Kerala

Idukki

CC/37/2018

Ajeesh M V S/o Vimalarajan - Complainant(s)

Versus

Anson Chitts India Pvt Ltd - Opp.Party(s)

Adv.Vikraman Nair

31 Dec 2019

ORDER

DATE OF FILING : 21.2.2018

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 31^st day of December, 2019

Present :

SMT. ASAMOL. P PRESIDENT IN CHARGE

SRI. AMPADY K.S. MEMBER

CC NO.37/2018

Between

Complainants : 1. Ajeesh M.V., S/o. Vamarajan,

Malayil House,

Pampadumpara P.O.,

Idukki.

2. Bettymol Joseph, W/o. Ajeesh,

Malayil House,

Pampadumpara P.O.,

Idukki.

(By Adv: Vikraman Nair N.G.)

And

Opposite Party : 1. Anson Chits India Pvt. Ltd.,

Nedumkandam,

Karingattil Building, East Junction,

Nedumkandam, Idukki.

2. Sony Mathew,

Pattathekuzhiyil House,

Nedumkandam,

Managing Director,

Anson Chits India Pvt. Ltd.,

Nedumkandam.

3. Sills Karingattil Jose,

Karingattil House,

Nedumkandam,

Managing Director,

Anson Chits India Pvt. Ltd.,

Nedumkandam.

(All by Adv: Jeen Kurian)

4. Antony Kurian,

Thuruthel House,

Managing Director,

Anson Chits India Pvt. Ltd.,

Nedumkandam.

5. Joby George,

Managing Director,

Anson Chits India Pvt. Ltd.,

Nedumkandam.

(By Adv: Jeen Kurian) (cont.....2)

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O R D E R

SRI. AMPADY K.S, MEMBER

The case of the complainant is that,

 

1. Second complainant is the wife of the first complainant and guarantor of chit.  1^st opposite party is a chit company. 

 

2. Complainant was a subscriber in chit group SB2 name “Sambadyam – II” of opposite party.  Said chit was started on 25/06/2012 having a period of 60 months.  Chit amount was Rs.6 Lakhs.  On 20/10/2012 the complainant subscribed for another chit named KCN 16.  Chit amount was Rs.one Lakh in that chit also the second complainant was the guarantor and said chit was closed in time by the complainant, but opposite party has not returned the security collected from the wife of the complainant ie, the second complainant in the present complaint filed.

 

3. The first complainant auctioned the chit at 13^th month.  At that time opposite party assured prize money of Rs.4, 44, 000/- (Four Lakhs and forty-four thousand only) and requested to deposit Rs. 2 Lakhs as security money. Complainant deposited said amount on 25/06/2013.  After one month, opposite party disbursed only Rs. 3 Lakhs including the deposited amount.   Immediately the first complainant asked for balance amount of Rs.1,64,000/- (One Lakh and sixty-four thousand) from the opposite party and they said that since subscription from all subscribers were not received and on receiving this, they would give balance amount.  Thereafter also, the first complainant paid another 7 installments to opposite party. Complainant bid the chitty for an urgent need of fertilizing his cardamom plants.  Complainants contacted the opposite party several times and finally informed them that he would not pay chit instalment thereafter.  But no response from the side of opposite party.  Now the first  complainant came to know that, opposite party would pay only Rs.5 Lakhs at the end of chit for chit value as such they had deducted the amount of Rs.1,64,000/- from the subscribed chit.  It is an unfair trade practice.

 

4. At the time of bid the opposite party collected 3 cheque leaves from the complainant and another 3 cheque leaves from complainant’s father  of SBT Nedumkandam, the second complainant of South Indian Bank, Nedumkandam Branch as security for chit and 2 cheque leaves  from father of first complainant who is the guarantor of the chit.

 

(cont.....3)

- 3 -

5. The second complainant received legal notice from opposite party stating that above numbered cheque was dishonored with endorsement “funds insufficient”, the security was blank and not filled up the date and amount on it.  Cheque amount and date was filled by opposite party and presented in South Indian Bank, T.Nagar, Chennai.

6.  Eventhough, the opposite party is possessing an account in South Indian Bank, Nedumkandam, the cheque was presented at Chennai branch and also issued notice from Chennai around 450 KMs away from Nedumkandam is with malafides.  The opposite party is not having any right to issue notice to the 2^nd complainant without taking steps against the principal debtor or co-obligant. The opposite party received the cheque in blank as the security for the chit transaction and had misused the same.  The said chit was not registered as per chit fund act. 

7.  The opposite parties served notice demanding such a huge amount of Rs.4,10,000/- is for unlawful gain and enrichment which amounts to defect in service and unfair trade practice. Hence the opposite parties are jointly and severally liable to compensate the complainants.

8. The cause of action for the complaint arose on 25/06/2012 and continuously immediately after receiving the legal notice dated 10/01/2018 at Pampadumpara, which is within the jurisdiction of this Forum. 

          Hence the complainant sought for the following reliefs.

1.      Direct the opposite party not to present the security cheque for collection and restrain the opposite party from taking coercive steps against the complainants.

2.     Declare that the complainants are not liable to pay any amount to opposite party.

3.     Direct the opposite party to hand over the security cheque leaves bearing No.538790 series of South Indian Bank, Nedumkandam and other cheque leaves and documents.

4.     Direct the opposite party to pay Rs.1 lakhs as compensation to the complainants.

5.     Restrain the opposite party from taking coercive steps against the complainants.

6.     To allow the cost of Rs.50000/- to each petitioner for the mental agony and

7.     Allow the cost of this proceedings and other incidental charges as the Forum thinks fit. (cont.....4)

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The opposite parties filed written version stating the following.

1. The complaint filed is not maintainable either in Law, facts or circumstances of the case.

2. All the contentions in the complaint are false and hence denied except that those are admitted in the written version.  The first complainant Ajesh was the subscriber of SB 2.  2^nd complainant was the guarantor to the said chit subscribed by the 1^st complainant.  All the terms and conditions regarding the said chit was accepted by both the complainant and thereafter  the complainant made default in payment of the chit. 

3.  Thereafter the opposite party contacted the complainant several times to clear the dues.  After repeated demand from the Opposite party, the 2^nd complainant came to the office of the opposite party and issued cheque bearing No.538790 dated 26.12.2017 for Rs.4,10,000/- (Four Lakhs and Ten Thousand only)  drawn on South Indian Bank Nedumkandam branch to the opposite party to discharge the said due and  liability.   The opposite party presented the said cheque for encashment, but it was dishonoured due to insufficient fund in the account.  Thereafter the opposite party issued legal notice and no reply was given by the complainant. The opposite parties thereafter filed criminal case before Court of Metropolitan Magistrate, Chennai on 12.2.2018 and is pending as CC 4504/2018.

          The complainant filed this case before CDRF to escape from above mentioned case which is already pending.  The complainant now with the ill-intention to keep away from repaying the amount had filed this complaint before this Forum without any bonafides.  The allegation made by the complainant is by suppressing the truth and facts.  There is no consumer relation between the complainant and opposite parties and also there is no deficiency of service. 

There is no cause of action against the opposite party.  None of the relief sought for the complainant is allowable.  The said complaint will not come under the jurisdiction of this Forum.  The agreement  between the complainant and opposite party clearly points out the arbitration clause and as per agreement , if any dispute arises between the parties the dispute should be referred to the arbitrator.  There is no dispute with respect of the service and the dispute is with respect of the monetary transaction and hence the complaint is not maintainable before the Forum.  Therefore the maintainability of the case may taken as the preliminary issue.  The complainant is not entitled to get any relief from the Forum and prayed for dismissal of the complaint allowing compensatory cost to the opposite party.  (cont.....5)

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Complainant filed proof affidavit and 1^st complainant was examined as PW1 and marked the following documents.  Ext.P1  is legal notice dated 10.1.2018 issued by Adv. Mannar Mannan on behalf of the opposite parties regarding the bouncing of cheque No.538790 issued by 2^nd complainant and requesting to pay the amount of Rs.4,10,000/- (Four Lakhs and Ten Thousand only).  It was also stated that failure to pay the said amount will lead to initiation of criminal proceedings under Section 138 of the Negotiable Instruments Act.  Ext.P2 is the copy of receipt No.15 showing payment of 2^nd instalment of chit made on 23.7.2012 to the opposite party in respect of the SB 2 and the amount shown in the receipt is Rs.5667/-.  Ext.P3 is the copy of receipt No.3386 dated 25.6.2013 in respect of auction security amounting to Rs.20000/- in chit No.SB2.  Ext.P4 is the copy of chit pass book No.SB2, (Sambadyam-II)  evidencing payment of chit instalments from 25.6.2012 to 25.11.2013.  Ext.P5 is the bank statement from 15.7.2013 to 14.7.2014 of South Indian Bank Nedumkandam in respect of Account No.0678053000001763 of Ajesh M.V. evidencing receipt of Rs.3 lakhs on 27.7.2013 from the opposite party. Ext.P6 is the reply notice dated 9.2.2018 given to Sri. R. Mannar Mannan Advocate against the legal notice received by the 2^nd complainant from the opposite party.  Ext.P7 is the acknowledgment card in respect of the above reply notice which is seen received by Adv.R. Mannar Mannan on 19.2.2018.  Ext.P8 is the brochure of various chits issued by opposite parties. 

 

No oral evidence is adduced from the side of the opposite parties.  Following documents were marked from the side of opposite parties.  Ext.R1 is the certified copy of cheque No.538790 dated 26.12.2017  for Rs.4,10,000/- signed by 2^nd complainant addressing the opposite party Anson Chits India Pvt. Ltd.  Ext.R2 is the certified copy of  endorsement dated 29.12.2017 of South Indian Bank, T. Nagar branch regarding bouncing of cheque.  Ext.R3 is the   certified copy of legal notice dated 10.1.2018  issued on behalf of opposite party to the complainant. Ext.R4 is the certified copy of acknowledgement card dated 17.1.2018 signed by the 2^nd complainant.  Ext.R5 is the certified copy of complaint filed under section 200 of Cr.P.C. by opposite party against 2^nd complainant herein for offence under section 138 and 142 of Negotiable Instruments Act.  Ext.R6 is the certified copy of proof affidavit of one Mr. N. Venkatesan, Manager of opposite party,  filed before Metropolitan Magistrate Court, Chennai in CC 4504 of 2018.  Above documents are certified copies obtained from Metropolitan Magistrate Court, Saidapet, Chennai. 

  (cont....6)

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Heard both sides. Opposite parties filed argument note also reiterating the contentions stated in the written version.

We have examined the rival contentions, oral testimony of PW1 and perused evidences produced by both sides.

On an appraisal of the above, the following points were framed for consideration:

1.     Whether the complaint is maintainable before this Forum ?

2.     Whether there is any deficiency of service and unfair trade practice on the part of opposite parties ?

3.     Whether the complainants are entitled to reliefs as prayed for ? 

POINT NO.1:-  The complainants alleged that, eventhough 1^st complainant had bid the chit in 2013,  opposite parties had not paid the full amount of bid amount of Rs.4,44,000/- within the time prescribed or thereafter.  The complainant had received only 3 lakhs on 27.7.2013 as evidenced by Ext.P5 bank statement.  This was not disputed by the opposite parties. The opposite party had no claim that they have paid the full bid amount shown above. The contention of the opposite parties are that, it is a monetary transaction and there is no consumer relationship in the case and that the dispute is not maintainable before this Forum.  So maintainability may be heard as preliminary issue.  Eventhough such a contention is raised, it is not seen pressed later.  Since opposite party was not present, evidence of complainant was taken and closed and posted for orders. Thereafter on the application of opposite party, the case was re-opened and admitted evidence of opposite party. On a perusal of pleadings and evidences, this contention cannot be accepted.  The complainants have established deficiency in service as well as unfair trade practice. As per provisions of law, it is the duty of the owner of chit to disburse the bid amount within the stipulated period.  It is not done so in the instant case.  Only 3 lakhs rupees was paid that also after one month.  Considering the nature of transaction, the relation between the complainants and opposite parties is that of a consumer and service provider relationship.  In a consumer dispute, main content of the allegation relates in terms of money in different ways.  So the contention of the opposite parties seems to have no merit.  Hence the contention of the opposite parties   is overruled.  Point NO.1 is answered accordingly.

POINT No. 2 :- In the light of findings on Point No.1, it is clear that, there is deficiency in service and unfair trade practice on the part of opposite parties.  The relationship between the foreman and subscriber is that of (cont.....7)

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a consumer and service provider.  The opposite parties have utterly failed to establish that no such relationship exists between them and the complainants. Certain allegations raised by the complainants are not seen answered by the opposite parties.  In a chit fund, the consideration for the chit is the commission of the foreman.  In these circumstances, it is seen that, deficiency in service and unfair trade practice has occurred in the instant case from the part of opposite parties. Hence the contention of the opposite parties is overruled. Point No.2 is answered as above.

POINT No.3:- There is no dispute regarding 2^nd chit KCN 16. Purpose of joining in a chit is to meet urgent needs of a subscriber by bidding the chit even for lower amount.   If the bid amount is not received in time, the very purpose of bid is defeated.  In the instant case, it is an undisputed fact that, 1^st complainant had bid the chit of SB2 (Sambadyam II) for an amount of Rs.4,44,000/- (Four Lakh Fortyfor thousand).  But the opposite parties had disbursed only Rs.3 lakhs.  The contention of the complainants is that, about 8 cheques were obtained by the opposite parties from the 1^st complainant, father and wife of 1^st complainant.  But no cheque numbers,  amount  or date is mentioned by the complainants.  At the same time, the opposite parties admitted that, cheque No.538790 dated 26.12.2017 for Rs.4,10,000/- was received from 2^nd complainant, the wife of 1^st complainant.  It is the specific contention of the complainants that, above cheque was blank while issuing the same.  Either the name of the payee, amount or date were not mentioned in the blank cheque.  In order to avail unlawful gain and enrichment, the opposite parties had written the name, amount, date in the cheque NO.538790 of South Indian  Bank, Nedumkandam  branch and presented in a branch of the bank about 450 kms away from the issue place with malafides.  It is also contended by the complainants that at the time of bid of the chit blank cheques were issued.  Evenafter contacting several times, the opposite parties has not paid the balance amount.  On the other hand, opposite parties state that, they have contacted the 1^st complainant several times but they have not paid the instalments due and finally the 2^nd complainant gave the above cheque to them on 26.12.2017.  On a perusal of the handwriting in the  above copy of cheque, it is seen that, the name of the opposite party Anson Chit India Pvt. Ltd., date and amount differs with that of signature contained therein.  From this, it is clear that the contention regarding issue of blank cheque is having force.   Nothing to the contrary is established by the opposite party.  Eventhough the opposite parties state that above cheque was issued by the 2^nd complainant, what was the actual amount due to the opposite parties were not shown. It is seen that, the (cont.....8)

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1^st complainant had remitted certain instalments from the beginning of the chit. It is also contended by him that, since the opposite parties have not disbursed the full bid amount, he had not remitted the balance instalment of the chit.  While  calculating the balance instalments to be paid, it is not necessary to remit Rs.4,10,000/- by the 1^st complainant to the opposite parties.  Since the opposite parties failed to establish that they are entitled to the cheque amount shown on it is actually due to them, the contention raised by the complainants is found to be correct.  On an entire analysis of the facts of the case and evidence on record, we found that, there is laxity on the part of both parties.  1^st complainant had received 3 lakhs from the bid amount, while he had remitted only below Rs.1.50 lakhs as instalments.  The complainants had not stated in the complaint that, on which date, the bid was taken place.  Both parties have not resorted to legal action prescribed under Chit Funds Acts for realization of amount due to them respectively.  Both sides have not produced chit agreement and other related documents before this Forum. It is seen that complaint was filed in the Forum after the receipt of legal notice issued by opposite party's advocate to the 2^nd complainant. Similarly, rejoinder legal notice mentioned in Ext.R6 is not produced by opposite parties. Even though PW1 during cross examination stated that he received notice from the opposite party regarding amount to be paid, none of the parties have cared to produce the same before this Forum.  In the above situations, both of them have to bear consequential burden also. On a meticulous scrutiny of the pleadings, evidence on record and the oral testimony of 1^st complainant we find that certain amounts were to be paid by the opposite party to the complainant with respect to bid amount.   At the same time the 1^st   complainant had received Rs.3 Lakhs including the security amount deposited out of the bid amount of Rs,.4, 44,000/-.  Eventhough it is stated in the complaint that Rs.2 lakhs was given as security amount, it seems to be not correct. As per Ext.P3 receipt, it is only Rs.20,000/-. So it is taken as payment of security amount. As such the complainant is liable to pay the balance amount after deducting the amount of chit installments plus security amount from the receipt of the partial bid amount of Rs.3 lakhs ( ie, Rs.3 Lakhs minus (20,000/ plus chit installments paid).  As per Ext.P4, it is seen that complanant had remitted certain installments after the bid of chit in June 2013. But opposite parties had not disbursed full bid amount. So the complainant also lost interest for balance bid amount. From the above, it is clear that allegation of opposite parties regarding non-payment of installments after bid of the chit is not correct. Considering the  laxity on both sides and entire facts and circumstances of the case, we find that both parties have committed default and therefore they cannot claim interest on amounts

(cont.....9)

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respectively due to each party which is mentioned above. At the same time, since the opposite parties miserably failed to establish that they are entitled to claim Rs.4,10,000/- (ie, amount shown in the cheque above)  they cannot claim more than what is ordered above. 

In this situation the opposite parties are liable to return the cheque No.538790 of South Indian Bank Ltd., to the second complainant on receipt of amount ordered to be given to the opposite parties by 1^st complainant.

In the result the complaint is partly allowed as follows on the following terms.

The first complainant shall give the balance amount payable after deducting the chit installments and security deposited Rs.20,000/- paid by him out of the partial bid amount received Rs.3 Lakhs, to the first opposite party Anson Chits India Pvt Ltd, Nedumkandam within one month from the date of receipt of this order and simultaneously the opposite parties shall  return the above cheque No.538790 to the second complainant. Eventhough complainants stated that certain other cheques were given to opposite parties towards security, no evidence is adduced before us. So we cannot make an order on this. Considering the facts and circumstances of the case, it is not necessary to consider other prayers of the complainants. Hence there will be no order as to the other prayers   made by the complainants.  Order accordingly.

Pronounced in the Open Forum on this the 31^st day of December, 2019

 

Sd/-

SRI. AMPADY K.S., MEMBER

Sd/-

SMT. ASAMOL. P, PRESIDENT IN CHARGE

 

 

 

 

 

 

 

(cont.....10)

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APPENDIX

 

Depositions :

On the side of the Complainant :

PW1 - Ajeesh M.V.

On the side of the Opposite Party :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1 - legal notice dated 10.1.2018.

Ext.P2 - copy of receipt No.15.

Ext.P3 - copy of receipt No.3386 dated 25.6.2013

Ext.P4 - copy of chit pass book No.SB2, (Sambadyam-II)

Ext.P5 - bank statement from 15.7.2013 to 14.7.2014.

Ext.P6 - reply notice dated 9.2.2018.

Ext.P7 - acknowledgment card in respect of the above reply notice.

Ext.P8 - brochure of various chits issued by opposite parties. 

On the side of the Opposite Party :

Ext.R1 - certified copy of cheque No.538790 dated 26.12.2017.

Ext.R2 - certified copy of  endorsement dated 29.12.2017

of South Indian Bank.

Ext.R3 - certified copy of legal notice dated 10.1.2018 

Ext.R4 - certified copy of acknowledgement card dated 17.1.2018

Ext.R5 - certified copy of complaint filed under section 200 of Cr.P.C.

Ext.R6 - certified copy of proof affidavit of one Mr. N. Venkatesan,

Manager of opposite party.

 

 

Forwarded by Order,

 

 

SENIOR SUPERINTENDENT