BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 30^th May 2014

PRESENT

    SMT. ASHA SHETTY           :  HON’BLE  PRESIDENT

                        SMT.LAVANYA M. RAI       :   MEMBER

COMMON ORDER IN

C.C.Nos. 210 & 211/2013

CC.No.210/2013

(Admitted on 19.8.2013)

Mr.B.Sadashiva Shetty,

Aged 59 years,

So Late Babu Hegde,

Presently residing in

Reshma Rashmi Nilaya,

Tenka Yermal Village and Post,

Udupi Taluk District.                        

CC.No.211/2013

(Admitted on 19.8.2013)

Mrs.B.Baby S. Hegde,

Aged about 54 years,

Wo Mr.B.Sadashiva Shetty,

Presently residing in

Reshma Rashmi Nilaya,

Tenka Yermal Village and Post,

Udupi Taluk  District.                                                …… COMPLAINANTS

(Advocate for the Complainants: Smt. Aruna B.P.)

     VERSUS

1. Ms. Alva and Company. Regd

    Financier and Money Lenders

    Panjinadakka 574 195,

    Mulky, Mangalore Taluk,

    Dakshina Kannada,

    Being represented by its Managing Partner

    MR.JAYARAMA ALVA,

    Belepu House, Panjinadakka Post 574 195,

    Mulky, Mangalore Taluk,

    Dakshina Kannada.

2. MR.JAYARAMA ALVA,

    Managing Partner,

    M/s. Alva & Company (Regd)

    Belepu House,

    Panjinadakka Post-574 195,

    Mulky, Mangalore Taluk,

    Da               kshina Kannada.                                …. OPPOSITE PARTIES

(Advocate for Opposite Parties: Sri Sathish .K)

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. ASHA SHETTY:

I.          1. The above complaints are filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the common Opposite Parties claiming similar reliefs.  In order to save the time as well as for the sake of convenience we have taken up all the cases together and passed common order as under:

The brief facts of the case are as under:

The Complainants are deposited certain sum of money with the Opposite Parties and the Opposite Parties are the registered finance company having its registered office in the above address and having its branches at Mulky, Mangalore Taluk, amongst other places. The details of the amounts deposited with the Opposite Party’s company mentioned detail herein below:-

The Complainants stated that, they have invested their hard earned money in Opposite Parties finance under the fixed deposit receipt for the stipulated period mentioned in the respective Fixed deposit receipts and the Opposite Parties inturn agreed to pay interest mentioned in the certificates.  Further it is stated that, the Opposite Parties inspite of agreed to refund the aforesaid amount on the date of maturity mentioned in the respective F.D. Receipts not refunded the amount till this date.

It is stated that, the Complainants approached the Opposite Parties, the Opposite Parties have been in definitely postponing the money payable under the F.D. Receipts without assigning any valid reasons which amounts to deficiency in service and hence the above complaints are filed before this Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay the entire Deposited amount invested by them respectively mentioned in their complaints and also sought for compensation and cost of the proceedings.

II.        1. Version notice served to the Opposite Parties No.1 and 2 by R.P.A.D. in all the complaints. Opposite parties appeared through their counsel filed version and denied that the complainants are deposited certain sum of money under F.D. Receipts as mentioned in the complaints by the complainants.  It is stated that, the opposite parties have repaid the entire F.D. amounts deposited by the complainants and they had intentionally not returned the original F.D. Receipts issued by the Opposite parties till today. Now using this advantage filed false case and also contended that the complaints are barred by limitation and sought for dismissal of the complaint.

III.       1. In support of the above complaints, all the respective Complainants are examined as CW-1 and produced documents got marked under the ‘Ex.C’ series detailed in the annexure here below and answered the interrogatories served on him.  On behalf of Opposite Parties one Mr.Jayarama Alva (RW-1) of Opposite Parties has filed counter affidavit in both the cases and answer the interrogatories served on him.

In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the complaints filed by complainants are maintainable?

2. Whether the Complainants proved that the Opposite Parties committed deficiency in service?

3. If so, whether the Complainants are entitled for the reliefs claimed?

4. What order?

             We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:           

             Point No.(i) & (ii): Affirmative.

                         Point No.(iii) & (iv): As per the final order.          

REASONS

IV.  1.  POINTS No. (i) to (iv): 

In the instant case, the Complainants in order to substantiate their respective complaints filed evidence on affidavit supported by fixed deposit receipts i.e. Ex.C ‘series’ in all the complaints mentioned in the annexure in detail.  The Complainants sworn affidavits stating that, the Fixed Deposits are matured but the Opposite Parties keep on assured to refund the amount by giving one or the other excuses and postponing the payment without valid reasons. 

However, now the point for consideration is that, whether the Complainants are entitled for the amount mentioned in the Fixed Deposit Receipts and thereby without paying the aforesaid amount the Opposite Parties have committed deficiency in service?

On perusal of the oral as well as documentary evidence available on record, we find that, the Complainants deposited the hard earned money under the Fixed Deposit Receipts with the Opposite Parties and the Opposite Parties inturn agreed to refund the amount along with the interest on the date of maturity mentioned in the respective F.D. Receipts.  We are of the considered opinion that, in a case of like this nature reciprocal promises were enshrined in the contract/certificate entered/issued between the parties, both the parties were obliged to perform in that ‘Order’.  No doubt the Complainants invested certain sum of money under the Fixed Deposit Receipts for a particular period with the Opposite Parties and the Opposite Parties inturn received the invested amount from the Complainants and agreed to refund the aforesaid amount along with the interest on the date of maturity.  When that being so, it is the obligation on the part of the Opposite Parties Company to refund the amount to the Complainants on the date of maturity because the Opposite Parties made use of the money pertaining to the Complainants in their finance and agreed to refund the amount with interest.  When that being the position, the Opposite Parties should have refunded the amount to the Complainants without any demand.  As we know, the financial institutions are facing financial crunches and caused problems to the depositors and keep on seeking/postponing the payment by giving the one or the other reasons are common in a case of like this nature.  By considering the transactions involved in the above case, we are of the opinion that, cause of action will be continued till the payment invested under the certificate are received by the Complainants.  It is not the case of the Opposite Parties that, they have offered the payment on the date of maturity or subsequent dates till this date. Even in this count the complaint is maintainable.

Opposite Parties contended that they have repaid the entire amount deposited under the Fixed Deposit Receipts to the complainants. But there is no material evidence produced before this FORA to prove that the aforesaid amounts has been paid to the complainants.  In the absence of the same, we are unable to hold that the Opposite Parties has paid the amount to the complainant in this case.

It is seen on record that the complainants invested certain sum of money under the Fixed Deposit Receipts and Opposite Parties agreed to repay the amount along with the interest on the date of maturity but failed to pay the said amount till this date amounts to deficiency in service as well as unfair trade practice.

By considering the above aspects, we hold that, on failure to pay the aforesaid amount on the date of maturity  till this date amounts to deficiency in service as well as unfair trade practice as stated supra. Therefore, we hereby directed the Opposite Parties jointly and severally to refund the entire amount under the Fixed Deposit Receipts produced before this authority along with contractual rate mentioned in the  Fixed Deposit Receipts from the respective date of deposits till the date of maturity and thereafter shall pay interest at the rate of 12% per annum from the respective date of maturity till the date of payment. And further opposite parties shall pay Rs.2,000/- (Rupees two thousand only) each towards the cost of litigation expenses in all the complaints. Payment shall be made within 30 days from the date of this order.

In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.

In the result, we pass the following:-                 

ORDER

The complaints are allowed. Opposite Parties are jointly and severally shall pay the entire amount mentioned in the Fixed Deposit Receipts i.e. Ex.’C’ series in both the cases along with contractual rate of interest from the respective date of deposits till the date of maturity to the complainants and thereafter Opposite Parties shall pay interest at the rate of 12% per annum from the respective date of maturity till the date of payment. And also pay Rs.2,000/- (Rupees two thousand only) each towards the cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

The copy of this order as per the statutory requirements be forwarded to the parties and therefore the file be consigned to record.

(Page No.1 to 8 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30^th day of May 2014.)

PRESIDENT                                       MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainants:

CW1 : Mr.B. Sadashiva Shetty– Complainant in CC.No.210/2013.

CW1 : B.Baby S.Hegde – Complainant in CC.No.211/2013.

Documents produced on behalf of the Complainant:

In CC.No.210/2013:

Ex C1 & C2 – 22.9.2012: Office copy of the notice sent to the O.P.No.1 and 2 by the complainant.

Ex C3 & C4 – 22.9.2012: Acknowledgements of O.P.No.1 and 2.

Ex C5 – Reply sent through the O.P.No.1 &2.

Ex C6 and C7 – Original Fixed Deposit Receipts No.284 & 297 (2 in Nos.)

Ex C8 – Original R.T.C.s

In CC.No.211/2013:

Ex C1 & C2 – 22.9.2012: Office copy of the notice sent to the O.P.No.1 and 2 by the complainant.

Ex C3 & C4 – 22.9.2012: Acknowledgements of O.P.No.1 and 2.

Ex C5 – Reply sent through the O.P.No.1 &2.

Ex C6 to C9 – Original Fixed Deposit Receipts No.285, 286, 296  & 298 (4 in Nos.)

Ex C10 – Original R.T.C.s

Witnesses examined on behalf of the Opposite Parties:

RW-1: Mr.Jayarama Alva for OP.s in CC.No.210 & 211/2013.

Documents produced on behalf of the Opposite Parties:   

- Nil -

Dated:30.5.2014                                                   PRESIDENT