BEFORE THE ADDITIONAL BENCH DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MYSURU.

Consumer Complaint (C.C.)No. 1546/2016

Complaint filed on 24.10.2016

Date of Judgement.17.04.2018

PRESENT                      :         1. Shri Ramachandra  M.S.,  B.A., LL.B.,

                                                   PRESIDENT

2. Shri  Thammanna,Y.S., B.Sc., LL.B., 

                                         MEMBER

Complainant/s       :       1.     Smt. Vanajamba

                                                          W/o A.V. Govindaswamy Rao,

                                                          Aged about 60 years,

R/at No.592, 17^th main,

E Block, JP Nagara, Mysore.

 (Sri.  G.B. Shivaraja Gowda., Advocate)

V/s

Opponent        /s             :       1.     M/s Chanakya Finance

Corporation(R).

                                                          No. 381, 1^st Floor, 2^nd cross,

Benki Nawab Street,

                                                          Mandi Mohalla ,

Mysore,

                                                          Represented by its Managing Partner:

                                                          Sri. A.L. Nanjundaraje Urs,

                                                          S/o Late Lingaraje Urs,

                                                          Aged about 62 years,

                                                          R/at No. 725/O, 2^nd Cross,

                                                          Vishwamanava Double Road,

                                                          Kuvempunagar, Mysore.

3.       Sri. M.K. Biddappa

                                                          S/o M.K. Kariappa

                                                          R/at No. 20 K, Badaga Village,

                                                          FNC College, Post,

Madikeri.

5.       Smt..Nagarathna

                                                          W/o Srinivasa,

                                                          R/at No. 834, 1^st cross,

Kamatageri, Mandi Mohall,

                                                          Mysuru.

6.       Smt. H.N. Dakshayani

                                                         W/o R. Ramesh,

                                                          R/at No. 834, 1^st cross,

Kamatageri, Mandi Mohall,

                                                          Mysuru.

                                                7.       Sri. Jayaprakash

                                                          S/o  Late  Appavoo Pillai,

                                                          R/at No. 3047, 1^st cross,

1^st  stage,Gokulam,                                    

Mysuru-570002.

9.       Sri A.M. Monappa

                                                         S/o A.P. Monappa,

                                                          R/at No. 20/41, Near Health Office,

                                                          Madikeri.

( OP Nos. 1,3 ,5,6,7,9  exparte and OP Nos.2, 4 and 8 is deleted)

        SHRI RAMACHANDRA . M.S.,

           PRESIDENT

JUDGEMENT

The complainant filed the complaint under section 12 of the C.P.Act 1986, against the opposite parties seeking a direction to refund the fixed deposit total amount of Rs. 1,45,200/- along with 12% interest per annum on the FD from the date of investment to till the date of realization and to pay compensation and costs etc.,

2. The opposite party No.1  on the basis of Chanakya Finance Corporation’s promise of payment of attractive rates of interest and prompt repayment of the principle amount and interest thereon either after maturity or otherwise.

3. The complainant submits that, the opposite party is the firm registered under the provisions of the Indian Partnership Act and it is managed by one AL Nanjudaraje Urs.

4. The complainant submits that on  05.02.2004 Rs. 20,000/- on 06.02.2004 Rs. 10,000/- on 08.06.2006 Rs. 25,000/- on 22.06.2006 Rs. 25,000/- on 05.01.2007 Rs. 5,000/- and on 07.06.2007 Rs 10,000/- in total the complainant has deposited a sum of Rs. 95,000/-  at the rate of 12% p.a with the opposite party no.1 that the CFC for having accepted the receipt of the deposit, and has passed the fixed deposit receipt bearing LF No 435/14, 437/14, 149/20, 198/20, 319/21 and 291/22  respectively incorporating therein the particulars and terms of the deposit accepted. That all the FD receipt has been renewed by the opposite party.

5. The Firm opposite party no.1 having complied with the requisite formalities has been carrying on the business of Financial activities  of lending and borrowing money besides accepting deposits, assuring to the depositor for the prompt re payment of the deposited amount, whether before or after the date of maturity of the same, and assuring to the depositors the service of interest thereon at the regular intervals the complainant states that, in the process the consideration for arrangement consists of the fact that the firm CFC is enabled to use the funds deposited with it for the purpose of its business.

          6. Therefore the complainant states that the nature of the transaction described supra pregnant with it the comprehension of transaction, namely providing service for consideration and that as such , the complainant answers the description or definition of consumer in clear terms, as defined under the provisions of consumer protection act.

          7. The complainant states that, as regards the terms and conditions of the Fixed deposits are concerned, the terms are governed by the rules and regulations of the scheme framed and adopted by the CF that a copy of the rules and regulations were furnished to the complainant before accepting the deposit.

          8. The complainant states that as per the terms of the deposit, the CFC has been under obligation to pay the interest to the complainant at the rate of 12% p.a on the deposited amount that the CFC has been under the obligation to repay the deposited amount with interest accrued thereon whenever the repayment is claimed or demanded whether the repayment is sought before or after maturity of the same.

9. The complainant submits that the CFC has not paid interest from July 2013 at the rate of 12% at monthly rents. That, in fact thereafter, in spite of repeated requests and the demands made, personally and over the phone, the CFC has not paid any amount either towards the principle or towards the interest accrued as due thereon. That inspite of the demand made by the complainant the opposite parties have neither repaid said deposited amount with interest nor taken any steps to repay the said amount.

          10. The complainant submits that, after the date of demand made, the CFC had been and has been under obligation to make repayment of the interest accrued thereon on the date when the demand is made.

11. Thereafter, the complainant submits that the CFC has committed default both in making repayment of the amount deposited as well as in making payment of the interest accrued thereon that, by taking shelter under the plea that both CFC and the partners do not have sufficient liquidity to refund the fixed deposit, the CFC and its partners have been on one pretext or the other, postponing the compliance of the demand made. Hence this complaint.

          12.  The complainant submits that, the CFC has utterly  failed to render service to the complainant/depositor or the investor in the manner prescribed and accepted and as promised and undertaken with respect to both repayments of the deposited amount and with regard to the payment of interest accrued thereon therefore, the complainant submits that, the default committed by the CFC and its managing partner has resulted in the deficiency in service.

13. Notice to the opposite party no 1 3,5,6,7,9 duly served. Remained absent and placed exparte.  complainant filed memo by stating that complaint may be dismissed as against the opposite parties no.2,4,8. Accordingly the authority dismissed the complaint against opposite parties no.2,4,8 and permitted the complainant to delete the above said opposite parties in the complaint. The opposite parties no.2,4,8 is deleted and amended complaint is filed.

14. To prove the facts, the complainant filed chief examination affidavit by reiterating the facts of complaint and relied on several documents along with FD receipt, the complainant filed written arguments, and heard oral arguments. on perusing material documentary evidence on record and also by considering the affidavit matter is posted for orders.

15. The points arose for out consideration are:-

1. Whether the claim is barred by limitation ?
2. Whether the complainant establishes that there is deficiency in service on the part of opposite party by not refunding the FD amount to the complainant and thereby she is entitled for the relief sought?
3. What order?

16. Out findings on the aforesaid points are as follows;

Point  No.1 In the negative

Point No. 2: In the affirmative

                   Point  No.3: As per the final order for the following:

REASONS

17. Point no:1:-   The first and fore most point  to be considered  is limitation point  that the complaint is barred by limitation. For which it is observed that, the point of limitation is not applicable to this complaint. For the reason that the cause of action in this complaint is “Continuing cause of action ”  as long as opposite party repay the FD amount. This principles is laid down by the Hon’ble National Commission and also apex court of India in its judgments. When such being the case the complaint is filed well within limitation period. Hence point no.1 is answered in the negative.

18. Point no:2:-   :- The complainant relied upon the documents in support of her case FD receipt issued by opposite party has been placed on record. The FD receipts no. 435/14, 437/14, 149/20, 198/20, 319/21 and 291/22   confirms that the complainant had deposited totally amount of Rs. 95,000/- with opposite party. Further the FD receipt got matured subsequently. As such the opposite party is liable to honour the FD receipt and to pay the accrued interest till date to the complainant. In spite of issue of the notice demanding to pay the FD receipt amount along with accrued interest, opposite party has neither complied nor replied. This clearly shows the deficiency on the part of opposite parties. Therefore, the complainant entitled for the  refund of FD receipt amount along with agreed interest at the rate of 12% p.a. from the date till the realization of the same. Further, the complainant is entitled for compensation for the mental agony, hardship and inconvenience caused by opposite parties. In view of the above discussion it is clear that there is deficiency in service on the part of opposite party for which they are liable to pay the lawful claim of complainant. Hence point no 1 is answered in the affirmative.

19. Point no.3:- From the above discussion we hereby proceed to pass the following :-

ORDER

1. The complaint is hereby allowed in part.
2. The opposite parties are jointly and severally liable to pay the FD amount totally of Rs. 95,000/- to the complainant, along with interest at the rate of 12% p.a from 01.04.2013 to till the date of payment. within 60 days of this order
3. The opposite parties are jointly and severally liable to pay Rs. 5,000/- towards deficiency in service and Rs.3,000/- towards costs of the proceedings, to the complainant, within 60 days of this order.
4. In default to comply the opposite party shall pay interest at 10% p.a. on the said total sum of Rs. 8,000/- from the date of this order till payment.
5. In case of default to comply this order, the opposite party shall undergo imprisonment and also liable for fine under section 27 of

 the CP Act, 1986.

6. Give copies of this order to the parties as per rules.

((Dictated to the stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on the   17^th April 2018)  

Shri Thammanna. Y.S.,                                Shri Ramachandra. M.S.,   

          Member.                                                           President.