COMMON ORDER

Sri. P. Satheesh Chandran Nair (President):

                The complainant filed this two petitions u/s.12 of the C.P. Act 1986 for getting reliefs from the opposite parties.

                2. The case of the complainant in C.C.No.81/15 is as follows:  This complaint is filed by one N. Sunil Kumar, who is the power of attorney holder of the real complainant Sri. K.S. Varghese as shown above.  According to the complainant, the 1^st opposite party is a partnership firm and he is conducting financial business.  The 2^nd and 3^rd opposite parties are the managing partner and partner of the said firm.  It is contended that the opposite parties approached the complainant with a promise to give 15% of interest rate for fixed deposit for a term of 120 months.  The complainant believed the assurance and deposited Rs.50,000/- on 28.08.2004, and its maturity date was on 28.08.2014.  According to the complainant (P/A holder) the maturity amount including the interest comes to Rs.1,25,000/-.  It is further contended that the complainant approached the opposite parties several time for the return of the fixed deposit amount with interest they failed to return the same.  It is further contended that the act of the opposite parties is a clear case of deficiency in service against the complainant.

                3. The case of the complainant in C.C.No.82/15 is as follows:  The above said opposite parties approached the complainant with an assurance of interest of 15% for fixed deposit for a period of 120 months.  The complainant on 12.12.2004 deposited an amount of Rs.6 lakhs with the opposite parties and received two fixed deposit receipts each for Rs.3 lakhs.  According to the complainant the fixed deposits were matured on 12.12.2014 and the maturity amount was for an amount of Rs.7.5 lakhs each. Even though, the complainant asked the opposite party to return the fixed deposit with interest he failed to do it.  The acts of the opposite parties are deficiency of service of their part and the opposite parties are liable to the complainant.

                4. The complainant filed these two cases before the Forum for the refund of the 3 fixed deposits with 15% interest, compensation, cost etc. etc.  This Forum entertained these two cases and issue notices to the opposite parties for their appearance.  The opposite party entered appearance and filed separate versions in the above cases.

                5. The contents of the two versions filed in two cases are more or less same and briefly stated as follows:  According to the opposite parties, the cases against them are not maintainable either in law or on facts.  It is contended that the complaint itself is baseless, false and does not have any legal validity.  The person behind the original complainant is one T.S. Samuel who is so enimical to these opposite parties and also stated that the said Samuel had secured several blank signed papers and receipts from the opposite parties and using the same to harass the opposite parties.  It is further contended that the firm of the opposite parties is not a partnership firm and the 3^rd opposite party is impleaded in the complaint without any base.  The opposite parties specifically contended that they are not even familiar to this complainant or even any transaction with the complainant.  It is again contended that these cases filed against the opposite parties only with the instigation of the above said T.S. Samuel.  It is also contended that there is no legally enforceable debt subsisting between the complainant and opposite parties moreover no documents were executed between the parties as alleged.  The opposite parties neither received any amount from the complainant nor liable to pay any amount to him.  According to the opposite parties, there is no consumer relationship between the complainant and opposite parties hence, the complaint derives any merits at all.  It is also contended that the complainant is not eligible to get any kind of compensation from the opposite parties since there is no deficiency in service or unfair trade practice as alleged by the complainant.  It is contended that this case is barred for misjoinder of parties since 3^rd opposite party is not a necessary party in these proceedings.  Therefore, the opposite parties in the above two cases prayed to dismiss the complaint with cost to the opposite parties. 

                6. This Forum peruse the complaint, version and records before us and framed the following issues:

1. Whether the case is maintainable before the Forum?
2. Whether the opposite party committed any deficiency in service against the complainants?
3. Regarding reliefs and costs?

         7. At the time of trial, on 11.03.2016 the learned counsel appearing for the opposite parties filed a joint trial petition for the above cases.  Since the complainant has not raised any objection moreover the complainant and opposite parties in C.C.No.81/15 and the complainant and opposite parties in C.C.No.82/15 are one and the same, and the subject matter in the above two cases are also one and the same we allowed the joint trial petition and treated C.C.No.81/15 as the main case and C.C.No.82/15 as the connected case of C.C.No.81/15.  In the light of the decision of a joint trial of C.C.no.81/15 and 82/15 the complainant and opposite parties adduced common evidence in both cases.

        8. The evidence of complainants’ case consists of the 2 proof affidavits filed in lieu of chief examinations and marked Ext.A1 and A2 in C.C.No.81/15 and Ext.A1 to A4 in C.C.No.82/15.  The complainants P/A holder the above said Sunil Kumar is examined as PW1.  In C.C.No.81/15, the copy of power of attorney executed by the complainant in favour of PW1 is marked as Ext.A1.  Ext.A2 is the F.D. Receipt No.635 dated 28.08.2004 for Rs.50,000/- issued by the opposite parties to the complainant . In C.C.No.82/15, the P/A executed by the complainant in favour of PW1 is marked as Ext.A1.  Ext.A2 is the F.D. Receipt No.638 dated 12.12.2004 for Rs.3 lakhs issued by the opposite parties to the complainant. Ext.A3 is the F.D. Receipt No.639 dated 12.12.2004 for Rs.3 lakhs issued by the opposite parties to the complainant.  Ext.A4 is a portion of the vakalath executed by the opposite party 2. On the other side, the 2^nd opposite party is examined as DW1.  He who filed a joint proof affidavit in lieu of his chief examination and at the time of cross-examination complainant marked Ext.A4 through him.  When we peruse the proof affidavit filed by the complainant - P/A holder it reveals that the proof affidavit is more or less as per the tune of the complaints of the above two cases.  It is deposed that PW1 deposited an amount of Rs.50,000/- on 28.08.2004 and Rs.3 lakhs each on 12.12.2004 for an interest of 15% per annum.  At the time of maturity he demanded the fixed deposit with interest from the opposite party but the opposite party failed to refund the amount to PW1.  On the other side, we peruse the proof affidavit filed by the 2^nd opposite party it also reveals that he is also relying more or less as per the contention of the version.  The 2^nd opposite party was examined as DW1 he who deposed that his financial institution is not a partnership firm as alleged by the complainant and 3^rd opposite party the wife of DW1 is not at all a necessary party for the proceedings of this case and the case is bad for misjoinder of parties.  It is also deposed that the opposite party neither given any assurance nor demanded for any money from the complainant as fixed deposits as deposed by PW1 in this case.  It is again deposed that there is no transaction between the complainant and opposite parties as deposed by PW1 and DW1 has not committed any deficiency in service or unfair trade practice.  The PW1 and DW1 in this case are cross-examined by the learned counsels appearing for them respectively.  After the closure of evidence, we heard both sides.

        9. Point No.1:  The opposite party specifically contended that the case is not maintainable before the Forum and this Forum has not enjoyed any jurisdiction to try this case.  When perusing the available evidence it is to see that the complainant produced and marked Ext.A2 in C.C.No.81/15 and Ext.A2 and A3 in C.C.No.82/15.  The opposite parties raised another contention to the effect that the P/A holder has no right to represent the original complainant in these cases since the P/A holder executed the power of attorney (Ext.A1, in C.C.No.81/15) in the absence of the original complainant.  In order to arrive a conclusion with regard to the above contention we would have to peruse Ext.A2 (C.C.No.81/15) Ext.A2 and A3 (C.C.No.82/15).  It is to see that the receipt is issued in the name and style of Cheruvallil Investment, Thottathil Building, Maramon etc. etc.  Moreover, the fixed deposit receipt carries number, name and address of the depositor, amount, seal, the managing partners’ signature etc.  Though the learned counsel appearing for the opposite party tried to discard this piece of evidence nothing brought out to disbelieve the credibility of these fixed deposit receipts.  Regarding the P/A holder’s locus standi, there also opposite party, raised certain contention but not succeed to produce any substantial evidence to see the absence of complainant at the time of the execution of the power of attorney.  The above stated evidence are sufficient to believe that the complainant deposited the amount shown in the above 3 exhibits with opposite party.  Hence it is to be find that the complainant is a consumer of the opposite parties and the opposite parties are service providers of the complainant thereby this Forum has got jurisdiction to try this case as per C.P. Act.  Hence Point No.1 found accordingly.

        10. Point Nos.2 & 3:- The next question to be considered is whether the opposite party committed any deficiency in service against the complainant.  As discussed earlier, it is proved that the Ext.A2 in C.C.No.81/15, and the Ext.A2, A3 in C.C.No.82/15 are the fixed deposit receipts of the complainant.  It is to be admitted that the opposite parties in this case raised a serious contention to the effect that these fixed deposit receipts are not issued by the opposite party and all these exhibits are fabricated one.  According to the opposite parties, one C.A. Samuel who was enimical to these opposite parties he who however managed to steal all these records from the custody of the opposite party and due to the instigation of the above said Samuel, the complainant approached this Forum and filed this case against the opposite parties without any bonafide.  Though the learned counsel appearing for the opposite parties cross-examined this aspect, the complainant’s P/A holder PW1 totally denied all these suggestions.  Another serious contention raised by the opposite party is that at the alleged time of the execution of Ext.A1 of C.C.No.81/15 the real complainant was not in station and this document is also a fabricated one. In order to substantiate this contention the opposite party has not produced any convincing evidence before us.  We do admit that for this purpose the learned counsel appearing for the opposite party asked so many suggestive questions to PW1.  When we consider the relevancy of the above fixed deposit receipts we are relying the contention of the complainant as more probable than the opposite parties.  It is to see that the opposite parties are also raised serious doubt about the source of the income of the complainant for these deposits.  It is admitted that the original complainant herein is a person who is working in USA.  The opposite party has no specific stand with regard to his job in USA.  If the opposite party relying on the suggestion to the effect that on 28.08.2004 and 12.12.2004 the original complaint was not present in India or he did not deposit the above said amount the opposite party can take positive steps for giving proper direction to the complainant to produce the passport or any other kinds of travel documents before the Forum.  As per the evidence act it is clear that those who challenge the evidence must have prove their case.  Hence the burden of proof of this aspect is clearly on the shoulders of the opposite party.  The deposition of DW1, he categorically deposed that his business establishment is not a partnership firm and he has no relation with the complainant of this case.  DW1 deposed that his firm is a proprietor ship firm and 3^rd opposite party has no relationship with this proprietorship.  It is to see that when DW1 was cross-examined the learned counsel for the complainant asked a question, “Xm¦-fpsS vakalathþ Managing Partner F¶tà Fgp-Xn-bn-cn-¡p-¶Xv?  AsX(A)”.  The portion of the vakalath is marked as Ext.A4.  In the light of the evidence as per Ext.A4, we can inferred that as the managing partner of the firm the DW1 signed the vakalath and that portion is marked as Ext.A4. Another contention raised by the opposite parties in this case is that the seal and signature seen in the fixed deposit receipts are forged by the complainant and the opposite parties are not admitting these documents. In order to prove their contention opposite party has not taken any coersive steps against the complainant.  At the time of cross-examining DW1, the learned counsel appearing for the complainant asked specific question with regard to the above stated 3 fixed deposit receipts and its relevancy.  It is to see that DW1 specifically denied all the suggestion put forward by the complainant’s counsel.  It is also to see that the opposite party did not take any positive steps in connection with the alleged fabrication of records, making of seal, making false fixed deposit receipts, signature etc. to substantiate his case.  In a specific question he answered, “km¼-¯nI ØnXn tami-am-b-Xn-\m-emtWm ]Ww XncnsI sImSp-¡m-¯Xv”? (Q) “AsX” (A).  On the basis of this answer it can be inferred that due to the financial stringency he did not return the deposit amount to the complainant.  Hence it can be found that the opposite party totally failed to stick on to any other contention in the light of this answer.

                11. The complainant in both the cases filed this case for the refund of the fixed deposit amounts with an interest of 15% per annum.  As discussed earlier, opposite party has taken a stand to the effect that complainant was not present at the time of depositing all these three deposits and he was absent at the time of executing the power of attorney in favour of the power of attorney holder of this case.  It is interesting to analyse the answer in cross-examination of PW1, “2015 P\p-hcn BZ-y-amWv tIkv Gä-Sp-¡-W-sa¶v Ft¶mSv ]d-ª-Xv.   Ft¶mSv Snbm³ ]d-bp-¶-Xn\p ap¼p-Xs¶ Cu tIknsâ hkvXp-X-IÄ F\n-¡-dn-bm-   a-mbn-cp-¶p.  ]Ww \nt£-]n-¨-Im-c-y-amWv F\n¡v Adnbm-sa-¶p-]-d-ª-Xv.  ]Ww \nt£-]n-¡p-hm³ t]mbXv Rm³ IqSn-bm-Wv.  A§s\ Fs¶ hnfn-¨p-sIm­p t]mbn \nt£-]n-¡p-I-bm-bn-cp-¶p.  Fs¶ hnfn-¨p-sIm-­p-t]mbn c­p {]mh-iyw ]Ww \nt£-]n-¨p. Rm³ A\n .]n. hÀ¤o-knsâ h¡o-em-^o-kn t]mbn tcJ-bn H¸n-«p-sIm-Sp-¯p.  ]Ww deposit sNbvXp F¶v Btcm-]n-¡p-¶-Ø-e¯v Rm³ Hcp tcJ-bnepw H¸n-«p-sIm-Sp-¯n-«n-Ã.  28/08/2004  BWv A{]-Imcw deposit sN¿p-t¼mÄ IqsS t]mb-Xv.  50,000/þ deposit  120 amk-t¯¡v Bbn-cp-¶p.  Cu \nt£]w Ignªv 12/12/2004  6 e£w cq] IqSn  deposit sNbvXp.  A¶pw Rm\p-­m-bn-cp-¶p.  Cu \nt£-]-§Ä cq]-bm-bn-«mWv sImSp-¯-Xv”.    In the light of the above answer the contention of the complaint with regard to the mode of deposit and execution of the Power of Attorney were proved beyond doubt.  This answers are actually a self goal against the opposite party.

                12. In order to rely the genuineness of the power of Attorney the Forum has to peruse Ext. A1 (original) in CC. 82/15.  It is to see that Ext. A1 is executed on 13/01/2015 and the same is signed by the said K.s. Varghese in the presence of the Notary Sri. Anil P. Varghese.  The Power of Attorney holder the present complaint herein is also signed in Ext. A1.  Though the opposite party questioned the execution of Power of Attorney they did not take positive steps to prove their case.  The act of the Notary public is deemed to be a legal act until and unless it is disproved otherwise.

                13. Another important question to be considered is whether opposite party has any right to accept deposit as per Money Lenders Act.  If the opposite party has a contention to this effect why they failed to raise this aspect at the time of filing version?  It is interesting to see that at the time of cross-examination the opposite party did not even suggest this aspect to PW1 or narrated this aspect even at the time of filing proof affidavit of DW1.  As a result it can be safely inferred that the opposite party is conducting this business as per the provision Money Lenders Act.  It is to see that opposite party is contesting only with regard to the character of his enterprise, i.e. a partnership or proprietorship.  The opposite parties have no case to show that the opposite parties are not conducting a financial enterprise.  When appreciating the evidence in a consumer case it is the paramount duty of the Forum to look after the genuine and legal interest of the consumer because it is a social and welfare legislation.  It is also to be noted that our Hon’ble Supreme Court in its decision reported in, 2010(2)KLT Suppl.118SC in Krishna Rao V Nikhil Super Specialty Hospital the Hon’ble Supreme Court held, “provision of Evidence Act are not applicable and the Fora under the Act are to follow principle of Natural Justice”.  The said dictum is connected to Evidence Act 1872, Ss 61, 64, 74& 75 – Consumer Protection Act 1986, Sec.2.  Here it is so clear that the complainant as an employee in U.S.A deposited his hard earned money with opposite party for security and for getting high interest. No prudent man can see that the act of the complainant is an illegal Act.  Moreover, with cogent and conclusive evidence complainant proved his case before the Forum.  It is to be bear in mind that the proceedings before this Forum is civil in nature and in that aspect also the complainant established his case in a convincing manner but on the other side opposite parties totally failed to establish all their contentions.

                14. According to the complainant he deposited the above Ext.A2 (C.C.No.81/15), Ext.A2 and A3 (C.C.No.82/15) for 120 months.  The agreed interest for the amount is 15% per annum as per the above exhibits.  The available evidence in hand shows that the complainant does not          received any interest from the opposite parties within the stipulated time, i.e. 120 months.  If so the next question to be considered is whether the complainant is eligible for the interest claimed.  As discussed earlier, it is found that the complainant is deposited the above 3 fixed deposits with the opposite parties for an interest of 15% per annum so that the complainant is eligible for interest as per the percentage seen in fixed deposit receipts.  The complainant did not adduce any evidence against opposite party 3 to prove her involvement in this case.  Therefore, opposite party 2 is exonerated from all charges. In the light of the above discussion, it is find that the complaint is allowable.  Therefore, Point No.2 and 3 found accordingly.

                15. In the result, we pass the following orders:

1. Opposite parties 1 and 2 are directed to return the deposit amount of Rs.6,50,000/- (Rupees Six Lakhs Fifty Thousand only) to the complainant with 15% interest for 120 months from the date of deposit of the amount as per Ext.A2 (C.C.No.81/15), Ext.A2 & A3 (C.C.No.82/15). The opposite party 1 and 2 are also directed to pay an interest of 6% for the above said amount till its realisation.

2. A compensation of Rs.10,000/- (Rupees Ten Thousand only) and a cost of Rs.3,000/- (Rupees Three Thousand only) are also allowed to the complainant from opposite parties 1 and 2 with 10% interest from the date of receipt of this order onwards.

        Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 31^st day of October, 2016.

                                                      (Sd/-)

                                        P. Satheesh Chandran Nair,

                                                      (President)

Smt. K.P. Padmasree (Member – I)             :    Not agreed

Smt. Sheela Jacob (Member- II)                  :    Not agreed

Dissenting Order

Smt. K.P. Padmasree (Member –I) &

Smt. Sheela Jacob (Member – II):

        We differs to the above order as the same is not sustainable in our view on the following grounds:

        The main contention of the opposite parties is that the power of attorney is prepared in the absence of the executants and the Ext.A2 and A3 are nothing but forged documents.  The opposite party 1 seriously contended that the Ext.A1 power of attorney is not duly executed and Ext.A2, A3 documents are fabricated.  Ext.A2 and A3 are fixed deposit receipts and on perusal of the same are we can see that the same are in the style of fixed deposit receipt and the amount will be repaid with 15% interest after 120 months from the date of deposit.  It is to be noted that the said certificates never shows that whether it is a partnership firm or proprietorship concern whatever may be the characters which is not a banking company or Non-Banking Finance Company approved by the RBI.  Without having a valid banking license or Non-Banking Finance Company license a person or institution has no right to receive deposit or deposits from general public.  Then how the opposite parties were receive such a deposit from the original complainant?  There is no such a case to the complainant that the opposite parties misrepresented the complaint that they are having valid license to procure fixed deposits from general public.  That be the situation how can we believe that a prudent man with good knowledge and who is living and working in U.S.A deposited a huge amount with the opposite parties?  The opposite parties seriously contended that they had never issued fixed deposit receipts in favour of the original complainant and they further contended that there is no transaction between the original complainant and opposite parties.  As far as Ext.A2, A3 documents are challenged by the opposite parties, the burden of proof heavily upon the complainant and they ought to have prove such documents which are executed properly in favour of the original complainant or to have adduce evidence to shift the onus upon the opposite parties.  It is very settled principle that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.  Moreover in Ext.A2 and A3 F.D receipts F.D. Receipt No…….. is seen altered and ‘6’ digit is newly added.  Hence the complainant miserably failed to prove the execution of Ext.A2 and A3 documents and also failed to prove the transactions between the original complainant and opposite parties and also the documents itself.  The second serious contention raised by the opposite parties, that the power of attorney is not a genuine one and which was executed in the absence of original complainant in India.  Sec.85 of the Indian Evidence clearly dealt with the evidentiary value of a notarized power of attorney which says that the court shall presume that every document purporting to be a power of attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Counsel or Vice-counsel or representative of the Central Government was so executed and authenticated.  Even the position be so, in the present case we can see that the Ext.A1 power of attorney was authenticated by a notary public but the same was not properly entered in the Notary Register and the Volume Number and Serial Number of the Notary Register was not mentioned in the power of attorney. The said suspicious circumstances justifies the contentions made by the opposite parties and the complainant made no steps to prove the power of attorney and also he even failed to produce the copy of the passport of the original complainant in order to prove the presence of the complainant at India on the date of execution of Ext.A1 power of attorney.  Therefore, we are of the view that these complaints are liable to be dismissed.

        In the result, complaint in C.C.No.81/2015 & C.C.No.82/2015 are dismissed.

                                   K.P. Padmasree (Member – I)  :    (Sd/-)

                                   Sheela Jacob (Member – II)       :    (Sd/-)

Appendix:

C.C.No.81/15

Witness examined on the side of the complainant:

PW1  :  Sunil Kumar. N

Exhibits marked on the side of the complainant:

A1 : copy of power of attorney executed by the complainant in favour of PW1.  A2 : F.D. Receipt No.635 dated 28.08.2004 for Rs.50,000/- issued by

       the opposite parties to the complainant.

Witness examined on the side of the opposite parties:

DW1  :  Rajeev

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

C.C.No.82/15

Appendix:

Witness examined on the side of the complainant:

PW1  :  Sunil Kumar. N

Exhibits marked on the side of the complainant:

A1 : P/A executed by the complainant in favour of PW1. 

A2 : F.D. Receipt No.638 dated 12.12.2004 for Rs.3 lakhs issued by

       the opposite parties to the complainant.

A3 : F.D. Receipt No.639 dated 12.12.2004 for Rs.3 lakhs issued by

       the opposite parties to the complainant.

A4 :  Portion of the vakalath.   

Witness examined on the side of the opposite parties:

DW1  :  Rajeev

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

                                                                                (By Order)

Copy to:- (1) N. Sunil Kumar,  Kalayil House,

                     Nedumprayar, Pathanamthitta Dist.

2. 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. Mrs. Suja Rajeev, Cheruvallil House,Maramon P.O.,

Pin – 689 549, Pathanamthitta Dist