A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 1287/2008 against C.C 28/2008 , Dist. Forum, Eluru
Between:
Chunduri Venkata Subba Rao
Rep. by its Managing Partner
Vasavi Chit Funds
Vasavi Complex, Main Bazar
Eluru, West. Godavari Dist. . *** Appellant/
O.P. 1
And
1. Devarapalli Koteswara Rao
S/o. Kondayya, 56 years
Benerjipet, 25th ward
D.No. 8-5-13, Near Satyanarayana Theatre
Eluru, West. Godavari Dist. *** Respondent/
Complainant.
2. The Chit Registrar
Registration Office, Eluru
West Godavari Dist. *** Respondent/
O.P. No. 2.
Counsel for the Appellant: M/s. D. Narasimha Rao.
Counsel for the Resp: M/s. B.P. Raju (R1)
G.P. for R2.
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
MONDAY, THIS THE TWENTY FIFTH DAY OF OCTOBER TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) This is an appeal preferred by the chit fund company Op1 against the order of the Dist. Forum directing it to pay Rs. 95,500/- together with interest and costs.
2) The case of the complainant in brief is that he joined as one of the members in the chit group No. 9 of the appellant chit fund company for chit value of Rs. 2 lakhs. Later he became successful bidder in February, 2004 for an amount of Rs. 1, 55,500/-. However the appellant issued a cheque for a sum of Rs. 60,000/- which he sent it for collection. The appellant had also obtained three promissory notes for Rs. 15,000/-, 1,85,000/- and Rs. 1 lakh from him and his son besides son of his partner Sri Bollina Siva Rama Krishna representing that the remaining amount would be paid within a short period. However, it dragged on the matter on one pretext or other. Despite repeated demands it did not pay the remaining balance. It had threatened that it would attach his properties. On that he filed caveat. Based on the promotes it had filed a civil suit in O.S. No. 194/2004 against him, his son and son of his partner on the file of Principal Senior Civil Judge, Eluru, and the same was decreed. It had unjustly terminated the chit. It has been doing illegal business without following the rules. The appellant with-held the balance amount of Rs. 95,500/- and therefore he sought for refund of amount together with compensation of Rs. 3,000/- towards mental agony and costs.
3) The appellant resisted the case. While denying each and every allegation made in the complaint it alleged that that the complainant had joined as member for the chit amount of Rs. 2 lakhs payable in 40 instalments payable at Rs. 5,000/- per month commencing from 9.1.2002 and to be terminated by 9.4.2005. He participated in the auction held in February, 2004 and was declared as the highest bidder having agreed to receive the prize amount at Rs. 1,55,000/-. It had paid Rs. 60,000/- out of total amount of Rs. 1,55,000/- in view of the request of the complainant to adjust balance towards the amount of Rs. 95,000/- due under promotes dt. 23.6.2001 for Rs. 1 lakh and Rs. 15,000/- respectively. This fact was informed to him in the reply notice given by it to the notice issued by the complainant. The promotes which he had executed in 2001 could not have been taken in the auction that was conducted in February, 2004 when the joined as a member in the year 2002. He did not pay future instalments after receiving the prize amount. The chit was terminated in the year 2005 itself. He never raised his voice for non-release of balance chit amount all through. When pronote was going to be expired by 23.6.2001 it filed a suit on 22.6.2004 in O.S. No. 194/2004 on the file of Principal Senior Civil Judge, Eluru and the same was decreed on 20.7.2007 on merits. The defence taken by the complainant was not tenable. No appeal has been preferred and the said decree has become final. He filed execution petition for arrest of the complainant, and boring grudge he filed the present complaint. There was no cause of action for the complainant and therefore it prayed for dismissal of the complaint with costs.
4) The complainant in proof of his case examined himself as PW1 and got Exs. A1 to A4 marked while the appellant Chunduri Venkata Subba Rao was examined as Rw1 and got Exs. B1 to B3 marked.
5) The Dist. Forum after considering the evidence placed on record opined that the appellant was not entitled to adjust the amount towards amount due under promotes and therefore directed the appellant to pay balance of Rs. 95,000/- with interest @ 9% p.a., from 18.3.2004 till the date of realization together with costs of Rs. 1,000/-.
6) Aggrieved by the said decision the appellant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen that the complaint was barred by limitation as the cause of action arose in February, 2004 while the complaint was filed on 26.12.2007. At any rate the suit filed against the complainant was decreed on 20.7.2007 upholding deduction of balance of prize amount and the complaint was filed on 26.12.2007 to counter-blast the execution proceedings against him. The Dist. Forum did not consider the fact of decree obtained against the complainant wherein the very dispute as to the adjustment was in question. Therefore it prayed that the appeal be allowed and consequently dismiss the complaint.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mess-appreciation of fact law?
8) It is an undisputed fact that the complainant joined as a member in the chit for Rs. 2 lakhs floated by the appellant chit fund company. In the auction that was conducted in February, 2004 the complainant was declared as highest bidder having agreed to take an amount of Rs. 1,55,500/-. The appellant had paid Rs. 60,000/- out of prize amount of Rs. 1,55,500/-. The complaint was filed for realization of balance of amount of Rs. 95,500/-. The appellant alleges that the complainant had executed two promissory notes dt. 23.6.2001 for Rs. 15,000/- and Rs. 1 lakh. He himself agreed for adjustment of amount under the promotes. It is not in dispute that the appellant chit fund company filed a suit in O.S. No. 194/2004 on the file of Principal Senior Civil Judge, Eluru for realization of amount due under above said promotes claiming Rs. 1,85,000/- and obtained decree together with interest and costs vide judgement Ex. B3 dt. 20.7.2007. A perusal of judgement Ex. B3 would show that he had taken the very same plea that an amount of Rs. 60,000/- was paid by way of cheque obtained his signature along with his son and son of his partner as sureties for repayment of future instalments towards chit amount. He stated “Thereafter this defendant insisted the plaintiff for payment of the balance amount due by the plaintiff in the said chit transaction. But the plaintiff without paying balance amount he got fabricated the suit pronote and filed this suit in order to have wrongful gain without issuing any prior notice.” Both parties let in evidence. The complainant has examined DWs 1 to 4 besides court witness Sri A. R.R. Chandra Rao as CW1. The learned Senior Civil Judge after considering the evidence placed on record opined that “So the evidence adduced by the defendants does not establish that Ex. A1 pronote was obtained by the plaintiff in connection with the chit transaction as collateral security as alleged by him and also does not establish that Ex. A1 was obtained as a security for the mortgage debt covered under Ex. B5 & B6 as alleged by the 1st defendant.”
It was further held that “the recitals of Ex. A1 are in accordance with the evidence of PWs 1 & 2 that the consideration of Rs. 1,85,000/- was passed from plaintiff to defendant 1 to 3. So in view of the circumstances I hold that the suit pronote is not a fabricated document and further hold that Ex. A1 pronote is true, valid and binding upon the defendants and it is supported by consideration” Admittedly no appeal has been preferred against this judgement and the findings have become final. The appellant chit fund company has admittedly filed execution proceedings for realization of amount.
9) The complainant has filed the complaint on 28.12.2007 five months after the above decree was passed in the Dist. Forum raising the very same contentions that he was entitled to balance of Rs. 95,500/-. Since this issue has already been determined by a competent civil court the complainant cannot circumvent the proceedings and set at naught the said decree and file an independent complaint under the Consumer Protection Act. The judgement under Ex. B3 is binding on him. Even otherwise the complainant could not establish that for balance of Rs. 95,500/- signatures were obtained on promotes without passing any consideration. We have already excerpted the passage from the judgement in civil suit filed against him wherein said defence was not up-held. The Dist. Forum did not see the effect of the judgement or the nature of defence that was taken by the complainant in the suit which is the very same plea that was taken in this complaint, and the Dist. Forum ought not to have come to a different conclusion than one which was passed by the Civil Court. The complainant is not entitled to any amount. Evidently the complainant to get over the decree, filed the complaint belatedly three years after the cause of action. Undoubtedly the complaint is barred by limitation.
10) In the result the appeal is allowed setting aside the order of the Dist. Forum. Consequently the complaint is dismissed. However, in the circumstances of the case no costs.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 25. 10. 2010.
*pnr
“UP LOAD – O.K.”
