BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 22^nd DAY OF FEBRUARY 2023

ORDER

SMT.JYOTHI N., MEMBER

1. The complaint has been filed under Section 35 of C.P. Act (hereinafter referred as an “Act”) against the OP for the following reliefs against the OP:-

1. Direct the OPs to Pay Rs.12,00,000/- towards maturity amount along with interest at 12% p.a. from maturity dt.26.09.2018 and 23.02.2019 onwards till date 
2. Direct the OPs to pay cost  and such other relief

2. The case set up by the complainant in brief is as under:-

The complainant is working for MNC company, she also always out of station on company work and also she use to attend official meeting of the company frequently. The above case is represented by her GPA holder, who is none other than father of the  complainant and the GPA holder having a due knowledge about the transaction between the complainant and respondent The complainant further states that respondent no.2 & 3 are being partners of respondent no.1 firm. Respondent No.2 & 3 are established finance corporation under the name and style “Sree Gowri Ganesh Finance Corporation® Finance and investment”. The complainant instructed that respondent no.2 by name Lokesh Reddy.M being Managing partner of the respondent no.1 corporation. Respondent no.2 also looking after the day to day affair of respondent no.1 Finance Corporation. Respondent no.2 is actively participated in all the activities of respondent no.1. corporation by taking all the decisions and responsibility.

3. The complainant states that respondent no.2 & 3 are established Financial Institution under the Name and style “ Gowri Ganesh Chit Fund Pvt. Ltd.”  and Educational Institution being directors of the said Institutions. The complainant states that respondents are running a financial corporations and there by respondent had invited the complainant to invest the amount in respondent finance corporation with complainant. Respondent  could pay attractive, more interest and good benefits on fixed deposit amount within short period and account of respondent promised the complainant had decided to invest the amount in F.D. with respondent financial corporation on 21.02.2017. the complainant had kept F.D. of Rs.7,50,000/- and on 25.09.2017 of Rs.5,00,000/- in respondent corporation and respondents  have received the said amount and issued the certificate  bearing serial no. 3468 and no. 3571 in the name of the complainant under the  said certificate kept in F.D. facevalue is Rs.9,01,875/- and Rs.5,69,165/- it got matured on 23.02.2019 and 26.09.2018. It was further said that F.D. was reviewed on 22.02.2018 and it got matured on 23.02.021 and 26.09.2018 and said F.D. maturity amount is Rs.10,10,100/- and Rs.6,37,465/- respectively. In total amount of Rs.16,47,565/- and further respondent  have pay interest at the rate of 18% on maturity amount, accordingly the respondent is liable to pay interest of Rs.5,93, 123/-in total amount of Rs.22, 40,688/-.

4. The complainant approached respondent its office during the 1^st week of December 2018 and requested for release of the F.D. matured FD on 23.02.20219 and 26.09.2018 at the time of respondent  were requested with the complainant that due to some financial shortage  respondent were unable to release the F.D. amount in favour of the complainant.

5. There after no positive response from respondent side to release of maturity of F.D .Amount in favour of the complainant.  However, on 11.03.2020 respondent have issued a undertaking to complainant stating sought time to release the F.D. amount till June 2020 and  agreed to release 50% of F.D. amount and remaining 50% of amount would be settled on July 2020 with interest. The complainant further states respondents have issued a cheques , which was belong to respondent no.2 saying cheque is of the respondent no.1 Financial corporation were closed.  The complainant had received the cheques were presented for encashment and said cheques were returning reasons funds insufficient on bank endorsement dt. 02.07.2021. The respondent No.2 had requested the complainant does not take any legal actions against dishonor of above said cheques and assued the  complaianant the entire mature liability amount would discharged very shortly. The complainant believing  respondents waited  till 1^st week of August 2021.Subsequently on 10.08.2021 the respondent no.2 had issued cheque bearing no.000511 for Rs.12,00,000/- drawn on Union Bank of India, Domlur Branch, Bengaluru and requesting with complainant cheque would be presented during 3^rd week of October 2021 and transfer amount of Rs.10,00,000/- to complainant through RTGS in the account of Sree Gowri Ganesh corporation and issued the above cheque for remaining balance amount of Rs.12,00,000/-. Complainant has presented those cheques for encashment at complainant bank of Kotak Mahindr Bank Ltd., Banashakari Branch, Bengaluru cheque was returned with shara account blocked ( Situation covered in 21-25) on 19.10.2021 and further the complainant informed the respondent about dishonor of cheque and no response from the respondent side.

6. The complainant states the respondents are intentionally issuing cheques in favour of the complainant without maintaining sufficient amount in respondent account. Its amounts to deficiency of service and cheating over the complainant. because of illegal acts complainant have suffered mentally, physically and monetarily as the complainant has invested amount having good desire and future life  and complainant could get good interest on the time of maturing from respondent corporation. On this ground respondent have committed cheating fraud and mis-appropriation and deficiency of service over complainant. Respondent have liable for criminal procedure under IPC and Consumer Protection Act. The respondent liable for  loss and damages caused to the complainant due to respondents negligent act. The legal notice dt.01.12.2021 issued to respondent. The cause of action for the complaint arose on date of maturity of the F.D. amount frequently respondent issued cheque within jurisdiction of the Hon’ble commission.  

7. After service of notice, OPs appeared through their counsel and filed their version.

The OPs contends that the complaint is not maintainable either in law or facts. The OPs 2 & 3 are not partners of OP-1. The OP-3 is not connected to OP-1. The above complaint is liable to be dismissed for reason of misjoinder of parties. The OPs contends that the complainant has suppressed the true facts and made false allegations against the OPs. The Complainant had deposited the amount of Rs.7,50,000/- and Rs.5,00,000/- in OP-1. The OP-1 issued cheques towards discharge of liabilities. The said cheques came to be dishonored and further states that the complainant filed CC No. 2843/2022 before the Learned Magistrate Under Section 138 of NI Act. The said criminal case is pending for adjudication.  There is no deficiency on the part of OP. OP-1 has paid amount to the complainant and there is no due as alleged in the complaint. The complainant is consumer and misused the provisions of Act. The case is for recovery of amount. The complainant cannot make this claim in different courts on same cause of action. The complainant has not suffered any loss or injury due to act of OP. The complainant is not consumer and complaint is not maintainable against OPs. The OP-2 is not at all connected to OP-1.The complainant has unnecessarily drag the OP to the Hon’ble Commission. Hence, the complainant has to pay damages to OP and please to dismiss the above complaint with cost in the interest of justice and equity..

8.    The complainant has filed his affidavit evidence and relies on Ex.P1 to P8. Sri Lokesh Reddy, Proprietor of GG Finance corporation has filed is affidavit evidence and relies on only 01 document.

9. Complainant  and OPs have filed written arguments.  Perused documents.

10. The following points arise for our consideration as are:-

1. Whether there is deficiency in service on the part of the OP?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

11.  Our answers to the above points are as under:

       Point No.1:  Affirmative.

       Point No.2: Affirmative in part.

      Point No.2: As per final orders

REASONS

12.   Point No.1&2:  These two points are interrelated and hence they have  taken up for common discussion.

13.   On perusal of pleadings and version of both the parties. The complainant in the instant case represented by the GPA holder who is none other than the father of the complainant. The complainant has executed GPA in favour of her father having due knowledge about the transaction between the  complainant and OPs. The OPs being the financial institution name and style Gowri Ganesh Chits Funds Pvt. Ltd. and represented by Directors. Who are running a financial institution there by OPs visited the complainant to  invest the amount in OPs financial corporation and assured the complainant that OP would pay attractive and more interest and good benefits on F.D. The complainant believing the words of OP decided to amount in F.D. accordingly on 21.02.2017 complainant kept the deposit of Rs.7,50,000/- there on 25.09.2017 and Rs.5,00,000/- in OP institution and inturn OP have issued the certificate bearing Sl. no.3468 and No.3571 respectively and FD face value was Rs.9,01,875/- and Rs.5,06,155/- and the same. Two FDs was matured on 23.02.2019 and 26.02.2018 and further two FDs was renewed on 22.02.2018.  FD matured amount was Rs.10,10,100/-  and Rs.6,37,437/- respectively total including interest. The OPs liable to pay Rs.22, 42,688/-.

14.   There after the complainant approached the OP in the 1^st week of December 2018 and requested to release FD amount matured on 23.02.2019 and 26.02.2018 during that time OP requested to wait for some more dates as OP financial Institution is suffering financial shortage and sought for a short time to release the amount even after the considerable time. There was no response from OP side to release the matured FD amount in favour of the complainant. More over the OP kept on dragging to make the payment by giving one or the other pretext. However , on 11.03.2020 OP issued undertaking letter to the complainant stated that shortly they will release the FD amount and assured the complainant in the month of June 2020. The OP could settled  50% of FD amount and remaining 50% of amount will be settled on July 2020 along with interest.

15.  In the meantime OP had issued the cheque which was belonging to OP-2 saying the cheque leaf of OP-1i.e. financial corporation were closed. There after issued the said cheque by undertaking the OP the financial corporation OP-1 will bear the responsibility after which the complainant received the cheque and presented for encashment  and said cheque was returned for reason  funds insufficient as per bank endorsement dt.02.07.2021. As a same was informed to OP that OP-2 requested not to take any coercive steps against dishonored cheques. OP-2 also assured that the entire matured amount will be discharged shortly. Complainant believing the words of the OP waited till the date of 1^st week of August 2021 and there after OP-2 again issued cheque 000511 of Rs.12,00,000/- drawn on Union Bank of India, Banashankari, Bengaluru and the request of the complainant to present the cheque during the 3^rd week of 2021. Again on the dated i.e.10.08.2021 OP-2 transferred the amount of Rs.10,00,000/- through RTGS to the complainant account and have issued the above said cheque to the complainant, the remaining balance amount of Rs.12,00,000/-accordingly to the instruction of OP. And further again the complainant presented the cheque for the encashment through OPs Bank  and above said cheque also returned has account blocked. The complainant again informed about dishonor of cheque  to OPs and no response from OP side. Being aggrieved by the OPs the complainant also issued legal notice on 01.12.2021 as per Ex.P6 and said legal notice was duly served to OP-1 as per Ex.P7 & P8 postal receipts and acknowledgement.

16.   The complainant have this hard earned money to get interest benefit but OP  after having assured the complainant could get attractive, more interest and good benefit and tuned the mind of the complainant and made the complainant to keep her hard earned money in FD and in which OP also issued FD certificate bearing sl.no.3468 and sl.no.3571 and after maturity of FD to the said FD certificate. The complainant approached to OP to get his hard earned money OP have made the complainant run from pillar to post and after frequently follow ups on 10.08.2021 OPs have transferred the amount of Rs.10,00,000/- to the complainant through RTG’s to the complainant’s account through the account of OP-1 and remaining balance OP-2 have issued the cheque in favour of the complainant, but till today OP-1 or OP-2 have not refunded back the hard earned money of complainant and which the complainant have initiated a criminal case against OP i.e. CC no.2843/2022 before the Learned Magistrate for the recovery of said amount.  Now the OP cannot take contention  that the complainant also issued criminal case and cannot escape from the liability. More over the Consumer Protection Act is additional remedy. Hence, it is additional remedy is available to the complainant of non returning of the hard earned money of the complainant of FD is nothing but deficiency of service and non refunding of FD along with interest is unfair trade practice. Hence, the complainant has proved the deficiency of service on the part of OPs. OPs are  directed to refund the amount of Rs.12,00,000/- along with interest i.e. from 19.10.2021.The OPs have refused to return the FD amount to the complainant. The complainant is entitled for the interest to above said rate of interest as held in Hon’ble National Commission 9% interest, which this award will suffice the complainant   and  litigation cost of Rs.10,000/-. Accordingly we answer point No.1 in affirmative and point No.2 partly in affirmative.

17.   Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OPs are directed to refund F.D. amount of Rs.12,00,000/- along with interest at 9% per annum from 19.10.2021.
3. OP is further directed to pay  Rs.10,000/- towards litigation expenses.
4. We also direct the OPs to comply the order within 60 days from the date receipt of this order, failing which the OPs are liable to pay interest at 12% p.a. on Rs.12,00,000/- from the date of this order till realization. 
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

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Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1: 

SKA