BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 17th June 2010
COMPLAINT NO.5/2010
(Admitted on 8.1.2010)
PRESENT: 1. Smt. Asha Shetty, B.A. (Law) L.L.B., President
2. Smt. Lavanya M. Rai, B.A. (Law) L.L.B., Member
BETWEEN:
Mr.Ajay Lasrado,
So. Thomas Lasrado,
Aged about 30 years,
Residing at Billadi House,
Vamadapadavu Post,
Bantwal Taluk. …….. COMPLAINANT
(Advocate for Complainant: Smt. Manjula N.A)
VERSUS
- Ms. G.M. Amusement and
Leisure Park Ltd.,
A Public Limited Company,
Manasa, PIlikula Nisargadhama,
Moodushedde, Vamanjoor,
Mangalore 575 028.
- Mr.John David D’Souza, adult,
S/o Ambrose D’Souza,
Near Ballal and Padival Tile Factory,
Tenkayedapadavu Village,
Yedapadavu, Mangalore.
- Sri Thomas Oswald Pinto, adult,
S/o late Gasper Pinto,
Residing at Pinto Dream Valley,
Permankey Road, Madyanthar,
Belthangady Taluk, D.K. ..…OPPOSITE PARTIES
(Advocate for Opposite Party No.1 and 3: Sri.Udaya Prakash Muliya.)
(Advocate for Opposite Party No.2: Sri. Satish.K.)
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. The facts of the complaint in brief are as follows:
This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain relief’s.
It is stated that, the Opposite Party No.1 running the business of M/s. G.M. Amusement and Leisure Park Ltd. Opposite Party No.2 and 3 are the Managing Directors. During the course of its business the Complainant kept Rs.1,50,000/- as Fixed Deposit with the Opposite Party No.1 for three months and under taken to repay the amount with the interest at 11% per annum on the date of maturity. On 15.12.2005, when the above said Fixed Deposit was matured the Complainant visited the Opposite Parties to collect the above said amount. But the Opposite Parties pleaded their inability to repay the matured amount and stated that they had renewed the Fixed Deposit for further three years.
It is further stated that, even after lapse of three years i.e. on 16.12.2008 the Opposite Parties failed to repay the Fixed Deposit proceeds. The Complainant realized that the Opposite Parties are avoiding to pay the same and Complainant got issued a legal notice dated 30.11.2009 by R.P.A.D. The said notice was received by the Opposite Parties but purposely neglected to pay the proceeds which amounts to deficiency in service. Hence, the above complaint is filed by the Complainant under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay Rs.1,50,000/- along with interest at the rate of 11% per annum from 15.9.2005 till 15.12.2008 and to pay interest @ 18% per annum from 16.12.2008 to 15.12.2009 and also prayed for compensation and cost of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel and filed separate version.
Opposite Party No.1 and 3 admitted the Fixed Deposit amount and also admitted the rate of interest printed on the Fixed Deposit application. But it is stated that, the Fixed Deposit Holder i.e. the Complainant has not come to file any claim to the Company since 6.10.2006 till date. As per the records no amount was invested by Mr.Ajay Lasrado, in the company in Fixed Deposit. It is stated that, no point of time company has accepted any deposit for three months period. The Complainant has never made deposit of Rs.1,50,000/- with the company. It is further denied that, the company had renewed his Fixed Deposit for further three years or the Opposite Parties made any assurance or the Complainant has approached the Opposite Party in any time during this period. It is stated that the Complainant has filed false case and prayed for dismissal of the complaint.
Opposite Party No.2 filed a separate version and stated that Opposite Party No.2 is seized to be Managing Director/director of the Opposite Party No.1 from 28.8.2006 onwards. Opposite Party No.2 is noway related to the management and affairs of the Opposite Party No.1 Company and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complaint is barred by limitation?
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, the Complainant– Mr.Ajay Lasrado (CW1), filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C4 were produced for the Complainant as listed in the annexure. One Mr.Thomas Oswald Pinto (RW1), (Managing Director of Opposite Party No.1 Company) and one Mr.John David D’Souza (RW-2), Opposite Party No.3 (Businessman) filed the counter affidavit and answered the interrogatories served on them. Both the parties are filed written notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii): Affirmative.
Point No.(iii) & (iv): As per the final order.
REASONS
5. POINT NO. (i):
As far as limitation is concerned, sub Section (2) of Section 24A of the Consumer Protection Act states that not withstanding anything contending Sub-Section (1), the complaint may be entertained after the specified period, if the Complainant satisfies the District Forum within such period. Now it is a well-established proposition that, when the person who received the fixed deposit has failed to repay the deposit on the date of maturity, it is a recurring cause of action for the depositor so long as the person who received the deposit has not denied his liability to repay the deposit. The Opposite Parties have no case that they have denied the Complainants’ right to recover the deposit until they filed their version before this Forum. The Complainants’ right is denied for the first time. Therefore, we are of the view that, the Complainant has recurring cause of action until and unless it has been proved that the entire deposited amount has been paid to the Complainant by the Opposite Parties. Hence, the point No.(i) is held in favour of the Complainant.
POINTS NO. (ii) to (iv)
In the instant case, it is undisputed fact that the Opposite Party No.1 running a business of M/s G.M. Amusement and Leisure Park Ltd., and the Opposite Party No.2 and 3 are the Managing Directors of the said firm.
Now the point in dispute before this Forum that, the Complainant invested/deposited of Rs.1,50,000/- with the Opposite Parties for three months initially and the Opposite Party under taken to pay the interest at the rate of 11% per annum on the date of maturity. The Opposite Party issued a fixed deposit receipt in proof of receipt of Rs.1,50,000/-. It is contended by the Complainant that, on the date of maturity the Opposite Parties not refunded the Fixed Deposit amount thereafter issued a legal notice dated:30.11.2009, the same has been received by the Opposite Parties but not complied the demand made therein.
The Opposite Parties interalia contended that, the Fixed Deposit does not bear the signature of Opposite Party No.2 and Opposite Party No.2 never issued such Fixed Deposit Receipt and the Opposite Party No.2 has ceased to be the Managing Director of the Opposite Party No.1 from 28.8.2006. That the Opposite Party No.3 states that as per the records no amount was invested by the Complainant in the company in Fixed Deposit.
Both the parties filed evidence by way of affidavit and answered the interrogatories and produced certain documents before this Forum.
Now the question is whether the Complainant proves that he had deposited an amount of Rs.1,50,000/- under the Fixed Deposit Receipt No.189 on 15.9.2005 with the Opposite Parties No.1 and the same has not been refunded to the Complainant by the Opposite Parties.
The Fixed Deposit Receipt i.e. Ex.C1 produced by the Complainant contains seal and signature of the authorized signatory of the Opposite Party No.1. The said receipt reveals that the Complainant deposited the amount on 15.9.2005 and the rate of interest agreed by the Opposite Party was 11% and the investment made for the period of three months. However, our attention was drawn towards the version of the Opposite Party No.3 in Para 2 that the Opposite Party No.3 admits that the Fixed Deposit amount invested by the Complainant but taken a contention that Complainant being the well wisher shown the interest to invest in the Fixed Deposit. And further the interrogatories No.4 served to Opposite Party No.2 and Question No.6 served to Opposite Party No.2 by the Complainant i.e.
“Q: Did you issue the Fixed Deposit Receipts to the depositors who were deposited amount with the Opposite Party No.1?
Ans: Yes.
The evidence of the Opposite Party No.2 and the version of the Opposite Party No.3 as well as the Original Fixed Deposit Receipt produced before us made very clear that the Complainant deposited Rs.1,50,000/- with the Opposite Party No.1. The Opposite Parties taken a contention before us that they have not got any fixed deposit holder by name Mr.Ajay Lasrado in Fixed Deposit Holders list and as per records no amount has invested by Mr.Ajay Lasrado in the Company. But no material/cogent evidence produced before this Forum in order to substantiate their contention. However, the Opposite Party No.3 was questioned by way of interrogatories No.8 and 9, in the said questions the Opposite Parties were called for to produce the Fixed Deposit holders list and record. But the Opposite Parties not produced any Fixed Deposit holders list or any registers maintained during the course of their business in order to show that Mr.Ajay Lasrado not kept any Fixed Deposit amount with the Opposite Party Company. The Opposite Parties miserably failed to disprove the deposits made by the Complainant. From the above evidence, it is needless to point out that the Complainant deposited Rs.1,50,000/- on 15.9.2005 under the Fixed Deposit Receipt bearing Sl.No.189 issued by the Opposite Parties and it is also proved beyond doubt that the Company i.e Opposite Party No.1 inspite receiving the aforesaid amount on the Fixed Deposit receipt not refunded the above said amount to the Complainant till this date amounts to deficiency in service. If at all the Opposite Party Company refunded the aforesaid amount then definitely the Opposite Party Company should have produced the material evidence before this Forum in support of their defence. No such attempt was made by the Opposite Party Company proves that they have not made any payment to the Complainant.
As far as the 2nd Opposite Party is concerned, 2nd Opposite Party took a contention that he has ceased to be the Managing Director of the Opposite Party No.1 from 28.8.2006 onwards and this Opposite Party is noway related to the management and affairs of the Opposite Party No.1 Company. The Opposite Party No.2 produced a documentary proof i.e. Notarized copy of the challen issued by the Ministry of Company Affairs before us. Wherein, the page No.3 at the bottom column the Opposite Party No.2 Mr. John David D’Souza, he is ceased to be the Managing Director of the Opposite Party Company with effect from 29/9/2006 could be seen. However, there is no dispute of the fact that Opposite Party No.2 is ceased to be the Managing Director of the Company from 28.8.2006. Under that circumstances, we hold that the 2nd Opposite Party is noway related to the management and affairs of the Opposite Party No.1 company and hence the complaint against Opposite Party No.2 is hereby dismissed.
In view of the aforesaid reasons, we hold that the Opposite Party i.e Opposite Party No.1 and 3 i.e. G.M. Amusement and Leisure Park Ltd., represented by its Managing Director is hereby directed to pay a sum of Rs.1,50,000/- along with interest at 11% per annum from 15.9.2005 till the date of payment. In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded and further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The complaint against of Opposite Party No.2 is hereby dismissed.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party No.1 and 3 is hereby directed to pay Rs.1,50,000/- (Rupees One lakh Fifty thousand only) to the Complainant along with interest at 11% per annum from 15.9.2005 to till the date of payment. Further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The complaint against of Opposite Party No.2 is hereby dismissed.
The F.D.R., if any, deposited by the Complainant be returned fourth with by substituting the certified.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 12 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 15th day of June 2010.)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT. LAVANYA M.RAI)
ANNEXURE
WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANTS:
CW1 – Mr.Ajay Lasrado - Complainant.
DOCUMENTS PRODUCED ON BEHALF OF THE COMPLAINANT:
Ex C1 –15.9.2005: Original Fixed Deposit Receipt.
Ex C2 – 30.11.2009: Legal Notice issued by the Complainant.
Ex C3 – Postal Acknowledgement.
Ex C4 – Postal Acknowledgement.
WITNESSES EXAMINED ON BEHALF OF THE OPPOSITE PARTIES:
RW-1: Mr.Thomas Oswald Pinto, Managing Director of Opposite Party No.1 Company.
RW-2: Mr.John David D’Souza, Businessman Opposite Party No.3.
DOCUMENTS PRODUCED ON BEHALF OF THE OPPOSITE PARTY NO.2:
Ex R1: 9.11.2006: Notarized copy of the Challan issued by the Ministry of Company Affairs.
Ex R2: 15.10.2008: Notarized copy of the Order passed by D.K. District Consumer Disputes Redressal Forum In Com.No.17/2008.
Dated:17.6.2010 PRESIDENT
