IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,

Dated this the 25^th day of February, 2013.

Present : Sri. Jacob Stephen (President)

Smt. K.P. Padmasree (Member)

C.C.No.172/2012 & C.C.No.173/2012

(Filed on 08.11.2012)

C.C.No. 172/12

Between:

Preetha Elsa Sam,

Thottathil House,

Maramon. P.O.,

Pathanamthitta Dist.

Rep. by the P/A holder

Mathew Abraham,

Pandiyalakal House,

Vanchithra, Kozhencherry,

Pathanamthitta Dist.

(By Adv. P. Hariharan Nair)                              …..   Complainant

And:

1.   M/s. Cheruvallil Investments,

Thottathil Building,

Maramon P.O., Pin – 689 549,

Pathanamthitta Dist.

Rep. by Managing Partner,

S. Rajeev.

    2. S. Rajeev, Managing Partner,

        M/s. Cheruvallil Investments,

                -do.  –do.

       Residing at: S. Rajeev,

       Cheruvallil House,

       Maramon P.O., Pin – 689 549,

       Pathanamthitta Dist.

3.   Mrs. Suja Rajeev, Partner,

        M/s. Cheruvallil Investments,

                -do.  –do.

       Residing at: Mrs. Suja Rajeev,

       Cheruvallil House,

       Maramon P.O., Pin – 689 549,

       Pathanamthitta Dist.

(By Adv. Cherian Geevarghese)                        ….    Opposite parties

C.C.No. 173/12

Between:

1.   Preetha Elsa Sam,

Thottathil House,

Maramon. P.O.,

Pathanamthitta Dist.

2.   Preethy Merry Sam,

    -do.  –do.

Rep. by the P/A holder

Mathew Abraham,

Pandiyalakal House,

Vanchithra, Kozhencherry,

Pathanamthitta Dist.

(By Adv. P. Hariharan Nair)                              …..   Complainant

And:

2.   M/s. Cheruvallil Investments,

Thottathil Building,

Maramon P.O., Pin – 689 549,

Pathanamthitta Dist.

Rep. by Managing Partner,

S. Rajeev.

    2. S. Rajeev, Managing Partner,

        M/s. Cheruvallil Investments,

                -do.  –do.

       Residing at: S. Rajeev,

       Cheruvallil House,

       Maramon P.O., Pin – 689 549,

       Pathanamthitta Dist.

4.   Mrs. Suja Rajeev, Partner,

        M/s. Cheruvallil Investments,

                -do.  –do.

       Residing at: Mrs. Suja Rajeev,

       Cheruvallil House,

       Maramon P.O., Pin – 689 549,

       Pathanamthitta Dist.

(By Adv. Cherian Geevarghese)                        ….    Opposite parties

COMMON ORDER

Sri. Jacob Stephen (President):

                Complainant has filed these complaints against the opposite parties for getting a relief from the Forum.

                2. The complainant in both cases are same person and the opposite parties in both case are also one and the same parties and the dispute in both cases is with regard to the non-return of the fixed deposit amount deposited by the complainant in the firm of the opposite parties.  The contentions and the evidences in both cases are also similar in nature.  Hence this common order. 

                3. This case is filed by the power of attorney holder of the complainant.  The case of the complainant is that she had deposited an amount of Rs.5 lakhs on 23.01.2008 for a period of 48 months at the rate of 15% interest per annum and she had made another deposit of Rs. 5 lakhs on 02.02.2008 for a period of 48 months at the rate of 15% interest per annum with the same opposite parties.  For the deposits opposite parties also issued fixed deposit receipts in the name of the complainant.  The first fixed deposit matured on 23.01.2012 and the 2^nd fixed deposit matured on 02.02.2012.  The interest accrued is Rs. 3 lakhs in each fixed deposit.  On maturity of the said fixed deposits, complainant approached the opposite parties for the release of the fixed deposit amount along with its accrued interest.  But opposite parties denied the payment.  Thereafter, the complainant made several attempts for receiving the said amount which was also ended in failure.  Therefore, the complainant sent a registered legal notice to the opposite parties on 20.06.2012 which was received by the opposite parties on 21.06.2012.  Even after the receipt of the legal notices, opposite parties failed to return the fixed deposit amounts and its interest.  The above said act of the opposite parties is a clear deficiency in service which caused financial loss and mental agony to the complainant.  Hence this complaint for the realization of the fixed deposit amounts and its interest upto the date of maturity of the fixed deposit along with 15% interest till the realization of the whole amount with compensation of Rs. 10,000 and cost of Rs. 5,000 in each cases.

                4. In both cases opposite parties entered appearance and filed separate version in each cases.  The contentions raised in the version of both cases are similar.  The main contentions are as follows:-  The complainant is a stranger to the opposite parties as she had not paid any amount to the opposite parties as fixed deposit or otherwise.  Opposite parties has not received any amount from the complainant or they have not issued any fixed deposit receipts in the name of the complainant.  The 2^nd opposite party was doing his business in the building of the complainant’s father on rental basis.  While so, the father of the complainant advanced certain amounts to the opposite parties on the strength of promissory note, signed blank cheques and signed blank papers etc.  Further as demanded by the father of the complainant, 2^nd opposite party was forced to sign certain blank printed documents provided by him for the amount advanced by the father of the complainant. Substantial amounts were also returned to him with exorbitant interest.  The complainant’s father also collected large some of money from the 2^nd opposite party under threat, coercion etc. and now no amount is due to the father of the complainant from the opposite parties as the opposite party had already disposed his residential property and paid all the amounts due to the father of the complainant as demanded by him.  Though the opposite party had paid the amounts to the father of the complainant he had deliberately not returned what all documents collected by him from the opposite party.  Thereafter, the complainant’s father demanded an exorbitant amount from the opposite parties.  The fixed deposit receipt in question was not executed by the opposite parties and the signature of the 2^nd opposite party was fraudulently obtained by the father of the complainant.  Since fixed deposit receipts in question are forged documents without any consideration, opposite parties are not liable to the complainant and they have not committed any deficiency in service.  With the above contentions, opposite parties prays for the dismissal of both complaints.

                5. On the basis of the pleadings of the parties, the only point to be considered is whether these complaints are allowable or not?

                6. The evidence in C.C.No.172/12 consists of the oral testimony of PW1, DW1 and Exts.A1 to A8 and the evidence in C.C. No.173/12 consists of the oral testimony of PW1, DW1 and Exts.A1 to A5 series.  After closure of evidence, both sides were heard.

                7. The Point:-  The allegations against the opposite parties in both cases is that the amount deposited by the complainant with the opposite parties as fixed deposits were not returned on its maturity with its agreed interest in spite of the demand of the complainant.

                8. In order to prove the case of the complainant, the complainant adduced oral evidences as PW1 in both cases on the basis of the proof affidavits and the documents produced in C.C.172/2012 is marked as Exts. A1 to A8 and the documents produced in C.C.173/2012 is marked as Exts. A1 to A5 series.  Exts. A1 to A5 series in both cases are similar documents.  Ext. A1 in both cases is the power of attorney executed by the complainant in favour of PW1.  Ext. A2 in both cases are the fixed deposit receipts issued by the opposite parties. Exts. A3 to A5 series are the advocate notices sent by the complainant and its postal receipts and acknowledgment cards. Ext. A6 in C.C. 172/2012 is the copy of the plaint in O.S.2/2012 of the Sub Court, Thiruvalla filed by the opposite parties against one T.A. Samuel and others.  Ext. A7 in C.C. 172/2012 is the copy of the compromise petition filed by the parties in O.S. 2/2012 of Sub Court, Thiruvalla.  Ext. A8 in C.C. 172/2012 is the certified copy of the certificate issued from commercial taxes in the name of the second opposite party.

                9. On the other hand, the contention of the opposite parties in both cases is that the complainant is a stranger to the opposite parties and there is no transaction between the complainant and the opposite parties so far.  But the opposite parties was a tenant of the complainant’s father and the complainant’s father and the opposite parties have some money transactions and all the said transactions were closed by the opposite parties by paying the entire dues to the complainant’s father.  Apart from the above transactions, complainant’s father had obtained blank signed cheques, printed forms and some other signed blank documents fraudulently from the opposite parties without any valid considerations by using the relationship with the opposite parties being a tenant of the complainant’s father.  The fixed deposit receipts used in these cases are fabricated documents fabricated by the complainant’s father by using the fraudulently obtained documents for grabbing money from the opposite parties.  There is no valid consideration for the said fixed deposit receipts either to the complainant or to the complainant’s father.  With the above contentions, opposite parties argued for the dismissal of the complaint.

                10. In order to prove the case of the opposite parties, the first opposite party filed a proof affidavit and on the basis of the proof affidavit, the first opposite party was examined as DW1 in C.C. 172/2012.

                11. Since the contentions and contents of the proof affidavits of the opposite parties in both cases are one and the same, the first opposite was not examined in C.C. 173/2012.  Instead of examination, the deposition of DW1 in C.C. 172/2012 is adopted as the deposition of the first opposite party in C.C. 173/2012.  In both cases, opposite parties have not adduced any documentary evidence.

                12. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that in both cases, opposite parties’ stand is total denial and his main contention is that the fixed deposit receipts in question are fabricated documents.  But the opposite parties’ deposition before this Forum as DW1 is totally against his contentions.  The relevant portion of the deposition of DW1 in cross examination is as follows: “Fsâ Øm]-\-¯nsâ t]cn F.D ckoXv hymP-ambn Na-¨n-«p-s­¶v ]dªv Rm³ tIkp-I-sfm¶pw \ÂIn-bn-«n-Ã.  Ext.A2-þ ImWp¶ H¸v Ftâ-Xm-Wv.  AXn R§-fpsS koepw Fw»hpw D­v.  AXnse ssI¸S Ftâ-Xà (Q) (A).  Ext.A3 t\m«o.kn\v adp-]Sn Ab-¨n-«nÔ.  The above deposition of DW1 cuts the root of opposite parties’ contentions.  Further opposite parties have not adduced any evidence supporting their contentions.  Therefore, we find that Ext. A3 fixed deposit receipts in both cases are genuine and the opposite parties are liable for the amounts deposited by the complainant vide Ext. A3 fixed deposit receipts.  The non-payment of the above amount by the opposite parties is a clear deficiency in service.  Therefore, these complaints are allowable.

                13. In the result, C.C. 172/2012 and C.C. 173/2012 are allowed, thereby the opposite parties are directed to return the fixed deposit amounts as per Ext. A3 fixed deposit receipts in both cases and its agreed rate of interest from the date of deposit along with compensation of Rs. 5,000 (Rupees Five thousand only) each in both cases and cost of Rs. 1,000 (Rupees One thousand only) each in both cases within 15 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount ordered herein above with 12% interest from today till the realization of the whole amount.

                Declared in the Open Forum on this the 25^th day of February, 2013.

                                                                                    (Sd/-)

                                                                             Jacob Stephen,

                                                                                (President)

Smt. K.P. Padmasree (Member) :       (Sd/-)

Appendix:

C.C.No. 172/2012.

Witness examined on the side of the complainant:

PW1 :       Mathew Abraham.

Exhibits marked on the side of the complainant:

A1    :       Power of attorney executed by the complainant in

                 favour of Mathew Abraham 27.08.2012.

A2    :       Fixed Deposit Receipt dated 23.01.2008 for Rs. 5,00,000

                 issued by the opposite parties to the complainant.

A3    :       Copy of advocate notice dated 20.06.2012 issued by the

                 complainant to the opposite parties.

A4 to A4(d) : Postal receipts of Ext. A3.

A5 to A5(d): Postal acknowledgment cards of Ext. A3.

A6    :       Copy of the plaint in O.S.2/2012 of the Sub Court,

                 Thiruvalla filed by the complainant against one T.A.

                 Samuel and others.

A7    :       Copy of compromise petition filed by the parties in O.S.

                 2/2012 of Sub Court, Thiruvalla.

A8    :       Certified copy of the certificate dated 31.12.2011 issued

                 from the office of the Inspg. Assistant Commissioner,

                 Commercial Taxes, Pathanamthitta in the name of the

                 second opposite party.

Witness examined on the side of the opposite parties:

DW1        :       S. Sajeev.

Exhibits marked on the side of the opposite parties: Nil.

C.C.No. 173/2012.

Witness examined on the side of the complainant:

PW1 :       Mathew Abraham.

Exhibits marked on the side of the complainant:

A1    :       Power of attorney executed by the complainant in

                 favour of Mathew Abraham 27.08.2012.

A2    :       Fixed Deposit Receipt dated 02.02.2008 for Rs. 5,00,000

                 issued by the opposite parties to the complainant.

A3    :       Copy of advocate notice dated 20.06.2012 issued by the

                 complainant to the opposite parties.

A4 to A4(d) : Postal receipts of Ext. A3.

A5 to A5(d): Postal acknowledgment cards of Ext. A3.

Witness examined on the side of the opposite parties:

DW1        :       S. Sajeev.

Exhibits marked on the side of the opposite parties: Nil.

                                                                           (By Order)

                                                                                (Sd/-)

                                                                    Senior Superintendent

Copy to:- (1) Mathew Abraham, Pandiyalakal House, Vanchithra,   

                     Kozhencherry, Pathanamthitta Dist.

(2)  S. Rajeev, Managing Partner, M/s. Cheruvallil 

      Investments, Thottathil Building, Maramon P.O.,

      Pin – 689 549, Pathanamthitta Dist.

               (3)  S. Rajeev, Cheruvallil House, Maramon P.O.,

                     Pin – 689 549, Pathanamthitta Dist.

                (4) The Stock File.