the complainants and also considered the materials that was placed before this Forum and answer the points are as follows:

Point No. (i) and (ii): Affirmative

Point No. (iii) and (iv) As per the final order.

REASONS

IV.     1.  Point No.(i) to (iv) :   The Complainants in order to substantiate their averments made in their respective complaints filed affidavit supported by the documents (detailed in annexure herein below).  The material documents produced by the complainants show that they have deposited sum of money with the Opposite Parties and Opposite Parties inturn undertaken to provide some immovable properties within the date of maturity, in case of failure the amount original deposited will be refunded with interest mentioned in the respective fixed deposit receipts.

          However it could be seen on record that the 1^st and 2^nd Opposite Party inspite of receiving notice not appeared nor contested the case till this date and the entire evidence placed before this fora is not contradicted nor controverted.  The unrebutted evidence requires no further proof.  But the Opposite Party No.3 appeared before this Forum and contended that the Board of Committee of 1^st Opposite Party Co-operative is not existing and in the place of Board this Opposite Party has been appointed as Special Officer by the Karnataka State Souharda Federal Co-operative to discharge the duty of Board and to take steps to form new Board Committee as per the provision of the Karnataka State Souhard Act 1997.   Except the above contention nothing has been disputed with regard to the fixed deposit kept by all the complainants.

          It is settled proposition of law that the Section 3 of the

Consumer Protection Act is very clear that the provision of the Consumer Protection Act shall be in addition and not in derogation of the provision of any other law for the time being in force.  That means the provision of the Act are in addition and not in derogation of the provision of the any law for the time being in force.    Since the additional rights and remedies are granted to the Consumer under the Act even though the subject dispute referred to the Registrar of Co-operatives as per the Karnataka State Souharda Sahakara Act, 1997 will not take away the right of the Consumers to file Consumer Complaints before the respective Fora.  In the instant case the Opposite Party No.3 admits that complainants have deposited certain sum of money with the Opposite Party No.1 and 2 and the Opposite Party No.1 and 2 failed to perform their obligation enumerated in Deed of Sale executed by the Opposite Party No.2.     We are of the considered opinion that in a case of like this nature for reciprocal promises were enshrined in the contract / receipt / deed of sale executed between the parties and both the parties were obliged to perform in that order.  No doubt the complaints invested certain sum of money under the receipts / deed of sale for a particular period with the Opposite Parties and the Opposite Parties inturn received the invested amount from the complainants and agreed to provide immovable properties within the stipulated time.   In case of failure it is the bounden duty of the Opposite Parties to refund the deposited amount along with interest on the date of maturity.  When that being so, it is the obligation on the part of the Opposite Parties to refund the amount to the complainant on the date mentioned in all the Fixed Deposits Receipts.  But in all the cases the Opposite Party No.1 and 2 miserably failed to perform their promises / contracts entered between them.  Since the Opposite Parties failed to refund the amount till this date it shows their sheer negligence towards the consumers.  Therefore, we hold that the service rendered by the Opposite Parties amount to unfair trade practice as well as deficiency in service.

          However, the Opposite Parties No.3 is a Special Officer owes certain duty towards the complainants as he himself admitted in his version that this Opposite Party needs time to convert the immovable properties into liquid fund of 1^st Opposite Party Co-operative in accordance with law and after getting liquid fund, this Opposite Party undertaken to repay the amount to the depositors like complainants herein.  That means this Opposite Party also owes certain responsibilities towards the complainants and there is no convincing evidence available on record to satisfy that why this step for formation of new Board Committee has not taken till now.  Since the Opposite Party No.3 admitted that there is no liquid fund in the Co-operative to repay the maturity amount of the above said deposits and the fund received by the depositors has been invested in various immovable properties as advance and could not repay the maturity amount, it is the duty of the Opposite Party No.3 to take immediate steps to repay the amount within reasonable time.  Since he had not taken any steps till this date the Opposite Party No.3 also jointly and severally liable along with Opposite Party No.1 and 2. 

In view of the above discussion we hold that the Opposite Party No.1  to 3 jointly and severally shall refund the entire deposited amount i.e. along with interest 12% per annum from the date of maturity  till the date of payment and further to pay a sum of Rs.3,000/-each to the complainant in each case_as litigation expenses and payment shall be made within 30 days from the date of receipt of this order.

In the present cases, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.

In the result, we pass the following:-

ORDER

The complaints are allowed. Opposite Parties are jointly and severally shall pay to the complainants, the entire maturity amount mentioned in the Fixed Deposit Receipts (as detailed in the table above) along with interest 12% per annum from the date of maturity till the date of payment and further to pay a sum of Rs.3,000/-each to the complainant in each case as litigation expenses and payment shall be made within 30 days from the date of receipt of this order.

The F.D.R. if any deposited by the Complainant be returned fourth with by substituting the certified.

The copy of this order as per the statutory requirements be forwarded to the parties and therefore the file be consigned to record.

 (Page No.1 to 11 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 31^st day of MAY -2016.)

PRESIDENT                                      MEMBER

 (SMT. ASHA SHETTY)                     (SMT. LAVANYA M.RAI)

D.K. District Consumer Forum                      D.K. District Consumer Forum

     Mangalore.                                                 Mangalore.       

ANNEXURE IN CC NO.333/2015

Witnesses examined on behalf of the Complainant:

CW-1 : Lakshmi K  (Complainant)

Documents produced on behalf of the Complainant:

Ex.C-1 :      Original Deposit Receipt bearing No.0020038

                 dated 01.06.2012

Ex.C-2 :      Office copy of the letter sent by the agent to 1^st

                   Opposite Party.

Ex.C-3 :      Returned letter sent to 1^st Opposite Party.

Ex.C-4 :      Notarised copy of the sale deed executed in

                   favour of the 2^nd Opposite Party.

Witnesses examined on behalf of the Opposite Parties:

RW-1 : Kumar Y. S/o Yogeshappa, Nirman Bhavan,

           Dr.Rajkumar Road, 1^st Block, Rajajinagar,

           Bangalore-560010.

Documents produced on behalf of the Opposite Parties:

• NIL 

ANNEXURE IN CC NO.334/2015

Witnesses examined on behalf of the Complainant:

CW-1 : Chethana K W/o Ravichandra (Complainant)

Documents produced on behalf of the Complainant:

Ex.C-1 :      Original Receipt bearing No.0029143

                   dated 18.04.2012.

Ex.C-2 :      Copy of the letter sent by the agent of the 1^st

                  Opposite Party to the 1^st Opposite Party.

Ex.C-3 :      Copy of the Deed of Sale executed in favour of

                  2^nd Opposite Party.

Witnesses examined on behalf of the Opposite Parties:

RW-1 : Kumar Y. S/o Yogeshappa, Nirman Bhavan,

           Dr.Rajkumar Road, 1^st Block, Rajajinagar,

           Bangalore-560010.

Documents produced on behalf of the Opposite Parties:

• NIL 

ANNEXURE IN CC NO.335/2015

Witnesses examined on behalf of the Complainant:

CW-1 : Divyashree (Complainant)

Documents produced on behalf of the Complainant:

Ex.C-1 :      Original Deposit Receipt bearing No.0020039

                 dated 01.06.2012

Ex.C-2 :      Office copy of the letter sent by the agent to 1^st

                   Opposite Party.

Ex.C-3 :      Copy of the sale deed executed in

                   favour of the 2^nd Opposite Party.

Witnesses examined on behalf of the Opposite Parties:

RW-1 : Kumar Y. S/o Yogeshappa, Nirman Bhavan,

           Dr.Rajkumar Road, 1^st Block, Rajajinagar,

           Bangalore-560010.

Documents produced on behalf of the Opposite Parties:

• NIL 

ANNEXURE IN CC NO.336/2015

Witnesses examined on behalf of the Complainant:

CW-1 : A.S.Prabhavathi (Complainant)

Documents produced on behalf of the Complainant:

Ex.C-1 :      Original Deposit Receipt bearing No.0020677

                 dated 07.07.2012.

Ex.C-2 :      Office copy of the letter sent by the agent to 1^st

                   Opposite Party.

Ex.C-3 :      Copy of the sale deed executed in

                   favour of the 2^nd Opposite Party.

Witnesses examined on behalf of the Opposite Parties:

RW-1 : Kumar Y. S/o Yogeshappa, Nirman Bhavan,

           Dr.Rajkumar Road, 1^st Block, Rajajinagar,

           Bangalore-560010.

Documents produced on behalf of the Opposite Parties:

• NIL 

ANNEXURE IN CC NO.337/2015

Witnesses examined on behalf of the Complainant:

CW-1 : Ashitha J  (Complainant)

Documents produced on behalf of the Complainant:

Ex.C-1 :      Original Deposit Receipt bearing No.0020040

                 dated 02.06.2012

Ex.C-2 :      Office copy of the letter sent by the agent to 1^st

                   Opposite Party.

Ex.C-3 :      Copy of the sale deed executed in

                   favour of the 2^nd Opposite Party.

Witnesses examined on behalf of the Opposite Parties:

RW-1 : Kumar Y. S/o Yogeshappa, Nirman Bhavan,

           Dr.Rajkumar Road, 1^st Block, Rajajinagar,

           Bangalore-560010.

Documents produced on behalf of the Opposite Parties:

• NIL 

ANNEXURE IN CC NO.338/2015

Witnesses examined on behalf of the Complainant:

CW-1 : Gopalkrishna Acharya  (Complainant)

Documents produced on behalf of the Complainant:

Ex.C-1 :      Original Deposit Receipt bearing No.0104310

                 dated 31.10.2013

Ex.C-1(a) :  Deposit A/c Closing/ Maturity Slip.

Ex.C-2 :      Office copy of the letter sent by the agent to 1^st

                   Opposite Party.

Ex.C-3 :      Notarised copy of the sale deed executed in

                   favour of the 2^nd Opposite Party.

Witnesses examined on behalf of the Opposite Parties:

RW-1 : Kumar Y. S/o Yogeshappa, Nirman Bhavan,

           Dr.Rajkumar Road, 1^st Block, Rajajinagar,

           Bangalore-560010.

Documents produced on behalf of the Opposite Parties:

• NIL 

ANNEXURE IN CC NO.339/2015

Witnesses examined on behalf of the Complainant:

CW-1 : Vikesh Kumar (Complainant)

Documents produced on behalf of the Complainant:

Ex.C-1 :      Original Deposit Receipt bearing No.0020678

                 dated 13.07.2012

Ex.C-2 :      Office copy of the letter sent by the agent to 1^st

                   Opposite Party.

Ex.C-3 :      Notarised copy of the sale deed executed in

                   favour of the 2^nd Opposite Party.

Witnesses examined on behalf of the Opposite Parties:

RW-1 : Kumar Y. S/o Yogeshappa, Nirman Bhavan,

           Dr.Rajkumar Road, 1^st Block, Rajajinagar,

           Bangalore-560010.

Documents produced on behalf of the Opposite Parties:

• NIL 

Date : 31.05.2016                                               PRESIDENT