BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE:  23.06.2016

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.: 318/2015    

Complainant/s:

1. Dr.Sunanda Ramrao Kulkarni, Age: 66 years, Occ: Doctor, R/o.575, Amogha Varsha, 21^st Main, 35^th Cross, Jayanagar, Bangalore.

2. Smt.Sudha Murthy, W/o.Sri.N.R. Narayana Murthy, Age: 64 years, R/o.575, Amogha Varsha, 21st Main, 35th Cross, Jayanagar, Bangalore.

3. Smt.Jaishree W/o. Gururaj Deshpande, Age: 62 years, R/o.United States of America. 

4. Dr.Shrinivas Ramrao Kulkarni, Age: 59 years, Occ: Doctor, R/o.United States of America. 

(By Sri.S.B.Mattur, Adv.)

v/s

Respondent/s:

1.  M/s.Krupa Medical Agencies, Reptd.by its Managing Partner, Sri.Anand s/o.Bapurao Deshpande, Age: 54 years, Occ: Business, House No.74, Near J.K.School, Santosh Nagar, Hubli-32.

2. Sri.Anand s/o. Bapurao Deshpande, Age: 54 years, Occ: Business, House No.74, Near J.K.School, Santosh Nagar, Hubli-32.

(By Sri.B.S.Hoskeri, Adv.)

3. Smt.Anuradha w/o. Aravinrao Deshpande, Age: major, Occ: Household Work, R/o.Vikrampur, Athani, Dist.Belgaum.

4. Smt.Vijaya w/o. Bapurao Deshpande, Age: major, Occ: Household Work, R/o.Vikrampur, Athani, Dist.Belgaum.

(By Sri.M.M.Laxetti, Adv.)

5. Dr.Govind H.Naregal, Age: Major, Occ: Doctor, R/o.Sri Siddarudha Swamy Math Road, Old Hubli, Hubli.

6. Dr.Sharaschandra Govindrao Naregal, Age: Major, Occ: Doctor, R/o.Sri Siddarudha Swamy Math Road, Old Hubli, Hubli.

(By Sri.B.G.Megundi, Adv.)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainants have filed this complaint claiming  for a direction to respondents 1 to 6 to  return the entire amount of Rs.5 lakhs along with interest @21% from 30.06.2013 till realization, to order for cost of the proceedings and to grant such other reliefs.

Brief facts of the case are as under:

2.     The case of the complainants is that,  the complainant deceased father had invested in total Rs.5 lakhs with the respondents as per the details:

Respondent 1 is the firm, respondent 2 is the managing partner, respondent 3 to 6 are all partners of the respondent 1 firm. Till 30.06.2013 the respondents.2 to 6 have paid interest on the deposited amount, thereafter not paid the interest nor the principal amount despite issuance of the notice. Though the respondent.1 and 2 are residing in the given address intentionally not claimed the notice and managed the same as they are not residing in the said address. Non payment of the amount and interest by the respondents amount to deficiency in service. Hence, the complainants have filed the instant complaint praying for the relief as sought.

3.     In response to the notice issued from this Forum the respondents appeared. Respondent.1 and 2 filed preliminary objections as well as objections to the main petition. Respondents 3 and 4 not filed written version. The respondents. 1, 2 ,5 and 6 have filed written version contending that the very complaint is not maintainable either in law or on facts and also taken contention that the complainants are not consumers and the present complaint is not a consumer complaint and also taken contention that the complaint is barred by limitation and prays for dismissal of the complaint. Further respondents also denied the relationship of consumer and service provider, appeasement made by the respondent to deposit amount by the complainant and also several approaches made by the complainant requesting to refund the amount and also denied issuance of notice and also payment of interest till 30.06.2013 & puts the complainant to strict proof of the same by denying the deficiency in service, cause of action, nature of complaint, meaning of consumer and service provider relationship, legal heirship with the deceased depositor and prays for dismissal of the complaint with cost as contemplated u/s.26 of CP Act.

4.     On the said pleadings the following points have arisen for consideration:

1.  Whether complainant has proved that there was deficiency in service on the part of respondents ?

2.  Whether complainant is entitled to the relief as claimed ?

3.  To what relief the complainant is entitled ?

Complainant & respondent 1 &2 have adduced sworn to evidence affidavit, relied on documents. Respondent 3 to 6 have not adduced evidence. Apart from argument the complainant relied on citations.  Heard. Perused the records.

Finding on points is as under.

1.    Affirmatively

2.    Accordingly

3.    As per order

Complainant relied on:

1. CPJ 2003 (3) Pg.137
2. 2001 (2) CPJ 138
3. 2012 (2) CPJ 531
4. 2002 (3) CPJ 8 Supreme Court
5. 2003 (3) CPJ   137
6. 2004 (1) CPJ 56 NC
7. 2004 (3) CPJ 741
8. 2001 (2) CPJ 138
9. 2012 (2) CPJ 531 NC
10. 1992 CPJ 302 NC
11. 1997 CPJ Pg.96-KERALA SCDRC

R E A S O N S

P O I N T S 1 & 2

5.     On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, the complainants deceased father had deposited amount with respondent 1 firm.    

6.     Now the question to be determined is, whether the respondent 2 to 6 are the partners of the firm & non payment of the FDR amount, amounts to a deficiency in service, if so, for what relief the complainant is entitled.

7.     Since the facts have been revealed in detail which requires no repetition.

8.     As briefly noted supra on the preliminary objections raised by the respondents and also IA no.1 filed by the respondent 1 and 2 this Forum has already passed orders on maintainability with regard to the facts raised in I.A.1 i.e. complainants are the consumers, limitation point, deficiency in service, cause of action, subject matter of the complaint, legal heir relationship of the complainants with the deceased deposit holder and other facts by the order dtd.22.04.2016 hold and held answering the above facts affirmatively & maintainability of complaint on those points. Hence, there is no need to once again discuss the same & to answer.

9.     Now the only question to determine is, whether the complainants are entitled to the claim amount of Rs.5 lakhs with interest & not payment of the same by the respondents amounts to a deficiency in service, if so, for what reliefs the complainants entitled.

10.   The Ex.C5 consolidated FDR receipts of Ex.C1 to C3 &4 bearing receipt no.127 dtd.26.06.1999 reveals that the complainants are entitled for Rs.5 lakhs with interest @21% PA. On perusal of the Ex.C5 reveals no maturity date on the said receipt or on the other receipts Ex.C1 to 4. Under those circumstances the limitation continues till date of demand. Ex.C6 is the legal notice got issued on 19.12.2014 calling upon the respondents to settle the same. In rebuttable to this legal notice the respondent 1 and 2 produced Ex.R1 legal notice copy dtd.28.07.2014 contending that earlier to Ex.C6 the complainants have issued legal notice to the respondents and objected & disputes with regard to the cause of action and consideration of limitation point to lodge complaint before the Forum. As discussed supra along with the orders on I.A.1 already orders have been passed with regard to the limitation point in affirmatively. Under those circumstances which need not be discussed once again.

11.   Now coming to the payment of claim amount Rs.5 lakhs as per Ex.C5 & accrued interest on it till realization. Since the complainants have admitted they have received upto date interest till 30.06.2013 the same has been accepted though the respondents have denied the same.

12.   As per the own admission of the complainants they have received the interest on FDR amount till 30.06.2013 @ 21%. By this it is evident that complainants have enjoyed and reports receipt of interest@21% PA for a period of 17 years till 30.06.2013 as per their own admission. At present as per RBI the running rate of interest on deposit is 7%. Respondents also have taken contention that due to loss met by respondent.1 firm they have stopped the business transaction in the year 2009. That apart respondent 1 and 2 in their written version they have taken contention that the respondents are incapacity to comply the alleged reliefs sought as they have suffered heavy loss. Further respondent.2 also taken contention that the respondent.2 has filed Insolvency Petition No.01/20111 before the Hon’ble PCJ Hubli in respect of respondent.1 firms financial dealings, but not produced any documents with regard to pendency of the Insolvency Petition or with regard to final disposal of the same. However it is admitted fact that the respondent.1 firm has met with financial crises. Under those circumstances and also for the reason the respondent.1 firm has been defuncted since 2009 it is not proper to refund of the FDR amount with the same rate of interest @21% PA as claimed & if it is ordered to refund the same @ 6% interest PA subsequent to 30.06.2013 till realization it will be justified on the principles of equity and social justice. Taking into consideration of evidence on records coupled with documents complainants have established their case of non payment of the amount as per FDR Ex.C5 amounts to a deficiency in service by the respondents. Accordingly complainants are entitled for the reliefs.

13.  In view of the above discussions we have arrived and proceed to held issue.1 and 2  in affirmatively & accordingly.

14.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

O R D E R

        Complaint is allowed in part. respondent 1 to 6 jointly and severally to refund Rs.5 lakhs with interest @6% P.A. from 30.06.2013 onwards till realization along with Rs.2,000/- towards cost of the proceedings within 60 days from the date of receipt of copy of this order. Failing to comply the same within stipulated period the said amount shall carry interest @7% P.A. thereon till realization.

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 23^rd  day of June 2016)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR