BEFORE THE ADDITIONAL BENCH DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MYSURU.

Consumer Complaint (C.C.)No. 1498/2016

Complaint filed on 04.10.2016

Date of Judgement.23.05.2018

PRESENT                      :         1. Shri Ramachandra  M.S.,  B.A., LL.B.,

                                                   PRESIDENT

2. Shri  Thammanna,Y.S., B.Sc., LL.B., 

                                       MEMBER

Complainant/s       :               1.     Sri. Shivananjappa

                                                          No.159/11/1B, 4^th cross,

                                                          Revenue Colony, J.P.Nagar,

                                                          Mysore-570008.

 (Sri.  B.C.Veeraraj urs., Advocate)

V/s

Opponent        /s             :       1.     M/s Chanakya Finance

Corporation(R).

                                                          No. 301, 1^st Floor, 2^nd cross,

Benki Nawab Street,

                                                          Mandi Mohalla ,

Mysore,

                                                2.       Sri. A.L. Nanjundaraje Urs,

                                                          S/o Late Lingaraje Urs,

                                                          C/o Chief Superintendent

                                                          Central Prison, Ashoka Road,

                                                          Mysore-570007.

                                                3.       Sri. Rajeevalochana

                                                          S/o V.V. Venkatachalaiah,

C/o Chief Superintendent,

                                                          Central Prison, Ashoka Road,

                                                          Mysore-570007.

4.       Sri. M.K. Biddappa

                                                          S/o M.S. Kariappa

                                                          R/at No. 20, Badaga Village,

                                                          FMC College, Post,

Madikeri.

5.       Smt. Leelavathi

                                                          W/o M.Shivanna

                                                          R/at No. 453, 1^st cross,

                                                          1^st stage, Gayathripuram,                                                                        

                                                           Mysuru-570019.

6.       Smt..Nagarathna

                                                          W/o R. Srinivas,

                                                          R/at No. 834, 1^st cross,

Kamatageri, Mandi Mohall,

                                                          Mysuru.

7.       Smt. M. Dakshayani

                                                          W/o R. Ramesh,

                                                          R/at No. 834, 1^st cross,

Kamatageri, Mandi Mohall,

                                                          Mysuru.

                                                8.       Sri. Jayaprakash

                                                          S/o  Appavoo Pillai,

                                                          R/at No. 3047, 1^st cross,

1^st  stage,Gokulam,                                

 Mysuru-570002.

9.       Smt. Lalitha

                                                          W/o T.V. Venkataramu,

                                                          R/at No. 3, Gokulam,

4^th stage, Manjunathapura,

                                                          Mysuru.

                                                   10.  Sri A.M. Monappa

                                                          S/o A.P. Mandappa,

                                                          R/at No. 20/41 , Near Health Office,

                                                          Madikeri.

( OP Nos. 1 to 4,6,7,9 and 10 Exparte and OP (Nos. 5 and 8 Sri. V. Venkataramaiah., Advocate)

          SHRI RAMACHANDRA . M.S.,

           PRESIDENT

JUDGEMENT

The complainant filed the complaint under section 12 of the C.P.Act 1986, against the opposite parties seeking a direction to refund the fixed deposit total amount of Rs. 4,46,500/- along with 12% interest per annum on the FD from the date of investment to till the date of realization and to pay compensation and costs etc.,

2. The opposite party no.1 is a partnership firm carrying on the business of accepting deposits of monies from the public and lending monies to the public and has its principal place of business at the address given in the cause title above the opposite parties numbered 2 to 10 are the partners of the said firm.

3. The opposite party solicited money deposits of many well known and common kinds of deposits like fixed deposit, cumulative deposit, recurring deposits etc from the public at large, very much like the popular scheduled banks in the country, and used a robust and vigorous personalized campaign for collection of deposits.

4. At the instance of the opposite party no .2 who used to manage the day-to-day affairs of the above op no.1 firm, who also used to be the principal canvasser for the firm, the complainant made of 2 fixed deposits, in total amounting to Rs. 1,50,000/- on 05.12.2005 and another of Rs. 1,00,000/- only 22.09.2007 the first of these bears receipt no.371, repayable o or after 05.12.2006 and the second bears receipt no.089 repayable on or after 22.09.2008 and interests on the said two deposits were payable at monthly intervals at the rate of 12 per cent  per annum from the date of their deposits. The second of the above deposits was got renewed by the complainant on is due date of 22.09.2008 for a further period of twelve months from the said date and the renewed deposit was made repayable on or after 22.09.2009. the said deposit carried the same rate of interest of 12% percent per annum payable at monthly intervals.

5. The OP no.1 firm paid to the complainant monthly interest @ 12 percent per annum on the above deposits on their respective due dates up to and for the month of February 2010 the complainant did not receive interest thereafter from March 2010. At the point in time, the op no.2 Sri. Nanjundaraje Urs, A.L., requested the complainant to give him three months time for making payment of the outstanding monthly interests and that he would regularly pay the interest thereafter every month. None of the office staff at the op no.1 firm had the authority to make payment on behalf of the firm and it was Sri. A.L. Nanjundaraje Urs alone who could do that.

6. The opposite party no.1 firm did not pay the complainant dues of monthly interests on his fixed deposit after the above three month time. The opposite party no.2 told the complainant that his firm was in temporary financial distress due to mismatch of cash receipts and payments of the firm and that the same would be regularized early. The opposite party no .2 assured the complainant that the fixed deposits were automatically renewed attracting interest at the rate of 12 percent per annum, all arrears of monthly interest would be paid in full within a short time from then in one lump sum and thereafter monthly payments of interest thereon would be made on the relevant dates of the deposits till the date of repayment of the principal amounts.

7. All subsequent demands for payment of arrears of interest on the fixed deposit amount and the principal amount by the complainant were met with fervent pleas by the opposite party no.2 that the opposite party firm had huge amounts of receivables and that the complainant dues as above would be paid in one lump sum and up to the last rupee. The opposite party no.2 more fervently sued for peace and sough complainants forbearance from any precipitate legal action.

8. The above acts of the opposite party no.1 and that of its managing partner Sri. A.L. Nanjundaraje Urs the opposite party no.2 amount to deficiency of service and unfair trade practice in not conforming to the standard and general practice of dealing with depositors by the like financial companies . While the state of affairs of the preceding paragraph persisted, the complainant found the opposite party no.2 incommunicado circa August 2014 and thereafter. About a month ago, the complainant and his/her family members came to know through Sri. Nagaraj Urs, a family friend, about the op -1 firm being bankrupt and with it having not repaid monies to several hundreds of its depositors, the partners of the firm arrayed as opposite parties 2 to 10 herein are sentenced to imprisonment by this Honorable forum.

9. The opposite parties 1 to 10 herein are due in a sum of Rs. 2,50,000/- only on account of the 2 fixed deposit made by the complainant as per details in paragraph 4 above and interest thereon at the rate of 12 percent per annum from the month of February 05 and 22, ,2010  respectively on the said two deposits up to September 5 and August 22,2016 respectively on the said two deposits up to September 5 and August 22,2016 respectively amounting to Rs. 1,18,500 and 78,000/- only all together amounting to a total of Rs. 4,46,500/-

10. Notice to the opposite party no 1 to 10 duly served opposite party nos 1 to 4,6,7,9 and 10 remained absent placed exparte. Opposite party no. 5 and 8 represented by counsel filed version and in spite of sufficient opportunity  chief affidavit is not filed and it is taken as not filed.  In version statement they have contended that the complaint is not maintainable, and it is barred by limitation. Opposite party no.1 is the firm and others are the partners is admitted by these opposite parties. Opposite party no .2 has collected money from complainant without the knowledge of other partners. Thereby, these opposite parties are not liable to pay amount claimed. The other allegations made are not admitted. The opposite party no.2 is colluded with complainant and issued the FD receipt . opposite party no.2 has violated the terms and conditions of the partnership deed opposite party firm was closed on 09.06.2010 and thereby opposite party no.5 and 8 sought for dismissal of this complaint.

11. The complainant to prove the facts, filed chief examination affidavit and relied on several documents along with FD receipt, the complainant filed written arguments, and heard oral arguments . the opposite party no.5 and 8 in spite of sufficient opportunity they did not file affidavit and it is taken as not filed and they have not submitted arguments from their side, on perusing material documentary evidence on record and also by considering the affidavit matter is posted for orders.

12. The points arose for out consideration are:-

1. Whether the claim is barred by limitation ?
2. Whether the complainant establishes that there is deficiency in service on the part of opposite party by not refunding the FD amount to the complainant and thereby he is entitled for the reliefs?
3. What order?

13. Out findings on the aforesaid points are as follows;

Point  No.1 In the negative

Point No. 2: In the affirmative

                        Point  No.3: As per the final order for the following:

REASONS

14. Point no:1:-   The first and fore most point raised by opposite party is limitation point they alleges the complaint is barred by limitation. Since it is filed after the lapse of limitation period they pray for dismissal of complaint. For which it is observed that, the point of limitation is not applicable to this complaint. For the reason that the cause of action in this complaint is “Continuing cause of action ”  as long as opposite party repay the FD amount. This principles is laid down by the Hon’ble National Commission and also apex court of India in its judgments. When such being the case the complaint is filed well within limitation period. Hence point no.1 is answered in the negative.

15. Point no.2:- The complainant relied upon the documents in support of his case FD receipt issued by opposite party firm has been placed on record. The 2 FD receipts no. 371, 089 confirms that the complainant had deposited totally amount of Rs. 2,50,000/- with opposite party firm. Further the FD receipt got matured subsequently. As such the opposite party firm is liable to honour the FD receipt and to pay the accrued interest till date to the complainant. In spite of issue of the notice demanding to pay the FD receipt amount with accrued interest opposite party has neither complied nor replied. This clearly shows the deficiency on the part of opposite parties. Therefore, the complainant entitled for the FD receipt amount along with agreed interest at the rate of 12% p.a. from the date till the realization of the same. Further, the complainant is entitled for compensation for the mental agony, hardship and inconvenience caused by opposite parties. Hence point no 2 is answered in the affirmative.

16. Point no.3:-  From the above discussion we hereby proceed to pass the following :-

ORDER

1. The complaint is hereby allowed in part.
2. The opposite parties are jointly and severally liable to pay the 14 FD receipts amount totally of Rs. 2,50,000/- to the complainant, along with interest at the rate of 12% p.a from 22.02.2010 to  till the date of payment. within 60 days of this order
3. The opposite parties are jointly and severally liable to pay Rs. 5,000/- towards compensation for the mental agony, hardship caused and Rs. 3,000/- towards deficiency in service and Rs.3,000/- towards costs of the proceedings, to the complainant, within 60 days of this order.
4. In default to comply the opposite party shall pay interest at 12% p.a. on the said total sum of Rs. 11,000/- from the date of this order till payment.
5. In case of default to comply this order, the opposite party shallundergo imprisonment and also liable for fine under section 27 of

 the CP Act, 1986.

6. Give copies of this order to the parties as per rules.

((Dictated to the stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on the 23^rd  May 2018)  

Shri Thammanna Y.S.,                                 Shri Ramachandra M.S.,    

          Member.                                                          President.