BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 03^rd November 2016

PRESENT

        SMT. C.V. SHOBHA             :   HONBLE PRESIDENT

        SMT.LAVANYA M. RAI        :   HONBLE MEMBER                                        

                                                    ORDER IN

   C.C. No 291/2016

                                                          (Admitted on 25.08.2016)

Sri Sheshappa K,

Son of Annayya Gowda,

Aged about 63 years,

Residing at Kattakodi Kalagi Mane,

Aletty Village and Post,

Sullia Raluk D.K

                                    …… COMPLAINANT

(Advocate for complainant  Sri Thimmayya. P)       

VERSUS

1. The South Kanara Agriculturists Co

     Operative Marketing Society Ltd. No. 3901.

     APMC Building, P.B. No. 159, Mission Street,

     Mangalore D.K. 575001.

     Represented by its Managing Director. 

2. The Liquidator/ The SKACMS. Ltd

     The Assistant Registrar of Co-Operative Societies.

     Janatha Bazar Building.

     G.H.S. Road. Mangalore 575001.

                                                       …............Opposite Parties

(Opposite Party No.1  In person)

(Opposite Party No.2  Ex Parte)

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. C.V. SHOBHA:

I.       1. The above complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.  

The brief facts of the case are as under:

The Complainant deposited certain sum of money with the Opposite Parties and the Opposite Parties are registered society having its registered office in the above address. The details of the amounts deposited with the Opposite Party society mentioned in detail herein below:

Complainant stated that, he has invested his hard earned money in Opposite Parties co operative society under the fixed deposit receipts for the stipulated period mentioned there in and the Opposite Parties in turn agreed to pay interest as mentioned in the certificates.  Further it is stated that, the Opposite Parties in spite of agreed to refund the aforesaid amount on the date of maturity mentioned in the respective F.D. Receipts and amount invested in SB A/c not refunded the amount till this date.

It is stated that, the Complainant approached the Opposite Parties, the Opposite Parties have been indefinitely postponing the money payable under the F.D. Receipts and SB A/c amount without assigning any valid reasons which amounts to deficiency in service and hence the above complaint is filed before this Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as the Act) seeking direction from this Forum to the Opposite Parties to pay the entire Deposited amount invested by him and also sought for compensation and cost of the proceedings.

II.      1. Version notice served to the Opposite Parties by RPAD. Opposite Party No.2 inspite of receiving the same neither appeared nor contested the case before this FORA. The acknowledgment marked as court document.

 However, the Opposite Party No.1 appeared in person filed version and stated that the Complainant deposited the amount, but in the year 2013 the society could not form Board of Directors.  And therefore the Official Liquidator appointed and he had taken all the charge of the society.  The society owns certain immovable properties and the liquidator has to take necessary steps and  measure to dispose off the above said property and out of the amount so received may be paid to the deposit holders.  It is stated that the liquidator is responsible and not this opposite party and denied the deficiency of service alleged against him and sought for dismissal of the complaint.

          In support of the above complaint, Mr. Sheshappa. K, Complainant is examined himself as CW1 and produced documents got marked under the Ex.C series detailed in the annexure here below.  The opposite parties not led any evidence.

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

1. Whether the complainant proves that the opposite parties committed deficiency in service?
2. If so, whether the Complainant is entitled for the reliefs claimed?
3. What order?

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

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

                              Point No. (iii): As per the final order. 

REASONS

IV. 1.  POINTS No. (i) & (ii): 

In the instant case, the Complainant in order to substantiate the averments made in his complaint filed evidence on affidavit supported by fixed deposit receipts i.e. Ex.C series mentioned in the annexure in detail.  The Complainant’s sworn affidavit stating that the Fixed Deposits are matured but the Opposite Parties keep on assured to refund the amount by giving one or the other excuses and postponing the payment without valid reasons deliberately.

           However, now the point for consideration is that, whether the Complainant is entitled for the amount mentioned in the Fixed Deposit Receipts and amount deposited in SB A/c the Opposite Parties have committed deficiency in service? On perusal of the oral as well as documentary evidence available on record, we find that the Complainant deposited the hard earned money under the Fixed Deposit Receipts and amount deposited in SB A/c with the Opposite Parties and the Opposite Parties in turn agreed to refund the amount along with the accrued interest on the date of maturity mentioned in the respective F.D. Receipts.  We are of the considered opinion that, in a case of like this nature reciprocal promises were enshrined in the contract/certificate entered/issued between the parties are  obliged to perform in that Order.  No doubt the Complainant invested certain sum of money under the Fixed Deposit Receipts for a particular period and amount deposited in SB A/c with the Opposite Parties and the Opposite Parties in-turn received the said invested amount from the Complainant and agreed to refund the aforesaid amount along with the agreed interest on the date of maturity and SB A/c amount. When that being so, it is the obligation on the part of the Opposite Parties Co operative society to refund the amount to the Complainant on the date of maturity of the stipulated time, because the Opposite Parties make use of the money pertaining to the Complainant in their society and agreed to refund the amount with interest.  When that being the position, the Opposite Parties society should have refunded the amount to the Complainant without any demand and delay.  As we know, the financial institutions are facing financial crunches and caused problems to the depositor and keep on seeking/postponing the payment by giving one or the other reasons are common in a case of like this nature.  By considering the transactions involved in the above case, we are of the opinion that, cause of action will be continued till the payment invested under the certificate are received by the Complainant.  It is not the case of the Opposite Parties that, they have offered the payment on the date of maturity or subsequent dates till this date.

          In the given case there is no dispute that the complainant deposited amounts with the opposite parties as averred by him in the complaint seeking refund of the amount.  The opposite parties did not refund the amount till this date.  The contention taken by the Opposite Party that the Official Liquidator appointed and he had taken all the charge of the society and the liquidator is responsible not this opposite party cannot be considered because the official liquidator appointed by the Government only to take all the charge of the society because of the mismanagement by the directors.  As such, the false contention taken intentionally by opposite party No.1, in order to escape from liability.  Hence, we hold that both the opposite parties are jointly and severally held liable and responsible to make the good of the complainant. By considering the above aspects, we hold that, on failure to pay the aforesaid amount on the date of maturity till this date amounts to deficiency in service as well as unfair trade practice. Therefore, we hereby directed the Opposite Party No.1 and 2 to pay the entire amount mentioned in the Fixed Deposit Receipt total for a sum of Rs.36,000 / along with contractual rate of interest from the respective date of deposits till the date of payment in full and amount in SB A/c for a sum of Rs 46,068 with accrued interest at 10% p.a from 09.11.2012 till payment and further pay Rs.5,000/ (Rupees Three thousand only) towards the cost of the litigation expenses.  Payment shall be made within 30 days from the date of receipt of this order.

     In the present case 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 complaint is allowed in part.  The Opposite Parties No.1 and No.2 are jointly and severally shall refund for a sum of Rs. 36,000/  (Rupees thirty six thousand only) with accrued interest at the 11.5% p.a from i.e. 01.12.2010 the date of deposit till the date of payment. And amount in SB A/c for a sum of Rs. 46,068/ (Rupees forty six thousand sixty eight only) with accrued interest at the 10% p.a. from 09.11.2012 till payment and further to pay Rs. 5,000/ (Rupees Five thousand only) towards cost of the litigation expenses.  Payment shall be made within 30 days from the date of receipt of copy 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 8 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 3^rd day of November 2016.)

                  MEMBER                                      PRESIDENT

   (SMT.LAVANYA M. RAI)                  (SMT. C.V. SHOBHA)

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

                Mangalore.                                         Mangalore.             

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW 1:Mr.Sheshappa K                

Documents marked on behalf of the Complainant:

Ex C1: Dated: 1.12.2010 Original fixed deposit number: 003613/23267 for a sum of Rupees 36,000.00 issued by the opposite party No.1

Ex C2: Dated: 9.11.2010 Original S.B. Account Pass book No.159 issued by the opposite party No.1

Witnesses examined on behalf of the Opposite Parties:

 Nil 

Documents produced on behalf of the Opposite Parties 

 Nil 

Dated: 03.11.2016                           PRESIDENT