BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 206/2009 Filed on 11.08.2009

Dated : 31.12.2010

Complainants:

1. Ninan K. Chacko, B-17, Jawahar Nagar,Thiruvananthapuram-3.

2. Mariamma Ninan, B-17,Jawahar Nagar,Thiruvananthapuram-3.

3. Betty Ninan. K, B-17, Jawahar Nagar, Thiruvananthapuram-3.

Addl. Complainants:

4. Ann K. Ninan, D/o late Ninan K. Chacko, ..do..

5. Jacob K. Ninan, S/o late Ninan K. Chacko, ..do..

(By adv. K. Sudarsana Kumar)

Opposite parties:

1. M/s Integrated Enterprises (India) Ltd., T.C 28/2831, KRA-D 41, Kuthiravattam Road, Near old GPO,Thiruvananthapuram-1.

(By adv. S. Indira Bai)

2. Managing Director, M/s Bhagheeratha Engineering Ltd., Bhagheeratha Residency, II Floor, Door No. 2 A 41-3197 C, Cochin- 682 018.

(By adv. D. Sankarankutty)

This O.P having been heard on 01.12.2010, the Forum on 31.12.2010 delivered the following :

ORDER

SMT. S.K. SREELA, MEMBER

The facts of the complaint are as follows: Complainants have filed this complaint for realization of 3 fixed deposit amounts which stood in the name of complainants 1 to 3 which was deposited with the 2^nd opposite party. The said fixed deposits were matured on 12.11.2006 and inspite of repeated requests the matured fixed deposit amounts were not paid by the 2^nd opposite party. Hence this complaint is filed.

Opposite parties 1 & 2 have filed their separate versions. The 1^st opposite party in their version contends as follows: The complaint is not maintainable in law or on facts. The complainants are not consumers as defined under Sec. 2 (d) of Consumer Protection Act. This Forum has no jurisdiction to entertain the complaint. The 1^st opposite party has not performed any inducement on the complainants to invest with the 2^nd opposite party. This opposite party did not receive any consideration also. Hence the allegations in the complaint with respect to the involvement of the 1^st opposite party to deposit the money with 2^nd opposite party is absolutely false. The investment if any made by the complainants is according to their own decision. Any loss or damage occasioned on account of the negligence on the complainants this opposite party is not liable for the same. Any dispute between the complainants and this opposite party can be resolved only through the arbitration proceedings as per the agreement entered between the complainants and 1^st opposite party. The claim of the complainants are barred by limitation. The complainants are not entitled to get any reliefs.

2^nd opposite party contends as follows: The complaint is not maintainable. It is submitted that the petitioners deposited Rs. 19,000/- each on 13.11.2003 on interest at the rate of 11% per annum for a period of 3 years vide FDR Nos. 2073, 2074 and 2075. The date of maturity is 12.11.2006 and the maturity amount is Rs. 26,198/- each. The 2^nd opposite party could not repay the said maturity amount to the complainants due to severe financial constraints of the company viz M/s Bhagheeratha Engineering Ltd. So the company has already intimated the complainants about the position of the company and requested them some more time for making the said payment. But the complainants by letter dated 12.08.2008 demanded more amount than what is actually due to them. The said company had arranged payment vide D.D No. 481219 dated 25.08.2008 for Rs. 26,198/- on Bank of Baroda payable at Palayam, Trivandrum towards repayment of FDR No. 2073 and informed one of the complainants of the same vide letter dated 02.09.2008 and also asked him to surrender FDR No. 2073. But he denied to accept the same demanding the repayment of all the three FDR together with interest thereon immediately. It is also submitted that the company is prepared to pay the maturity amount due under the said 3 FDR for which the company requires some more time, as it is facing financial constraints at present. Hence prays for dismissal of the complaint accordingly.

On the part of the complainants, 5^th complainant has been examined as PW1 and marked Exts. P1 to P3. Opposite parties had no evidence.

The points for consideration are:-

1. Whether the complaint is barred by limitation and whether the Forum has territorial jurisdiction to entertain this complaint?

2. Whether there is any deficiency in service on the part of the opposite parties and whether the complainant is entitled for the interests as claimed?

3. Reliefs and costs.

Point (i):- 1^st opposite party has raised a contention that this complaint is barred by limitation. As per the F.D Receipts which are marked as Ext. P1 series the period of deposit is for 3 years and the maturity date of the deposit has been mentioned as 12.11.2006. The allegation of the complainant is that he has neither been paid the matured amount nor the interest. This complaint has been filed on 11.08.2009 and at the time of filing of this complaint the matured amount has not been refunded to the complainants. Hence in such a case wherein the complainants have not been refunded the amount deposited by them with the opposite parties, the cause of action continues till the date of refund. Hence the complaint is not time barred. Further the 1^st opposite party has contended that this Forum has no territorial jurisdiction since the disputes are to be decided by the Chennai Courts only. It is well known and well settled by now that the parties by mutual consent could not confer jurisdiction upon a particular court when such a court lacks inherent jurisdiction whereas on the other hand in case the two courts have jurisdiction then the parties can always agree to confer jurisdiction on one of such courts. So far part of the cause of action having been arisen within the territorial jurisdiction of Thiruvananthapuram District Forum it will not make any difference when the parties had agreed to exclusively confer jurisdiction on the courts of Chennai. Moreover the opposite party has no case that the agreement was not entered at Thiruvananthapuram. Hence from the above discussions we find that this Forum has territorial jurisdiction and the complaint is maintainable before us.

Points (ii) & (iii):- After the filing of this complaint, the opposite parties on 20.05.2010 produced a D.D for Rs. 26,198/- in the name of 3^rd complainant which was accepted by the complainant under protest. Later on, PW1 has sworn that during the pendency of this complaint, 2^nd opposite party has paid the maturity value of Rs. 26,198/- each payable to the complainants as on 12.11.2006 vide 3 D.Ds. Such 3 Demand Drafts were received under protest and PW1 further deposed that the 2^nd opposite party has delayed the payment of the matured amount for over 46 months and they are entitled to realize interest at 12% for the delayed payment. As per the fixed deposit receipts (Ext. P1 series) the rate of interest mentioned is 11% and the period of deposit is for 3 years and maturity date of deposit is mentioned as 12.11.2006. Here the pertinent aspect to be noted is that the 2^nd opposite party has refunded the deposit amount only after the filing of this complaint and the 2^nd opposite party contends that the complainant is not entitled for the interest after the date of maturity and relies on clause 11 which reads as follows: “Interest will be calculated from the date of realization of the cheque or draft. No interest will accrue following the date of maturity. Excess interest paid, if any, under any circumstances, will be recovered from the subsequent payment of interest or from the principal”. In the same document clause 3 states that interest will be payable half-yearly on 1^st April and 1^st October each year. However in case of deposits received or renewed in the month of March and September, the first interest payment will be made on the following 1^st October and 1^st April respectively. It is an admitted fact that opposite parties have not paid the interest after the date of maturity. It is also an admitted fact that the opposite parties have vide letter dated 23.11.2006 informed the complainant that on account of severe financial difficulties experienced by the company, they are not in a position to make immediate payment of the fixed deposit together with interest and the 2^nd opposite party has returned the original F.D Receipts bearing F.D No. 2073, 2074 and 2075. From the above it is evident that the complainant has surrendered the F.D receipts in time, but it is the opposite party who has returned the said F.D Receipts stating that they are in severe financial crisis. In such a situation the contention of the 2^nd opposite party that they are not liable to pay interest is without any basis. Clause 11 could be relied on only if the 2^nd opposite party had also acted according to the terms and conditions. But here since the 2^nd opposite party has not refunded the amount in time and has refunded the same only after the filing of the complaint, we find that the complainant is entitled for the interest as claimed from 12.11.2006 to 20.05.2010. As per F.D receipts the maturity amount is Rs. 26,198/-. The said maturity value of Rs. 26,198/- each payable to the 3 complainants were with the 2^nd opposite party for such a long period and the said amount has not been refunded to the complainants for the sole reason that they are in financial constraints for which we find that the complainants are not to be blamed for. The complainants have been made to suffer for the financial constraints on the part of the 2^nd opposite party. Complainants had surrendered the F.D receipts in time, but the 2^nd opposite party has returned the same stating that there is no money with the company. In the light of the above we find that the 2^nd opposite party is liable to refund the interest of the matured amount to the first 3 complainants. The act of the opposite parties in not refunding the amount with interest definitely amount to deficiency in service on their part. In view of the above discussions we find that the complainants are entitled for refund of interest @ 11% for Rs. 57,000/- (Rs. 19,000/- x 3) from 12.11.2006 till 20.05.2010. Further the complainants are found entitled for an amount of Rs. 5,000/- towards compensation and cost of Rs. 2,000/-.

In the result, complaint is allowed. The 2^nd opposite party shall refund the interest for Rs. 57,000/- @ 11% from 12.11.2006 till 20.05.2010 along with compensation of Rs. 5,000/- and cost of Rs. 2,000/-.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 31^st day of December 2010.

S.K. SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

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C.C. No. 206/2009

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Jacob Ninan.

II COMPLAINANT'S DOCUMENTS :

P1 - Fixed deposit receipts.

P2 - Terms and conditions governing acceptance of fixed deposits

from public and shareholders.

P3 - Copy of registered letter dated 02.09.2008.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT

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