By Jayasree Kallat, Member:

 

            The petitioner is a subscriber in a chitty conducted by the opposite parties as No.G 2F-17/116 as ticket No.14. The chitty was commenced on 1-4-03 and was terminated by 1-12-04. The total sale of chitty was Rs.2,00,000/-. The amount was payable in monthly instalments of Rs.10,000/- less dividend accrued each month. It was agreed that the amount will be collected on each day by their agents. The complainant could not complete the chitty. He has altogether paid Rs.37,650/- through the collection agent and the amount was entered in the pass book issued by the second opposite party. The amount paid by the petitioner will cover 7 monthly instalments of Rs.7500/- each. The petitioner is entitled to get the dividend of 7 monthly instalments @ Rs.2500/- each which will come upto 17500/-. The petitioner is entitled to get back Rs.37650/- remitted by him and Rs.17500/- as dividend along with interest accrued there upon. Even though the petitioner approached the second opposite party several times he did not get a concrete reply. The complainant alleges deficiency on the part of the opposite parties as they failed to repay the amount collected with dividend and interest. Hence this petition seeking relief.

 

            Opposite parties-1 and 2 filed a version denying the contents in the complaint except those that are expressly admitted. The opposite party submits that the complainant was a subscriber to the chitty of the opposite parties. The complainant was given a kuri pass book which contented the terms and conditions of the kuri. The complainant had joined the kuri after fully knowing about and accepting the same. The complainant was a chronic defaulter in payment of the instalments. The complainant stood as surety and guarantor for Mr. Surmmed who is a subscriber in a kuri bearing No. GSF-734/11. Mr. Surmmed had bid the kuri before the expiry of the term and had received the entire amount payable to him by the opposite party. The said Surmmed committed default in payment of the subsequent instalments due and payable and the amount due and payable by him was almost equal to the amount due and payable to the complainant in the kuri which was Rs.27650/-. The complainant has co-extensive liability as a surety and guarantor. In view of liability of the petitioner and in view of the written undertaking given by him, the amount payable to the complainant in the kuri was not remitted to him as it was provided surety for discharging liability of Mr. Surmmed. The complainant is not entitled to any relief. The allegation that the petitioner happened to be the defaulter due to failure on the part of opposite parties’ agent to collect the amount is not true. A defaulter is not entitled to reduction in instalments. The complainant is not entitled to dividend of 7 instalments. The complainant is not a consumer as defined in the Act. There was no deficiency in service on the part of opposite parties. The complainant is not entitled to get any relief. Opposite party prays to dismiss the petition.

 

            The only point for consideration is whether the complainant is entitled to get any relief?

 

            PW1 and PW2 were examined and Ext. A1 was marked on complainant’s side. RW1 was examined and Exts. B1 to B5 were marked.

 

 

            The case of the complainant is that he was s subscriber in a chitty conducted by the opposite parties. The chitty sale amount was Rs.2,00,000/-. Instalments were fixed as Rs.10,000/- per month. Complainant had paid an amount of Rs,.37650/-. As the agent of the opposite party did not collect the chitty amount from the complainant, complainant became a defaultee. After closing of the chitty on 1-11-04 complainant had several times approached the opposite party for getting back the amount remitted by the complainant along with dividend. The opposite parties refused to pay back the complainant’s entitled money. Complainant has filed the petition alleging deficiency of service on the part of opposite parties for retaining cash amount of the complainant with the opposite party even after closing of the chitty. Opposite party has taken the contention that the complainant was a defaulter in payment of the chitty instalments. More over complainant stood as a surety and guarantor for Mr. Surmmed who was also a subscriber in the chitty. Before the expiry of term Surmmed had bid the kuri and received the entire amount payable to him on the bidding. The said Surmmed committed default in payment of the subsequent instalments due to the opposite party. Complainant had stood as surety and guarantor for the same Surmmed. The amount due to the opposite party from Mr. Surnmmed was equal to the amount remitted by the complainant. The amount payable by Surmmed was Rs.27000/-. That amount is still due to the first opposite party. In view of the liability of the petitioner and a written undertaking given by him the amount payable to the petitioner was appropriated towards the amount due to the opposite party from Mr. Surmmed. Opposite party has also taken a stand that a defaulter is not entitled to reduction in instalments. Defaulter is also not entitled for dividend. At this instance complainant has produced a copy of the chitty pass book. A perusal of chitty pass book entry shows that an amount of Rs.37650/- has been entered as the total amount in Ext.A1 pass book. Here the question is whether the opposite party has been deficient in service or not? According to opposite party when a persons stands as surety or guarantor opposite party has the privilege to appropriate the due amount from the account of the surety. But the complainant has vehemently argued that the opposite party has illegally retained his money alleging that he has been a surety for one Mr. Surmmed, at the same time opposite party has disbursed the entire amount payable to Surmmed. Forum heard both sides in detail. Ext.A1 shows that complainant has remitted a total of Rs.37650/-. Opposite party has deducted Rs. 10,000/- as foreman’s commission and the balance amount of Rs.27650/- was adjusted towards the due amount of Mr. Surmmed for whom the complainant was guarantor. After hearing both sides it has come out that opposite party has disbursed the full amount to Surmmed and retained complainant’s money. According to the complainant after the termination of the chitty he has to get an amount of Rs.37650/- plus Rs.17500/- as dividend also. At this juncture the Forum is of the opinion that as the complainant was a defaulter in paying monthly instalments he is not entitled for the dividend amount of Rs.17500/- but the act of opposite party of retaining complainant’s deposited money and appropriating the same amount and letting Mr. Surmmed scot-free has caused financial loss and mental agony to the complainant. Regarding Rs.10,000/- which the opposite party has deducted as Foreman’s commission, the Forum is of the opinion that opposite party is entitled for the commission amount. Because when a chitty commences the commission amount is the benefit which goes to the opposite party.   This commission is the consideration opposite party takes from their customers for the service rendered by virtue of which the complainant herein becomes a consumer before this Forum. In this case also the complainant is morally duty bound to pay the Foreman’s commission. In our opinion the balance amount of Rs.27650/- after deducting Rs.10,000/- from the total remitted amount of Rs.37650/- is entitled to the complainant.

 

            In the result the opposite parties are directed to pay the complainant Rs.27650/- along with interest @ 9% from 9-10-06 ie. from the date of filing of the case till realization. The complainant is also entitled for a cost of Rs.1000/-.

 

Pronounced in the open court this the 12th day of May 2010.

 

SD/- PRESIDENT                   SD/-MEMBER                        SD/- MEMBER

 

 

 

 

 

 

 

 

 

 

APPENDIX

 

Documents exhibited for the complainant:

 

A1. Photocopy of Chit Pass Book.

 

Documents exhibited for the opposite party.

B1. Agreement dt. 29-7-2002.

B2. Photocopy of statement of accounts.

B3. Photocopy of Application Form for Registration.

B4. Photocopy of letter dt. 8-3-2004.

B5. Form-1 Surety & Security Proposal Form.

 

Witness examined for the complainant:

 

PW1. M.V. Chami (Complainant)

PW2. Sarmmad, P.V.S. Villa, Kolamangate, Malappuram.

 

Witness examined for the opposite party.

RW1. Prabhakaran. K.M., Komath Meethal House,

           Vaikelassseri, Vatakara.

 

                                                            Sd/- President

                                    // True copy //

 

(Forwarded/By order)

 

 

SENIOR SUPERINTENDENT.