BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 31^st August 2016

PRESENT

        SMT. ASHA SHETTY           :  HON’BLE PRESIDENT 

        SMT.LAVANYA M. RAI       :   HON’BLE MEMBER                                         

                                                                                                     ORDER IN

   C.C. No 223/2016

 (Admitted on 25.06.2016)

Smt. Susheela M. Bhat,

Wife of late Madhava Bhat,

Aged about 78 years,

Residing at Chandralekha, Batrakodi Road,

Pedamale Post, Neermarga Village,

Mangalore D.K.

…… COMPLAINANT

(Advocate for complainant by 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. ASHA SHETTY:

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, she has invested her hard earned money in Opposite Parties co operative society under the fixed deposit receipts for the stipulated period mentioned in the respective fixed deposit receipts and the Opposite Parties in turn agreed to pay interest 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 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 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 her and also sought for compensation and cost of the proceedings.

II.      1. Version notice served to the Opposite Parties by R.P.A.D. Opposite Party No.2 inspite of receiving version notice 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 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.

III.     1. In support of the above complaint, Smt. Susheela M. Bhat, complainant is examined as CW 1 and produced documents got marked under the Ex.C series detailed in the annexure here below.  The opposite parties not led any evidence.

IV     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) & (iv)  As per the final order.        

REASONS

IV. 1.  POINTS No. (i) to (iv): 

In the instant case, the Complainant in order to substantiate the averments made in her complaint filed evidence on affidavit supported by fixed deposit receipts i.e. Ex.C series  mentioned in the annexure in detail.  The Complainant 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.

 However, now the point for consideration is that, whether the Complainant is entitled for the amount mentioned in the Fixed Deposit Receipts and 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 with the Opposite Parties and the Opposite Parties in turn agreed to refund the amount along with the 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 with the Opposite Parties and the Opposite Parties in turn received the invested amount from the Complainant and agreed to refund the aforesaid amount along with the interest on the date of maturity.  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 because the Opposite Parties made 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.  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 her 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.  Therefore liquidator is not responsible in this case.

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  to pay the entire amount mentioned in the Fixed Deposit Receipts along with contractual rate of interest from the respective date of deposits till this date of payment and further pay Rs.3,000/ (Rupees three thousand only) towards the cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

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

V.     In the result, we pass the following

ORDER

The complaint is allowed.  The Opposite Party No.1 shall refund Rs. 2,15,000 (Two lakhs Fifteen thousand only) to the complainant along with interest at the rate of 11.5% from the date of deposit till the date of payment.  And also pay Rs. 3,000/ (Rupees Three thousand only) as cost of the litigation expenses.  Payment shall be made within 30 days from the date of receipt of this order.

Complaint against opposite party No.2 is hereby dismissed.

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 31^st day of August 2016.)

     PRESIDENT                                                                          MEMBER 

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

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

 Mangalore.                                                                                    Mangalore.        

ANNEXURE

Witnesses examined on behalf of the Complainant

CW1  Smt. Susheela M. Bhat.

Documents produced on behalf of the Complainant

Ex C1 and C2     Original F.D. Receipts.

1.  23.05.2013     Original fixed deposit number 4815/5702 for a sum of Rs. 2,00,000/ issued by the opposite party No.1.

2. 17.08.2014     Original fixed deposit number 003734 for a sum of Rs. 15,000/ 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: 31.08.2016.                            PRESIDENT