FA 294/2012 against CC 194/2011  on the file of the District Consumer Forum I, Hyderabad.

Between :

The Managing Director

M/s. Kapil Chit Fund (P) Ltd

D No. 6-2-938/39, Flat no. 24,

2^nd floor, Purni Plaza,

Khairatabad, Hyderabad – 4                      .. Appellant/Opposite party

And

Mr. Syed Rahim, S/o Mohd. Saheb

Aged about 54 years, Occ : Govt. Employee

R/o LIGH-271, HUDA Colony,

Attapur, Hyderabad                         ..          Respondent/complainant

Counsel for the Appellant              :           Mr. N. Amaranath

Counsel for the Respondent         :           Mr. Mohan Bujji

Coram           ;          

                              Sri R. Lakshminarasimha Rao…      Hon’ble Member

And

                                    Sri T. Ashok Kumar                ..         Hon’ble Member

Thursday, the Third Day of January

Two Thousand Thirteen

          Oral Order       :   ( As per Sri T. Ashok Kumar , Hon’ble Member )

****

       1.        This is an appeal preferred by the unsuccessful opposite party   as against the  order dated  30.12.2011  in CC 194/2011  on the file of the District Consumer Forum I, Hyderabad. For convenience sake, the parties as arrayed in the complaint are referred to as under :

2.            The brief facts of the complaint  are as under :

The complainant obtained membership in the opposite party for Rs.one lakh in the above scheme in the month of August, 2004 and paid for 17 months and paid Rs.34,000/- upto December, 2005 and he discontinued the remaining 33 months due to certain personal problems and that he informed the same to the OP company and he was informed to wait  till the end of the scheme till 2006  for refund of the amount. When he approached the opposite party to refund the same, the OP asked him to wait for another six months. Despite many requests, the OP did not refund the amount which amounts to deficiency in service and thus he prayed to direct the OP to refund Rs.34,000/- with interest @ 18% PA  from  the date of end of the end of the scheme, to pay a sum of Rs.30,000/- as compensation for mental agony etc and to pay costs of Rs.3,000/-.

3.            OP  filed counter  opposing the claim of the complainant and denying the allegations made in the complaint and  the brief facts of the counter  are as under :

The complainant is a chit subscriber in Chit No. KBTO-11-26 for the chit value of Rs.one lakh payable in 50 monthly installments at Rs.2,000/- per annum and that the complaint is time barred  as the chit was commenced on 23.08.2004 and the same was closed/terminated on 23.09.2008 and that the complainant paid 17 installments in all in a sum of  Rs.24,108/- towards net amount of contribution.  Since the complainant neither produced sureties nor paid the remaining installments and hence the complainant   had adjusted the entire credited chit prize amount towards future 33 installments amounting to Rs.61,912/- as on the date of closing the chit period and an amount of Rs.150/- towards incidental charges totaling to  Rs.62,062/- and for the balance amount of Rs.7,438/- a cheque  dated 16.09.2006 and the same was received by the complainant but he did not present the same for collection  and now they are  ready to pay the same if the said cheque is returned. and that there is no deficiency in service on their part and thus prayed to dismiss the complaint.

4.            Both sides filed their  evidence affidavits reiterating their respective pleadings  and  Ex. A-1 was  marked on behalf of the complainant and no documents were marked for the OP.

5.            Having heard both sides and considering the evidence on record, the District Forum allowed in part directing the opposite party to pay a sum of Rs.31,300/- only to the complainant with interest @ 12% pa from the date of the end of the scheme, ie December 2006 till the date of realization and to pay costs of Rs.2,000/-/

6.            Feeling aggrieved with the said order the unsuccessful OP  filed this appeal on several grounds and mainly contended that the District Forum failed to see that the complainant paid only total amounting of Rs.24,108/- by 20.12.2005  which is the actual contribution amunt as per column no. 3 of Ex. A-1 under the head “Net Subscription Received” but not Rs.34,000/- and that the complainant had adjusted the entire credited chit prize amount of Rs.69,500/- towards future 33 chit installments amounting to Rs.61,912/-  and for the balance amount of Rs.7,438/- a cheque   was issued to the complainant but he did not present it  for collection and that the complaint  is barred by limitation as the last payment was made on 20.12.2005 and the complaint was filed  after six years   and as per the chit fund Act the appellant/Op is entitled 5% on the chit value towards the damages for breach  of contract and that there is no deficiency in service  on the part of the OP and thus prayed to allow the appeal and set aside the impugned order.

7.            Heard the counsel for appellant    with reference to thegrounds of appeal in detail and respondent’s counsel filed written arguments and Ex. B1 to B3 on behalf of the OP as additional evidence  were  marked before this Commission as per orders in FAIA 1173/2012 dated 01.01.2013.

8.            Now the point for consideration is whether the order of the District

      Forum is sustainable?

9. There is no dispute that the complainant became subscriber of the Chit bearing No. KBTO-11-26 for the chit value of Rs.one lakh payable in 50 monthly installments at Rs.2,000/- per month and that paid 17 installments. Of course, there is a dispute with regard to payment of amount. According to the complainant,  he paid Rs.34,000/- whereas the OP pleaded that by 20.12.2005 the complainant paid Rs.24,108/- only. There is no dispute that the complainant is the prized winner of the chit in the auction agreeing to forego Rs.30,500/- out of the chit value of  Rs.One lakh and that did not  furnish sufficient sureties to the satisfaction of foreman for future liability. The first and foremost point raised by the opposite party in the Appeal is that the complaint is barred by limitation. According to the opposite party, since the complainant became defaulter in paying installments and also failed to furnish the sureties alternatively the amount of Rs..69,500/- prize amount was credited to the chit Account of the complainant and that he adjuted Rs.61,912/- towards 33 Chit installments  and that for remaining amount of Rs.7438/- a cheque was issued and sent to the complainant and that he did not present the same for collection.  The complainant did not dispute it. 

10. The plea of the complainant is that it is within limitation.  The last payment made by the complainant was on 20.12.2005 as seen from Ex. A1 pass book and the complaint was filed on 24.11.2011. According to Ex. B1 Chit agreement marked in this Commission as Additional evidence the date of commencement of the Chit was 23.08.2004 and date of termination of the chit  was  29.09.2008.  Even taking into consideration of the date of termination of the chit as rightly contended by the OP the claim of the complainant is certainly barred by limitation. The complainant did not file any petition to condone the delay in filing the complaint. On the point of limitation the order under Appeal is not sustainable as it is. Even though the claim of the complainant is barred by limitation when the OP itself agreed that complainant is entitled for only to Rs.7,438/- and that a cheque for such an amount was issued but the complainant did not encash  the same in the larger interest of justices, we are satisfied to hold that a direction is need to be given to OP to issue an A/c payee cheque for Rs.7,438/- to the complainant as there is no bar to pay time barred admitted amount. There is no evidence on record that the complainant has offered security in favour of OP  to release the prized amount and that deliberately the amount was not  released by the OP or that he paid remaining installments of his own account.  As per the provisions of Chit Fund Act, Rs.5,000/- is leviable from the complainant towards Foreman commission. In view of the discussion made supra, the impugned order is not sustainable and it is liable to be modified.

11. In the result, the appeal is disposed of setting aside the impugned order and in its place the Opposite party is directed to issue an A/c payee cheque for Rs.7,438/- ( Rupees Seven Thousand Four Hundred and Thirty Eight only ). There is no order as to costs in the Appeal.

                                                                                    MEMBER

                                                                                    MEMBER

                                                                                    DATED   : 03.01.2013

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

FOR APPELLANT/OPPOSITE PARTY                                                 ;

Ex.B-1  :          22.12.2005      :           Agreement of chit

Ex B-2 ;           22.02.2012      ;           Ledger between 01-Dec-2005 and 22.02.2012.

Ex B-3 ;           -                       :           Auction Minutes Book

                                                            MEMBER                               MERMBER

                                                                        DATED     03.01.2013