Date of filing : 24-09-2009
Date of order : 08 -07-2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC. 213/2009
Dated this, the 8th day of July 2011
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT. K.G.BEENA : MEMBER
M.V.Narayanan,
S/o.Late.Kunhambu, } Complainant
Po.Bengalam, Via. Nileshwar,
Madikai Village, Hosdurg Taluk.
(Adv.C.V.Damodharan, Hosdurg)
A.V.Sreedharan, } Opposite party
S/o.Krishnan,
Ankakkalari, (Dharkhas),
Po.Puthariyadukkam, Via. Nileshwar,
Hosdurg Taluk
(Adv. N.P. Ravindran, Hosdurg)
O R D E R
SRI.K.T.SIDHIQ, PRESIDENT
Bereft of unnecessaries the case of complainant Sri.M.V.Narayanan is as follows:
On 1-6-2004 the opposite party a close friend of complainant approached the complainant and told that he is intending to start new chitties of `2,00,000/- and `1,00,000/- sala each. The complainant agreed to join in the chitties. The monthly subscription payable for each chitties as told by opposite party were `5,000/- and `2,000/- respectively. The monthly subscriptions were collected by opposite party himself from the home of complainant on 10th day of every month from 10-06-2004 to 10-10-2004 and after that complainant went to Kuwait and remitted the chitty subscription in the account of opposite party maintained in North Malabar Gramin Bank, Nileshwar Branch till 20-01-2007. The complainant has paid `1,23,000/- as monthly subscriptions towards chitties from Kuwait. Apart from that he paid `30,000/- directly when he was in native place. No slip or pass book was given by the opposite party to the complainant. Yet the complainant joined in the chitty for he believed the opposite party is an honest friend. The total payments made by the complainant in the two chitties were `1,88,000/-. The last payment was on 30-01-07. By that time the complainant got a letter from the opposite party which was given by one of complainant’s friend by name Sreenivasan who had come to Kuwait at that time. In that letter opposite party categorically stated that
“നിന്റെ ഒരു കുറി 2006 ഡിസംബറില് ഏകദേശം തീരും. അതുപോലെ 2000 ന്റെ കുറി 2007 മെയ് മാസത്തില് തീരും” .
2. So the complainant informed this matter to his wife and she approached the opposite party on 26-11-2006. But opposite party denied the chitty and behaved rudely towards her. On receiving information about this complainant telephoned the opposite party and enquired about the chitty. As a result opposite party agreed to pay the chitty amount owed to the complainant when he come to native place. Yet the complainant paid the subscription amount since he believed the opposite party. On 5-7-2009 complainant reached home and on the next day he approached opposite party. But opposite party denied the chitty transaction and threatened the complainant. Hence the complainant is filed alleging deficiency in service on opposite party.
3. According to opposite party he never owes any amount to complainant and they were in good terms. On 18-06-2004 complainant had borrowed an amount of `1,50,000/- from opposite party on condition to repay the same within a period of 2 months stating that he has two chitties conducted by Vairajathan Eashwaran Kshethram Vainingat for an amount of `1,00,000/- and for `1,50,000/-. At the time of borrowing the amount complainant promised the opposite party that he will bid the chitty within 2 months and he will repay the amount. Subsequently without informing anything he had gone abroad without bidding the chitty in Oct.2004. Since the opposite party was in financial difficulties he approached the relatives of the complainant to get back the amount. The opposite party and relatives contacted the complainant in telephone on several occasions. Eventhough the complainant declined to repay the amount borrowed from the opposite party, subsequently due to the intervention of mediators the complainant was directed to repay the amount borrowed from the opposite party on monthly instalments. As such during the course of a long period commencing from 07/11/2004 onwards the complainant had paid irregular instalments up to 20-01-2007 that comes to `1,23,000/- only to the account of opposite party in NMG Bank, Nileshwar Branch. The receipts produced by the complainant are pertaining to that payment. During the course of the above said payment the complainant called the opposite party from Kuwait over telephone and informed the opposite party to enquire about the condition and maturity dates of two chitties conducted by Vairajathan Eashwaran Kshethra Committee. The opposite party enquired about the two chitties and informed the complainant about the due date of chitties through the letter produced by the complainant. The wordings in that letter subsequently falsely interpreted so as to suit the complaint along with the paid receipts of UAE exchange & other receipts so as to make unlawful claims. The complainant actually owes `27,000/- till today out of the borrowed amount of `1,50,000/- after receiving `1,23,000/-. The complaint will not come within the ambit and jurisdiction of Consumer Forum since there is no deficiency in service on the side of opposite party and the complaint is liable to be dismissed.
4. Complainant’s sister Narayani as the Power of Attorney Holder of the complainant filed proof affidavit as PW1 and faced thorough cross-examination by the learned counsel for opposite party Sri.N.P. Ravindran. Exts A1 to A24 marked through PW1. Opposite party filed affidavit and he is cross examined by the learned counsel for complainant.
5. The points arises for consideration in this complaint are:
1. Whether the opposite party has conducted any chitty and whether the complainant was a subscriber of the said chitty?
2. Whether there is any deficiency in service on the part of opposite party?
3. If so, what order as to relief & costs?
6. Complainant has produced Exts A1 to A24 to substantiate his case. Exts A1 to A23 are the receipts issued by different money transferring institutions functioning in Kuwait. As per the said receipts it is seen that complainant had been transferred a sum of `1,23,000/- to the account of opposite party maintained in North Malabar Gramin Bank, Nileshwar Branch. According to the complainant these are the receipts obtained by him from the different money transferring firms functioning in Kuwait through whom he sent money to opposite party towards the chitty instalments. To support his complainant also relying on Ext.A24 which is a letter sent by opposite party to complainant by hand through one of the friend of complainant working in Kuwait. The opposite party admits the execution of Exts.A24. In Ext.A24 opposite party categorically states as follows:
“ നിന്റെ ഒരു കുറി 2006 ഡിസംബറില് ഏകദേശം തീരും. അതുപോലെ 2000 ന്റെ കുറി 2007 മെയ് മാസത്തില് തീരും .”
7. According to complainant the said letter is an indicator to prove that opposite party had conducted chitty and in which complainant was a subscriber.
8. Whereas according to opposite party he has not conducted any chitty and he used to take rubber trees for slaughter taping and that is his profession. According to him complainant borrowed a sum of `1,50,000/- from him with a promise to repay it within 2 months. But without repaying the said amount complainant gone abroad resulting financial stringencies to him. Therefore through mediators he contacted complainant and complainant agreed to repay the amount in monthly instalments. Exts A1 to A23 are the receipts evidencing the payment of instalments to discharge the said debt and even then a sum of `27,000/- is still pending due from him. According to him the complainant had two kuries (chitties) in Vairajathan Easwaran Kshethram Committee, Vainingat and the complainant asked him to verify the account statement of that chitty and after verifying the same he intimated it through Exts.A24. According to him it is not relating to any chitty conducted by him .
9. Complainant has not produced any document to show that opposite party is running any chitty. Exts A1 to A23 are some receipts of money transfer from Kuwait to NMG Bank, Nilehswar. Similarly opposite party also not produced any document to substantiate the contention of lending money to the complainant. So to reach in a conclusion it is necessary to depend upon the circumstances of the case also.
10. According to complainant the chitty started in June 2004 and he paid `30,000/- in instalments by hand to the opposite party directly and thereafter he left to Kuwait and paid the chitty monthly instalments through different money transferring agencies. Exts A1 to A23 shows that `1,23,000/ is transferred to the account of opposite party.
11. PW1 the Power of Attorney holder of the complainant during cross-examination has deposed that except the chitty transaction there were no other transactions between the complainant and opposite party. PW1 denied the suggestion that the complainant had joined in Vairajathan Chitty. PW1 also denied the suggestion that complainant had borrowed `1,50,000/- from opposite party.
12. Opposite party as DW1 in cross-examination has deposed that he was a peon in District Co-operative Bank, Kasaragod and he is dismissed from service alleging financial misappropriation to the tune of `5,00,000/- and there was a criminal case against him U/s 380 IPC in which he was convicted. Thereafter he was dismissed from the service after departmental enquiry. The complainant borrowed `1,50,000/- from him on 18-06-2004. The said amount he acquired from the Chitties in which he joined as subscriber. He further deposed that complainant promised to refund the amount within 2 months. He further deposed that in Ext.A24 nowhere it is stated that the chitty belongs to Vairajthan chitty and the ‘Kuries’ mentioned in the Ext.24 is not the kuries conducted by him.
13. In further examination by his counsel DW1 deposed that the conviction order by the Magistrate is reversed by the Appellate Court and against the acquittal the Bank has preferred an appeal before the High Court of Kerala and the same is pending.
14. Ext.A.24 is dated 10-09-2006. The case of opposite party is that after availing a loan of `1,50,000/- the complainant assured to repay the amount within 2 months and without refunding the amount he left abroad and he repaid `1,23,000/- only that too by instalments and the Kuri (chitty) mentioned by him in Ext.A24 is the Vairajathan, Eashwarn Kshethram Committee Chitty that was prevailing in the locality. But in order to substantiate the contention that the amount he lent was acquired by him through any chitty is not substantiated by adducing any evidence. Further Ext.A24 nowhere says that the kuri (chitty) mentioned in Ext.A24 is that of Vairajathan Chitty. Apart from that it is the case of the opposite party that the complainant has borrowed `1,50,000/- from, him. But in Ext.A24 there is no whisper about the said loan. Had the payments made by the complainant were towards the discharge of the debt, then in the ordinary course of human conduct the Ext.A24 letter should have contained some whisper about the debt and the payments. Therefore the only inference possible is that there was no such lending of money by opposite party and the opposite party has conducted chitties and the payments made by the complainant through money transfer exchange from Kuwait to the account of opposite party was towards the payment of chitty instalments.
15. Exts.A1 to A 23 shows that the complainant had remitted `1,23,000/- in the account of complainant. It is the case of complainant that in addition to that amount he paid `35,000/- in cash directly to the opposite party while he was at home before going abroad. According to him the total payment made to opposite party is `1,88,000/-. But there are no other documents produced to show that he paid any amount other than the payments made as evidenced in the receipts. So complainant is entitled to get back the said amount with interest and compensation for the mental agony he suffered together with costs.
16. Conducting chitty without obtaining necessary licenses from the authorities itself is an offence. The non-payment of chitty amount is a more heinous kind of deficiency in service.
In the result complaint is allowed and the opposite party is directed to repay a sum of `1,23,000/- ( `One lakh twenty three thousand only) to the complainant with interest @ 6% from the date of payment of last instalment i.e. 20-01-2007 till payment together with a compensation for the mental sufferings to the tune of `20,000/- and a cost of `5000/-. Time for compliance is limited to 30 days from the date of receipt of copy of order.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exts.
A1 to A23. Receipts issued by different money transferring institutions functioning in
Kuwait.
A.24. copy of letter sent by OP to complainant.
PW1. K.V.Narayani.
DW1. A.V.Sreedharan
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Pj/ Forwarded by Order
SENIOR SUPERINTENDENT
