BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri K.V.H.Prasad, B.A., LL.B., President
and
Smt C.Preethi, M.A., LL.B., Member
Friday the 17th day of November, 2006
CC. No. 68/2006
Sri Addagalla Kumaraswamy,
Aged 42 year,
R/o. D.No. 5-138, Sunkulamma Street,
Nandyal, Kurnool Dist. . . . Complainant
-Vs-
1.Majeti Papa Rao,
Aged about 55 years,
Managing Director,
Viswam Agro Genitics Pvt Ltd,
Reg.Office, D.No. 25, 18-4,
Crane Factory Road,
Sampath Nagar, Guntur.
2.Revuru Laxminarayana,
Aged about 35 years,
Venus Agencies, Crane nut power,
Agent H.No. 25/110, Sanjeeva Nagar,
Nandyal, Kurnool Dist. . . . Opposite party.
This complaint coming on this day for orders in the presence of Sri M/s K. Kapileswaraiah, Advocate, Kurnool for complainant, Sri K.B. Prasad, Advocate, Guntur for opposite party No.1 and Sri A. Prabhakar Reddy, Advocate, Kurnool for opposite party No.2 and stood over for consideration till this day the Forum made the following:-
O R D E R
(As per Smt C.Preethi, Hon’ble Member)
1. This consumer complaint of the complainant is filed under section 12 of C.P. Act, 1986, seeking a direction on the opposite parties to pay Rs.35,550/-, Rs.50/- per day from 3.2.2006 to the day of payment as compensation, Rs.250/- as costs of legal notice and other expenses.
2. The brief facts of the complainant’s case is that, the complainant is a subscriber of Viswam Agro Genetic Private Limited and the first opposite party is a Managing Director of said Company and second opposite party is the Field Officer (Agent) of said company. The opposite party No.2 collected Rs.3,501/- from the complainant and issued a receipt bearing No. 8138, dated 8.5.1995 and opposite party No.1 issued a Unit Holder Certificate with Unit Folio No. 585. The complainant further submits that the opposite party No.1 and 2 promised to pay installments in the first year of Rs.610, second year Rs. 620, third year Rs.830 and likewise in the 10th year to pay Rs.35,550/- but till now no amount is paid towards the said scheme. The opposite parties failed to pay amount as per terms and conditions mentioned in the certificate, thereafter, on 8.11.2005 the complainant issued a legal notice, the opposite party No.2 replied with false allegations and opposite party No.1 returned the said notice with false endorsement. Hence the complainant resorted to the forum seeking redressal.
3. In substantiation of his case the complainant relied on the following documents Viz (1) receipt bearing No. 8138 dated 8.5.1995 issued by opposite party No.1 to the complainant for Rs.3,501/- (2) Unit Holder Certificate issued by Viswam Agro Genetic Private limited to the complainant for Rs. 3,501/- (3) office copy of legal notice dated 8.11.2005 issued by complainant’s advocate to opposite party No.1 and 2 (4) reply of opposite party No.2 addressed to complainant’s advocate and (5) returned cover addressed to opposite party No.1, besides to the sworn affidavit of the complainant in reiteration of his complaint averments and the above documents are marked as Ex A.1 to A.5 for its appreciation in this case. The complainant caused interrogatories to opposite party No.1 and 2 and suitablely replied to the interrogatories caused by opposite parties.
4. In pursuance to the notice of this forum as to this case of the complainant, the opposite parties 1 and 2 appeared through their standing counsel and filed separate written versions.
5. The written version of opposite party No.1 submits that Unit Holder Certificate condition No. 9 says that all disputes are subject to Guntur jurisdiction, condition No. 6 says that Union Bank of India issued a bond to the complainant for Rs.3,501/- payable on 4.8.2015 and further submits that opposite party No.1 did not assure the payment of installments mentioned in the scheme and the assurance was given to re pay the unit price after completion of the claim i.e after 20 years and the remaining liability as per condition No.3 is subject to risk involved in a sheep rearing. All the terms and conditions are written on the back of certificate issued by this opposite party No.1. In the year 2000 all the sheeps relating to the scheme suffered from blue tang (Muthivapu vyadi) and resulted in the death of sheeps. Therefore, the scheme could not be continued as the factors are not within the hands of this opposite party and as per condition No. 3 in the circumstances beyond the control of this opposite party he need not repay the agreed amounts and lastly alleges that the installments 1 to 8 are barred by limitation and therefore seeks for the dismissal of complaint.
6. The written version of opposite party No.2 submits that he is not the Field Officer of opposite party No.1 but only an agent and the agent is not liable to discharge the liability of the principle if any. The conditions of scheme and agreement as mentioned on the back of the Unit Holder Certificate, condition No. 9 says that all disputes are subject to Guntur jurisdiction only complaint before this forum is not maintainable. As per condition No. 6 bank guarantee is provided for the return of unit price of Rs.3,501/- and the complainant can invoke the bank guarantee and realize the unit price and further submits that opposite party No.1 did not assured the payment of all installments mentioned in the scheme and the assurance was given only to repay the unit price and therefore bank guarantee is provided for the said scheme. As per condition No. 3 the remaining liability is subject to risk involved in sheep rearing and there was unexpected damage to sheep because of decease and as per said condition the opposite party No.1 is not at all liable to discharge the liability on the above unit price and further alleges that first two installments of Rs.610 and Rs.620 was paid and same is suppressed by the complainant and lastly alleges that there is no limitation for claiming on 1 to 8 installments and seeks for the dismissal of complaint.
7. The opposite parties in substantiation of their case did not file any documents but filed their sworn affidavits and caused interrogatories to the complainant and suitable replied to the interrogatories caused by the complainant.
8. Hence, the point for consideration is to what relief the complainant is entitled alleging deficiency of service on part of opposite parties:?
9. The case of the complainant is that she purchased a Unit Holder Certificate vide Ex A.2 by paying Rs.3,501/- on 8.5.1995 vide Ex A.1 from opposite party No.1 through opposite party No.2, who is an agent of opposite party No.1 and the opposite parties promised to repay the payment yearly as per schedule written on back side of Ex A.2, but till now no payment is made by opposite parties and as per schedule in Ex A.2 the opposite parties has to pay Rs.35,550/- for 10 years.
10. But as against to it the written version of opposite party No.1 and 2 submits, firstly that as per condition No 9 mentioned on the back side of Ex A.2 all disputes are subject to Guntur jurisdiction only, this allegations of opposite parties is baseless as the agent of opposite party No.1 i.e opposite party No.2 resides within Kurnool jurisdiction hence, this forum has jurisdiction to entertain this case of the complainant. The complainant regarding jurisdiction relied on the following decisions 1) Himachal Pradesh State Commission between Satish Ahuja Vs Ashwani Sharma and another reported in II (2006) CPJ 238 and (2) Karnataka State Commission between Pandey R.K and another Vs Arcadia Securities Private Limited reported in II (2005) APJ 507.
11. Secondly, the opposite party 1 and 2 alleges that condition No. 6 of said scheme envisages the bank guarantee is provided by Union Bank of India to the complainant for Rs.3,501/- payable on 4.8.2015 and the complainant can realize the said amount on expiry of said date. But the condition No. 6 of said scheme in Ex A.2 says that the Unit Holder is only entitled to the assured returns to his unit as per schedule till the completion of the scheme or soon after the scheme is completed but no such bank guarantee provided is mentioned therein, hence, this allegation of opposite parties remains of devoid of merit and force.
12. Thirdly, the opposite party 1 and 2 alleges that as per condition No.3 the remaining liability is subject to risk involved in sheep rearing, but condition No.3 in Ex A.2 says that sheep rearing unit is 100 % insured, the compensation received from the Insurance Company in case of loss will be utilized by the company to continue the scheme. The opposite parties 1 and 2 in their written version averments alleges that in the year 2000 all the sheeps relating to the scheme suffered from blue tang (Muthivapu vyadi) and resulted in the death of the sheeps and the scheme cannot be continued, the said allegations of opposite parties cannot be take into consideration as no cogent material is placed in support of their allegation and more so the said unit of sheep rearing is covered under insurance as per condition No. 3 mentioned in the terms and conditions of the scheme if the death of sheep occurred then insurance Company will pay compensation and the opposite parties could continue the scheme and pay the installments to the unit holders and non payment of installments by opposite parties is certainly amounts to deficiency of service.
13. Fourthly and lastly the opposite parties 1 and 2 alleges that they did not assure the payment of all installments mentioned in the scheme and the assurance was only given to repay the unit price after completion of the scheme i.e after 20 years, is also remaining devoid of merit and force. As per condition No. 6 which says that unit holders are entitled to the assured returns to his unit as per schedule till the completion of the scheme and soon after the scheme but in this case the complainant did not receive any installments amount from the opposite parties as per schedule mentioned in the payment schedule in Ex A.2. Hence the complainant is perfectly remaining entitled to the installment amounts as per payment scheduled.
14. To sum up, in the circumstances discussed above as the complainant did not receive any installment due from the opposite parties she is entitle to receive installment payments from the opposite party No.1 yearly as per payment schedule, hence the complainant is entitled to receive 10 years installments i.e totaling Rs.35,550/-. The opposite parties No.1 and 2 further contended that 1 to 8 installments are barred by limitation, this contention of opposite parties is untenable as the opposite parties has to pay installments to the complainant up to twenty years as per Ex A.2 payment schedule and there is no mention of limitation in Ex A.2. Hence, the said contention is rejected. As the complainant was drive to the Forum for redressal the complainant is entitled to costs of Rs.500/- also.
15. The opposite party No.2 (agent of opposite party No.1) alleges that he is only an agent of opposite party No.1 and agent is not liable to discharge the liability of the principle if any. The opposite party No.2 as an agent of opposite party No.1 received unit price amount of Rs.3,501/- on 8.5.1995 from the complainant and issued a receipt vide Ex A.1 by appended his signature on behalf of opposite party No.1, therefore the opposite party No.2 is clearly acting on behalf of opposite party No.1 accepting the unit price amounts and remitting the same to opposite party No.1 and ultimately issued unit holder certificate to the complainant and received commission from opposite party No.1 for said service. Hence, both the opposite parties 1 and 2 are therefore, jointly and severally liable to the complainant for refund of installments due as per payment schedule in Ex A.2, as per the decision of Madhya Pradesh State Commission in Terence Correya Vs Mruthi Udgoy Ltd and Anr reporting (I) 2005 CPJ 96.
16. Consequently in the result the complainant is allowed directing the opposite party No.1 and 2 jointly and severally to pay to the complainant Rs.35,550/- along with costs of Rs 500/- within a month of receipt of this order in default the opposite parties are liable to pay the supra awarded amount with 12% interest from the date of default till realization.
Dictated to the Stenographer, transcribed by him, corrected and pronounced in the Open bench this the 17th day of November, 2006.
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex A.1 Receipt No. 8138 dated 8.5.1995 for Rs.3,501/- ( for purchase of one unit).
Ex A.2 Unit Holder Certificate issued by Managing Director of Viswam Agro Genetics
Private limited, Guntur.
Ex A.3 Office copy of legal notice dated 8.11.2005.
Ex A.4 Reply notice of opposite party No.2.
Ex A.5 Returned cover notice of opposite party No.1.
List of exhibits marked for the opposite parties:- Nil
MEMBER PRESIDENT
Copy to :-
1.Sri M/s K. Kapileswaraiah, Advocate, Kurnool.
2.Sri K.B. Prasad, Advocate, Guntur.
3.Sri A. Prabhakar Reddy, Advocate, Kurnool.
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties:
