Telangana

Mahbubnagar

CC/25/2011

V. Channaiah S/o Hanmaiah, - Complainant(s)

Versus

Kapil Chit Fund Pvt. Ltd., - Opp.Party(s)

Sri N. Madhusudhan Yadav

22 Jul 2011

ORDER

  BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

Friday, the 22^nd day of July, 2011 

                                                     Present:- Sri P. Sridhara Rao, B.Sc., LL.B., President

                                                                     Sri A. Veerupakshi, B.A., LL.B., Member        

      Smt.D.Nirmala, B.Com., LL.B.,Member

C.C.NO. 25  Of   2011

Between:-

V. Channaiah S/o Hanmaiah, age: 65 years, Occ: Business, R/o C/o Sri Sai Bakery, Shop No.5-6-1/1, Near Menaka Talkies, Mahabubnagar.                                                                                                                    … Complainant

And

Kapil Chit Fund Pvt. Ltd., Mahabubnagar, Represented by its Branch Manager, R/o 2^nd Floor, beside Enadu Office, Telangana Chowrasta, Mahabubnagar.  

                                      … Opposite Party

 This C.C. coming on before us for final hearing on 13-7-2011 in the presence of Sri N. Madhusudhan Yadav, Advocate, Mahabubnagar for the complainant and Sri C. Rajeev Kumar, Advocate, Mahabubnagar for the opposite party and the matter having stood over for consideration till this day, this Forum made the following:  

O R D E R

  (Smt.D.Nirmala, Member)

1.  This is a complaint filed by the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite party to return the documents and blank cheques to the complainant and also to issue No Due certificate and to pay Rs.20,000/- towards causing mental agony besides costs of the complaint.   

2. The averments of the complaint in brief are that:- The opposite party is a financial institution and Chit Fund having its head office at Secunderabad and the opposite party running the business all over Andhra Pradesh. It has one branch in Mahabubnagar.  The complainant has joined in the Chit as member on 1-12-2006 and the opposite party allotted chit vide chit No.MBL02I/13 and it was Rs.4,00,000/- chit commenced on 20-12-2006.  The terms and conditions of the chit are the member in chit has to pay Rs.10,000/- per month upto 40 installments.  The complainant is regularly made the payment to opposite party and accordingly he received the receipts of the same.  On 27-6-2007 the complainant is a successful bidder.   At the time of lifting the chit amount he arranged guarantee and issued five blank cheques vide Nos.236641, 236642, 236643, 236644 and 236645 as per the demand of the opposite party. After fulfilling the required terms and conditions for lifting chit amount i.e., Rs.2,40,000/- and future liability is Rs.1,60,000/-.  After satisfying with fulfillment conditions the opposite party has paid a cheque for an amount of Rs.2,40,000/- to the complainant.  Due to some unavoidable circumstances the complainant became defaulter in payment of chit amount.  But he has paid default installments along with penalties.  Total the complainant paid Rs.4,11,789/- (Rs.4,00,000/- chit amount and Rs.11,789/- penalties).  The chit was closed in the month of March, 2010 and the opposite party has issued a balance sheet of payment of the complainant for the chit No.MBL02I/13 stating that the complainant is in default of an amount of Rs.35,037/- and demanded for balance amount. Thereupon, the complainant approached the Manager of the opposite party and requested that he will make payments in four installments without any penalty.  The opposite party agreed for the same and received Rs.35,000/- in four installments and accordingly issued receipts.  The agent of the opposite party while receiving the above said amount issued a letter dated 5-10-2010 stating that the complainant has made entire payments towards chit amount and thus will return the 5 blank cheques within one week. Thereafter the complainant approached several times to the opposite party for return of the documents and blank cheques but the opposite party postponed the same.  Thereupon the complainant wrote a letter to the opposite party on 8-1-2011 for which the opposite party neither replied nor returned the documents. The opposite party rendered defective service and unfair trade practice.  Thus the present complaint is filed for getting legal remedy.

3. The opposite party filed counter denying the averments made in the complaint and stated that it is true that the complainant joined as subscriber in its chit fund scheme and as per rules and regulations allotted ticket No.MBL02I/13 and the total value of the chit being Rs.4,00,000/- to be subscribed at the rate of Rs.10,000/- per month for 40 months and signed agreement on 1-12-2006 with the opposite party.  It is also true that the complainant became a successful bidder in auction held on 27-6-2007 having agreed to forego Rs.1,60,000/- which was duly confirmed by the opposite party. The opposite party further stated that in order to get the prize amount the complainant has to furnish four solvent sureties/guarantors to the satisfaction of the company for regular payment of the entire future monthly installments.  Accordingly the complainant offered surety of four solvent persons to draw the prize chit amount and the same was accepted by the opposite party and the amount was realized after the sureties executed surety bond and joint promissory notes in favour of the opposite party.  It is true that the complainant was irregular in payment of chit installments and became defaulter.  As per the provisions of the A.P. Chit Fund Act the opposite party is entitled to collect penalty from defaulted subscriber with the due installments.  The opposite party further stated that the complainant was due of Rs.35,037/- as on the date of termination of the chit but clarifies that the complainant has to pay the said defaulted installments amount with penalty.  The opposite party further stated that the complainant never approached the Manager of the opposite party and never requested to pay the said due amount in four installments without penalty and the Manager of the opposite party never accepted the same.  The letter dated 5-10-2010 issued by the agent of the opposite party in favour of the complainant is a fabricated document and created for the sole purpose of filing the present case in order to evade payment of due amount to the opposite party.  The opposite party further stated that the agents are not competent to issue such no due certificates to anybody and his acts do not bind the opposite party.  It is true that the complainant has paid Rs.35,000/- under receipts filed by him but clarifies that because of delay in payment, penalties are debited to his account and the complainant is due a sum of Rs.4,109/- as on 27-2-2011 to the opposite party. When the complainant has not given any blank cheques to the opposite party then the question of returning it does not arise at all.  The opposite party further stated that if the complainant clears the due amount the opposite party is ready to give no due certificate.  There is no deficiency on the part of the opposite party in rendering service to the complainant. Therefore the present complaint is liable to be dismissed.          

4. Thereupon the complainant in support of his claim filed his affidavit evidence and so also got filed third party affidavits of 3 more persons and treated their evidence as P.Ws.2 to 4 and got marked Exs.A-1 to A-11.  On the other hand, the opposite party filed his proof affidavit and so also got filed third party affidavit of R.W.2 and got marked Exs.B-1 to B-5.    

5.  The points for determination now are: 

1.  Whether is there any deficiency of service and unfair trade practice on the part of the opposite party as alleged?
2.  Whether the complainant is entitled for the relief sought for by him? 
3.  To what effect? 

6. The undisputed facts in the case are that the complainant joined as a subscriber in the opposite party chit fund scheme and was allotted to ticket No.MBL02I/13 and chit value is Rs.4,00,000/-. The complainant is a successful bidder having agreed to forego an amount of Rs.1,60,000/-.    

 

7. Point Nos.1 and 2:- It is the case of the complainant that the chit No.MBL02I/13 was closed in the month of March, 2010.  He has paid totally Rs.4,11,789/- (Rs.4,00,000/- chit amount and Rs.11,789/- penalties).  In the month of March, 2010 the opposite party has issued a balance sheet stating that he is in default of an amount of Rs.35,037/-. When the complainant approached the Branch Manager of the opposite party and requested that he will make payment in four installments without penalty, the opposite party agreed for the same and received Rs.35,000/- in four installments and issued receipts.  The agent of the opposite party issued a letter dated 5-10-2010 stating that the complainant has paid entire payment towards chit amount and he will return 5 blank cheques and documents within a week.  The complainant approached several times to the opposite party and wrote a letter to the opposite party on 8-1-2011 for return of documents and five blank cheques for which the opposite party neither replied nor returned the documents.  The act of the opposite party amounts to deficiency of service.

8. On this aspect the contention of the learned counsel for the opposite party is that the complainant was due a sum of Rs.35,037/- as on the date of termination of the chit March, 2010. But it is clarified that the complainant has to pay the said defaulted installments amount with penalty under the term of chit agreement. He further contended that the complainant never approached the Manager of the opposite party and requested to pay the said due amount in four monthly installments without penalty and the same was accepted by the Branch Manager of the opposite party.  The letter dated 5-10-2010 (Ex.A-6) issued by the opposite party in favour of the complainant is a fabricated one. He further contended that when the complainant has not given any blank cheques the question of returning cheques does not arise.  It is neither general practice nor usage of the opposite party chit fund company to collect the blank cheques from a successful bidder.  

9. So, the question that has to be seen now is whether the blank cheques are in the custody of the opposite party or not?  

10. The complainant relied upon Exs.A-1 to A-11 and third party affidavits of P.Ws.2 to 4 to prove his contention.  As per Ex.A-6 a letter dated   5-10-2010 issued by the agent of the opposite party by name Arun Kumar stating that the complainant has paid entire amount and he will return five blank cheques and documents within one week. To disprove the said contention the opposite party filed affidavit evidence of said Arun Kumar stating that the Ex.A-6 letter is a forged and fabricated one.  The affidavit evidence of P.Ws.3 and 4 stated that they were present at the time of lifting of the bid amount and they stood as guarantors and in their presence the complainant issued five blank cheques to the opposite party. On this aspect, the contention of the learned counsel for the opposite party is that the evidence of the P.Ws.3 and 4 is not believable since they are interested and partition witnesses. On a careful observation of Ex.A-6 and affidavit evidence of P.Ws.3 and 4 it is observed that the said witnesses are not specific as to whom the cheques were allegedly given and why no receipts were obtained. Further P.Ws.3 and 4 were the guarantors, P.W.3 is friend and P.W.4 is son of the complainant. So, their evidence cannot be believable.  For the reasons shown supra, we find that there is some truth in the contention of the opposite party and the complainant failed to establish that five blank cheques were given at the time of lifting the bid amount to the opposite party.  Therefore, the complainant is not entitled for the relief sought for by him. 

11. The next contention of the complainant is that he approached several times to the opposite party and wrote a letter to the opposite party vide Ex.A-7 dated 8-1-2011 for return of documents and no due certificate but the opposite party neither gave any reply nor returned the documents.  On this aspect, the contention of the learned counsel for the opposite party is that they are ready to give no due certificate if the complainant clears the due amount.  So, we are of the opinion that a direction can be given to the opposite party to return the documents along with no due certificate to the complainant on his making payment of the due amount of Rs.4,109/- within one month from the date of the present order.  Both the points are answered accordingly in favour of the opposite parties and against the complainant.

12. Point No.3:- In the result, the complaint is dismissed without costs but however with a direction to the opposite party to return the documents along with no due certificate to the complainant on his making payment of the due amount of Rs.4,109/- within one month from the date of the present order.  

        Typed to dictation, corrected and pronounced by us in the open Forum on this the 22^nd day of July, 2011.    

 

                                                            I agree                               I agree    

 

 MEMBER                                MEMBER                           PRESIDENT                      

   Appendix of evidence

      List of Witness examined

On behalf of Complainant:                          On behalf of Opposite Party:   

P.W.1: V. Channaiah                                     R.W.1: Madhusudhan Reddy  

P.W.2: Bal Reddy                                           R.W.2: K.B. Arun Kumar

P.W.3: A. Gangadhar Reddy

P.W.4: V. Srinivasulu                     

List of documents marked:-

On behalf of Complainant:-  

Ex.A-1: Copy of Statement of Account.

Ex.A-2: Original Receipt, dt.2.6.2010.

Ex.A-3: Original Receipt, dt.2.8.2010.

Ex.A-4: Original Receipt, dt.1.10.2010.

Ex.A-5: Original Receipt, dt.2.9.2010.

Ex.A-6: Copy of No Due Certificate Receipt, dt.5.10.2010.

Ex.A-7: Copy of Letter, dt.8.1.2011.

Ex.A-8: Original Receipt, dt.25.1.2008.

Ex.A-9: Original Receipt, dt.20.2.2008.

Ex.A-10: Original Receipt, dt.25.11.2007.

Ex.A-11: Original Pass Book.

On behalf of OP.:           

Ex.B-1: Duplicate Agreement of Chit. 

Ex.B-2: Agreement of Guarantee, dt.11.8.2007.

Ex.B-3: Promissory Note, dt.11.8.2007.

Ex.B-4: Payment Voucher, dt.11.8.2007.

Ex.B-5: Copy of Statement of Account.

                                                                  

                                                                                                PRESIDENT

Copy to:-

1. Sri N. Madhusudhan Yadav, Advocate, Mahabubnagar for the complainant.

2. Sri C. Rajeev Kumar, Advocate, Mahabubnagar for the opposite party.