This Complaint coming up before us for hearing on                     03-06-11 in the presence of Sri B.M.S. Durga Prasad, advocate for the complainant and of Sri L.V. Kumar, advocate for opposite party                        upon perusing the material on record after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao, President:-

        The complainant filed this complaint U/S 12 of Consumer Protection Act seeking the prized amount of Rs.1,69,900/- together with interest at 24% p.a., from 18-02-06 onwards, Rs.1,00,000/- as compensation and for costs.

2.     In brief the averments of the complaint are these:

The complainant is a subscriber of the chit bearing No.SPMX-5/35.   Value of the chit was Rs.2,00,000/- spread over for a period of 40 months @5,000/- pm.   The complainant became the prized subscriber in the auction held on 18-02-06 and agreed to forego Rs.30,100/-.  When the complainant tried to withdraw the prized amount, the opposite party informed that he stood as surety to one T. Seshaiah and pendency of OS 39/04 on the file of Prl.Senior Civil Judge, Tenali.   The opposite party informed that he never stood as guarantor to the said Seshaiah.  OS 39 of 2004 filed by the opposite party against T. Seshaiah was decreed on 15-07-08 for Rs.1,02,676/-.   The complainant, T. Seshaiah and another preferred AS 209/08 against the Judgement in OS 39/04 and it was partly allowed on          05-06-09.  Claim against the complainant in OS 39/04 was dismissed.  After disposal of the said appeal the complainant approached the opposite party and demanded the prize amount.   But the opposite party failed to release the prize amount.  The opposite party has no right to appropriate the prize amount of the subscriber to the debt covered by OS 39/04.   The opposite party illegally withhold the prized amount.   The opposite party is entitled to receive the remaining installment amounts after deducting the dividend.   The conduct of the opposite party amounted to deficiency of service.  The complaint therefore be allowed.

3.   The contention of the opposite party in brief is hereunder:-

        The complainant is one of the subscribers in SPLK.5/35 chit for Rs.2,00,000/- spread over for a period of 40 months @RS.5,000/-.  The complainant became successful bidder in the auction held on 18-02-06 and agree to forego Rs.30,100/-.   The complainant stood as surety to one T.Seshaiah in SPLO.1-44 and SPLJ 28/46 and they committed default in payment of future instalments.  On demand the complainant gave a letter to the opposite party on 26-07-06 requesting the opposite party to adjust the prize amount payable to him to the chit No.SPLO1/44 to a tune of Rs.75,856/- + Rs.10,424/- = Rs.10,424/- was adjusted in LJ 28/46.   The net amount payable to him after deducting 5% commission is Rs.86,280/-.   No amount was payable to the complainant.  OS 39/04 against the complainant was decreed.  In pursuance of the said decree and judgement the opposite party filed execution in and in execution of the said decree full satisfaction was recorded.  Meanwhile AS 209/08 was allowed as the opposite party did not contest the said appeal.  In view of the letter given by the complainant the opposite party already adjusted the amount as stated supra. The complaint therefore be dismissed.

4.   Exs.A-1 to A-8 on behalf of complainant and Ex.B-1 on behalf of opposite party were marked.    

5.      Now the points that arose for consideration in this case are:

1. Whether the opposite party committed deficiency of service?
2. Whether the complainant is entitled to compensation?
3. To what relief?

6.   POINTS 1&2:-   Exs.A-7 revealed that the opposite party filed       OS 39/04 against one T. Seshaiah, the complainant herein and two others for recovery of Rs.2,59,200/- and it was reduced to Rs.1,78,532/- as per orders in IA 1596/08 dated 08-04-08.  Ex.A-7 revealed that OS 39/04 was decreed for Rs.1,02,676/- with interest at 12% p.a., from the date of the suit till decree and interest 6% p.a., from the date of decree till realisation.   AS 209/08 on the file of XI^th Addl. District Judge, Guntur at Tenali (EX.A-8) revealed that the decree was confirmed against the principal borrower only while dismissing the claim against the complainant herein.   Therefore there was no decree against the complainant herein.

7.    Ex.B-1 is the full satisfaction memo filed on behalf of opposite party herein in EP.106/08 in OS 39/04.   The said full satisfaction memo reads as follows:

          “It is humbly submitted before the Hon’ble Court that this DHR has received full EP amount towards the full satisfaction of the EP debt from the 1^st JDR.

                Hence this DHR is filing this full satisfaction memo and prays the Hon’ble Court to record full satisfaction and close the above EP.  The FS letter issued by the Branch manager M/s Sri Ram Chits Private Limited, Sattenapalli is filed herewith along with this memo”.  

8.     The full satisfaction memo filed by the opposite party revealed that it received the entire EP amount from the 1^st JDR. No copy of EP was filed before this Forum. The 1^st defendant in OS 39/04 was Tanguturi Seshaiah.  Form No.6 in CPC is a model form of execution petition column No.2 of form of EP deals with parties to suit.  Section 2(11) of CPC defines judgment debtor as a person against whom a decree has been passed or an order capable of execution has been made. In the absence of execution petition it can be inferred that 1^st JDR means 1^st defendant i.e., T.Seshaiah.   Therefore, the contention of the opposite party that it exercised lien over the prized amount of the complainant herein cannot be accepted.   The opposite party cannot recover the amount both from the principal borrower and guarantors.

9.    The opposite party did not file any document to show that the complainant herein stood as surety in SLJ 20/46. Under those circumstances, the contention of the opposite party cannot be accepted.   Therefore with holding the prize amount of the complainant amounted to deficiency of service.

10.   Withholding of prized amount certainly would have caused harassment and mental agony to the complainant.  Awarding a sum of Rs.10,000/- on this head will meet the ends of justice.  Accordingly these points are answered in favour of complainant.

11.  POINT No.3:-     In view of above findings, in the result, the complaint is allowed partly as indicated below:

        1.  The opposite party is directed to pay Rs.1,69,000/- (Rupees                         one lakh sixty nine thousand only) together with interest                 at 12% p.a., from 01-03-06 till payment.

        2.  The opposite party is directed to pay a sum of Rs.10,000/-                   (Rupees ten thousand only) towards mental agony.

3. The opposite party is directed to deduct future instalments                   payable by the complainant minus dividend subsequent to                   the complainant becoming the prized subscriber.

4. The opposite party is directed to pay Rs.2,000/- (Rupees two                        thousand only) towards costs.

        3.  The amounts ordered above shall be paid within a period of                         six weeks from the date of receipt of the copy of the order.

Dictated to junior stenographer, transcribed by her, corrected by me and pronounced in the open Forum dated this the 15th day of June, 2011.         

Sd/-XXX                                   Sd/-XXX                                 Sd/-XXX

MEMBER                                             MEMBER                                        PRESIDENT

APPENDIX OF EVIDENCE

  DOCUMENTS MARKED

For Complainant:

For opposite party:        

                                                                                                Sd/-XXX

                                                                                PRESIDENT