IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

Monday the 4^th   day of April, 2022.

                                      Filed on 06.09.2021

Present

1. Sri.S.Santhosh Kumar.  BSc.,LL.B  (President )
2. Smt.  Sholy.P.R .B.A, LLB (Member)

In

CC/No.188/2021

between

Complainants:-                                                      Opposite party:-

1.    Sri. Tomichan Antony                                     1.    Kerala Housing Finance Ltd

Meppuram House                                                  2^nd Floor, Pan African Plaza

Vaisyambhagom P.O                                               M.G.Road, Trivandrum-695001

Nedumudi, Alappuzha                                           

                                                                               2.    G.Unnikrishnan Nair

2.     Treesamol,                                                               Managing Director

       Kattezham Bino Bhavan                                          Kerala Housing Finance Ltd.

        Champakulam.P.O, Alappuzha                              2^nd Floor, Pan African Plaza

                                                                               M.G.Road, Trivandrum-695001

(Party in person)                                                      (Mullasseril House Kannamkodu

                                                                               Muri, Adoor)

                                                                         3.   Komala Unnikrishnan, Director

                                                                              Kerala Housing Finance 

                                                                                    Ltd, 2^nd Floor, Pan African Plaza

                                                                               M.G.Road, Trivandrum-695001

                                                                         4.   Sri. N. Krishnan Nair

                                                                               Director cum General Manager

                                                                               Kerala Housing Finance Ltd

                                                                               Vadakkekara House, Vahottukonam

                                                                                    Vattiyoorkavu, Trivandrum-695013

                                                                         5.   Smt. Vijayalakshmi Jayakumar

                                                                               Branch Manager, Kerala Housing

                                                                               Finance, Ltd, Allepy Branch

                                                                                Aayirappally House, Muthukulam

                                                                               South, Mamod Jn. Kareelakulangara

                                                                              Alappuzha 

                                                                             (Adv. R. SankaranKutty for Op5)

                                                                         6.   The District Police Chief

                                                                               Office of the District Police Chief.

                                                                               Alappuzha

                                                                             (1 to 4 &6 Exparte)                 

O R D E R

SMT. P.R SHOLY (MEMBER)

        This is a consumer complaint filed under Sec.35 of Consumer Protection Act,2019.

1.      Material averments briefly discussed are as follows:-

          First complainant is a gulf returnee and 2^nd complainant is his sister’s daughter.  The complainants had deposited an amount of Rs.1,10,000/- on 23.04.14 by purchasing 110 number of secured Redeemable Non-convertible bonds of Rs.1000/- each with the 1^st opposite party on the basis of the representation made by the 5^th opposite party.  The 5^th opposite party gave a detailed description of the various schemes of the company and promised that if a definite amount is deposited with the 1^st opposite party, it necessary, the interest on deposit amount will be paid every month without default and that the deposit amount being the value of bonds will be duly returned on the date of maturity by the 1^st opposite party. 

          Accordingly the complainants deposited Rs.1,10,000/- with the opposite parties.  However contrary to the promises and offers the 1^st opposite party stopped paying interest to the complainant from January 2018 and also failed to release the deposit amount which got matured on 23.07.2017 inspite of repeated requests made by the complainant.  Hence alleging deficiency in service against the opposite parties on account of non-return of the amount deposited by her filed this complaint.

1. To refund Rs.1,10,000/- to the complainants.
2. To pay an amount of Rs.38,144/- as arrears of interest.
3. To pay Rs.50,000/- as compensation and,
4. To pay Rs.50,000/- as cost. 

          In response to the complaint the 5^th opposite party filed version. Other opposite parties remained exparte.

2.      The brief facts of the version filed by opposite party No.5 are as follows:-

          The complaint is not maintainable either in law or on facts.  5^th opposite party is not personally liable for the alleged claim.  It is also contented that 1^st opposite party is a company registered and governed under the companies Act.  Hence this opposite party is not liable to be proceeded with personally as she was only an employee of the 1^st opposite party company.  No assurance was ever given by the 5^th opposite party to the complainant for making the deposit.  The 5^th opposite party specifically denied the allegation leveled against her in the complaint that based on the representation/ persuasion of the 5^th opposite party she happened to deposit the alleged amount.  The 5^th  opposite party has pleaded that she is not liable to the alleged claim and she is incorporated on the party array only to cause annoyance to her and thus prayed for dismissal of the complaint as against her. 

3.      On the above pleadings the following points raised for consideration:-

1. Whether there is any deficiency in service on the part of opposite parties?
2. Whether the complainant is entitled to get reliefs sought for in the complaint?
3. Whether the 5^th opposite party is liable for the transaction?
4. Reliefs and cost.

4.                Evidence in this case consists oral evidence of PW1 and Ext.A1 to A13 on the side of complainant.  No oral as well as documentary evidence adduced by contesting 5^th opposite party.

5.      Point No.1 to 3:-

          Admittedly the PW1 and his niece had deposited Rs.1,10,000/- to the 1^st opposite party which evidenced by Ext.A13 bond.  The 1^st opposite party company and its directors were served notice of the original complaint and they did not appear and file any version.  As contented by the 5^th opposite party the jural relationship of debtor and creditor is between the complainant and 1^st opposite party which seems from Ext.A13.  The terms and conditions of the contract entered into between complainant and 1^st opposite party is embedded in Ext.A13.  More over there is a specific recital in Ext.A13 bond that on the basis of the application submitted by the complainant before the Board of Directors of the 1^st opposite party, the Ext.A13 bond was allotted.  The said fact is admitted by PW1 while she was cross examined by the counsel appearing for the 5^th opposite party.  The said recital in Ext.A13 is the substratum of the contract.  It is to be noted that such a stipulation in the written contract made between the complainant and 1^st opposite party itself debars the complainant from raising a contention that upon the instigation of the 5^th opposite party the complainant deposited the amount covered under Ext.A13 bond.  More over such an allegation in the complaint is against the terms of the contract embedded in Ext.A13 bond.  In this connection it can be safely concluded that the allegation leveled against the 5^th opposite party in the complaint is hit by parole evidence rule as contained in S.91 and 92 of Indian Evidence Act.  The 5^th opposite party, being an employee of the 1^st opposite party, constituted and governed under the Companies Act is not personally liable to discharge the liability of the 1^st opposite party. Hence based on the pleadings and evidence tendered in the case, 5^th opposite party is not liable to the grievance alleged by the complainant, but the 1^st opposite party being a financial institution incorporated as per the provisions of the Companies Act and other opposite parties 2 to 4 are its Managing Director and directors, hence they are bound to abide by the terms and conditions assured by them.  But they have committed breach of promise as well as deficiency in service towards the complainant.  Therefore opposite parties 1 to 4 are jointly and severally liable to discharge the liability and to pay compensation to the complainant.

6.      Point No.4:-

          Accordingly we allow the complaint in part and direct as follows:-

1. The opposite parties 1 to 4 are jointly and severally liable to pay Rs.1,10,000/- (One lakhs Ten thousand) with interest @ 13% per annum from the date of complaint  till realization to the complainant.
2. Opposite parties 1 to 4 are directed to pay Rs.38,144/- to the complainants being the arrears of interest till the date of complaint. 
3. The opposite parties 1 to 4 are jointly and severally liable to pay Rs.10,000/- as compensation to the complainant.
4. Complainant is entitled Rs.5,000/- as litigation cost from opposite party 1 to 4. 

The order shall be complied within one month from the date of receipt of the copy of this order.

Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 4^th  day of April, 2022.

Sd/-Smt. P.R.Sholy (Member)

SD/-Sri.S.Santhosh Kumar (President)

Appendix:-Evidence of the complainant:-

PW1                    -       Tomichan Antony (Complainant)

Ext.A1                -      Press Release dtd. 2/9/2017

Ext.A2                -      Assurance dtd. 14/11/2018

Ext.A3                -     Pres Release dtd. 6/7/2019

Ext.A4                -     Press Release dtd. 31/8/2019

Ext. A5                  -      Assurance dtd.4/1/2019

Ext.A6                   -    Assurance dtd.5/7/2019.

Ext.A7                   -     Petition before DGP dtd.8/1/2021

Ext.A8                   -    Petition before MLA and KHLF  2018

Ext.A9                  -     Petition submitted before the Hon’ble Leader of opposition

Ext.A10             -         Receipt  of District Police office, Alappuzha dt.28/1/2021

Ext.A11             -         Licence of NHG till dtd.17/4/2006  with certificate of  

                                         registration

Ext.A12                        -      ISO Certificate till 27/9/2015

Ext.A13                        -   Original  Bond Certificate (2nos)

Evidence of the opposite parties:-Nil

///True Copy ///

To     

          Complainant/Oppo. party/S.F.

                                                                                                     By Order

                                                                                                 Assistant Registrar

Typed by:-Br/-

Compared by:-