DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the  2^nd  day of  September,  2022

Present      :   Sri.Vinay Menon V.,  President

                  :   Smt.Vidya A., Member                        

                  :  Sri.Krishnankutty N.K., Member             Date of Filing: 15/03/2016    

     CC/42/2016

Maduri Devi,

D/o.Thankappan,
Kizhakkanikkode Veedu,

Vadukathara, Erimayur Post,

Alathur, Palakkad

(By Adv.Shiju Kuriakose)                                                        -           Complainant

                                                                                    Vs

1.Muthoot Finance Ltd.,

   Chundakayil Buildig,

   Manjakulam Road,

   Palakkad,   Rep.by its Manager

Suppl. 2.  Sujith 

                 S/o.Gopinathan,

                 Poolakkal Veedu,Vadukathara, Erimayur P.O.,

                 Alathur, Palakkad                                                              

Suppl. 3.  Sujay,                                                                       -           Opposite parties

                 S/o.Gopinathan,

                 Poolakkal Veedu, Vadukathara, Erimayur P.O.,

                 Alathur, Palakkad  

(Supplemental Opposite parties 2 and 3 were impleaded

   as per order dated 10.02.2017 in I.A. 55/2017)                    
                (OP1  by Adv.T.S. Rajeshkumar

                Suppl. OP2 & 3 by Adv.S.Vinod)

O R D E R 

By Sri. Vinay Menon V.,  President

1. Complaint was originally filed against opposite party 1 alone. Thereafter, when it was found necessary to implead the sons of the complainant by way of drift of the pleadings, they were impleaded as Supplemental opposite parties 2 and 3.       
2. Abridged pleadings are that the complainant had deposited Rs. 5,00,000/- with the opposite parties as Fixed Deposit on 14.01.2012 for five years and the date of maturity was 14.07.2017. When she sought to close the FD pre-maturely, the opposite party refused to hand over the principal amount for reasons best known to them. Aggrieved by the conduct of the OP1 in not returning the deposited amount, this complaint is filed seeking return of principal amount together with interest @24% p.a. from 14/1/2012 till date of return, a compensation of Rs.50,000/- and for cost of Rs.10,000/- along with such other reliefs as may be incidental in this proceedings. OP1 filed version stating that the complainant is not entitled to receive the deposited amount stating that the complainant had already issued documents transferring the deposited amounts in the name of her sons, Sujith and Sujay and they are necessary parties for adjudication of the dispute.
3. Thereafter, the two children of complainant were impleaded as supplemental OPs 2 & 3. They also filed version in the same line as that of the opposite party No.1. They alleged that the cause of this complaint was that they opposed an illicit affair the complainant was having and sought for dismissal of the complaint.

4.         The following issues arise for consideration

1. Whether the complainant has transferred the F.D.(Subordinated Debt) in the name of the Supplemental Opposite Parties 2 and 3? 
2.  Whether there is any deficiency in service / unfair trade practice on the part of opposite party 1?
3.  Whether the complainant is entitled to any reliefs as sought for?
4. Reliefs,  if any ?

5.         Evidence comprised of proof affidavits and Exts.A1 to A4 on the part of complainant and Ext. B1 to B3 on the part of the opposite parties were marked. Documents pertaining to FSL report are marked as  X1 to X5.  Complainant, witness for OP1, OP2 and the official who issued Ext.X1 were examined as PW1, DW1 & 2 and CW1 respectively.

Issue No. 1

6.         Complaint is aggrieved by the first opposite party’s conduct whereby amounts deposited by her by way of subordinated debt (Fixed deposit, as pleaded by the complainant) were not handed over to her by the first opposite party on the ground she had executed transfer applications in favour of opposite parties 2 & 3. Opposite parties relied on  this reason by highlighting   that the complainant had executed Exts.X4 and X5. 

            Ext.X4 is a Securities Transfer Form prepared in accordance with provisions of the Companies Act, 2013. Ext.X5 is a hand written letter of consent issued by the complainant in favour of the Manager, Muthoot Finance Ltd., stating that she has no objection in transferring the subordinated debt in favour of her children Sujith & Sujay. Both the said documents carry signatures allegedly affixed by the complainant.

7.         The complainant refuted the allegations raised by the opposite parties that she had executed transfer documents in favour of supplemental OPs 2 & 3. Hence, assistance of Forensic Science Laboratory was availed to ascertain the authenticity of the  signatures purportedly affixed by the complainant in  Ext.X4 & X5. Ext.X1 is the report issued by the Asst. Director, RFSL, Thrissur, based on the reasons in the separate sheets appended thereto. The relevant portion of the report (paragraph 2) states as herein below:

            “2.The person  who wrote the blue enclosed standard signatures stamped and marked A1 to A6 and S1 to S10 did not write the red enclosed questioned signatures similarly stamped and marked Q1 & Q2”.

            The signatures in Ext.X4 & X5 are the signatures referred to as Q1 & Q2. In other words, Exts.X4 & X5 were concocted. 

8.         Contents of Ext. X1 and testimony of CW1 would have made the case an easy walk over for the complainant had it not been for her testimony. At the time of cross examination the complainant, PW1, stated that it was she who had affixed the signature in Ext.X4, while disowning the signature in Ext.X5.

            Page 4 lines 20 – 23 Ext.X4  ImWp¶ H¸v Fsâ BWv.  Ext.X4 shown to witness. CXn ImWp¶ H¸v FsâXÃ.  

            When Ext.X4 & X5 were shown to the complainant, she answered that the signature in Ext.X4 was hers. 

9.         In the absence of any pleading that she was forced to affix any signatures and in view of the contradicting findings in Ext.X1 and testimony of PW1, a decision regarding the authenticity of signatures in Ext.X4, becomes the key to adjudicating the dispute. 

10.       Hence, this Commission is forced to forge a question as below:

            “In the facts & circumstances of the case, as can be assimilated from the pleadings and evidence, whether Ext.X1 report or testimony of PW1 regarding the signature in Ext. X4  would  prevail ?”

11.       Counsel for the opposite parties argued that the finale is a fait accompli in view of the complainant’s testimonial admission that the disputed signature on Ext. X4 was her’s.

                        Counsel for the complainant vehemently argued that the statement made by the complainant that the signature in Ext. X4 was her’s is a mistaken one. As to why there is no re-examination on this point, it is a fact that the complainant was cross examined without her counsel being present in the court, except for a proxy counsel. It is the contention of the counsel for complainant that at the given date and the surrounding periods on which she is alleged to have executed Ext. X4, the relation between the complainant and her children had hit a rock bottom and there was no chance whatsoever, she would affix her signature and execute Ext. X4.

12.       Counsel for the complainant then rely on the evidence of the opposite parties to substantiate his case:

a)         Pleadings and testimony of O.P.2 are incongruent:

            With regard to the money deposited in the Subordinated Debt, the original case of

            the OPs 2 and 3 is that the complainant had transferred the moneys to them and the

            complainant has no further claim over the money. But in the proof affidavit, DW2

            betters his testimony by presenting the source of money as from his grandfather.

            Deposition of DW2, Page 9, lines 2 to 12:

        \n§Ä¡pw, A\pP\pw A½sb th­. A½bpsS ]Ww aXn F¶p ]dªm icnbsà (Q) ap¯¨\n« ]WamW (A) ap¯Ñs\ Cu tIkn km£n Bbn«v hnkvXcn¡p¶pt­msb¶p tNmZn¨m F\n¡dnbnÃ. ap¯Ñ\mWv fund deposit sNbvXsX¶v ImWn¡p¶ tcJ D­v (subsequently witness says) ap¯Ñ\mWv C«sX¶v ImWn¡p¶Xn\v tcJ CÃ. ap¯Ñ³ deposit Ip«nIfpsS Bhiy¯n\v F¶v ]dªv A½bpsS t]cnemWv sImSpXXv. hm¡m ]dbp¶XÃmsX F§s\bmWv sImSp¯sX¶v F\n¡dnbnÃ. 

            We are not inclined to accept a fresh pleading which was hitherto not raised by the opposite parties 2 and 3 in their pleadings. Even considering for academic sake that such amounts were deposited for the opposite parties 2 and 3 by their grandfather, as  Opposite Parties 2 and 3 being the parties who raised such a statement, the burden of proof was on the opposite parties to prove their contention. They had failed to examine their grandfather, either by producing him before this Commission or by taking out an Advocate Commission to examine him regarding his intention in depositing the amounts with 1^st opposite party to prove their contention.

b)         The opposite parties 2 and 3 had not been in good relationship with the complainant allegedly owing to an extra-marital affair which the complainant had.

            Deposition of DW2, page 3, lines 2 to 12:

            2012  hoSnsâ 1..mw \ne ]Wnbm³ h¶ Bfpambn lÀPn¡mcn AhnlnX _Ô¯nemsW¶ Btcm]Ww D¶bn¨sX¶p ]dªm 2012..2013 ImeL«¯nemWv. AXv IpSpw_{]iv\ambn F¶p ]dªm AXp sNdnb coXnbnsems¡ R§Ä HXp¡n XoÀ¡m³ t\m¡n. ^manenbtÃ. Rm\pw, A\nb\pw, A¨sâ IqsSbmWv Ct¸mÄ Xmakw. A¨\pw A½bpw CXpambn _Ôs¸«v ]me¡mSv IpSpw_tImSXnbn hnhml tamN\¯n\mbn joint petition sImSp¯ncp¶p.

c)         There was no chance of rapprochement whatsoever, that could prompt the complainant to execute Ext. X4 at that given time.

            Inorder to ascertain the case of the counsel for the complainant, we need to ascertain the chronological sequence of developments of events.

            A reference to the chronology of affairs would show that on 31.12.2014, when allegedly Ext. X4 was executed, the complainant and her estranged husband had filed divorce proceedings and the same were pending. Ext. A3 is the memorandum of Original Petition filed by the complainant and her estranged husband before the Family Court, Palakkad jointly. Paragraph 5 of Ext. A3 would show that the complainant and her husband were living separately from 15.01.2012.

            Eventhough DW2 had deposed that the complainant was staying with her husband and opposite parties 2 and 3 till 2015, we are not inclined to accept the said argument in view of the signed statements made by the complainant and her estranged husband. Moreover, it does not stand to logic (though we are not blind to the magnanimity to which people can raise) that once the alleged extra-marital affair was discovered (as deposed by DW2) the complainant lived in her husband’s house  or that the complainant continued with her alleged extra-marital affair living at her husband’s place.

13.       Per defence, counsel for the opposite party stated that the findings in Ext. X1 should not be relied on in view of the testimony of the complainant. He arrayed his findings on the various grounds that CW1 was not competent, that the methods used were unreliable and premature, that the opinions are inconclusive and baseless etc.

            Both the counsels for the opposite parties cross examined the witness, but on a perusal of the testimony of CW1, we find that she held fort and nothing contradicting her report could be brought out. Beyond the usual arguments when assailing an FSL report of like nature, no specific objections were forth coming regarding the  specific grounds relied on by CW1. Hence we are inclined to hold that the counsel for the opposite parties had failed to damage the opinions rendered by CW1.

14.       At this juncture, it would be pertinent to note that the complainant had produced and marked the original certificate of the Subordinated Debt as Ext. A1. It is a usual banking procedure that when one party issues transfer of a Fixed Deposit to another, the original of the FDR also change possession. But herein, the original is in the possession of the complainant. The opposite parties 2 and 3 have not produced any documents to evidence possession of any receipt of Subordinated Debt. They are totally silent in their pleadings and evidence on this aspect.

15.       After considering the arguments above, we are of the opinion, based on the chronology that the relationship between the complainant and opposite parties was strained during 31.12.2014. Considering the nature of the domestic dispute, which involves elements of illicit extra marital relationship, wherein opposite parties had taken to condemn the complainant and where the complainant and her estranged husband were living separately from 15.01.2012, we hold that preponderance of probabilities and balance of convenience favour the complainant. We further hold that the finding of the expert in Ext. X1 report that the signatures of complainant in Ext. X4 and X5 are forged is valid. The testimony of PW1 to the extent that she had affixed the signature in Ext. X4 is made inadvertently.

16        Consequently, there is no transfer of Subordinated Debt in favour of the opposite parties 2 and 3.

            We find issue no 1 in favour of complainant and against opposite parties.

            Issue No. 2.

17.       We cannot pass an order against the opposite parties 2 and 3.  But considering the facts and circumstances of the case, we can resort to check if there is deficiency in service on the part of opposite party 1. The complainant’s case is that she approached the 1^st opposite party for premature closing of Ext. A1 Subordinated Debt on 28.09.2015. But they failed to concede to her request for reasons best known to them. An analysis of the conduct of the 1^st opposite party during the pendency of the complaint is vital so as to arrive at a conclusion regarding the depravity of the conduct of the opposite party 1, if any.

18.       (a)        Subsequent to filing of this complaint, the 1^st Opposite Party filed version contesting complaint pleadings. They had even contested the pleadings wherein the complainant’s family details are stated. In paragraph 5 of their version, they deny the complainant’s plea that she is living separately from her husband and children. There is no way the 1^st opposite party can come to such a conclusion unless they sought information regarding plaint pleadings from the estranged family of the complainant. As to why they had deviated from the oft treaded path of pleading ignorance regarding matters about which an opposite party has no knowledge, there is no explanation.

(b)        Even after filing of the complaint, and at a stage where matters got to pleadings of forgery and fabrication of documents, nothing is stated as to what had transpired in the office of 1^st opposite party to introspect, about the matter. In such matters, the entity holding the money adopts a neutral stand and let the law takes its course having made a factual statement of what had transpired. But herein, the 1^st opposite party adopted an aggressive stand while cross examining the complaint and CW1. It was like 1^st opposite party had sided with the supplemental opposite parties in their vendetta with the complainant, rather that assist the Commission in coming to a studied conclusion as to the facts and circumstances that has led to filling of the complaint.

(c)        During the proceedings, the complainant herein filed three Interim Applications

                1.         I.A. 272/2016 – For calling for documents in the custody of the opposite

                                                  party.

            2.         I.A. 407/2016 – For appointment of a hand writing expert.

                3.         I.A. 232/2017 –  For restraining the opposite party 1 from releasing the

   maturity amount.

            In all the above matters, the 1^st opposite party had played an active part in objecting the applications. A perusal of the aforesaid applications shows that they were meant to assist the Commission to come to a conclusion as to the subject matter of the lis. It is true that no applications in a civil dispute shall go uncontroverted. But herein we have a case where two documents in the custody of the 1^st opposite party were being assailed as forged. When such an allegation had arisen, it was incumbent upon the 1^st opposite party to render all assistance to the Commission in coming to a conclusion in the dispute. Further it is also incumbent upon them to adopt all steps necessary to see if the disputed documents were in fact forged, fabricated or concocted.

(d)        I.A. 272/2016 was filed calling for documents in the custody of the 1^st opposite party. Though objected to at first, they produced 2   documents. They were sent for examination by the handwriting expert of FSL, Thrissur. They were marked as Exts. X4 and 5.

             Subsequently at a later stage of trial, they produced 3 other documents also stating that they were also in their custody. They were marked as Exts. B1, B2 and B3. The 1^st opposite party had not taken effort to bring documents in its entirety to have them examined by the hand writing analyst.

(e)        DW1 was the manager of the Branch concerned of the 1^st opposite party during the relevant period (2012- 2016). She has deposed that she was conversant with the documents related to the transactions between the complainant and the 1^st opposite party. Her statements make it clear that some of the documents were kept in the branch office, while some others were kept in the head office. We are not concerned with the system of filing of documents adopted by the 1^st opposite party. But, when an authority unambiguously orders production of documents for issuance to FSL, they are bound to take earnest effort to produce all records.

19.       In the absence of such an effort on the part of the 1^st opposite party, we are constrained to resort to an adverse inference as below:

            Exhibits B1 to B3 predates Exts. X4 and X5. We have gone though the signature of the complainant in all these documents. We are not experts, but the signatures in Exts. B1 to B3 varies patently from the signatures in Exts. X4 and X5. Any casual verification can reveal this fact. We are not inclined to believe that a person who holds the post of a Manager in opposite party’s branch offices is candid enough not to verify the signatures of parties. It is to hide the fact that they did not compare and verify the signature of complainant in Exts. X4 and X5 with the signatures in Exts. B1 to B3 (or that they deliberately overlooked the discrepancy) that they refused to hand over the documents at a single go.

            Thus the opposite party 1  has also resorted to laying fetters to impede the process of law.

 20.      We therefore hold that there is gross deficiency in service and unfair trade practice on the part of the 1^st opposite party.           

            Issues 3 & 4

21.       In view of the findings in Issues 1 and 2, we hold that the complainant is entitled to the reliefs as detailed hereinbelow:

(a)        The opposite party 1 is directed to pay the maturity amount/Redemption value of

            Rs. 10,40,000/- (Rupees Ten lakhs forty thousand only)to the complainant.

(b)        The opposite party 1 shall pay 10% interest on the Redemption value of Rs. 10,40,000/- (Rupees Ten lakhs forty thousand only) to the complainant from the date of maturity/redemption date (14.07.2017)till the date of payment.

(c)        The 1^st opposite party shall pay a compensation of Rs. 1,00,000/- (Rupees One lakh only) to the complainant  towards deficiency in service and unfair trade practice on the part of the 1^st opposite party.

(d)        The 1^st opposite shall pay  a cost of Rs. 50,000/- to the complainant.

            This order shall be complied within 45 days of receipt of a copy of this order failing which the 1^st  opposite party pay an amount of Rs. 250/- p.m. or part thereof to the complainant by way of solatium.

            Pronounced in open court on this the 2^nd  day of September,  2022.

                                                                                                      Sd/-

                                                                                                         Vinay Menon V

                                                      President

                                                               Sd/-

    Vidya.A

                       Member        

                          Sd/-

                                                                                               Krishnankutty N.K.

                                                                                                      Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 –  Original of Subordinate Debt Certificate bearing distinctive numbers

                 2068118 – 2068617.  

Ext.A2  -   Copy of lawyer’s notice along with postal receipt and acknowledgment card.

Ext.A3  -  Certified copy of memorandum of Petition in O.P. 705/2014 on the file

                 of the Family Court, Palakkad

Ext.A4 -   Certified copy of order dated 08/09/2015 in O.P. 705/2014 on the file

                 of the Family Court, Palakkad

Exhibits marked on the side of the opposite party

 Ext.B1 – Original application for Subordinate Debts bearing no. SD XI 59153

                dated 14.01.2012.

Ext.B2 – Original nomination form dated 14/01/2012.

Ext. B3 – Copy of relevant page bearing no. 185 of Doubling Bond Register.

 Court Exhibit

 Nil

Third party documents

X1 series  - Report bearing No.BS-03/2018 dtd.7/9/18 Issued by Regional FSL

X2 series – Deposition sheets containing sample signatures of complainant.

X3 series – Rent deed dtd 22/09/2015 containing admitted signatures of the complainant.

X4 – Securities transfer form dated 31/12/2014 containing             questioned signature 1 of the

          complainant.

X5 –Letter containing questioned signature 2 of the complainant

Witness examined on the side of the complainant

PW1 – T. Maduri Devi

Witness examined on the side of the opposite party

DW1 – Suma E

DW2 – Sujith

Court Witness

CW1 – Lali TA

Cost : Rs. 50,000/- (Rupees Fifty thousand only)  allowed.       

NB : Parties are directed to take back all extra set of  documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.