BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 28th February 2014
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.262/2013
(Admitted on 28.9.2013)
Prithvi Narayan Padar,
So P.Gopal Shastry,
Post Boriar,
(VIA) Mani,
Bantwal Taluk,
South Kanara 574 253. …… COMPLAINANT
(Complainant: In Person)
VERSUS
Manipal Finance Corporation Limited,
Manipal House,
Manipal-576 119, ….OPPOSITE PARTY
(Advocate for the Opposite Party: Smt.Manjula N.A.)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
The Complainant stated that, he is a General Power of Attorney holder of Mr.Prithvinarayana and the Complainant is the father of Mr.Prithvinarayana. It is stated that Prithvinarayana’s mother Mrs. Vishalakshi has deposited a sum of Rs.10,000/- on 23.11.2011 in the Opposite Party Finance and Opposite Party finance agreed to pay interest at 10.5% after the date of maturity. On 23.4.2005 Printhvinarayana approached the Opposite Party, but Opposite party failed to refund the amount inspite of several requests. Therefore, the complainant 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.10,000/- with interest to the complainant along with compensation and cost of the proceedings.
II. 1. Version notice served to the Opposite Party by R.P.A.D. Opposite Party appeared through their counsel filed version stated that the Power attorney is giving by Mr.Prithvi Narayana Padar to one Mr.Gopal Shastry exclusively for attending the proceeding in CC.No.17/2013 and not for the above complaint. And also stated that in earlier complaint bearing No.CC.No.17/2013 was filed by Gopal Shastry which got time barred on 23.11.2008 interms of Section 24A of C.P. Act 1986. And also stated that in the above said complaint i.e. CC.No.17/2013 in this District FORA negatived the 1st issue and hence the Complainant failed to prove that the Opposite Party has committed deficiency in service therefore sought for dismissal of the complaint.
III. 1. In support of the complaint, Mr.P.Gopal Shastry (CW1) – General Power of Attorney holder of Prithvinarayana - 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 the opposite party filed counter affidavit and answered the interrogatories served on him.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- 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?
- Whether the Complainant proved that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum 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 one Mr.Prithivi Narayana Padar’s mother Smt. Vishalakshi invested Rs.10,000/- with the Opposite Party finance on 23.11.2001 and the Opposite Party inturn issued a fixed deposit receipt and under taken to pay 10.50% on the above said deposit on the date of maturity as per Ex.C1. It is also admitted that according to the terms and conditions of the certificates, the Opposite Party had agreed to refund the above said amount along with contractual rate of interest in respect of the amount mentioned in the certificates and the certificates were matured on respective dates mentioned therein.
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:-
- 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.
- 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 contended that on the date of maturity he has approached the Opposite Party, the Opposite Party inturn agreed to refund only 50% of the principal amount if the F.D. holder or their nominees, representatives agree to sign for full refund. It is contended that the Opposite Party cheated the Prithvi Narayana Padar which amounts to deficiency.
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 F.D. Holder 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 F.D. holders/nominees believed the oral assurances of the Opposite Party that they will return the amount along with the interest within reasonable time even after maturity. But after several approaches the F.D. holders came to know that Opposite Parties are not ready to return the entire amount invested under the above certificate and their approach went in vein.
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/F.D. Holder as agreed by them. But in the instant case, even after the date of maturity the Opposite Party not returned the amount under the above certificate. On the other hand, the Opposite Party forced to execute a consent letter with the condition that only 50% amount will be refunded. As we know no investor is willing to loose their hard earned money because the investment made by them is not a debt. In other words, the Opposite Party company not financed the above said amount to the F.D. holder. But it is known fact that, the invested money by the F.D. Holder has been utilized by the Opposite Party in their finance business and now without returning the same to the investor herein the Complainant on the date of maturity or within reasonable time appears to be perverse. In a case of like this nature demanding money by the F.D. Holders does not arise, without the demand by the F.D. Holders the Opposite Party duty bound to return the above said amount. In other words the Opposite Party shall return the amount on the date of maturity to the F.D. Holder without any demand. Therefore, the Opposite Party now cannot take defence that the complaint is barred by limitation because the F.D. Holder invested his money hoping that he/she 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 F.D. Holder will not keep quite when the money is matured under the certificates invested by him/her. Normally, the Opposite Party’s/Banking institutions giving false assurances to the consumers herein the F.D. Holder and postponing the payment is quite natural in case of finance business. We hold that, the innocent consumers like Complainant/ F.D. Holder 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 F.D. Holder/Complainant in a case of like this nature. Because the invested money by the F.D. Holder /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 the respective dates mentioned in Ex.C1 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/ F.D. Holder 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 in his complaint specifically stated that the above investment has been made in Vittal 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 Complainant i.e. Ex.C1 produced before this authority reveals that the Manipal Finance Corporation Limited promised to pay the amounts mentioned in the certificates upon presentation and discharging of the above Certificates on the date of maturity as mentioned in the certificates. But the Opposite Party failed to pay the above said amount till this date. However, 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/Opposite Party 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 date of maturity or within reasonable time amounts to deficiency in service as well as unfair trade practice.
In view of the above reasons, we hereby directed to the Opposite Party i.e. Manipal Finance Corporation Limited represented by its Managing Director shall pay Rs.10,000/- (Rupees Ten thousand only) to the complainant under the fixed deposit receipt i.e. Ex.C1 along with interest at 10.50% (contractual rate) from the date of deposit i.e. on 23.11.2001 till the date of maturity i.e. 23.11.2006 and further opposite party directed to pay 12% per annum from the date maturity i.e. 23.11.2006 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 shall pay Rs.10,000/- (Rupees Ten thousand only) to the complainant under the fixed deposit receipt i.e. Ex.C1 along with interest at 10.50% (contractual rate) from the date of deposit i.e. on 23.11.2001 till the date of maturity i.e. 23.11.2006 and further opposite party directed to pay 12% per annum from the date maturity i.e. 23.11.2006 till the date of payment. 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 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 28th day of February 2014)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr.P.Gopal Shastry (CW1) – General Power of Attorney holder of Prithvinarayana - Complainant.
Documents produced on behalf of the Complainant:
Ex C1 : 23.11.2011: Certified copy of Shreyus Certificate No. 004274.
Ex C2: Certified copy of Notice received on 24.3.2005.
Ex. C3: Certified copy Form of Proxy .
Ex. C4: Certified copy Advertisement of Janaseva Karyalaya
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:28.2.2014 PRESIDENT
PRESIDENT MEMBER MEMBER
