IN  THE CONSUMER  DISPUTES  REDRESSAL  FORUM,    KOLLAM

               DATED THIS THE     8^th   DAY OF SEPTEMBER2020

Present: -    Sri.E.M.Muhammed Ibrahim, B.A, LLM. President

        Smt.S.Sandhya   Rani. Bsc, LLB ,Member

         Sri.Stanly Harold, B.A.LLB, Member 

CC.No.143/2020

&

IA.194/2020

P.G.Aravindakshan Nair                             :         Complainant

S/o Gopalapillai

V Nivas

Punukkannoor Cherry

Perumpuzha Village

Mundakal Ward,

Perumpuzha P.O

Kollam-691504.

V/s

          Manager                                            :         Opposite party

          KSFE Ltd.

          Kilikolloor  Branch

        Kilikolloor P.O, Kollam-691004

COMMON ORDER

Sri. E.M.MUHAMMED IBRAHIM , B.A, LLM,President

1. This is a case based on a complaint filed under section 12 of the Consumer Protection Act against Manager, KSFE, Kilikolloor Branch.

     2.  The  averments in the complaint includes  several irrelevant, unnecessary and contradictory facts which  in short are as follows.

     3. The complainant is a retired teacher and senior citizen  having 83 years old.  The complainant and his family members together joined several chitties conducted by the opposite party.  They have joined in most of the chitties during the year 1998.  At first the complainant and others joined 4 chitties, the details of which are stated below. 

4.       According to the complainant he was the person who paid chitty subscription of all the 4 chitties.  The sala of the above 4 chitties together is Rs.4,00,000/- and the complainant decided to avail a loan  to the tune of  50% of the chitty amount, for which the complainant executed a settlement deed of 19 cents of his property in favor of S.Pradeep and by mortgaging  the above property the complainant availed Rs.2,00,000/- as loan.  However the complainant felt very difficulty in paying monthly subscription of  the above 4 chitties, repayment of the loan installment and its interest.  None of the above 4 chitties was prized in his favor.  In the circumstances the complainant felt severe financial stringency.  As advised by the agent  the complainant during the year 1998 again joined another chitty with the opposite party having a monthly subscription of Rs.5000/- to escape from the liability of other chitties. Duration of the said chitty was 40 months.  The complainant managed to pay the monthly subscriptions and   interest for the loan amount.  The said chitty was also  not prized in his favor.  Again during the year 1999 the complainant joined chitty No.10/99 as chital No.13.  The said chitty was prized in his favor in the 12^th auction.  However he failed to remit the subscription from 13^thinstallment onwards.   But the complainant  could not obtain the chitty amount by furnishing salary  certificate or offering immovable property as security.  However he failed to pay the chitty subscription of all the chitties,  payment of loan installment and its interest.  Hence the opposite party  has initiated revenue recovery for a huge amount including interest @ 19.5% p.a.  None of the chitties have been prized in his favor and he has received no amount from any of the chitties.  As he failed to pay monthly subscription chitty No.10/99 from 13^thinstallment onwards the opposite party chitty company  has substituted another chital in his place and continued the chitty.  He was not aware of the chitty number and chital number of the chitty he joined during the year 1998.  However  the monthly subscription was Rs.5000/- and the duration of the chitty was 40 months.  He intimated the fact to the Manager of opposite party branch  that though chitty  No.12 was prized in his favor he could not obtain the amount as he failed to arrange security.  In such situation as per chitty rules the Xe-bmÄ has to cancel the auction and again conduct the auction after including the new chital.  The complainant  was under the same impression.  But the opposite has failed to do so.

5.       However on  16.04.2003 he  sold out 19 cents of property and the residential building and out of the sale proceeds he settled all the dues towards the opposite party.  But the opposite party has not returned the amount paid by himself on behalf of other family members nor adjusted the said amount in the outstanding liability.  After the disposal of the house building the other members of the family including his wife and children started separate residence.  He lost his school certificate, pension book and all relevant document relating to his chitty including pass book, receipts etc.  During the year 2007 and 2009 all the chitties were over.  His attempt to get back part of the chitty subscription failed as he could not identify the  number and date of payment.   Though he filed a petition under the RTI Act seeking information regarding  the above chitties,  the opposite party has not given any such information and given reply stating that ‘file missing’, ‘not available’.  Though he directly went to the opposite party branch and enquired about the same he could not obtain any relevant information.  According to the complainant he has not paid any chitty subscription after 1999.  But he obtained amount of defaulted chitties during the year 2006,2007 and 2009 for which the limitation under Section 24(A) of the C.P.Act 1986 was not applicable.  All the chitty transaction was  conducted as  per clause 19 of chitty Udampadi.  He received the amount relating to the defaulted  chitty No.12/1998 during the year 2015 which is after 16 years of the chitty transaction for which also section 24(A) of the C.P.Act was not applicable.  The Branch Manager has sent a letter stating that whenever the complainant file an application he would return the amount.  Accordingly the amount of Rs.16986/- was obtained by Manoj  by filing application during the year 2015 for which also Limitation under Section 24(A)  of the C.P.Act was not  applicable.  The Manager has directly told him that whenever the chitty ends he will gets Rs.60,000/- paid as subscription towards chitty.  When he shifted his residence he lost all the household articles including the records relating to the chitty transaction.  Therefore he could not obtain Rs.60,000/- along with interest.  Later when he approached the branch the section clerk taken  out office register and showed him and informed that the chitty was prized in his favor and the manager has misappropriated Rs.1,40,000/- and also paid monthly subscription from  13^th installment till 40^th installment by the opposite party manager himself.  As per statement of account Rs.7500/- is the balance amount due to him and he filed an application for receiving the amount.  On receipt of the petition the  section clerk  promised him that the cheque will be issued.  What the manager done is against law and he is entitled to get back Rs.60,000/- and after refusing  Rs.7500/- offered by the clerk he returned.  He filed several petition to receive Rs.60,000/- and thereafter on 30.12.14 he filed a petition praying to get Rs.60,000/- along with interest and also send a lawyer notice.  He has also filed a complaint before the criminal court against the opposite party Manager. 

6.       It is further alleged that the complainant already  filed a complaint before this Forum as CC.131/2015 praying to direct the opposite party to pay Rs.60,000/- along with interest towards chital No.10/1999.  During the final stage it was understood that he had paid Rs.5000/- only towards chital No.13 of chitty No.10/99.  He had stated that fact in the argument note but  this Forum has not considered the argument note.  He is entitled to get Rs.60,000/- and its interest towards chitty No.10/1999 as he paid 12 installments @5000/- per month.  He is entitled to get interest @12% for the said amount from 01.01.2000 till 31.05.2020 that he is also entitled to get Rs.10,000/- as advocate fee and Rs.25,000/- as compensation and altogether the complainant claims Rs.2,33,000/from the opposite party. 

7.       It is further alleged that the opposite party is a limited company and chitty has  been conducted by the opposite party as per chitty udampadi executed between the opposite party and chittals.  There is no money transaction or sale proceedings in the chitty and therefore limitation u/s 24(A) of the C.P.Act is not applicable.  According to the complainant the KSFE ltd is having several branches  all over the state and the Forum  can convince the rules by conducting enquiry in any of the branches of the opposite party.  As the Forum doubts the maintainability of the complaint the case has been posted for hearing u/s 12(3) of the C.P.Act 1986. 

          Heard on the question of maintainability including limitation and got marked Ext.A1, A2, A3 series to A7 series documents.     

08.     The points that arise for consideration are:-

1. Whether the complaint in CC.143/2020 is maintainable?
2. Whether the order partly allowing the complaint CC 131/15 and dismissing the complaint in CC 164/15 is tainted by any irregularities or illegalities as alleged by the complainant in the complaint and I.A.194/2020?
3. Whether the prayer in I.A 194/2020is  allowable?
4. Relief and costs.

Point No.1

09.     The present complaint in CC.143/2020  is seen filed on 16.06.2020 alleging that he joined a chitty during the  year 1998 with opposite party.  According to the complainant the chital number and chitty number etc. are not known to him.  However the sala amount of the chitty was Rs.5000/- and he ought to have paid Rs.5000/- per month for 40 installments.  But after paying 12 installment(5000x12=60,000/-) he stopped payment of monthly subscription.  Hence he claimed Rs.60,000/- with interest at the rate of 12% from 01.01.2000 till 31.05.2020 amounting to Rs.1,47,000/-, Advocate fee Rs.1000/- and compensation Rs.25,000/-.  The averments in the present complaint and Ext.A7 series information obtained  under R.T.I Act it is clear that the commencement of the chitty transaction alleged in the complaint is 29.07.1998.  The said chitty will terminate only on 29.11.2001.  As per Ext.A3 series to A6 series information obtained under Right to Information Act,  the complainant is eligible to get partly paid chitty subscription on the defaulted chitty on the date of termination of the chitty which is 28.11.2001.  In other words cause of action started to run from 28.11.2001 and the complainant ought to have filed the complaint claiming the amount due to him within 2 years from 28.11.2001.  But the complaint in CC.143/20 is seen filed only on 16.06.2020which is 18 and odd years after starting the cause of action.  Section 24(A) would stipulate that the District Forum shall not admit a complaint unless it is filed within 2 years from the date on which the cause of action has arisen.  But sub clause (ii) of Section 24(A) provides  that a complaint may be entertained after the period prescribed in sub section(1) if the complainant satisfies the District Forum that he had sufficient cause for not filing the complaint within such period.  It is clear from sub clause(ii)  that the Forum is entitled to condone the delay in filing the complaint if the complaint satisfies the Forum that he has sufficient  reason for not filing the complaint within time.  But in CC.143/20 the complainant has not alleged any sufficient reason for not filing the complaint within time.  What he claims is that Section 24(A) of the C.P.Act1986  is not at all  applicable to chitty transaction and that  the chitty udampadi executed between the complainant and the opposite party is the guiding rules relating to the case and hence forum need not consider Section 24 (A) of the C.P.Act.  However he has not produced any such chitty agreement along with the complaint in CC.143/2020.  The above claim of the complainant is devoid of any merit especially when the provision u/s 24(A) (1) starts by stating that the District Forum shall not admit  a complaint unless it is filed within the period of 2 years  from the date of which the cause of action has arisen.  As the term “shall” is   used the Forum has no authority to entertain the complaint except where sufficient reasons has been alleged to condone the delay.  It is to be pointed out that the Consumer Disputes Redressal Forum came into existence by virtue of   Section 9&10  of the Consumer Protection Act 1986.  The Jurisdiction of the Forum is described under Section 11 of the said Act.  The complainant is entitled to file the complaint by virtue of Section 12 and the Forum has to conduct trial as provided U/s of 13 and pronounce order under section 14 of the said Act.  In the circumstance it is highly unfair, absurd and illegal to argue that Section 24 (A) of the very same Act is not applicable to  CDRF.

10.     It is true that the complainant has obtained and produced Ext.A3 series to A6 series answers under Right to Information Act 2005 to the effect that the complainant is entitled to get back the amount of subscription paid on defaulted chitty after the expiry of the chitty and he can claim the amount by filing application before the opposite party at any time without any limitation.  But the said rule is applicable between the chital and chitty company and not applicable to any court of law or Tribunal or any quasi-judicial forum which are expected to function by observing the provisions under the statute by which the Court/Tribunal/Forum is created especially when the provision under section 24(A) start by stating that District forum “shall not” admit a complaint if the same is not  filed within the period of limitation. Hence it is clear that Section 24(A) is a mandatory statutory provision which is applicable to all type of complaints filed before the Forum including complaint relating chitty transactions. On evaluating the entire materials available on record we hold that the complaint in CC.143/20 is  hopelessly   barred by limitation and hence not maintainable. The point answered accordingly.

Point No.2&3

11.     For avoiding repetition of discussion of materials these 2 points are considered together.          The complainant is a retired teacher and a senior citizen.   It is true that CC.131/2015 filed by the complainant was partly allowed and CC.164/15 was dismissed as not maintainable.  The main allegation in the complaint in CC.143/2020 as well as in IA.194/2020 is that he had filed CC.131/15 and CC.164/15 alleging more or less same allegation which are relating to chitty transaction of the year 1999 and 1998 respectively.  But the Forum has allowed the prayer in CC.131/15 and dismissed other CC.164/15 and the complainant failed to understand the reason for dismissing the 2^nd complainant (CC.164/15). The above allegations are not fully correct. It is true that both the above cases relate to time barred  chitty transactions.  But  in CC.131/15 the opposite party would admit in the written version that the complainant had paid the 1^st subscription of Rs.5000/- to chitty No.10/99 and hence he is entitled to get Rs.4750/- after deducting  veethapalisa and that the opposite party is ready to return the above said amount even though the  complaint is barred by limitation .In the light of the above admission of the opposite party  in the written version it is  clear that there is acknowledgment of a part of the  amount claimed by the complainant from the opposite party.  Therefore the limitation is saved to that extent and the complainant is entitled to get an order granting the above admitted amount and therefore the complaint in CC.131/2015 was allowed in part as admitted in the written version vide Ext.A1 order. But in the case of CC.164/15 the position is entirely different.  It related to chitty No.17/98 as chital No.77.  According to the complainant in the said chitty he failed to pay subscription from 13^thinstalment onwards and therefore he is entitled to get Rs.69940/- from the opposite party.  In fact the complainant has not alleged in the complaint on which date he joined the above chitty and on which date he made default.  But he admitted that the chitty related to the year 1998 and the complainant claimed interest from  01.04.2000 which  would indicate that the alleged amount  of Rs.69940/- is due to him from 01.04.2000 itself.  The opposite party  KSFE would contend inter alia  in the  written version in             CC 164/15 that KSFE has already paid Rs.69940/- by way of cheque  No.892793 drawn on SBT Kilikolloor branch and that the complaint is hopelessly barred by limitation. However the opposite party has  not  adduced any independent evidence in that case to prove the plea of discharge.  But Ext.A7 to A13 documents produced by the complainant would prima facie establish the plea of discharge raised by the opposite party in that case. 

12.     According to the opposite party even if it is  considered that the complainant has not encashed the cheque issued in his favor as claimed by him,  the complaint in CC 164/15 is hopelessly barred by limitation and also filed a petition  as I.A 108/15 praying to hear the maintainability of CC 164/15 as preliminary issue on the ground of bar of limitation u/s 24(A) of the C.P.Act 1986.  But my learned predecessor in office has disposed off the IA stating that the contention of limitation will be considered along with  merit of CC 164/15. After  recording evidence and hearing both sides and also after perusing the argument note filed this Forum has considered the question of  limitation as 1^st point and found that the complaint in CC 164/15 is hopelessly barred by limitation.  The reasons to attract the bar of limitation are also  stated under para 9 of the order in CC 164/15 dated 19.05.2020 which is marked as Ext.A2. It is to be pointed out that the date of joining the above chitty, date of default and date of termination of the said chitty etc. are not seen pleaded by the complainant nor deposed by PW1 in CC 164/15 In the circumstances the only course opened to the Forum in CC 164/15 was to accept the date of commencement and termination of the above chitty pleaded by  the opposite party which are 30.12.1998 and 10.03.2007 respectively.  It is true that the complainant is legally entitled to raise any  claim before the CDRF/CDRC regarding the amount paid by him towards chitty installment or any amount due on account of chitty transaction within 2 years from the date on which the cause of action has arisen which is the date of termination of the chitty.  If that be so the complainant ought to have filed complaint in CC 164/15 claiming the amount due to him in chitty No.17/1998/77 within 2 years from 16.03.2007.  But the complaint in CC 164/15 has been filed only on 09.07.15 which is 8 and odd years after starting  the cause of action. The complainant has produced chitty udampadi in CC.164/15 (which is marked as Ext.A1 in that case) and has argued that as there is no stipulation or clause in the said agreement regarding limitation U/s 24 (A) of the CP Act and hence the forum need not consider that aspect.  It is true that there is no stipulation in Ext.A1 regarding the application of the Limitation Act or Sec.24(A) of the C.P.Act 1986 for realization of the amount except clause No.15 (A) which is applicable only in respect of prized chitties.  But not mentioning of the application of the U/S 24 (A) of CP Act or limitation Act does not imply that the law of  limitation is not applicable to the court and Forum.  Agreement between the Thalayal and chital are binding on them and they have to act according to the agreement.  As no period of limitation is prescribed in Ext.A2 chitty agreement, the complainant can very well approach the opposite party and ask to return the amount of subscription paid in the discontinued chitty and in such event the chitty company is bound to return the amount.   Law of Limitation is a substantive law which is applicable to all Judicial and quasi-judicial bodies including the CDRF,  even if that fact is mentioned in the agreement or not.  Therefore we find no merit in the claim of the complainant that chitty transaction is controlled only by the terms of the chitty agreement and not by the statutory limitation.

13.     In the complaint in CC 164/15 the complainant has not specifically pleaded any deficiency in service or unfair trade practice on the part of the opposite party.  What is pleaded by the complainant in that complaint is mere averments regarding a civil suit for settlement of accounts.  According to the complainant in that case he is entitled to get Rs.69940/- which is due to him in respect of  chitty No.17/98/77 and its interest from 01.042020 onwards from the opposite party Branch of KSFE Ltd.  He has not stated any averments in the complaint in CC 164/15 regarding deficiency in service or any unfair trade practice nor claimed any compensation for the same.  He has also not sought for any punity damage in that case from the opposite party.  In the circumstance we held in the order dated 29.05.2020 passed in CC.164/15 that the complaint is hopelessly barred by limitation and that the relief sought for in the complaint is beyond the scope of Section 14(1) (a) to (i) of the C.P.Act 1986 and hence the complaint in CC.164/15 was dismissed.  The above grounds are clearly stated Ext.A2 order dated 29.05.2020.

14.     It is to be pointed out that the statutory bar of limitation is not applicable to chitty companies and its chittals and they are governed by the chitty Rules or agreement and they can return the amount at any time on equitable principles.  But the principle of equity is not applicable to court, Forums or any other tribunals which are established by statutes and hence governed by the statute by which it is created.  In the circumstance we find no merit in the main contention of the complainant that bar of Sec.24(A) C.P.Act 1986 is not applicable to Consumer Forums in respect of chitty transactions. 

15.     It is clear from the reasons stated under point No.1 to 3 of Ext.A1 order  that there are sufficient  reasons for allowing the complaint in CC.131/15 as limitation is saved by written acknowledgment by the opposite party in the written version filed in that case.  In view of the reasons stated under point No.1 to 3 in paragraphs 8 to 12 of Ext.A2 order it is clear that  sufficient reasons has been stated for dismissing the complaint in CC.164/15 as the complaint is hopelessly barred by limitation and  the averments in the complaint would attract only civil dispute(settlement  of accounts) and the reliefs sought for in the complaint would not come within the ambit  u/s 14 of the C.P.Act 1986.

16.     However on 25.08.2020  which is the next day after hearing the question of limitation in CC 143/2020 the complainant filed a petition as IA.194/20 seeking  permission of  the Forum to withdraw the complaint by raising the following allegations including wild allegations against the Forum.  According to the complainant  he filed two complaints as CC.131/15 and CC.164/15.  Both cases relate to Chitty transaction of the year 1998.But CC.131/15 was allowed in favor of the complainant on 17.03.2020 and CC.164/15 was dismissed on 29.05.2020.  According to him he failed to understood under what provision of law CC.164/15 was dismissed.

17.     In fact CC.131/15 relates to chitty No.10/1998and not related to 10/1999 and that is why he filed the present fresh complaint as CC.143/2020.  Section 24(A) of the C.P.Act is not at all applicable to the chitty transaction as he is entitled to get the chitty subscription paid on defaulted chitty at any time and he has produced documents evidencing that limitation u/s 24(A) is not applicable.  According to him F¶n«pw t^mdw {]Xn-`mKw tNÀ¶p {]hÀ¯n¡p-¶p.  shfp¯ Xqh-epÅ ]£n-IÄ Hcp-an¨p ]d-¡p-¶p.  I¶v I¶pw- Iq-«-¯n tNcpw. CXmWv  F\n¡p ]d-bm-\p-Å-Xv.  F\n¡v In«m-\pÅ ]Ww e`n-¡m³ Rm³ aäpamÀ¤-§Ä tXSn-s¡m-Åmw. 

18.      The complainant would further allege in the said I.A. that the Forum has raised the question of  Limitation and attempted to teach the same on  24.08.2020 with the intention to dismiss CC.143/2020.  Therefore the Forum need not venture to dismiss the complaint by preparing an order as he seeks permission to withdraw the complaint.  He would also allege that CC.131/15 & CC.164/15 – Hcp apä¯v c­­v I¨-h-Sw.  Nn«n-bn tNÀ¶v ]Ww AS¨v apS¡w hcp-¯n-bm ]Ww In«m³ Hcp BIvSpw _m[-I-a-Ã.  Rm³ AS¨ ]Ww Xncn¨v Xc-W-sa¶v t^mdw \nÀt±-in-¨m aXn-bm-cp-¶p.  AXv D­­m-bn-Ã.

19.     Complainant is  a Senior citizen  and a retired teacher.  He is capable of understanding  what is written in the order in CC.131/15 & CC.164/15 and he pretends ignorance and raised wild allegations against the Forum which appears to have been raised in the above complaint and I.A.194/20 dishonestly with the intent  to injure and annoy the President and Members of the Forum which he knows to be false and the intentional insult offered  by the complainant Sri.P.G.Aravindakshan Nair while Forum consisting of the President and  Members  was sitting in the disposal of the above CC.143/20 on the file of this Forum. In the circumstance it is prima facie clear that there is no merit in the allegation raised by the complainant I.A.194/2020 against the Forum.  The above allegations  are prima facie false, baseless and raised with  ulterior motive and it appears to be offence punishable u/s 209&228 IPC for which separate proceeding will be initiated against the complainant  as provided u/s 38(10) of the C.P.Act  2019 r/w Section 195 1(b)(i) and Section 340 Cr.P.C.1973.  Points answered accordingly.

Point No.4

20.     In view of the finding under point No.1 the complaint in CC.143/2020is only to rejected.  As the complainant has been filing complaint after complaint on time barred matters he is liable to deposit compensatory cost.  In the result complaint stands rejected U/s 12 (3) of the C.P.Act 1986 with compensatory cost of Rs.2000/-.  The complainant shall deposit the said cost before the Forum within 45 days from the  date of  receipt of a copy of  this order which shall be credited to  Legal Benefit Fund.

21.     In view of the reasons stated under paragraph 17 to 20 of this order we are not inclined to grant permission to withdraw the complaint as requested in I.A.194/20.  In the result  the prayer in I.A.194/2020 stands dismissed subject to the right of the Forum to take appropriate action against the complainant as provided under section 38(10) of the Consumer Protection Act 2019 r/w Section 195(1)(b)(i) and Section 340 Cr.P.C for alleging wild and defamatory allegations against the Forum and its President and members made in I.A 194/20.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the 8^th day of  September 2020.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya   Rani: Sd/-

            Stanly Harold: Sd/-

           Forwarded/by Order

           Senior Superintendent

INDEX

Witnesses Examined for the Complainant:-Nil

Documents marked for the  complainant

Ext.A1                  :         Copy of order dated 17.03.2015(CC.131/15)

Ext.A2                  :         Copy of order dated 29.05.2015(CC.164/15)

Ext.A3 series        :         Copy of RTI application and its reply.

Ext.A4series         :                   Copy of RTI application and its reply.

Ext.A5series         :                   Copy of RTI application and its reply.

Ext.A6 series        :         Copy of RTI application and its reply.

Ext.A7 series        :         Copy of RTI application and its reply.

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-Nil

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

                                                                                     Stanly Harold:Sd/-                                                                                                                                                                                               Forwarded/by Order                         

                                                                                    Senior Superintendent