Andhra Pradesh

Chittoor-II at triputi

CC/66/2013

N.Ananda Reddy ,S/o.Late N.Babi Reddy Aged about 68 Years - Complainant(s)

Versus

Aiswarya Nilaya Chit Fund(P) Ltd,Rep. by its Partners - Opp.Party(s)

M.Vani

09 Jun 2014

ORDER

Filing Date:24.10.2013

Order Date: 09.06.2014

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

TIRUPATI

 

PRESENT: Sri.M.Anand, President (FAC),

        Smt. T.Anitha, Member

 

MONDAY THE NINTH DAY OF JUNE, TWO THOUSAND AND FOURTEEN

 

C.C.No.66/2013

 

Between

 

N.Ananda Reddy,

S/o. late. N.Babi Reddy,

D.No.18-8-56N3, Sainilayam,

Madhura Nagar,

Tirupati,

Chittoor District.                                                                              … Complainant

 

And

 

Aiswarya Nilaya Chit fund (P) Limited,

Rep. by its Partners,

1.         Mr.K.Kanakaraju,

            S/o. K.Narasimhulu,

 

2.         K.Kumari,

            W/o. K.Kanaka Raju,

 

6-2-95, M.H.Road,

Tirupati,

Chittoor District.                                                                  …  Opposite parties.

 

            This complaint coming on before us for final hearing on 21.05.14 and upon perusing the complaint, written version and other relevant material papers on record and on hearing M.Vani, counsel for the complainant and G.Ananth Kumar, counsel for the opposite parties and and having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERED BY SRI. M.ANAND, PRESIDENT (FAC)

ON BEHALF OF THE BENCH

 

            This is a complaint filed under Section-12 of C.P.Act 1986, against the opposite patties for deficiency of service on the part of the opposite parties.

2. The averments in the complaint are that:-  The complainant is the subscriber in a chit in reference No.LT1023 for value of Rs.10,00,000/- and the monthly subscription is Rs.20,000/- and the period of chit is 50 months, commenced in the month of November 2008. The complainant further averred that he paid Rs.5,48,440/- for 43 months. After lapse of 43 months, the opposite party stopped to run the chit and neither made payment to the subscribers nor to receive further subscription from the subscribers. While so, on 25.03.2012 an auction was held by the opposite party and in that said auction, the complainant became successful bidder and the prized amount was Rs.6,70,000/-. But the opposite party failed to pay that amount and the complainant made several demands to repay the amount paid with interest, but the opposite party postponing and evading the payment and therefore there is deficiency of service on the part of the opposite party and the complainant also suffered mental agony. Hence the complaint.

3.  The opposite party filed written version denying the averments in the complaint. Though the opposite party denied the case of the complainant, in Para.9 of the written version, it is categorically admitted that infact the 1^st opposite party conducted mediation with the complainant and settled the matter and accordingly part payment also was made to the complainant and by suppressing the said fact, the complainant filed this complaint. The receipt also evidencing the said part payment. The opposite party further stated that he is not in a position to pay the amount and if time is granted, he could pay the amount in installments. The complainant also knows the said fact. So saying, the opposite party prayed to dismiss the complaint with costs.

4.  On behalf of the complainant, the complainant filed his affidavit on evidence and got marked Exs.A1 and A2. On behalf of the opposite parties, the 1^st opposite party filed his affidavit on evidence and no documents are marked. The complainant filed written arguments and the counsel for the opposite party submitted to treat the chief affidavit of 1^st opposite party as written arguments, Memo allowed and treated the affidavit on evidence of the opposite party as written arguments on behalf of the opposite parties.

5.  The points that arise for consideration are:-

(i).  Whether there is any deficiency of service on the part of the opposite

parties?

(ii).  To what relief?   

6.  Point No.(i):-  Admittedly,  the opposite party filed written version and the 1^st opposite party filed affidavit on evidence on their behalf. Though the opposite party denied the contention of the complainant in Para.2 and 3 of the affidavit on evidence, in Para.4 the 1^st opposite party categorically admitted that a mediation took place between the complainant and opposite parties and in the said mediation the matter was settled and according to the said settlement, the opposite party also made part payment to the complainant and by suppressing the said fact, the complainant filed this complaint. It is further stated that he is not in a position to pay the prized money and the complainant also know the said fact and if time is granted he could pay the amount in installments. The opposite party got it mentioned the same fact in his written version.

7.  The admissions of the opposite party itself clearly proved that the complainant is one of the subscribers in a chit and he is the successful bidder and the opposite party has to pay the prized amount to the complainant as contended by the complainant. It is further evidencing that the opposite party failed to pay the prized amount to the complainant and that there is deficiency of service on the part of the opposite party.

8.  The opposite party simply contended that there is settlement between him and the complainant and as per the said settlement, the opposite party paid Rs.25,000/- to the complainant and he has to pay the balance amount and he could pay the said amount in installments as he is not in a position to pay the entire amount in lumpsum. When there is specific plea in the written version as well as in the affidavit on evidence, it is for the complainant to challenge the same. Admittedly, after filing written version, the complainant filed his affidavit on evidence. If that be so, it is for the complainant to deny the version of the opposite party with regard to settlement, payment of Rs.50,000/- and installments. If there is no whisper in the affidavit on evidence of the complainant about the plea taken by the opposite party in written version and evidence on affidavit. Regarding payment of Rs.50,000/-, it could be said that the opposite party paid Rs.50,000/- to the complainant. Further, the learned counsel for the complainant never challenged that the signature on the said receipt is not that of the signatory and the said signature is a forged one and that the complainant never received that amount. When the signature in the receipt is not denied, it is the burden of the complainant to disprove the contents therein with cogent evidence. In the absence of positive evidence regarding the receipt, it could be said that mediation took place between the complainant and opposite party and the opposite party paid Rs.50,000/- to the complainant. Further, the complainant also willing to receive subscribed amount, paid by the complainant in the chit with interest at 24% per annum from the date of chit, till the date of realization. At this juncture, it is significant to note that, the complainant himself stated that the opposite party is inability to pay the prized amount. Further the complainant did not raise any objection on the plea of the opposite party that he could not pay the entire amount at a time and he would pay the amount in installments. It is not the case of the complainant that the opposite party is able to pay or having capacity to pay the entire amount at a time. In the absence of such evidence an inference could be drawn that the opposite party is not in a position to pay the entire prized amount at a time. Further, the complainant has taken alternative plea that he is ready to take back the amount already paid towards subscription of the chit i.e. an amount of Rs.5,48,440/- with interest at 24% per annum from the date of chit till the date of realization. The opposite party also did not deny this plea with regard to the subscription paid by the complainant from the date of the chit. If there is any objection regarding the amount mentioned in the prayer column, it is for the opposite party to deny the said amount and to narrate the actual amount paid by the complainant towards monthly subscription. As the opposite party did not deny the said amount of Rs.5,48,440/-, the complainant is entitled for the said amount. With regard to interest, the opposite party also silent about the interest claimed by the complainant. It is therefore in view of the above reasons, we are of the opinion that the complainant is entitled for Rs.4,98,440/- with interest at 9% per annum from the date of complaint, till the date of realization after deducting Rs.50,000/- already paid by the opposite party to the complainant for deficiency of service on the part of the opposite party. The complainant is also entitled to Rs.2,000/- towards costs. Hence, this point is answered in favour of the complainant and against the opposite parties.

9.  Point No.(ii):-  In the result, the complaint is allowed directing the opposite parties to return the amount of Rs.4,98,440/- (Rupees four lakhs ninety eight thousand four hundred and forty only) with interest at 9% per annum from the date of complaint, till the date of realization after deducting Rs.50,000/- already paid by the opposite party to the complainant. The opposite parties further directed to pay Rs.2,000/- (Rupees two thousand only) towards costs. The order shall be complied within 4 weeks from the date of the order.              

Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 9^th day of June, 2014.

       Sd/-                                                                                                                 Sd/-             

Lady Member                                                                                               President (FAC)

 

APPENDIX OF EVIDENCE

WITNESS EXAMINED ON BOTH SIDES

 

PW-1: N.Ananda Reddy (Evidence Affidavit filed).

RW-1: K.Kanaka Raju (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

 

Exhibits	Date	Description of Documents
Ex.A1		Original Pass Book issued in the name of the Complainant by the Opposite Party.
2		Original payment receipts (29 in number).

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/S

 

- Nil -

                                                                       

                                                                                                                                                                                                         Sd/-

President (FAC)

// TRUE COPY //

// BY ORDER //

 

 

Head Clerk/Sheristadar,

           Dist. Consumer Forum-II, Tirupati.

 

 

Copies to:-     1. The Complainant.

                        2. The opposite parties.