KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.142/06 JUDGMENT DATED 30.1.2010 PRESENT JUSTICE SHRI.K.R.UDAYABHANU -- PRESIDENT SRI.M.K.ABDULLA SONA -- MEMBER K.V.Rajeev, S/0 Uthuppunni, Kanjiramparambil house, -- APPELLANT Mundoor.P.O, Thrissur. (By Adv.K.R.Nandakumar) Vs. 1. K.L.Johny, S/0 Kunjiramaparambil, Lazar, Mundoor P.O, Thrissur. 2. Jerry Johny, S/0 Kunjiramaparambil, Lazar, Mundoor P.O, Thrissur. (reptd by power of attorney Holder K.L.John 1st complainant) 3. Shine Star Investments Co. 23/1780, Sreepadam, P.b.No.714, Panniyankara, Kallai.P.O, Kozhikode. 4. P.D.Thomas, S/0 Davis, Pulikkottil House, Poovathoor, Pavaratty, Thrissur. 5. Anto Davis, S/0 Davis, Pulikkottil House, Poovathoor, Pavaratty, Thrissur 6. P.D.Joseph, S/0 Davis Pulikkottil House, Poovathoor, Pavaratty, Thrissur. 7. Sheela Thomas, W/0 P.D.Thomas, Pulikkottil House, Poovathoor, Pavaratty, Thrissur. 8. Leoni Raveev, W/0 Rajeev, Kanjiramparambil House, Mundoor P.O, Thrissur. 9. Gaby Anto, W/0 Anto Davis, Kanjiramparambil House, Mundoor P.O, Thrissur. 10. David.K.F, -- RESPONDENTS Kundukulangara House, Mundoor P.O, Thrissur
11. Valsa David, W/0 Kundukulangara David Kundukulangara House, Mundoor P.O, Thrissur. 12. E.K.Johny, Divya Nivas, Muthuvettoor, Chavakkad, Thrissur. 13. Thankamma Johny, W/0 E.K.Johny, Kundukulangara House, Mundoor P.O, Thrissur. 14. Sobhana Lazar, Chemmannor House, Chavakkad, Thrissur. 15. Tessy Joseph, W/0 P.O.Joseph, Pullikkottil House, Poovathoor P.O, Pavaratty, Thrissur. 16. Johnson.C.T Chalekalackal House, Alathoor P.O Thrissur. 17. Sholy Johnson, W/0 Johnson, Chalekalackal House, Alathoor P.O Thrissur. 18. Shajeev.K.V Kanjiraparambil house, Mundoor, Thrissur. 19. Shali Rajeev ,W/0 Shajjev Kanjiraparambil house, Mundoor, Thrissur. 20. Beena Anto, W/0 Anto, Perincherry House,Thalove.P.O. (R1 & 2 by Adv.Shyam Padman) JUDGMENT SRI.M.K.ABDULLA SONA,MEMBER This appeal prefers from the CDRF, Kozhikode in the file of OP.No.165/04 dated 7/9/2005. The appellant is the third opposite party including complainants and there are totally 20 respondents. 2. In short the opposite party in the OP is a partnership firm of which the second opposite party is its Managing Partner and opposite party No.3 to 20 are partners. The first opposite party has been accepting Fixed Deposits from the public offering attractive rate of interest as part of its business activities. On 15.2.1996 the first complainant had deposited an amount of Rs.25,000/- as per Deposit Certificate No.1921/KLJ/67 to the first opposite party firm and the receipt of amount was acknowledged by the 2nd opposite party for and on behalf of the other opposite parties. On 13.9.97 similarly a further amount of Rs.25,000/- was deposited by the first complainant with the opposite party and deposit Certificate already issued. The total amount payable to the first respondent is Rs.50,000/-. The second complainant herein is the son of the first complainant and on 4.9.97 an amount of Rs.40,000/- was deposited by the 2nd complainant and the second opposite party had issued deposit certificate No.1151/JJ/250 after acknowledging the receipt of the amount as term deposit. An amount of Rs.50,000/- was again deposited by the second complainant on 16.9.98 and deposit certificate No.1181/JJ was issued to him in acknowledgement of the receipt of amount. There was no time limit as far as deposits made by the complainants are concerned and as per the deposit certificate issued by the second opposite party for an on behalf of the first opposite party and binding upon the other opposite parties and they are jointly and severally liable and responsible to pay interest at the rate of 18% per annum on the amounts deposited till the principal amount remained with the opposite parties. The opposite parties are liable and responsible to honour the terms incorporated in the deposit certificates and the complainants are entitled to get principal amounts along with the interest accrued thereof from the opposite parties. The opposite parties have paid interest to the complainant up to January 2000 and failed to disburse the interest from January 2000 onwards. The complainants had issued a notice demanding payment of the interest and principal amounts on 11.6.2002. No reply was sent to the lawyer notice. Therefore complainants are seeking for the relief. 3. Except opposite parties 2 and 3 others are exparte. 4. The opposite parties 2 and 3 filed their detailed written version contending that the petition is not maintainable. The complaint is hopelessly barred by limitation. According to the complainant the opposite parties did not disburse the interest from January 2000 onwards. The only deficiency in service alleged by the opposite parties is non payment of deposit amounts and interest. The alleged deficiency in service occurred from January 2000 onwards. Hence this complaint ought to have been filed on or before January 2002. The complaint is filed much later. Even the notice allegedly sent was not issued even as per the complaint only on 11.6.2002, much after the expiry of two years from the date of actual cause of action. Therefore the complainant is not entitled to get any relief. Hence it is prayed that the petition may be dismissed. 5. The forum below raised two important issues. They are whether the complaint is barred by limitation 2nd whether the complainant is entitled to get any relief from the part of the complainant. K.L.Johny is the complainant who examined as PW1 and marked Ext.A1 to A7. There is no oral or documentary evidence adduced by the opposite parties in the above OP. 6. The forum below rightly answered the question of limitation, even though the forum below raised it as a fact in issue. The Consumer Protection Act limits the period of 2 years as per Article 22, the cause of action for return of the deposit and interest runs from the date of demand for return of the amount. The complainant has no case that the cause of action started from January 2000 when the payment of interest is defaulted. The complainant has simply stated in the complaint from January 2000 onwards interest who was not paid. Complainant is not having a case that in January 2000 onwards the cause of action arosed. We are of the opinion that mere default of the payment interest taken as a period on which limitation started from 11.6.2002So we find that the common demand for return of the amount and interest is made by the complainant as per Ext.A5 notice dated 11.6.02 and the complaint is filed within 2 year from this date. Therefore the forum below found that the case is not barred by limitation. The forum below considered another point that whether the complaint is entitled to get relief claimed in the complaint. There is no dispute regarding the deposit and deposit register etc. 7. The evidence of the complaint has relied on Ext.A1 to A4 they established successfully their claim. The deposits are also admitted by the opposite parties. Ext.A1 to A4 issued by the opposite parties. It was also an admitted fact. The forum below found that the opposite parties are entitled to get the claim raised in the complaint. 8. In the result, the forum below directed the opposite parties with interest at the rate of 18% per annum from January 2000 onwards till the date of the order and 12% thereafter till realization and to pay an amount of 19% with interest at the rate of 18% per annum from January 2000 onwards till the date of the order and 12%thereafter realization to the complainant. The opposite parties are also directed to pay an amount of Rs.5000 each to the complainant as compensation. 9. The appellant prefers this appeal from the above impugned order passed by the forum below. The counsel for the appellant vehemently argued on the grounds of appeal memorandum that the forum below came to a conclusion that the complainant is not a consumer as defined under Section II (d) of the Consumer protection Act. The appellant submitted that he is not a consumer under the Consumer Protection Act. He supported his arguments that “receiving any money, as fixed deposits are part and parcel of business on the basis of an agreement, which is nothing but a contract. The forum below is not having any jurisdiction to settled any dispute coming under the provision of the contract. His another contention is that the question of limitation. He submitted that the notice itself was issued by the complainant after 2 years period which is the time specified in the Consumer Protection Act and also another contention raised the forum below and to have given opportunity to the opposite parties to adduce evidence and substantiate their own cases. In such a circumstance, the counsel for the appellant submitted that the order passed by the forum below is not accordance with law and evidence and it is illegal and not legally sustainable. The counsel for the first and second respondent submitted that in a case were no date is fixed for the maturity then the cause of action runs from the date of demand. In this case, demand is on 11.6.02 and the complaint is instituted on 29.2.04. Hence the complaint is instituted within 2 years from the date of occurrence of the cause of action. He also submitted that Article 22 of the Act clarifies that in a case of fixed deposits the period of maturity fixed shall run only from the date of demand. 10. This Commission heard in detail by both parties and perused the entire evidence available in the case bundle. It is an admitted fact that the payment did not accept any fixed deposit not accordance with the sanction of Reserve Bank of India or any other statutory authority. It is not a case of a payment of money or promissory note. The arguments submitted by the counsel for the appellant that all the disputes arised within the purview of the Indian Contract Act is not coming under the Consumer Protection Act is not legally acceptable. This dispute is coming under the definition of the Consumer Protection Act. There is no doubt that the Act of the appellant is nothing but an unfair trade practice defined under Section II (i) ( r) of the Consumer Protection Act, 1986. 11. This Commission is not seeing any reason to interfere in the order passed by the forum below. The forum below passed the impugned order accordance with provisions of law and evidence. The forum below rightly answered all the questions arised in this dispute. This Commission uphold the decision of the forum below. In the result, appeal is dismissed and confirmed the order passed by the Forum below. Both parties are directed to suffer their own respective costs. These points of the appeal answered accordingly. M.K.ABDULLA SONA -- MEMBER JUSTICE K.R.UDAYABHANU -- PRESIDENT | 
