IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA

Tuesday the 31^st day of May, 2011

Filed on 06.10.09

Present

1. Sri. Jimmy Korah (President)
2. Sri. K. Anirudhan (Member)
3. Smt. Shajitha Beevi (Member)

in

C.C.No.328/09

between

Complainant:-                                                       Opposite Parties:-

Sri.Philip Joseph,                                        1.         Jyothis Project, Rep. by its Managing Partner,

Triveni House,                                                        Joy John, No.40/8942C, 2^nd Floor,

M.O Ward,                                                            CRH Complex, MG Road, Ernakulam.

      Alappuzha.                                                

      (By Adv.Satheesh Chandra)                       2.         Sri.P.V.Chacko, Former LIS Administrative

Officer, Palackal Court, MG Road, Ernakulam.

(By Adv.K.T.Anish Mon)

                                    3.         LIS Charitable Trust, Raiban Complex,

Alappuzha -1.

O R D E R

  SRI. K. ANIRUDHAN (MEMBER)

Sri.Philip Joseph has filed this complaint on 06.10.2009 before the Forum alleging deficiency in service on the side of the opposite parties.  The allegations are as follows:  As per the instigation of the opposite parties, he had deposited a total sum of Rs.60,000/- (Rupees sixty thousand only) before the firm of the opposite parties on different dates.  At the time of accepting the amount from him, the opposite party had issued a Beneficiary Certificate in his name and that the project offered and agreed that the amount entrusted by the beneficiary will fetch a minimum of twice the entrusted amount as Lottery Prices and the beneficiary will receive the entrusted amount in manner within a maximum period of 100 weeks.  As per offer, he is entitled to get double amount with other statutory benefit on the expiry date.  The opposite parties promised that the deposit amount with other benefit will be returned as and when it was demanded by him.  Since there was delay to get the amount, he sent Advocate Notice.  But the opposite parties have not turned up.  Hence this complaint seeking relief.

1. Notices were issued to the parties.  Opposite parties are entered appearance through counsel and filed detailed version

2. In the version of the opposite parties, it is stated that the complainant had admitted the Arbitration Proceedings at the time of joining the Project and that the 2^nd opposite party is now the Administrative Officer of the Project and he was the former officer of that of the LIS.  M/s. Jyothis Project, the partnership firm have the separate legal entity and have no connection with LIS.  2^nd opposite party has no transaction with the complainant.  So the 2^nd opposite party is not a necessary party in this case.  It is stated that they had not instigated the complainant to join the scheme and for the said deposit.  The complainant had not deposited the amount, but only entrusted with the opposite parties firm for supplying Government Lottery Tickets and Magazines.  The working of the project was earning through Lottery.  It is stated that the project offered twice the entrusted amount within a maximum period of 100 weeks, is incorrect.  The benefit of Lottery commission would be given to the members as and when he is entitled the same as per rules, availability and seniority.  It is further stated that the working of the project was running smoothly and due to the Police action, the project was stopped.  Even though the project was restarted, it was again stopped due to the action of the police and the matter was with the police for finalization.  On the basis of the order of the Hon. High Court, the police permitted them to continue the business.  It is further stated that if the complainant is willing, the Lottery Tickets and Magazines can be issued to him continuing the project.  The complainant is not entitled to claim any interest, since there was no contract to pay interest for the entrusted the amount.  It is stated that this Forum has no territorial jurisdiction to entertain this complaint. 

3. Considering the contention of the parties, this Forum has raised the following issues for consideration.

1) Whether the complainant is entitled to get the amount from the opposite parties?

2) Whether there is any deficiency in service on the side of the opposite parties?

3) Compensation and costs?

Issues 1 to 3

4. Complainant has filed proof affidavit and documents in evidence in support of his case and he has been examined as PW1.  Documents - Exbts. A1 to A9 produced and marked it.  Ext. A1 is the original Beneficiary Certificate dated, 03.04.2007 for a sum of Rs.10,000/- (Rupees ten thousand only) issued by the opposite parties at the time of receiving the amount from the complainant.  It shows that the date of expiry was on 24.02.2009.  The certificate was signed by the Managing Partner.  Ext. A2 is the Beneficiary Certificate dated, 13.04.2007 issued by the opposite parties to the complainant at the time of accepting a sum of Rs.10,000/- (Rupees ten thousand only).  Ext. A3 is the Beneficiary Certificate dated, 21.04.2007 issued by the opposite parties to the complainant at the time of accepting a sum of Rs.10,000/- (Rupees ten thousand only).  Ext.A4 is the Beneficiary Certificate dated, 23.04.2007 for a sum of Rs.10,000/- (Rupees ten thousand only).  Ext. A5 is the Beneficiary Certificate dated, 08.05.2007 for an amount of Rs.10,000/- (Rupees ten thousand only).  Ext. A6 is the Beneficiary Certificate dated, 27.05.2007 for an amount of Rs.10,000/- (Rupees ten thousand only).  Ext. A7 is the Advocate Notice dated, 25.04.2009 of the complainant sent to the opposite parties stating the matter involved in this transaction and request to settle the issue.  Ext A8 is the Postal Receipts and Ext. A9 is the Acknowledgment Cards.

5. Opposite parties have not filed any proof affidavit and not furnished any documents in evidence.  When the case was posted on 19.04.2011, opposite parties and their counsel absent.  The Forum given several chances to the opposite parties for adducing evidences.  But the opposite parties have not turned up.  In the absence of the opposite parties, the Forum heard the matter in detail.

6. We have examined the matter involved in this case in detail and perused the documents given by the complainant in evidence and heard the case. 

7. On the basis of assurance given by the opposite parties, the complainant had entrusted the amount of Rs.60,000/- (Rupees sixty thousand only) on different dates.  At the time of accepting the amounts, the opposite parties had issued Beneficiary Certificates for the said amounts to the complainant (Ext. A1 to A6).  On verification of the said receipts, it can be seen that the date of entrusting the amount, name of the beneficiary, amount entrusted, date of expiry date and pas code.  The receipts were signed by the Managing Partner of the said firm.  The certificates further shows the details of the said firm at Ernakulam.  After the maturity of the said amounts as per their agreement, the complainant requested the opposite parties to return the amount.  At the time of receiving the amounts, the Project offered and agreed that the amount entrusted by the complainant, will fetch a minimum of twice the entrusted amount.  On verification it can be seen that the opposite parties had not returned the said amounts to the complainant in time.  The opposite parties claimed that those amounts were not ‘deposited amount’, but only entrusted to the opposite parties for purchasing Government Lottery and Magazine.  The contentions raised by the opposite parties in this transaction cannot be treated as entrusted amounts.  It comes only in the nature of deposited amount.  Those contentions put forward by the opposite parties have no bonafides and against the principles of natural justice.   The opposite parties are fully entitled to return back the deposited amount with interest to the complainant and that the complainant has every right to get back the amounts with interest.  The contentions raised by the opposite parties in the version cannot be accepted since it has no merit.  The whole actions of the opposite parties show their fraudulent steps, cheating nature and their unfair trade practice.  The opposite parties cannot escape from the liability by raising unnecessary contentions against this monetary transaction.  The contentions of the opposite parties regarding the purchase of Lottery and Magazine for the complainant shows their malafide intention to defect the interest of the complainant by way of purposeful refusal to deny the repayment of amountwith interest.  If the opposite parties are facing any legal action from the side of the Police regarding the working of the firm, the complainant is not at all liable for that.  The opposite parties have no right to retain the amount deposited by the complainant, without repayment.  The opposite parties have raised unnecessary contentions in this financial matter and purposefully evaded from the liability of repayment.  The whole action taken by the opposite parties in this financial case shows their illegal attitude and arbitrary nature.  After considering the facts and circumstances of this case we are of the strong view that the allegations raised by the complainant against the opposite parties are highly genuine.  The contentions raised by the opposite parties are to be ignored and the opposite parties have no right to raising contentions against the complainant since the contentions have no locus standi.  The whole facts of this case, shows that there is grossest deficiency in service, culpable negligence, cheating and unfair trade practice of the opposite parties by way of purposeful denial to repay the amount to the complainant with interest in time and evaded from the assurance given by them to the complainant at the time of deposit of the said amount before the opposite parties firm.  Since there is deficiency in service on the side of the opposite parties, they are fully entitled to pay compensation and costs to the complainant.  All the issues are found in favour of the complainant.  Hence, after considering the whole facts of this case, we are of the view that the complaint is to be allowed.

In the result, for the ends of justice, we hereby direct the opposite parties to return the deposited amount of Rs.60,000/- (Rupees sixty thousand only) to the complainant with 24% interest from the date of deposit till the repayment of the entire amount, and pay a compensation amount of Rs.25,000/- (Rupees twenty five thousand only) for his mental agony, pain, sufferings, harassment, loss and physical strain due to grossest deficiency in service, culpable negligence, cheating and unfair trade practice of the opposite parties by way of purposeful denial to repay the amount with interest to the complainant time and evaded from the assurance given by them to the complainant at the time of accepting amount from the complainant and opposite parties shall further pay an amount of Rs.2,500/- (Rupees two thousand five hundred only) to the complainant as the costs of this proceedings.  We further ordered that the complainant is free to proceed against the assets of the opposite parties in case any default to pay the amount as per this order.  We further direct the opposite parties to pay the above said amounts to the complainant within 30 days from the date of receipt of this order.

Complaint allowed.

Pronounced in open Forum on this the 31^st day of May, 2011.

Sd/-Sri. K. Anirudhan

                                                                                                            Sd/-Sri. Jimmy Korah

Sd/-Smt. N. Shajitha Beevi     

Appendix:-

Evidence of the complainants:- 

PW1          -     Philip Joseph (Witness)

Ext. A1      -     The Original Beneficiary Certificate dated, 03.04.2007 for a sum of Rs.10,000/-

Ext. A2      -     The Original Beneficiary Certificate dated, 13.04.2007 for a sum of Rs.10,000/-

Ext. A3      -     The Original Beneficiary Certificate dated, 21.04.2007 for a sum of Rs.10,000/-

Ext. A4      -     The Original Beneficiary Certificate dated, 23.04.2007 for a sum of Rs.10,000/-

Ext. A5      -     The Original Beneficiary Certificate dated, 08.05.2007 for a sum of Rs.10,000/-

Ext. A6      -     The Original Beneficiary Certificate dated, 27.04.2007 for a sum of Rs.10,000/-

Ext. A7      -     The Advocate Notice dated, 25.04.2009

Ext. A8      -     The Postal Receipts

Ext. A9      -     The Acknowledgment Cards

Evidence of the opposite parties: - Nil

// True Copy //

                        By Order

                                                                                                 Senior Superintendent

To

            Complainant/Opposite Parties/S.F.

Typed by:- P.R/-  

Compared by:-