BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 18^th December 2013

PRESENT

        SMT. ASHA SHETTY           :   PRESIDENT

                        SMT.LAVANYA M. RAI       :   MEMBER

                        SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO. 131/2013

(Admitted on 18.05.2013)

B.Madhava Bhat @ M.B. Bhat,

So Late B. Anantha Bhat,

Aged about 72 years,

Rat Kemmanaballi House,

Jalsoor Post,

Sullia Taluk, D.K.                                          …… COMPLAINANT

(Advocate for the Complainant: Sri. Sanjay D)

          VERSUS

Manipal Finance Corporation Limited,

Regd Office  Manipal House,

Manipal576 119,

Udupi Dist. Rep. by

Sri T.Narayana Pai,

The Managing Director.                            ….OPPOSITE PARTY

(Advocate for the Opposite Party: Smt.Manjula N.A.)

*       *       *       *

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. ASHA SHETTY:

I.       1. The above complaint is filed by the Complainant under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Party i.e Manipal Finance Corporation Ltd., Represented by its Managing Director claiming certain reliefs:-    

The brief facts of the complaint is as under:

The Complainant stated that, he had invested certain sum of money in redeemable subordinated debts with the Opposite party at Mangalore Branch as mentioned in detail herein below with the Opposite Party. 

    It is stated that, according to the terms and conditions of the certificates, the Opposite Party had agreed to pay interest at the rate of 10% per annum in respect of the amount mentioned and the certificates were matured on 23.3.2007. However, the complainant had approached several times along with certificates so as to take the surrender value but the Opposite Party postponing the payment of amount on one pretext or other but the Opposite Party failed to comply the same. Feeling aggrieved by the above the Complainant contended that, the service rendered by the Opposite Party amounts to deficiency and filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay Rs.48,300/- with interest at 12% per annum from 23.3.2007 till payment also claimed compensation and cost of the proceedings.

II.      1. Version notice served to the Opposite Party by RPAD. Opposite Party filed version stated that, the complaint is barred by limitation and this FORA has no jurisdiction to entertain the complaint as the amount was accepted and allotment was made and certificate were issued by the registered office of the company situated at Manipal with falls within the local jurisdiction of Udupi district forum.  Hence this FORA lacks jurisdiction and prayed for dismissal of the complaint.

III.     1.       In support of the complaint, Sri.B.Madhava Bhat @ M.B.Bhat (CW1) Complainant – filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and got marked Ex C1 to C4. On behalf of Opposite party, one Mr.M.Narendra Pai (RW-1), Recovery Assistant and GPA Holder of Opposite Party Company.

          On the basis of pleadings, the points that arise for our consideration are as follows:  

1. Whether this Forum has territorial jurisdiction to entertain the complaint and the complaint filed by the Complainant is barred by limitation under Section 24A of the Consumer Protection Act? 

2. Whether the Complainant proves that the Opposite Party committed deficiency in service?

3. If so, whether the complainant is entitled for the reliefs claimed?

4. What order?

We have heard and perused the pleadings, documents and evidence placed on record by the respective parties and answer the points are as follows:

                   Point No.(i) : Affirmative.

                   Point No.(ii): Affirmative.

Points No.(iii) & (iv): As per the final order.

REASONS

IV.     1. POINT NO. (i):

We have perused the entire oral as well as documentary evidence available on record, we find that, admittedly the Complainant had invested Redeemable subordinate debts with the Opposite Party inturn issued the above said Shreyus Redeemable, Subordinated Debts certificates of under the certificates bearing No.005057 and 001927 i.e. Ex.C1 and C2 respectively.  It is also admitted that according to the terms and conditions of the certificates, the Opposite Party had agreed to pay interest at the rate of 10% per annum in respect of the amount mentioned in the certificates and the certificates were matured on 23.3.2007 in this case. 

Now the point for consideration is that, the counsel appearing for the Opposite Party vehemently raised a contention with regard to the limitation in this case. The Section 24A of the C.P. Act 1986 defines as follows:-

“24A. Limitation period:-

1. The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
2.  Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

        PROVIDED that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”

       In the instant case, we noted that, the Complainant came up with a complaint along with interlocutory application supported by affidavit to condone the delay, wherein, he had specifically stated that the money invested under the Shreyus Redeemable Subordinated Debts certificates on 23.3.2002 and after the maturity period i.e. 23.3.2007, the Complainant approached the Opposite Party several times, but the Opposite Party assured the payment and postponing the payment on one pretext or the other and the Complainant with a fond of hope that the Opposite Party will pay the amount.  Since the Opposite Party failed to pay the amount the Complainant lost hopes and filed the above complaint and sought for condone the delay in filing the complaint. 

          On perusal of the affidavit filed by the Complainant appears that in normal course no person will keep quite without demanding the amount invested by them in any of the banking institutions including the Opposite Party finance.  We find that, the Complainant had invested his hard earned money with the Opposite Party finance under good faith believed that the Opposite Party will repay the amount after the maturity date. But in the instant case, it clearly shows that, the Complainant believed the oral assurances of the Opposite Party that they will return the amount along with the interest.  But after several approaches the Complainant came to know that Opposite Parties are not ready to return the amount invested under the above certificates. 

       It is a settled position of law that, after the maturity of the above said amount the Opposite Party is duty bound to repay the invested money along with interest to the Complainant.  But in the instant case, even after the date of maturity the Opposite Party not returned the amount under the above certificates. On the other hand, the Opposite Party assured the Complainant and postponed the payment.  As we know the investment made by the Complainant is not a debt.  In other words, the Opposite Party company not financed the above said amount to the Complainant. But it is known fact that the invested money by the Complainant has been utilized by the Opposite Party in their finance business and now without returning the same to the investor on the date of maturity appears to be not fair.  In a case of investing money under the Fixed Deposit need not be demanded by the Complainant because it is not a debt, it is the primary duty of the Opposite Party to return the amount on the date of maturity to the Complainant without any demand.  Therefore, the Opposite Party now cannot take defence that the complaint is barred by limitation because the Complainant invested his money hoping that he will get the returns along with interest after the date of maturity. In the repetition we would like to point out again that it is the duty of the Opposite Party to repay the invested money along with the interest after the maturity.    But in the instant case, the Opposite Party denied the liability raising a contention that the complaint is barred by limitation  cannot be accepted as the cause shown by the Complainant appears to be convincing and credible.  Therefore, we hold that, the cause of action in case of like this nature is continuing one and the citation produced by the Opposite Party counsel is not applicable to the case on hand as the facts and circumstances of the cases are not one and the same. Each case has to be seen upon the facts and circumstances of the subject matter in dispute.  In the repetition, we hold that, a person herein the Complainant will not keep quite when the money is matured under the certificates invested by him. Normally, the Opposite Party’s/Banking institutions giving false assurances to the consumers and postponing the payment is quite natural in case of finance business.  We hold that, the innocent consumers like Complainant right to recover the hard earned invested amount cannot be saddled by attracting Section 24A of the Consumer Protection Act.  The legislative intention behind the Consumer Protection Act 1986 plays an important role to protect the genuine consumer herein the Complainant in a case of like this nature. Because the invested money by the Complainant is not a debt or the above said money is not financed by the Opposite Party company/finance. In the instant case, the amount was matured on 23.3.2007 and the Opposite Party not refunded the amount till this date and hence the cause of action is continuing one for the depositor herein the Complainant so long as the person who received the deposit has not repaid the deposited amount. The Opposite Party has no case that he has denied the Complainant’s right to recover the deposit until Opposite Party filed version before this Forum.   Hence, we hold that, in the instant case the cause of action continuous till such time the payment along with interest is made. In view of the above observations, the complaint is not barred by time and the complaint is maintainable. 

As far as jurisdiction is concerned, the Complainant in his affidavit as well as the complaint specifically stated that the above investment has been made in the branch of the Opposite Party at Mangalore in D.K. District at the time of depositing the amount.  No doubt now the branches of the Opposite Party’s have been closed because of the financial crises.  But on the date of deposit the Opposite Party had a branch at D.K. District is not disputed, the same is within the jurisdiction of this FORA and hence this FORA has territorial jurisdiction and the point No.(i) held in favour of the Complainant.

POINTS NO. (ii) to (iv)

As far as deficiency is concerned, the Complainant filed affidavit in order to substantiate their case, wherein, the documents produced by the Complainants i.e. Ex.C1 and C2 i.e. Shreyus Certificates produced before this authority reveals that the Manipal Finance Corporation Limited promised to pay Rs.48,300/- upon presentation and discharging of the above Certificates on the date of maturity as mentioned in the certificates 23.3.2007 till payment with interest at 10% per annum on the principal amount. The Opposite Party keep in mind that the amount invested under the certificates is not the debts. In other words, the Opposite Party company not financed the above said money to the Complainant to claim that it is a debt certificates.  In fact it is a debt/liability of the company to the Complainant.  It is the boundened duty of the Opposite Party finance to refund/repay the amount under the certificates to the Complainant on the date of maturity.  But in the instant case, the Opposite Party failed to repay the invested money along with the interest to the Complainant after the maturity amounts to deficiency in service as well as unfair trade practice. 

Further, in view of the above reasons, we hereby order and direct the Opposite Party i.e. Manipal Finance Corporation Limited represented by its Managing Director to pay a sum of Rs.48,300/- (Rupees Forty eight thousand three hundred only) to the complainant  along with the interest at 10% (contractual rate) per annum under the two Shreyus certificates Nos.005057 and 001927 from the respective date of deposit till the date of maturity and further opposite party directed to pay 12% per annum from the date maturity till the date of payment by way of  damages for the harassment and inconvenience caused to the Complainant. And Rs.2,000/- (Rupees two thousand only) awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.

In the result, we pass the following:  

ORDER

The complaint is allowed. The Opposite Party i.e. Manipal Finance Corporation Limited represented by its Managing Director to pay a sum of Rs.48,300/- (Rupees Forty eight thousand three hundred only) to the complainant  along with the interest at 10% (contractual rate) per annum under the two Shreyus certificates Nos.005057 and 001927 from the respective date of deposit till the date of maturity and further opposite party directed to pay 12% per annum from the date maturity till the date of payment to the Complainant. And pay Rs.2,000/- (Rupees two thousand only) awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

The F.D.R., if any, deposited by the Complainant be returned fourth with by substituting the certified.

Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.

(Page No.1 to 10 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 18^th December 2013.)

        PRESIDENT                  MEMBER                       MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – B.Madhava Bhat @ M.B. Bhat - Complainant.

Documents produced on behalf of the Complainant:

Ex C1 & C2: Original of the Shreyus Certificates issued by the O.P. (2 in Numbers)

Ex C3 & C4: Original Consent letter sent by the O.P. (2 in Numbers)

Witnesses examined on behalf of the Opposite Party:

RW-1: Mr.M.Narendra Pai – GPA. Holder of the O.P.

Documents produced on behalf of the Opposite Party:  

- Nil -

Dated:18.12.2013                                      PRESIDENT