IN  THE  CONSUMER  DISPUTES   REDRESSAL  FORUM,  KOLLAM

DATED THIS THE  17^th    DAY OF MARCH  2020

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

        Smt.S.SandhyaRani. Bsc, LLB ,Member

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

CC No.131/15

P.G.Aravindakshan Nair                             :         Complainant

S/o Gopalapillai

V Nivas

Chandanathoppu P.O

Kottamkara Cheri

Kottamkara Village

Kollam Taluk.

[By Adv.Elamkulam N.Haridasan]

V/s

          Manager                                            :         Opposite party

          KSFE Ltd.

          KSFE Ltd. Office

          Kilikolloor P.O, Kollam-4

          Pin-691004.

          [By Adv.B.K.Jayamohan]

          FAIR   ORDER

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

          This is a case based on a complaint filed u/s 12 of the Consumer Protection Act.

The averments in the complaint in short are as follows:-

          The complainant is a retired teacher and senior citizen having 77 years age.  He has been conducting Aravind Travels by plying a tourist bus.  When he was in need of funds he joined chitty run by the opposite party.  The agent of the chitty run by the opposite party made the complainant to believe that if he  joined a chitty having a sala of  Rs.1,00,000/- he has to pay Rs.1000/- per month for 100 months and after having paid 2 months installment,  the person joining the chitty can avail 50% of the sala amount  as loan.  As the complainant was in dire need of Rs.2,00,000/- he joined 4 numbers of chitty with the opposite party in the name of himself, his wife and children.  After paying 4 installments the subscribers including the complainant filed application for getting loan of Rs.50,000/- each from each chitty and also availed loan of  Rs.2,00,000/- by pledging immovable property.  However the opposite party has issued cheque after deducting the 1^st months installment @ 19% from each loan.  The complainant has to pay Rs.3000/- per month for the 4 chitty and Rs.3168/- towards the installment of repayment of the loan with interest.  But he failed to remit the amount.  At the instance of the branch manager who is a student of the complainant, the complainant and his sons joined several other chitties but they failed to remit the monthly subscription of the chitty and installment towards loan repayment.  Hence revenue recovery  proceedings have been initiated against the complainant and his sons.  In the circumstance the complainant caused to sell 14.5 cents of property out of  19 cents which was offered as security for the loan amount and out of the sale proceeds the complainant remitted the entire loan due to the opposite parties by way of chitty and loan.  Later the complainant, his wife and children obtained the amount paid towards  4 chitties initially joined in their name but not received any amount towards other chitties.  The complainant joined a chitty No.10/1999/13 and paid Rs.60,000/- towards the said chitty but he has not received any amount towards that chitty.  But as per documents issued from the office of the opposite party it was recorded that an amount of Rs.4750/- was due to the complainant on account of the said chitty.  However on 20.04.15 the complainant caused to send a lawyer notice demanding to repay Rs.60,000/- paid towards the chitty along with its interest.  In Chitty No.10/1999/13 the complainant failed to pay chitty installments.  Therefore he is entitled to get back the amount already paid towards the chitty and its interest.  Inspite of his request both oral and written the opposite party has not paid the amount  but sent a reply stating that the complainant is to produce chitty pass book and receipts.  The complainant caused to sent a lawyer notice on 20.04.15 inspite of receipt of lawyer notice the opposite party failed to pay the amount due to the complainant along with its interest nor sent any reply till date.  In the circumstance the complainant is entitled to get Rs.60,000/- along with interest @ 12% p.a and costs.  Hence the complaint.

          The opposite party filed a written version raising the following contentions.  The complaint is not maintainable either in law or on facts.  The complaint has been filed after a lapse of 13 years and hence it is barred by limitation u/s 24(A) of the Consumer Protection Act.  However the opposite party would admit that the complainant his wife and 2 sons have jointed Chitty No.38,39,40,41  respectively on 05.08.1998.  The date of termination of all the above chitty were in 05.11.2006.  Out of the above 4 chitties, chitty No.11/1998 and Chittal No.40 only belongs to the complainant and other chitties belongs to others and hence the complainant has no authority to file the complaint for and on behalf of  other subscribers.  The complainant has received the chitty amount  on 11.03.1999 and 06.11.2006.  The complainant as well as the other subscribers were chronic defaulters  in the above referred chitties and those accounts were closed during the year 2007,2006 and 2009 respectively.  The date of transaction of the chitties were 05.11.2006 and the complainant has  filed this complaint on 02.07.15 after the lapse of 9 years.  The complainant has not filed any petition to condone the delay.  Hence the complaint is liable to be dismissed.  The opposite party has also filed a petition praying to hear the maintainability of the case as IA.112/15 and the same  has been disposed of by stating that question of maintainability will be heard along with  merit of the case.

          In view of the above pleadings the points that arise for consideration are:-

1. Whether the complaint is barred by limitation?
2. Whether there is any deficiency in service or unfair trade practice on the part of the opposite party?
3. Whether the complainant is entitled to get the reliefs sought for?
4. Reliefs and costs.

The complainant has been examined as PW1 and got marked Ext.P1 to P8 documents.  Opposite party has not adduced any evidence either oral or documentary.  Both sides have filed notes of argument.  But the learned counsel appearing for both parties have not advanced any oral argument.

Point No.1

          The relief sought for in  the complaint is to return the chitty installment of Rs.5000/- per month for 12 months paid in chitty No.10/1999/13 and its interest @ 12% p.a from 01.01.2000 till 30.05.2015.  The remaining prayer is relating to the cost of sending lawyer notice.  The specific case of the complainant is that he joined chitty No.10/1999/13 and paid Rs.60,000/-  as a monthly subscription for 1 year @ Rs.5000/- per month and later discontinued the payment.  But the opposite party has not returned any amount to the complainant towards  the said chitty.  But according to  the opposite party an amount of  Rs.4750/- alone is  due to the complaint on account of the chitty. 

          However the opposite party would content that the complaint is hopelessly barred by limitation and therefore the forum  has to dismiss the complaint in-limine.  Though the opposite party has filed IA.112/15, the same was disposed of by the then Forum stating that the question of maintainability will be considered along with merit of the case.  Now we shall consider whether the complaint is barred by limitation.  The claim of the complainant that he has joined chitty No.10/1999/13 is admitted by the opposite party but would content that the complainant has paid only one subscription of Rs.4750/-  after deducting veethapalisa  of Rs.250/- and the chitty transaction taken place during the year 1999.  However the complainant has not produced any documentary evidence to show that he had paid 12 subscription towards the chitty as alleged in the complaint.

It is brought out in evidence during cross examination of PW1 that he has joined the chitty on 1998 and is expected to pay 100 months subscription.  Therefore the chitty will end during the year 2006.  According to the opposite party chitty will ends on 05.11.2006.  Though PW1 deny the above  suggestion he has not stated the closure date of paying chitty subscription.  Anyhow it is clear that chitty having 100 months subscription started during the year 1998 will close only at the end of 2006.  Even if the complainant has failed to continue the payment of  chitty subscriptions he is entitled  to claim the amount already paid when the chitty closes.  Hence the complainant  has to file the complaint within 2 years from the date of closing the chitty.  But the present complaint is seen filed on 10.06.15. As the opposite party has acknowledged the debt of  Rs.4750/- towards the complainant in the written version the period of  limitation is saved and the complainant is entitled to get an order in the light of the acknowledgment of debt.  Therefore we hold that the present complaint is maintainable.  The point answered accordingly.

Point No.2&3

The opposite party in the written version would admit that the complainant is entitled to get Rs.4750/- after deducting veethapalisa towards the 1^st subscription paid to chitty No.10/1999 and that the opposite party is ready to return the above said amount even though the complaint is not maintainable. The complainant has also not produced any receipt to prove that he paid 12 months subscription as claimed by him.  In the light of the above admission of the opposite party it is clear that there is acknowledgment of the amount of  Rs.4750/- due to the complainant.  Therefore limitation is saved and the complainant is entitled to get an order granting the above admitted amount.

In the result the opposite party is directed to pay Rs.4750/- with interest @9% p.a from the date of complaint till realization failing which the complainant is allowed to recover the said amount with interest @12% p.a from the opposite party  and its assets.

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   17^th   day of  March  2020.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

            Stanly Harold:Sd/-

           Forwarded/by Order

Senior Superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1                :           P.G.Aravindakshan Nair

Documents marked for the  complainant

Ext.P1              :           Photo copy of complaint

Ext.P2             :           Photocopy of record relating to chitti

Ext.P3             :           Photo copy of complaint

Ext.P4             :           Photo copy of complaint

Ext.P5             :           Photocopy of application

Ext.P6             :           Photocopy of reply letter dated 09.04.2015

Ext.P7             :           Photocopy of application dated 15.04.15

Ext.P8             :           Photocopy of advocate notice

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