DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 29^th day of November 2018

Present   : Smt.Shiny.P.R. President

              : Smt.Suma.K.P. Member                                Date of filing:  04/02/2017

              : Sri.V.P.Anantha Narayanan, Member  

CC/29/2017

A.Vellayappan Pilla,

S/o V.Arunachalan Pilla,

Mangottupara House,

Mangod, Nemmara (PO),

Palakkad 678 508.                                                     -  Complainant

(By Adv.Yasar Arafath K.J) 

                                                                                 Vs

1.  Chairman,

     Godson Kuries (P) Ltd,

     Reg. No.U65992/KL2011 PTC 027635, Reg.Office,

     Vadakkancherry, Palakkad.

     Branch Fareedabad.

2.  Managing Director,

     Sasidharan Pillai.S.S,

     Saradalayam, Kallettukara,

     Thrissur – 680 683.                                               -  Opposite party

 (Opp.parties 1 & 2 by Adv.Titus Joseph)                                 

O R D E R

By Sri.V.P.Anantha Narayanan, Member

          The facts of the case are briefly stated as follows. 

           The complainant is a 70 year old senior citizen.  On September 21, 2011 as 9^th number @ Rs.2,000/- per month he joined the opposite parties conducted kuri with a sala of Rs.1,20,000/-.  On 21.05.2014 the kuri was called and taken by the complainant.  At the time of giving chitty called amount, Rs.5,000/- towards commission was additionally taken from the complainant; and even after 44 days only on 04.07.2017 chitty amount was given to the complainant – the amount of Rs.70,000/- only was given to him.  The cheque was given by the opposite parties chitty company to Mudapallur branch of South Indian Bank which was encashed by the complainant in Nemmara branch of South Indian Bank.  According to the complainant, as auction discount complainant received a total amount of Rs.26,480/- only; thus complainant received only a total amount of Rs.96,480/- (Rs.70,000 + Rs.26,480 = Rs.96,480) including discount.   He paid to chitty company a total amount of Rs.1,12,000/-;the complainant has paid to chitty company an excess amount of Rs.15,520/-.  At the time of receiving chitty amount  as security, has given two blank cheques of Punjab National Bank (Cheque Numbers 709385 & 709386) and signed blank white paper.  On completion of chitty, about the balance amount due to the chitty company and the commission amount, complainant was not informed in writing.  Then on a complainant given cheque (Cheque Number 709335 of PNB Nemmara branch) after writing Rs.8,000/-  on the cheque the cheque was sent for collection and the cheque got bounced. According to the complainant, the hand writing on the cheque was not that of the complainant. The two cheques given by the complainant to the chitty company and the signed white paper were not returned to him even after the completion of chitty and payment of the whole amount, even after approaching the chitty company directly many times.  Hence complainant filed a complaint in Vadakkancherry police station.  To enquire about his complaint the SI of Vadakkancherry police station called the chitty companies proprietor and talked to him about the complaint and asked him to return all the documents to the complainant and chitty companies proprietor agreed to return the documents within a week.  The complainant and his friend, Mr.S.Chenthamizkannan (retired teacher) went to chitty company office to get the documents, but they were prepared to give only one cheque to the complainant who did not accept that cheque and complainant told them only if two cheques and documents were given he would accept.  Meanwhile using the cheque returned from bank the opposite parties sent him a lawyer notice on 21.10.2016 to which complainant sent a reply to the opposite parties through his advocate Sukumaran Nemmara.  Subsequently in his name in Alathur Majistrate Court as per sec of 130 NI Act, a case was registered in order to purposefully caused difficulties and mental pain to the complainant.  According to him complainant got chitty money on 04.07.2014. Due to the act of the opposite parties complainant has suffered in bank and house mental agony and difficulties.  Complainant further pleads that total sala of the kuri was Rs.1,20,000/-, prize amount of chitty was Rs.1,00,000/-, balance Rs.20,000/- was taken by the opposite party company as commission.  At the time of receiving chitty, commission of Rs.5,000/- was demanded and it was given. Hence complainant prays to this forum for an order directing the opposite parties to pay him a compensation of Rs.50,000/- and cost of this proceeding.

          The complaint was admitted and notices were sent to the opposite parties to enter their appearance and file their version.  In the version jointly filed by opposite parties 1 to 3, they contend that except those specifically admitted, all the statements in the complaint are denied by them. The opposite parties deny the statements of the complainant that he joined a chitty conducted by the opposite parties which was started on 21.09.2011 as a 9^th  number with a sala amount of Rs.1,20,000/- with 60 monthly instalments of Rs.2,000/- each; that kuri is not carried on by the opposite party institution, that the said chitty was called on 21.05.2014, at the time of giving chitty called amount Rs.5,000/- was additionally received by the opposite parties as commission and that if chitty is called, Law says that within 30 days chitty amount should be given, that after the expiry of 44 days on 04.07.2014 cheque for chitty amount of Rs.70,000/- was given – all these statements are false and made without any basis by the complainant and hence denied by the answering opposite parties. Opposite parties further contend that complainant is a subscriber of G3 kuri with 91^st ticket holder, started on 21.09.2011.  In another G7 kuri, he was 22^nd number ticket subscriber.  In G3 kuri monthly instalment was Rs.2,000/- each; number of instalments were 60 months, total sala was Rs.1,20,000/- and prize amount was Rs.1,00,000/-.  This kuri was called by the complainant in auction for Rs.80,000/-.  According to the opposite parties, after reading and understanding chitti variyola Laws and being convinced fully complainant has joined the above mentioned two kuries namely G3 and G7 kuries.  As per chitty Law and Variyola Law after calling chitty, within 45 days chitty money should be given and accordingly on the 44^th day on 04.07.2017 chitty money was given to the complainant; at the time of giving chitty money in the kuri, security/guarantee contract, in the kuri money receipt document for the assurance of payment of balance amount, at the time of giving cheque after signing the documents, complainant in G3 kuri has to give Rs.1,670/- for the month of June Rs.1,500/- for the month of July as per bill number 8924 in G7 kuri Rs.3,300/- for June month and Rs.3,200/- for the month of July, as per bill number 8923 documentation charge of Rs.300/- in G3 kuri, deducting all these, a cheque for Rs.70,030/- was given in complainant’s name.  Therefore there is no basis in complainant’s statements that opposite parties received Rs.5,000/- as commission additionally.  The statement of the complainant that complainant has paid Rs.1,20,000/- because kuri adavu is Rs.85,090/- plus auction discount of Rs.26,410/- would be equal to Rs.1,20,000/-.  Complainant totally paid only 56 monthly instalments and when he was asked to pay the balance four monthly instalments totalling Rs.8,000/-, complainant after signing two cheques were given to the opposite parties, one of the cheques was returned unpaid and uncleared regarding which a case is pending in Alathur Judicial 1^st Class Majistrate Court.  Opposite parties also contend that this chitty company does not accept signed blank cheques, signed blank papers and it is registered under the companies act and not conducting any business and steps unlawfully.  When the cheque given by the complainant for the amount of chitty instalment payable by him was returned uncollected, a lawyer notice was sent and after receiving the lawyer notice a complaint was given against the 2^nd opposite party in Vadakkencherry police station.  When true facts were submitted to police officials, they were convinced with these facts and the Sub Inspector of Police of the Vadakkencherry police station asked the opposite parties, after receiving amount as per cheque, to hand over the returned cheque and the receipts thereof was also instructed by this police official to be given. Disagreeing with this complainant has filed this complaint. According to the opposite party this complaint was given to discredit the opposite party company and cause mental agony, financial loss and hence by giving a false complaint, a loss of Rs.25,000/- has occurred to these opposite parties which may be ordered to be paid by the complainant.  They also pray that opposite parties version may be accepted and the complaint may be dismissed with cost to these opposite parties. 

          Complainant and the opposite parties filed their chief affidavits.  Opposite party filed IA 191/2017 seeking permission to cross examine the complainant and complainant submitted no objection and hence IA was allowed and complainant was cross examined as PW1.  The documents marked consisted of Exts.A1 to A4 from the side of the complainant and Exts.B1 to B6 from the side of the opposite parties.  Opposite party was also cross examined as DW1.  Both parties were heard. 

The following issues are considered in this case.

1. Whether the opposite parties have committed deficiency in service and/or unfair trade practice ?
2. If so, the relief and cost available to the complainant  ?

Issues 1 & 2

          On September 21, 2011 the complainant joined a kuri conducted by the opposite party as 9^th number with a sala of Rs.1,20,000/-.  The details of this chitty are shown in Ext.A1 which is a kuri pass book issued by the 1^st opposite party to the complainant which also shows LF, Naruk amount, sala, division prize amount, naruk, name, address of the chitty subscriber etc.  According to the complainant he has paid 56 instalments; registered notice was sent to the complainant by the opposite parties advocate which is marked as Ext.A2 asking the complainant to settle the transactions with the opposite parties within 15 days by paying amount of the cheque plus notice charge of Rs.750/-.  Complainant filed a complaint to the Sub Inspector of Police, Wadakkenchery police station requesting him to take steps to return two blank cheque leaves, blank Rs.100/- stamp paper, blank signed white paper from the opposite parties a copy of this complaint is marked as Ext.A3 and brochure  of Secular Chits Pvt. Ltd. is marked as Ext.A4 which shows that subject to central Chitty Act the chitties  mentioned in the brochure would be started, the brochure also shows their period in months, instalment amount, chitty sala, prize amount, commission only 5% and auction limit 30%.  In his version 2^nd opposite party contends that 1^st opposite party is a company registered under the companies act and its registered office is situated in Wadakkenchery with a branch at Faridabad and is carrying on chitty business lawfully.  In G3 kuri conducted by the 1^st opposite party complainant is a 91^st subscriber.  Opposite parties also contended that complainant was a subscriber in a chitty with Rs.2,000/- monthly instalments for 60 months and Rs.1,20,000/- sala and complainant after reading and understanding chitty variyola has become a subscriber by signing and filing an application for the same.  Chitty variyola is marked as Ext.B2 which shows sala amount, auction date every month, number of instalments date of starting the chitty and date of completion of the chitty.  Application for ticket filed by the complainant with the 1^st opposite party is marked as Ext.B3 which mentions name and address of chitty subscriber, kuri sala, division,number of instalments in a year, kaypada number, pass book number, 1^st instalment amount etc.  On 21/05/2014 G3 kuri mentioned above was called in auction for Rs.80,000/-.  The complainant also signed on 30/6/2014 the guarantee/surety contract and other documents for giving of auction amount which is clear from Ext.B5 which is a Rs.100/- stamp paper signed by the complainant which also shows kuri sala amount, interest, commission payable to the opposite party company, balance amount of instalments  payable to the company etc.  The application for the chitty auction given by the complainant to the opposite party is marked as Ext.B4 which shows name of the complainant applicant, chitty date, chitty number, date of auction, amount of discount at which chitty would be called etc.   The document showing giving of chitty money and receipt for having received Rs.80,000/- on 30/6/2014 is marked as Ext.B6 which shows name of the complainant, chitty number, chitty sala amount, discount at which chitty was called, prize amount received, total amount, company commission amount, date of calling chitty, date of receipt and also proves receipt of Rs.80,000/- on 30/6/2014 after deducting discount of Rs.40,000/- by the complainant on his chitty at Faridabad branch on his 91^st number G3 kuri in 33^rd instalment of 21/5/2014.  A copy of pass book issued by Mudappallur branch of South Indian Bank to the first opposite party is marked as Ext.B1 which reveals that the contention of the 1^st opposite party that complainant has encashed at South Indian Bank Mudappallur branch the cheque number 251883 of Rs.70,030/- given to him by the 1^st opposite party towards payment of the amount due to the complainant.

From the affidavits and documents produced by both the parties we understand that complainant is a subscriber of G3 kuri conducted by the opposite parties, in this kuri complainant is a number 91 ticket holder, its monthly instalment is Rs. 2,000/- sala amount is Rs.1,20,000/- and period is 60 months and out of sixty monthly instalments on this kuri only 56 instalments are paid by the complainant which is clear from kuri passbook of the complainant Ext.A1 and this complaint is filed by the complainant against Rs.20,000/- charged from him by the 1^st opposite party as commission.  We also understand that complainant has given a receipt to show that he has received in auction/lottery Rs.80,000/- on 30/06/2014 after deducting company’s commission plus discount totalling Rs.40,000/- out of kuri amount of Rs.1,20,000/- which is evident from Ext.B6. We also observe that in the passbook of M/S Godson Kuries Pvt Ltd Vadakkencherry issued by South Indian Bank Ltd Mudappallur Branch in which they have an account, there is an entry “07/07/2014 Vellayappan Pillai Ch No 251883-Rs.70,030/-(dr)” which shows that cheque number 251883 for Rs.70,030/- was encashed by the complainant through his account on presentation of the said cheque on 07/07/2014 which is proved by Ext.B1.  It is also clear to us that on another kuri G7/22 Rs.1,970/- was due from the complainant to the opposite parties and after deducting Rs.8,000/- due from the complainant on G3 kuri towards 4 instalments unpaid by the complainant and Rs. 1,970/- due from him on G7/22 kuri, totalling Rs.9,970/-, complainant was given a cheque for Rs.70,030/- which is seen encashed by the complainant on 07/07/2014 which is proved by the above said entry in first opposite party’s passbook issued by South Indian Bank Mudapallur Branch.  Further we also we view that complainant has signed fully agreeing with the terms and conditions written in the security contract of Ext.B5 which mentions that Rs.40,000/- is payable to the opposite party towards fixed interest and commission without raising any objection by the complainant.  Further the receipt marked as Ext.B6 is also signed by the complainant without raising any objection.  Further as per the deposition made by the 2^nd opposite party the chitty company is a registered company registered under the Central Act were the Forman’s Commission is upto 40%.  Further as per complainant’s deposition as PW1 it is clear that complainant had joined two chity’s whose numbers are G391 & G722 and on the 45^th day chitty amount was received by cheque.  In payment of chity instalments if default is made for that amount interest can be recovered by the opposite party from the complainant and this chity is not registered under the Kerala Act.  Further, during herein the opposite parties counsel has stated that under the Central Act formants commission can be charged upto 40% and for the opposite party chitty Kerala Chitty Act is not applicable.   Hence we view that complainant has not been able to prove their main allegations that the opposite party chitty company charged excessive commission because agreeing charging of Rs.20,000/- by way of interest and commission he has signed Exts.B1 & B6 which states that interest and commission charged by this opposite party company is Rs.20,000/- without raising any objection to the charging of  this amount of Rs.20,000/- by the opposite parties.  We also view that tcomplainant has failed to prove his allegations that the opposite parties has written Rs.8,000/- on cheque number: 709335 of Punjab National Bank, Nemmara branch and presented the same before the bank which was dishonoured.   

In the light of the above circumstances we decide to dismiss the complaint.

Pronounced in the open court on this the 29^th day of November 2018.

      Sd/-

 Shiny.P.R

                        President 

                              Sd/-           

                        Suma.K.P

                         Member

          Sd/-

        V.P.Anantha Narayanan

            Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 -  Passbook issued by the 1^st opposite party to the complainant

Ext.A2 -  Registered notice sent by the opposite parties counsel to the complainant

             dated.21.10.2016

Ext.A3 - Complaint sent by the complainant to the Sub Inspector of Police, Vadakkancherry

             Police Station dated.07.10.2016

Ext.A4 -  Brochure issued by Secular Chits Pvt, Ltd

Exhibits marked on the side of Opposite parties
Ext.B1 -  Original pass book of Godson Kuries Pvt, Ltd issued by South Indian Bank,

              Mudappallur Branch

Ext.B2 -  Original Variyola of Godson Kuries Pvt, Ltd

Ext.B3 -  Application for ticket issued by Godson Kuries Pvt, Ltd to the complainant

Ext.B4 -  Application form for chitty auction given by the complainant dated.18.05.2014

Ext.B5 -  Kurivaka Jyama karar signed by the complainant consenting the terms and

             conditions of the chitty

Ext.B6 -  Chitty panam koukkunnathinte Regha pathram dated.30.06.2014 signed by the

             Complainant showing receipt of Rs.80,000/- after deducting from chitty amount

              Rs,1,20,000/- the opposite party company’s commission and discount

Witness examined on the side of complainant

PW1    -  Vellayappan Pilla

Witness examined on the side of opposite parties

DW1   -  Sasidharan.S.S

Cost  

          Nil