PRESENT:-

SMT. VALSALA SARANGADHARAN   :        MEMBER

SHRI. M.V. VISWANATHAN                   :   JUDICIAL MEMBER

APPELLANTS

1.    M/s.Souharda Kuries & Loans (P) Ltd.,

Rep. by Managing Director,Regd. Office,

Eluvathingal Building, Erinjeri Angadi,

Thrissur.

2.    M/s. Souharda Kuries & Loans (P) Ltd.,

     Rep. by Chairman, Regd. Office,

     Eduvathingal Building, Erinjeri Angadi,

Thrissur. 

               ( Rep. by Adv.A.T. Anilkumar)                                        

                      Vs

RESPONDENT

      N.B. Anil Kumar,

Advcate,S/o Balakrishnan,

Nandilath House,

Vappuzha, Chazhoor, Thrissur.

        ( Rep. by Advt. Sri. S.S. Kalkura,R.S.Kalkura,& G.S.Kalkura)

JUDGMENT

SMT.  VALSALA SARANGADHARAN   :  MEMBER

          This appeal is preferred against the order dated 1.5.09 passed by the CDRF, Trissur in O. P. 772/04. The complaint was preferred by the respondent herein as complainant against appellants as opposite parties.  The Forum below allowed the complaint thereby the opposite parties are directed to pay a  sum of Rs. 1,25,000/- towards the prized Kuri amount with 12% interest from 16,10.2003 till realization along with costs of Rs. 1,000/- to the complainant.  It is agreed by these directions, the present appeal is preferred by the opposite parties.

          2.      The case of the complainant is that he was a subscriber to the 16nth day quarterly Kuri conducted by the opposite parties and was regularly remitting the quarterly installments.  He joined the Kuri under the instigation of an advocate clerk who is one of the shareholder of the Kuri company and he was keeping the passbook of the complainant and through a letter, the opposite parties informed the complainant that the Kuri subscribed by the complainant was prized at the draw held on 16.10.2003 but was forfeited due to non payment of kuri installments.  The complainant issued a lawyer Notice to the opposite parties.  But the amount was not paid.  Hence he filed complaint before the Forum praying for directions to the opposite parties to pay Rs. 1,25,000/- with interest from 16.10.2003 till realization along with compensation and costs.  

          3.      The opposite parties filed version and contented that complainant had paid installments by way of cheques till 7nth installment and thereafter consecutively defaulted the installments and as on 16.10.2003 four installments were

defaulted and hence the Kuri subscribed by the complainant which was prized at draw on 16.10.2003 was forfeited.  It is further submitted that as per the terms of Kuri variola, forfeiture of a Kuri takes place if three consecutive installments were defaulted and the subscriber shall lose the benefit of dividend accrued and is entitled to get only the actual amount remitted by him less the Foreman’s Commission.  The opposite parties are ready to pay that amount to the complainant. But the complainant was reluctant to receive the same.  Hence there was no deficiency on their part and prayed for dismissal of the complaint. 

          4.      We heard the learned counsel for the appellants and respondents.  The learned counsel for the appellants submitted that the complainant has not produced the pass book or receipt to show that he has been regularly remitting the quarterly installments.  He argued for the position that as per Clause 12 of Talavariola, the ticket of the complainant became forfeited due to the default in payment of 3 consecutive installments and as per Clause 13 of the said Variola, though

the subscriber is a defaulter for 3 installments he will remain in the lot, but is entitled to get the actual amount subscribed by him less the Foreman’s Commission.  According to the appellants, the complainant was a consecutive defaulter of 3 installments and automatically Clause 12 and 13 will apply.  Pleading that there was no deficiency in service on their part, the appellants prayed for setting aside the impugned order passed by the Forum below.

          5.      On the other hand the learned counsel for the respondent/complainant supported the findings and conclusions of the Forum below and argued for the position that the complainant was not a defaulter in paying installments till the date of draw and he entrusted the amount to his friend for making payment through a share holder of the company.  But the friend by oversight and inadvertence omitted to entrust the money to the shareholder and this fact was also intimated to the opposite parties. In the notice dtd. 17.10.2003 which was sent by the manager to the complainant, no specific reason was stated for forfeiting the prized amount.  According to the respondent the appellants are duty bound to release the prize amount.  Pleading that there was deficiency in service on the part of the appellants,  he prayed for dismissal of the appeal.

          6.      On hearing the learned counsel for the appellants and respondent and on perusing the records, we find that the respondent/complainant admitted that the defaulted installments were given to his friend for making payments through the shareholder of the company.  But the friend by oversight omitted to entrust the money to the shareholder.

 Ext. P4, the lawyer notice sent by the complainant would show the admission of the complainant that he had entrusted the money to his friend which was not paid to Mr. Sidhique , who is one of the directors of the company.

          7.      We find that as per Clause 12 and 13, of the Kuri variola, the defaulted subscriber is not entitled to get dividend or interest on the amount deposited by way of Kuri subscription.  So the Forum below cannot be justified in directing the opposite parties to pay the prized amount with interest to the complainant.

The condition in the Kuri variola would make it clear that the defaulted subscriber is entitled to get the actual amount remitted by him without any dividend but after deducting the  and Foreman’s Commission.  In such a situation, we are of the view that the complainant/respondent is bound by the conditions in the Kuri variola and he is entitled to get the amount actually paid by him without any dividend and after deducting the Foreman’s Commission.  So the impugned order is to be modified to that effect. 

          In the result, the appeal is allowed in part, thereby the impugned order is modified to the effect that the complainant/respondent is entitled to get the actual amount remitted by him, without any dividend and after deducting the Foreman’s Commission along with 12% interest from 16.11.2003 till the date of payment.  The costs of Rs. 1,000/-

which was awarded by the Forum below is sustained.  As far as the present appeal is concerned, there shall be no order as to costs.        

                    VALSALA SARANGADHARAN   :  MEMBER

                          M.V. VISWANATHAN            :  JUDICIAL MEMBER