KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 346/2007
JUDGMENT DATED:08-02-2011
PRESENT:
JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT
SHRI. S. CHANDRA MOHAN NAIR : MEMBER
M/s Sakthan Kuries & Loan (P) Ltd.,
Pallikulam Road, Thrissur-680 001, : APPELLANT
Repd. by its Chairman.
(By Adv.Sri.M.Nizamudeen)
Vs.
Annamma, W/o Edakkalathur Ouseph,
Residing at “Welcome Villa”,
Poonkunnam, Thrissur-2.
E.O.Lawrence, S/o Edakkalathur Ouseph,
R/at “Welcome Villa”,
Poonkunnam, Thrissur-2.
Elsy Jose, D/o Edakkalathur Ouseph &
W/o T.A.Jose, Thayyalakkal House,
Alagappa Nagar.P.O.
: RESPONDENTS
Lilly Varghese, D/o Edakkalathur Ouseph &
W/o Varghese, Akkarakkaran House,
Irinjalakuda.
Flory Xaviour, D/o Edakkalathur Ouseph &
W/o Xaviour, Alookkaran House,
Main Bazaar, Ootty.
Mary Paul, D/o Edakkalathur Ouseph &
W/o C.P.Paul, Chalissery House,
Puranattukara.P.O.
JUDGMENT
SHRI.S. CHANDRAMOHAN NAIR: MEMBER
The order dated:13-04-2007 in OP.235/03 of CDRF, Thrissur is being assailed in this appeal by the 1st opposite party who is under directions to pay to the complainants and the 2nd opposite party a sum of Rs.93,628/- with interest at the rate of 12% per annum from 16-07-1998 till the date of payment with cost of Rs.1500/-.
2. The complainants approached the Forum stating that the they were subscribing to a kuri conducted by the 1st opposite party and further that after the death of the husband of the 1st complainant the 2nd respondent was remitting the instalments of the kuri. It was stated by them that they had remitted 39 instalments out of the 60 instalments and the kuri was terminated on 15/04/2000. It is their case that even after the termination and repeated requests and a lawyer notice, the 1st opposite party was not amenable to pay them the remitted amount of Rs.1,95,000/- with interest at 12% per annum from 15-04-2000 till realisation with costs.
3. The 1st opposite party filed version contending that the claim was barred by limitation and that there was no deficiency on the part of the 1st opposite party. It was also stated that the 2nd complainant was the previous chairman of the 1st opposite party firm and he was removed from the chairmanship due to mis-appropriation of funds found against him. However the 1st opposite party admitted that the petitioners were entitled to get the amount after deducting the auction discount and foreman’s commission. Contending that there was no deficiency of service, the 1st opposite party prayed for dismissal of the complaint.
4. The 2nd opposite party remained absent and was set exparte.
5. The evidence consisted of the documents produced from both sides. Exts.P1 to P5 were marked on the side of the complainants and Exts.R1 to R5 were marked on the side of the 1st opposite party.
6. Heard both sides.
7. The learned counsel for the appellant gave much emphasis to the question of limitation while arguing the case before us. It is his very case that the kuri was terminated on 15/04/2000 and the complaint was filed only on 16/4/2003. According to him as per Sec.30(3) of the Chit Funds Act, 1982, the contributions of any defaulting subscriber who has not been substituted till termination of the kuri, shall be paid within 15 days from the date of termination subject to such deductions as may be provided in the chit agreement. In such a situation, it is submitted by him that the claim was hopelessly barred by limitation and the Forum below ought not to have adjudicated the matter and the complaint ought to have been dismissed by the Forum on the short question of limitation. The learned counsel has also submitted before us that the 2nd respondent was the previous chairman of the 1st opposite party/appellant and that he was removed from the chairmanship due to mis-appropriation of money in the appellant firm. It is further submitted by him that there were Civil cases before the Sub Court, Thrissur and to substantiate the said submission he invited our attention to Exts.R2 to R4 and argued before us that the complainants had approached the forum with unclean hands by suppressing the material facts. Thus, he canvassed for the position that the appeal is to be allowed thereby setting aside the order of the Forum below.
8. On the other hand the learned counsel for the respondents supported the findings and conclusions of the Forum below and argued that the complaint was not barred by limitation as the money was with the 1st opposite party/appellant and that there was a lawyer notice sent by the complainants as per Ext.P1. The learned counsel submitted that since the complaint was filed within 15 days from the date of notice the complaint cannot be considered as barred by limitation. It is also his case that the cases before the Sub Court, Thrissur were not in connection with the present kuri and in such a situation the Forum below has rightly allowed the complaint thereby directed the 1st opposite party to return the amount of Rs.93,628/- which is the amount arrived at after deducting the Forman’s Commission and other eligible deductions. Learned counsel further submitted that the appeal is only to be dismissed with compensatory cost to the respondents.
9. On hearing the learned counsel for the appellant, respondents and also on perusing the records, we find that both the appellant and the respondents will agree that there was a chitty run by the appellant/1st opposite party in which one E.L.Ouseph was a subscriber and that after his death the wife and children were remitting the instalments. It is also not disputed that only 39 instalments were remitted by the complainants and that the chitty terminated on 15/04/2000. The short question to be considered by us is whether the claim made by the complainants is barred by limitation or not. It is the admitted fact that the chitty terminated on 15/4/2000. The complainant would argue that the amount was with the appellant and they had sent a notice on 2/4/2003 and the complaint was filed on 16/4/2003 and hence it is not barred by limitation. On the other hand, the learned counsel for the appellant gave much emphasis to the point that the claim was barred by limitation as a complaint can be instituted before the Forum only within two years from the date of the cause of action. He submitted that the kuri was terminated on 15/4/2000 and the money ought to have been paid within 15 days and since the complaint was filed on 16/4/2003 only, the petition is barred by limitation. We find that it was the bounden duty of the appellant to pay the amount within 15 days after the termination of the kuri on 15/4/2000. But the amount was retained by the appellant even thereafter and the respondents had sent a lawyer notice on 2/4/2003 demanding the amount. It is also found that the complaint was filed within a short time as the appellant had failed to pay the amount even after the lawyer notice. Hence it is our considered view that the complaint is not barred by limitation and the Forum below had rightly directed the appellant to pay the amount of Rs.93,628/- with 12% interest per annum and cost of Rs.1500/- to the complainants/respondents.
10. The Forum below had ordered interest @ 12% per annum from 16..7..1998 which is not correct. It is admitted that the complainants were defaulters and the kuri was terminated only on 15/4/2000. Hence the complainants are entitled to interest only from the date of termination of the kuri on 15/4/2000.
In the result the appeal is allowed in part with the modification indicated above. Thereby the appellant is liable to pay the amount of Rs.93,628/- with interest @ 12% per annum from 15/4/2000 till date of payment with costs of Rs.1500/-. In the facts and circumstances of the present appeal the parties are directed to suffer their respective costs.
S. CHANDRA MOHAN NAIR : MEMBER
JUSTICE K.R. UDAYABHANU : PRESIDENT
VL.
