BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 30th December 2013
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.289/2013
(Admitted on 16.11.2013)
Gayathri,
Do Vishwanatha,
Rat Door No.3 12110,
Thoipekal, Vamanjoor,
Mangalore Taluk. …….. COMPLAINANT
(Advocate for the Complainant: Sri Vasanth Kumar)
VERSUS
Mr.Naveen Chandra Gatty @
Naveen Chandra A,
Proprietor, Bizara finance,
R/at D.No.5-144/17,
“SRI BENAKA”, Tandolige Padpu,
Jappinamogaru Vilage,
Padil Post,
Mangalore Taluk. ……. OPPOSITE PARTY
(Opposite Party: Exparte)
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 against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
The Complainant stated that, the Opposite Party has been running finance business named as Bizare Finance and the Opposite Party represented that he would be giving high returns to the customers who deposit money with him by way of Fixed Deposits. On believing the promise of the Opposite Party the Complainant had deposited Rs.4,00,000/- with the Opposite Party through cheques as well as by way of cash and the Opposite Party inturn issued a composite Fixed Deposit Receipt cum acknowledgement dated 20.12.2012 promised and undertaken to return the above said amount within 28.4.2013 and assured that he would give 30% interest over the above said amount if not paid within the stipulated time.
It is further stated that, the Opposite Party issued a cheque for Rs.4,00,000/- dated 28.4.2013 drawn on State Bank of India and promised due encashment on presentation. But contrary to the promise of the Opposite Party, the said cheque was bounced for want of sufficient funds in the account of the Opposite Party with an endorsement dated 17.5.2013. Thereafter the Complainant issued a legal notice dated 10.10.2013 called upon the Opposite Party to pay the above said amount along with contractual rate of interest agreed by the Opposite Party i.e. 30% per annum but the Opposite Party failed to comply the demand made therein. Hence, 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 to the complainant Rs.4,00,000/- along with interest at the rate of 30% per annum from 28.4.2013 till the date of actual entire payment along with compensation and cost of the proceedings.
II. 1. Version notice served to the Opposite Party by R.P.A.D returned as “not claimed”, since it is not claimed, it is deemed to be served. Hence, we have treated the Opposite Party as exparte. The acknowledgement marked as Court Doc. No.1.
III. 1. In support of the complaint, one Smt.Gayathri (CW1) i.e. complainant filed affidavit reiterating what has been stated in the complaint and got marked Ex C1 to C5. Opposite party placed exparte.
On the basis of pleadings, the points that arise for our consideration are as follows:
- Whether the Complainant proves that the Opposite Party committed deficiency in service?
- If so, whether the complainant is entitled for the reliefs claimed?
- What order?
We have heard and perused the pleadings, documents and evidence placed on record by the Complainant and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
REASONS
IV. 1. POINTS NO. (i) to (iii):
In the instant case, in support of the allegations made in the complaint, the Complainant i.e. CW- 1 filed evidence on affidavit supported by documentary proof i.e. Ex.C1 to C5. On perusal of the Ex.C1 i.e. Fixed Deposit Receipt cum acknowledgment issued by the Opposite Party reveals that the Opposite Party i.e. Bizare Finance rep. by its proprietor Naveen Chandra Gatty is running the above finance and received for Rs.4,00,000/- through cheques as well as by of cash from the Complainant and undertaken to return the above said amount within 28.4.2013 free of any interest. After 28.4.2013 the Opposite Party undertaken to repay the same along with the interest at the rate of 30% per annum. Further it is seen on record that, towards the payment of Rs.4,00,000/- issued a cheque dated 28.4.2013 drawn on State Bank of India, Lalbagh branch bearing cheque No. 646418 in favour of the Complainant and promised that it would be encashed during its validity period. The above said document has been signed by both the parties.
Now the point for consideration is that, whether the Opposite Party has performed his obligations undertaken by him under the above said Fixed Deposit receipt cum Acknowledgement? The answer is negative. Because the Complainant sworn affidavit stated that the cheque issued by the Opposite Party has been bounced and it has been returned as ‘Funds Insufficient’ as per Document dated 17.5.2013 as per Ex. C3. Further the Complainant also issued legal notice through his counsel dated 10.10.2013 thereby called upon to pay the above said amount to the Complainant. But the Opposite Party failed to comply the same till this date.
Apart from the above, we also observed that the Opposite Party inspite of receiving version notice not appeared before the FORA nor contested the case till this date. The entire evidence placed by the Complainant is not contradicted nor controverted and remained unchallenged. The unrebutted evidence requires no further proof. The documents produced by the Complainant in this case proved beyond doubt that the Opposite Party inspite of promising to return the above said amount within the stipulated time without any interest is failed. Further it is very significant to note that the cheque issued by the Opposite Party also bounced as funds insufficient as per Ex.C3.
Apart from the above, we also noted that the Opposite Party undertaken to pay interest on the above said amount at rate of 30% per annum in case if he failed to return the above said amount within the stipulated time i.e. 28.4.2013. Since the Opposite Party himself undertaken to pay the interest at the rate of 30% (contractual rate of interest) we hold that the Opposite Party is liable to pay the above said interest on the above said amount. By considering the above said facts, we hold that the Opposite Party miserably failed to pay the above said amount within the stipulated time or thereafter till this date amounts to deficiency in service as well as unfair trade practice.
Therefore, the Opposite Party is hereby directed to refund the amount of Rs.4,00,000/- to the Complainant along with contractual rate of interest at 30% per annum from 28.4.2013 till the date of payment and also pay Rs.2,000/- 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. Bizare Finance represented by its Proprietor/Authorized Signatory shall pay a sum of Rs.4,00,000/- (Rupees Four lakhs only) under the F.D. Receipt cum Acknowledgment i.e. Ex.C1 along with interest thereon at 30% per annum (contractual rate) from the date of maturity i.e. on 28.4.2013 till the date of payment to the complainant and also pay Rs.2,000/- (Rupees Two thousand only) 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 7 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30th day of December 2013)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Smt. Gyathri – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 20.12.2012: F.D. Receipt cum acknowledgement issued by the O.P.
Ex C2 – 20.12.2012: Cheque for Rs.4,00,000/-.
Ex C3 – Bounced Endorsement.
Ex C4 – Notice issued by the complainant to the Opposite party.
Ex C5 – Unclaimed R.P.A.D Cover.
COURT DOCUMENT:
Doc.No.1: Unclaimed R.P.A.D Cover.
Witnesses examined on behalf of the Opposite Party:
Exparte.
Documents produced on behalf of the Opposite Party:
Exparte.
Dated:30.12.2012 PRESIDENT
