O R D E R Sri. Santhosh Kesavanath.P., President. Petitioner's case is as follows: Petitioner was a subscriber of the opposite party with regard to the chitty conducted by the opposite party. The petitioner was the subscriber of 3 chitties with vide No. 1028, 1029, 1030 which commenced from 29..4..2005 at the office of the first opposite party. At the time of joining the chitty petitioner paid an amount of Rs. 750/- as registration fee and as first instalment he paid by Rs. 12,000/- on 29..4..2005. As second instalment on 9..6..2005 petitioner paid an amount of Rs. 9180/- on 11..7..2005 he paid Rs. 9180/- as 3rd instalment and 4th instalment he paid an amount of Rs. 9180/- altogether the petitioner paid a total amount of Rs. 40290/-. According to the petitioner at the time -2- of commencement of the chitty the opposite party promised the petitioner that after payment of the 4th instalment the petitioner will be made bidder of the above mentioned chitties. When the petitioner approached the first opposite party to receive the amount as promised first opposite party refused to make the petitioner the bidder of the chitties and in lieu offered to refund the above amount remitted by the petitioner. Since the petitioner has no other alternatives he agreed to the refund. The opposite parties instead of giving the amount remitted by the petitioner detained an amount of Rs. 6750/-. The petitioner on 22..9..2005 issued a lawyers notice to the opposite parties to settle the matter amicably. But the opposite parties has not heed to the demand of the petitioner. Petitioner states that act of the opposite party of withhelding the amount legally due to the petitioner is a clear deficiency of service so he seeks the relief of directing the opposite parties to refund the amount of Rs. 6750/- with interest from 29..4..2005 and also the petitioner prays for a direction to pay an amount of Rs. 15000/- to him as compensation along with cost of the proceedings. Opposite party entered appearance filed version contenting that petition is not maintainable the opposite parties admitted that they promised the petitioner to make him the bidder of the above mentioned chitties after the 4th instalment. According to the opposite party the petitioner, who bids ouction, failed to furnish adequate and sufficient security to cover the future instalment to the satisfaction of the second opposite party. According to the second opposite party if the chitty will not be continued by the subscriber himself, then the actual amount remitted by the subscriber after deducting foreman commission of 5% of the sala is to be deducted as per clause iv (9) of the rules. -3- But in the case of the petitioner as a compassionate ground only 2% of the sala value is deducted. So the opposite party contented that the act of the opposite party in withhelding the amount of Rs.6750/- is legal they states that out of the said Rs. 6750/-. Rs. 750/- was collected as registration charges. The opposite party contented that once the group is commenced, the chitt value collected from 25 months is being given to one person every month. Therefore one party is making a default in payment, the subscription to be given by the party is being given by the foreman himself. Points for determination are: i) Whether there is deficiency in service on the part of the opposite party? ii) Reliefs and costs. Evidence in this case consists of the affidavit filed by both parties, Ext. A1 to A8 documents on the side of the petitioner and Ext. B1 and B2 documents on the side of the opposite party. Point No. 1 According to the petitioner the opposite party had given assurance that the petitioner can bid the chitty in its 4th instalment. The opposite party has no case that they had not given any assurance. The opposite party, contented that petitioner failed to furnish sufficient security for future instalment, so the petitioner is not made a bidder of the chitty. The petitioner contented that since the chitty amount is not given to the petitioner as agreed the opposite party is liable to refund the entire instalments collected from him. The opposite party produced rules and regulation with regard to chits conducted the said document is marked as Ext. B1 document. According to the opposite -4- party as per clause IV (9 (2) ) of chit rules if the chit is not to be continued by the subscriber himself. Then the actual amount remitted will be returned to the subscriber after deducting foreman commission at the rate of 5% of the amount remitted by the subscriber but in this case on compassionate ground only 2% along with Rs. 750/- registration fee is deducted. We are of the opinion that clause IV 9 (2) is not applicable in this case because, clause IV deals with auction Rules, Discount and dividents. No where in Ext. B1 there is mentioning about the return of money if the subscriber himself is not continuing the chitty. So, we are of the opinion that the deduction of 2% amount as commission is not justifiable. The act of the opposite party in not allowing the petitioner to bid the auction on the ground that he has not offered sufficient security is a clear deficiency of service on their part because at the time of joining the chitty the opposite party may enquire whether the subscriber is suitable to furnish the security. Further more whether security furnished is sufficient or not is a matter to be determined after giving the petitioner an opportunity to bid in auction. Further more nothing has brought out by the opposite party in record to prove abovt the security offered by the petitioner and about its. Sufficiency, so we find deficiency in service on the part of the opposite party. Point No. 2 We are also of the view that opposite party may incure expenses for conducting the chitty. So, deduction of 1% of sala value we think to be reasonable. In the result, petition is allowed in part, the opposite party is ordered to refund Rs. 3000/- ie. excess amount collected by deducting 1% of the sala value as commission and -5- the opposite party is also ordered to pay Rs.500/- as cost of proceedings. The order shall be complied with within 30 days of receipt of this order. Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the 5th day of June, 2008.
......................Bindhu M Thomas ......................Santhosh Kesava Nath P
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