IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 24thday of June, 2022
Present: Sri. Manulal V.S. President
Sri. K.M. Anto, Member
C C No. 147/2018 (filed on 12-07-2018)
Petitioner : Gopalakrishnan Nair P.K
Triveni,
Kumaranalloor P.O.
Kottayam – 686016.
(Adv. John Zachariah)
Vs.
Opposite Party : (1) K.V. Viswanathan,
Managing Partner of
Kunnathukalathil
Jewelers and Manager or
Kunnathukalathil Chitty
Funds Ltd. Central Junction,
Kottayam -1.
Additional opposite party : (2) Kunnathukalathil
(impleaded as per IA order No.172/21) Jewelers and Manager or
Kunnathukalathil Chitty
Funds Ltd. Central Junction,
Kottayam -1.
Rep. by its Partner V.K. Remani
W/o. late Viswanathan,
Krishnapriya (H)Chinkoly P.O.
Alappuzha.
(Adv. A. Sunitha and
Adv.ZakhierHuzzain)
O R D E R
Sri. Manulal V.S. President
Case of the complainant is as follows;
Complainant is a retired person from the Revenue Department.
Opposite party has been running jewelry business and financialservices at Kottayam and Changanassery under the name andstyle of Kunnathukalathil Jewelers and Kunnathukalathil ChittyFunds Pvt Ltd. Attracted by the offer of the monthly interest onfixed deposit, complainant initially deposited an amount of Rs.1,00,00/- on 13-8-2013 for 13% interest per annum and it wasrenewed up to 13-8-2017.Subsequent to the said deposit the complainant had depositedRs.1,00,00/- on 27-5-2014 which was renewed upto 27-5-2017. Another amount of Rs.1,00,000/- was deposited on 30-9-2014 which was renewed up to 30-9-2017. Rs.2,00,000/- whichwas deposited on 11-11-2014 was renewed up to 11-11-2017and Rs.1,00,000/- which was deposited on 13-5-2015 wasrenewed up 1o 28-7-2017 . On 13-12-2017 Rs.2,00,000/- wasdeposited for one year and Rs.3,00,000/- was deposited on 27-1-2018 for one year in the name of the complainant’s wifeChandrmathiyamma and Rs.3,00,000/- was deposited on 26-2-2018 for one year. The complainant deposited a total amount of Rs.15,00,000/-. Out of these except two deposits of Rs.3,00,000/ and2,00,000/-were for 13% interest and these two deposits for12% per annum. Complainant also joined a chitty conducted bythe opposite party by paying Rs.15,000/- on 29-3-2018 as firstinstallments and paid two subsequent installments . A totalamount of Rs.45,000/- was remitted by the complainant to thechitty. Though the complainant demanded back the depositamounts on its maturity date the opposite party sought formore time, but kept paying the interest regularly. In June 2018, the opposite party closed down all his business without anynotice or intimation to the complainant. The monthly interestfrom June 2018 is due. Though the complainant repeatedlydemanded the deposit amounts of Rs.15,00,000/- and amount ofRs.45,000/- collected for the deposit in chitty, the oppositeparty denied to pay any amount, which amounts to unfair tradepractice and deficiency in service . Hence this complaint is filedby the complainant praying for an order to direct the oppositeparty to refund Rs.15,45,000 with interest and compensation ofRs. One lakh.
Though the notice was ordered to the first opposite party thesame was returned as left. The additional second opposite partyis impleaded vide order in IA 172 of 2021.
Additional second opposite party appeared before thecommission and filed version contending as follows:
The first and second opposite parties being the partners of theM/S Kunnathukalthil Jewelers and chitty Funds Ltd have filedan insolvency petition as I.P. no. 4/2018 before the Addl. SubCourt Kottayam in which the official receiver was appointed bythe Sub Court. The complainant was arrayed as respondent no.874 and his wife ChandramathyAmma S as respondent no. 603in the insolvency petition. Complaint is not maintainable as thecomplainant was already arrayed as creditor of the oppositeparty in the insolvency petition filed. So the amount payable tothe complainant will be ratably distributed with the othercreditors by the official receiver appointed by the court at theconclusion of the I.P. Proceedings.
Complainant filed proof affidavit in lieu of chief examinationand marked Exhibit A1 series and A2series. No oral or documentaryevidence is adduced by the opposite party.
On evaluation of complaint, version and evidence on record wewould like to consider the following points.
(1) Whether, the complaint is maintainable or not?
(2)Whether there is any deficiency in service on the part of theopposite party?
(3) If so what are reliefs?
Point number 1to3 together
The specific case of the complainant is that attracted by the offerof the monthly interest on fixed deposit, complainant depositedan amount of Rs.15,00,000with the opposite party. Oppositeparty has been running jewelry business and financial servicesat Kottayam and Changanassery under the name and style ofKunnathukalathil Jewelers and Kunnathukalathil Chitty FundsPvt Ltd. Complaint was resisted by the second opposite partystating that the first and second opposite parties being thepartners of the M/S Kunnathukalthil Jewelers and chitty FundsLtd have filed an insolvency petition as I.P. no. 4/2018 before
the Addl. Sub Court Kottayam in which the official receiverwas appointed by the Sub Court. The complainant was arrayedas respondent no. 874 and his wife ChandramathyAmma S asrespondent no. 603 in the insolvency petition.
According to Section 2(1)(d)(2) of the Consumer Protection Act,
“consumer” means a person who (hires or avails of) any servicesfor a consideration which has been paid or promised or partlypaid and partly promised, or under any system of deferredpayment and includes any beneficiary of such services otherthan the person who (hires or avails of) the services forconsideration paid or promised, or partly paid and partlypromised, or under any system of deferred payment, when suchservices are availed of with the approval of the first mentionedperson (but does not include a person who avails of such
services for any commercial purpose).
Similarly, Section 2(1)(o) reads as follows:
“ ‘Service’ means service of any description which is madeavailable to potential (users and includes, but not limited to, theprovision of) facilities in connection with banking, financinginsurance, transport, processing, supply of electrical or otherenergy, board or lodging or both, (housing construction),entertainment, amusement or the purveying of news or otherinformation, but does not include the rendering of any servicefree of charge or under a contract of personal service.
Thus it is proved by exhibit A1 and A2 series that thecomplainant and his wife ChandramathyAmma S had availedthe service of the opposite party by way of fixed deposit withthe opposite party.
Though the opposite party submitted that they have filed I.P. no.4/2018 before the Addl. Sub Court Kottayam, they did not produce anyevidence before us to prove the same. The opposite party didnot produce either the copy of the petition nor the order in whichthe official receiver has been appointed by the Hon’ble Addl.Sub Court. The opposite party did not produce any evidence toshow that the complainant and his wife ChandramathyAmmawere arrayed ascreditors in the said petition.
The opposite party relied on the decision reported in1992 KHC581 (Sudarsan Chits (India)Ltdvs The official Liquidator andAnother). In that case the Hon’ble High court of Kerala hasheld at the claims of creditors of companies which are beingwound up- Authorities constituted under the Act have nojurisdiction to consider such claims .
The National Commission in Revision Petition No. 1352/02in Allianz Capital & Management Services Ltd. v. N.P. Croverand Ors. decided on 30.1.2003, has held that:
It is thus clear that if the complainant has not filed anyapplication before the Company Law Board under Section45QA of the RBI Act or has not received any notice from theCompany Law Board in the proceedings initiated by any other
depositor or has not participated in the proceedings beforeCompany Law Board, he will be entitled to file a complaintbefore the Consumer Forum under the Consumer Act.
The question as to whether the proceedings under Section 27 ofthe Consumer Protection Act can be initiated against a companyin respect of whom a moratorium in respect of Section 14 of theIBC has been declared or not, came up for consideration of aThree-Members Bench of National Commission in E.A. No. 25of 2018 Lotus Panache Welfare Association Vs. M/s GraniteGate Properties Pvt. Ltd. &Ors. decided on 06.09.2019 and thefollowing view was taken:
(i) The proceedings under Section 27 of the ConsumerProtection Act can be instituted and continued against acorporate debtor, which has failed or omitted to comply with anorder passed by a Consumer Forum and in respect of whom a
moratorium under Section 14 of the Insolvency and BankruptcyCode is declared by the Adjudicating Authority;
(ii) The proceedings under Section 27 of the ConsumerProtection Act can be instituted and continued against thepersons in charge of and responsible to the corporate debtor forthe conduct of its business as well as against a person referred inPara (13) hereinabove, even after a moratorium under Section14 of the Insolvency and Bankruptcy Code is declared by theAdjudicating Authority against the corporate debtor.
Further in National Seeds Corporation Limited Vs. M.Madhusudhan Reddy &Anr. (2012) 2 SCC 506, it has beenauthoritatively held by the Hon’ble Supreme Court that the Protection provided to the consumers under the Act is inaddition to the remedies available under any other Statute.
Being a beneficial legislation the fora constituted under theconsumer protection act deal only with the deficiency in serviceor unfair trade practice. Here in case in hand the complainantfiled the complaint alleging the deficiency in service from theopposite party by not repaying the deposit amounts at maturity asoffered by the opposite party. Therefore we are of the opinionthat the complaint is maintainable before this Commission.
It is proved by exhibit A1 that the complainant had made a fixeddeposit of Rs.3,00,000/-on 27-1-2018 in the name of his wifeChndramathiyamma for an interest of 13% and had received theinterest till 27-5-2018. Exhibit A1 (a) is the fixed deposit”receipt issued by the opposite party in the name of thecomplainant. On perusal of exhibit A1(a) we can see that thecomplainant had deposited Rs.2,00,000/- on 13-12-2017 and hadreceived interest@ 12% till 13-5-2018. It is proved by exhibitA1(b) that on 28-7-2015 the complainant had deposited Rs.Onelakh with opposite party and had received interest till 28-5-2015.Rs. 1,00,000/- deposited vide exhibit A1 (c) on 13-5-2015. Rs.2,00,000/- which was deposited on 11-11-14 videexhibit A1(d) and interest was received upto 27-10-2017.
Another amount of Rs.1,00,000/- was deposited on 30-9-2014vide exhibit A1(e). It is proved by exhibit A1(f) that the complainanthad deposited an amount of Rs.1,00,000/- with opposite party.
Exhibit A1(g) proves that the complainant had deposited Rs.1,00,000/- on 13-8-2013 for 13% interest per annum and it was paid up to 28-5-2018. Rs. 3,00,000/- deposited vide exhibit A1 (c) on 26-2-2018. Exhibit A2 proves that the complainant had paid Rs.15000/- to the opposite party towards the chitty amount. It isproved by exhibit A2 (a) and A2(b) that the complainant hadpaid Rs.12,750/- each on 30-4-2018 and 31-5-2018 to theopposite party towards the chitty amount. Thus exhibit A1series and A2 series proves that the complainant had deposited atotal amount of Rs.15 Lakhs with opposite party and paid Rs.40,500 towards the chitty amount. There is no contraryevidence before us to prove that the opposite party had paid theentire deposited amount to the complainant.
Section 2(1)(g) of the consumer protection Act 1986 definesdeficiency as follows:
“ ‘deficiency’ means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”.
Therefore we are of the opinion that theopposite party hascommitted deficiency in service by not returning the fixeddeposits amount on maturity date to the complainant. No doubtthe deficient act of the opposite party has caused much mentalagony and hardship to the complainant for which the oppositeparty is liable to pay compensation.
In the light of above discussed evidence we allow thecomplaint and pass the following order.
- We hereby direct the opposite party to pay Rs.15,40,500/- to thecomplainant with 9% interest from the date of filing of thecomplaint till realization.
- We hereby direct the opposite party to pay Rs.25,000/- ascompensation to the complainant.
The Order shall be complied within a period of 30 days from the date of receipt of Order. If not complied as directed, the compensation amount will carry 9% interest from the date of Order till realization.
Pronounced in the Open Commission on this the 24th day of June, 2022
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 –Fixed receipt dtd.27-01-2018 for Rs.3,00,000/- in the name of
ChandramathyAmma.
A1(a) – Fixed receipt dtd.13-12-2017 for Rs.2,00,000/- in the name of
complainant
A1(b) - Fixed receipt dtd.28-07-2015 for Rs.1,00,000/- in the name of
complainant
A1(c) - Fixed receipt dtd.13-05-2015 for Rs.1,00,000/- in the name of
complainant
A1(d) - Fixed receipt dtd.11-11-2014 for Rs.2,00,000/- in the name of
complainant
A1(e) -Fixed receipt dtd.30-09-2014 for Rs.1,00,000/- in the name of
complainant
A1(f) -Fixed receipt dtd.27-05-2014 for Rs.1,00,000/- in the name of
complainant
A1(g)- Fixed receipt dtd.13-08-2013 for Rs.1,00,000/- in the name of
complainant
A1(h) - Fixed receipt dtd.26-02-2018 for Rs.3,00,000/- in the name of
complainant
A2 – Chitty receipt dtd.29-03-18 for Rs.15,000/-
A2(a) – Chitty receipt dtd.30-04-19 for Rs.15,000/-
A2(b) – Chitty receipt dtd.31-05-18 for Rs.15,000/-
By Order
Assistant Registrar
