BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE

Dated this the 30^th July 2010

COMPLAINT NO.163/2010

(Admitted on 29.5.2010)

PRESENT:    1. Smt. Asha Shetty, President.                                                                                                                                                                                                                                                                                                           

                               2.  Smt. Lavanya M. Rai, Member.

BETWEEN:

G.Monappa gowda,

S.o Kunhanna Gowda,

Aged about 51 years,

Guthyadka House,

P.O. Sulliapadavu,

Puttur Taluk, D.K.                             …….. COMPLAINANT

(Advocate for the Complainant: Sri.D.Sanjay)      

          VERSUS

Manipal Sowbhagya Nidhi Ltd.,

Regd. Office: “ Manipal House”,

Manipal-576119.

Udupi Dist. Represented by:

1. Sri T.Narayana Pai,

The Managing Director,

2. Shri. Chandappa Sherigar,

R.at.Mahalasa, Kundal Post,

Kundibettu, Udupi-02.

3. Raghavendra Nayak,

R/at.D.No.4-75-1,

Kotathattu Village,

Post Kota, Udupi Dist.-21,

No.2 and 3 are directors.              ……. OPPOSITE PARTIES

(Opposite Party No.1 : Appeared in person)

(Opposite Party No.2 & 3: Exparte)

          ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.

The Complainant submits that, the Opposite Party has been running a financial institution having its head office at Manipal and had various branches at different places.  The Complainant submits that, he had invested in redeemable subordinated debts with the Opposite Parties at Puttur Branch.  The particulars of the Deposits are as under:-

After the date of maturity, the Opposite Parties are duty bound to redeem the above debts on the date of redemption and promised to pay interest at 10.5% per annum.  The Opposite Parties have paid interest upto 30.6.2003.  The Complainant approached the Opposite Parties, in turn Opposite Parties sought some time stating that, the Opposite Party Company is in financial difficulty.  The Complainant waited for some time, thereafter, approached the Opposite Party and all amicable sorts of settlement of the dispute have gone in vain.  On failure to pay the amount by the Opposite Party Company amounts to deficiency in service.  Hence, the Complainant filed above Complaint before this  Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay Rs.35,000/- with interest at 11% per annum from 1.7.2003 till payment and also pay compensation and cost of the proceedings.

2.       Version notice served to the Opposite Parties by RPAD. Opposite Party No.1 not appeared but sent version by post. 

Opposite Party No.2 and 3 refused and not claimed the version notice and the same has been returned before this Forum.  Since the version notice was refused and not claimed, it is deemed to be served.  Therefore, we have proceeded exparte as against Opposite Party No.2 and 3 in this case. The ‘refused’ and not claimed version notices along with postal acknowledgements available on record marked as court document No.1 and 2.

Opposite Party No.1 sent a version by post without furnishing the copies submitted that the Complaint is barred by limitation and there is no consumer dispute and there is no territorial jurisdiction to entertain the Complaint.  It is submitted that, the Chandappa Sherigar nor Raghavendra Nayak i.e. Opposite Party No.2 and 3 are the Directors of the above company and prayed for dismissal of the complaint.

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

1. Whether the Complainant is a consumer?

2. Whether this Forum has territorial jurisdiction to entertain the complaint and the complaint is barred by limitation? 

3. Whether the Complainant proves that the Opposite Parties committed deficiency in service?
4. If so, whether the complainant is entitled for the reliefs claimed?
5. What order?

4.       In support of the complaint, the Complainant – Sri.G.Monappa Gowda (CW1) filed affidavit reiterating what has been stated in the complaint and Ex C1 and C2 are produced as listed in the annexure. The Opposite Party No.1 sent version by post and not contested the case nor led any evidence.

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) & (ii): Affirmative

Point No.(iii) to (v): As per the final order.

REASONS

5.      POINTS NO. (i) & (ii):

In the instant case, the Shreyus Redeemable Subordinated Debts Certificates produced by the Complainant reveals that, the investment was made in the name of the Complainant with the Opposite Party Company at Puttur Branch as evidenced from the Shreyus Redeemable Subordinated Debt Certificates produced by the Complainant (i.e. Ex C1 and C2) bearing certificates No.003003 and 003004. 

The financial service is one of the services specifically mentioned in clause (o) of Section 2(1) of the Act.  It is settled preposition of law that, when the company transacting non-banking financial business accept deposits from the persons for particular period, the person who has deposited the money with such company hires the service of that company.  We have therefore, no hesitation to hold the service undertaken to be rendered by the Opposite Party Company is a service within the purview of the Act.  Therefore, the Complainant is a consumer. 

As far a jurisdiction is concerned, the Complainant filed a affidavit before the FORA and stated that he had deposited the above amount before the branch office of the Opposite Party Company situated at Puttur which is within the jurisdiction of this FORA, as per Ex. C1 and C2, the above evidence is not contradicted by the Opposite Party Company.  In the absence of the same, we hold that, this FORA has territorial jurisdiction to entertain the complaint.

Further Sub Section (2) of Section 24A of the Consumer Protection Act states that not withstanding anything contending Sub-Section (1), the complaint may be entertained after the specified period, if the Complainant satisfies the District Forum within such period.  Now it is a well established proposition that when the person who received the fixed deposit in whatever name has failed to repay the deposit on the date of maturity, it is a recurring cause of action for the depositor so long as the person who received the deposit has not denied his liability to repay the deposit.  The Opposite Party has no case that he has denied the Complainant right to recover the deposit until Opposite Party No.1 sent version before this Forum.  The Complainant’s right is denied for the first time in the version.  Therefore, we are of the view that the Complainant had a recurring cause of action.  In this connection, we have been referred to a decision of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow in Gurumeeth Singh And Others V/S Rakesh Kumar Sharma And Another in II (2002) CPJ 209 wherein:- “it is held that the cause action will continue till such time the payment along with interest is made”.  We therefore, overrule the objection of limitation and hold that the complaint is maintainable not barred by limitation.   In view of the above said reasons, the point No.(i) and (ii) held in favour of the Complainant.

POINTS NO. (iii) to (v):

As far as deficiency is concerned, the Complainant filed affidavit in order to substantiate his case and produced Shreyus Redeemable Subordinated Debts Certificates produced by the Complainant Ex C1 and C2 bearing certificates No.003003 and 003004. The Opposite Parties though served with the version notice not appeared before this Forum and not bothered to contest the case on hand.  The entire evidence filed by the Complainant is not controverted nor contradicted by the Opposite Parties.  Where a party to the proceedings, not entered the witness box and does not offer themselves to be cross-examined by the other side, a presumption would arise that the case set up by them is not correct.  Similarly, in the given case, the Opposite Parties though filed version not rebutted the evidence of the Complainant as stated supra, which requires no further proof. 

However, we have perused the Ex.C1 and C2 i.e. Shreyus Redeemable Subordinated Debts Certificates, wherein, the Complainant deposited Rs.30,000/- and Rs.5,000/- on 1.7.2001 and agreed to pay interest thereon at 11% per annum on the above said amount and the date of redemption shown as 1.7.2006.  It is admitted by the Complainant that the interest has been paid by the Opposite Party upto 30.6.2003.  There is no evidence to show that the Opposite Parties paid the rest of the amount to the Complainant till this date.  Non payment of the fixed deposit amount by the Opposite Party Company till this date amounts to deficiency. 

In view of the above discussions, we hold that, the Opposite Party No.1 i.e. Manipal Sowbhagya Nidhi Limited, Represented by its Managing Director is hereby directed to pay a sum of Rs.35,000/- to the Complainant under the two Shreyus Redeemable Subordinated Debt Certificates bearing Receipt Nos.003003 and 003004  along with interest thereon at 11% per annum (contractual rate) from 30.6.2003  till the date of redemption i.e. 1.7.2006 respectively.  Thereafter, the Opposite Party No.1 is hereby directed to pay interest at the rate of 12% per annum from the date of redemption till the date of payment. 

In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded. Rs.1,000/- awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

          And further there is no deficiency on the part of Opposite Party No.2 and 3.  Therefore, the Complaint against Opposite Party No.2 and 3 is hereby dismissed.

6.       In the result, we pass the following:                                  

ORDER

The complaint is allowed.  The Opposite Party No.1 i.e. Manipal Sowbhagya Nidhi Limited, Represented by its Managing Director is hereby directed to pay a sum of Rs.35,000/- (Rupees Thirty five thousand only) to the Complainant under the two Shreyus Redeemable Subordinated Debt Certificates bearing Receipt Nos.003003 and 003004  along with interest thereon at 11% per annum (contractual rate) from 30.6.2003  till the date of redemption i.e. 1.7.2006 respectively.  Thereafter, the Opposite Party No.1 is hereby directed to pay interest at the rate of 12% per annum from the date of redemption till the date of payment.   And further Rs.1,000/- awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

The Complaint against Opposite Party No.2 and 3 is hereby dismissed.

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

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.

(Page No.1 to 10 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30^th day of July 2010.)                                    

           PRESIDENT                                              MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Sri.G.Monappa Gowda – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 &  C2 – 1.7.2001: Original of the Redeemable debts Receipts No.003003 and 003004 issued by the Opposite Party. (2 in numbers).

COURT DOCUMENTS:

Doc No.1: Postal Acknowledgement.

Doc No.2: Postal Acknowledgement.

Witnesses examined on behalf of the Opposite Parties:

- Nil -

Documents produced on behalf of the Opposite Parties: 

- Nil -

Dated:30.7.2010                                                 PRESIDENT