Dated this the 15^th  day of May  2013

 

Present : Smt.Seena H, President

Pramod,

S/o.Sahadeva Panikkar,

“Thrissool Villa” Veedu,

Snehatheeram,

Thenkara (PO),

Mannarkkad Taluk

Palakkad.                                                      -       Complainant

(By Adv.P.K.Mohanan &

Adv.T.V.Pradeesh) 

V/s

 

1.N.Hamsa,

 

2.K.S.F.E.Ltd.

 Mannarkkad Branch,

 Rep.by its Manager,

 Pazheri Plaza,

 (PO) Mannarkkad

 

3.Managing Director,

 ‘Bhadratha’, Museum Road,

 Thrissur.                                                   -        Opposite parties

 (By Adv.Girish K Nochulli)

 

 

By Smt.PREETHA G NAIR, MEMBER

 

The complainant has joined the chitty from the 2^nd opposite party for an amount of Rs.4 lakhs to pay Rs.10,000/- per month in 40 installments. He has joined the chitty as per the direction of agent K.Venugopal. Then 1^st opposite party stated that chitty will be auctioned on any month and the chitty amount will be paid on the basis of  sufficient security. The complainant has started his house construction. After paying the 8^th installment  of chitty, he has auctioned the chitty for an amount of Rs.2,95,000/- on 5/7/2012. 1^st opposite party is insisted the complainant to make fixed deposit of the chitty amount in the company. But the complainant is not ready to make fixed deposit. So he claimed the chitty amount to 1^st opposite party and they directed to come with documents of  the property on 10/7/2012. As per the direction the complainant came with original title deed of his property, original of prior document, encumbrance certificate, building tax receipt, possession certificate and location sketch with map. But the 1^st opposite party has not taken the matter seriously and insisted the complainant to deposit the chitty amount. But the complainant has informed his personal problems and demanded the chitty amount. Then the 1^st opposite party taken the documents and informed the complainant to buy Rs.30/- stamp paper. The complainant purchased Rs.30/- stamp paper and gave to 1^st opposite party.   The 1^st opposite party had prepared an affidavit with Rs.30/- stamp paper and informed the complainant to affix a photo in the affidavit and attest. The complainant had attested the affidavit with Advocate and given to 1^st opposite party. Thereafter complainant waited for two hours for chitty amount. Further complainant went to 1^st opposite party. Then 1^st opposite party had demanded the phone number of complainant and stated that at the time of calling him to come  an amount of Rs.1750/-,the chitty amount  will be paid through cheque. But there was no response from the side of 1^st opposite party. So the complainant went to 1^st opposite party on 19/7/2012. At that time 1^st opposite party demanded the original partition  deed No.3462/1976 and the complainant told him about the difficulty of producing the document. The complainant produced the notarized copies of settlement deed and pattayam of 1985. But the 1^st opposite party demanded to produce the original partition  deeds and pattayaam. The complainant informed him about the non availability of the originals of settlement deed and pattayam.

Then the 1^st opposite party returned the documents to the complainant on 10/08/2012. The 1^st opposite party has taken the documents and not given the chitty amount due to unnecessary reasons. The aunty of complainant auctioned the Pooram Kuries for an amount of Rs.2,95,800/- instead of 11 lakhs and 40 thousand and demanded him to pay the further installments. Moreover the complainant has to sell property of 9.46 cents with least cost. The act of opposite parties amounts to much mental agony. The complainant sent a lawyer notice dated 21/8/12 to 1^st opposite party. After receiving the notice the opposite party had sent reply  notice with false allegations. The complainant is not the custodian of partition deed and pattayam.  The complainant has paying installments in chitty. Opposite parties had not paid the auctioned chitty amount. The act of opposite parties amounts to deficiency in service. Hence the complainant prays an order directing the opposite parties to

1. Pay Rs.5 lakhs as compensation for deficiency in service and

2. Pay Rs.4 lakhs as the prize amount and

3.Pay Rs.20,000/- as cost of the proceedings.

Opposite parties filed version stating the following contentions. The complainant has not given sufficient documents as security to give the chitty amount. Further stated that the original documents are not produced by the complainant for security. Also the complainant has not paid the fees for legal scrutiny to 2^nd opposite party. Moreover the complainant has produced only the photocopies of documents. So the chitty amount was not given to him. The opposite parties had demanded to produce the original documents as security. The complainant has signed the variola stating the terms and conditions. The opposite parties had no intention to harass the complainant  and acted as per the terms and conditions in variola.  Also the 1^st opposite party had not demanded to deposit the chitty amount. The complainant has not filed any complaint to 3^rd opposite party due to the act of 1^st and 2^nd opposite parties. There was no deficiency in service on the part of opposite parties. Hence the opposite parties prayed that dismiss the complaint with cost.

Both parties filed their affidavits. Ext.A1 to A18 marked on the side of complainant. Ext.B1 to B3 marked on the side of opposite parties. Complainant and 1^st opposite party examined as PW1 and DW1. Both parties filed argument notes. Matter heard.

Issues to be considered are

1.    Whether there is any deficiency in service on the part of opposite parties   ?

2.     If so, what is the relief and cost ?

We perused relevant documents on record. Admittedly the complainant has joined the chitty and auctioned the same for Rs.2,95,000/- from Rs.4,00,000/-. The main allegation of opposite parties that the complainant has not produced the original documents as security to disburse the amount. According to the complainant produced all original documents and notarized copies of settlement deed and pattayam to opposite parties. Moreover the complainant has produced the same documents of the property marked as Ext.A1 to A18 except A12, 13, 17 & 18 marked with objection for evidence. Photocopies marked and original documents produced for verification. In Ext.B1 clause 17 shown the security to disburse the chitty amount. Further clause 15 shown that the granting of chitty amount to the subscribers is only after 30 days to 60 days of the auction conducted in the chitty and also to be executed the surety to the opposite parties.

The complainant stated that all original documents produced to 1^st opposite party on 10/7/2012 except the partition deed of 3462/1976 and the pattayam 222/1985. It is evident from Ext.A17 & A18 shown that the 1^st opposite party had written in a paper 3462/1976, ]«bw  222/1985. At the time of cross examination DW1 deposed that Ext.A17 and 18 Fsâ ssI¿£c¯n lcnPn¡mc\v sImSp¯n«pÅXmWv Ext.A17 and 18 Bhiys¸«n«pÅ  documentssâ   certified copy / notarized copy / original thWsa¶v Bhiys¸«n«p­v. 10/7/12\mWv  Ext.A17 sImSp¯Xv. The opposite parties counsel argued that all the subscriber are producing the documents before the KSFE along with an application in which the details of documents produced by the subscriber would be specifically mentioned.

At the time of cross examination DW1 deposed that Ext.A1 to A18 documents lmPcm¡nbm legal scrutiny bv¡v hnSp¶Xn\v XSÊanÃ. CXnsâ IqsS Hcp  application XcWw. AXv  Company bn DÅXmWv.  Application Xcm³ Rm³ Bhiys¸SWw. Rm³  application Bhiys¸Sm¯Xv Fsâ ap¼n lmPcm¡nb  Documents sufficient AÃm¯XpsIm­mWv.  But the opposite parties had not produced evidence to show that the complainant has not produced sufficient documents. Ext.A17 & A18 documents shown the 1^st opposite party demanded the partition deed and pattayam.  In Ext.A3 the notarized copy of partition deed of 3462/1976 attested by the Notary &  Advocate on 7^th day of August 2012. Also in Ext.A4 the notarized copy of pattayam 222/1985  attested by the Notary & Advocate on 8^th day of August 2012. At the time of cross examination of complainant deposed that all documents produced by him on 10/7/2012.

In the complaint stated that on 19/07/2012 the 1^st opposite party demanded the original of partition deed No.3462/1976 and the complainant told him about the difficulties to produce the original of partition deed. Thereafter the complainant produced the notarized copy of partition deed and pattayam. But the 1^st opposite party has strictly demanded the originals of partition deed and pattayam. Finally the documents given back to the complainant on 10/8/2012.

According to the complainant, the chitty auctioned on 5/7/2012. There was no objection raised by the opposite parties. Also no documents produced by both parties to show that the chitty auctioned. As per the variola the chitty amount will be disbursed after 30 to 60 days of the auction.

In Ext.A15 the copy of reply notice sent by the 1^st opposite party stated that they advised that if he could not pledge his deeds, he has an option to deposit the amount and will get interest for that amount and on producing required documents, he can release his chitty amount at any time. In version and affidavit 1^st opposite party denied that he is advised the complainant to deposit the chitty amount in the  company. In Ext.A15(a) condition (2) all the original document executed during the last 13 years and immediate prior deed shall invariably be insisted upon either for keeping in custody or for perusal and recording its production if other properties are also involved in such prior documents.

DW1 deposed that  after producing the documents, it will be sent for legal scrutiny. In the present case all original documents of property and notarized copies of partition deed and pattayam produced before the Forum. Moreover complainant stated that these documents already  produced to 1^st opposite party after the auction. No contradictory evidence produced by the opposite parties.

According to opposite parties all these original documents were not produced by the complainant to him. But the complainant stated that all documents produced to opposite parties. There was no documentary evidence. DW1 deposed that he had not demanded application due to insufficient documents. In Ext.A17 and A18 shown that 1^st opposite party demanded only two documents, not mentioned photocopies or originals. Moreover the 1^st opposite party had not sent the documents to legal opinion. DW1 deposed that if not paid the legal opinion fee, the amount will be collected at the time of issuing the cheque.

 

The opposite parties had not produced evidence to show which documents produced by the complainant. According to the complainant he has auctioned the chitty for less amount of Rs.2,95,000/- due to financial problem. Ext.A16 shown that Pooram Kuries issued a cheque of Rs.2,95,800/- and the total kuri amount was Rs.11,40,000/-. But the complainant has not produced evidence to show that his aunty K.Salini auctioned the chitty for an amount of Rs,2,95,800/- and given to him. The opposite parties had not produced evidence to show that the documents produced by the complainant was insufficient to give the chitty amount. No documentary evidence produced by the complainant to show that he sold property with least price due to financial problem.

 

According to the complainant the documents given back to him on 10/8/2012 by the 1^st opposite party. So after 30 days from the date of auction the 1^st opposite party given back the documents to complainant. The main allegation of the complainant is not given the chitty amount after producing the original documents. As per the variola the chitty amount will be given to the complainant after producing the original documents and sent it for legal opinion and property valuation. So we cannot considered the 2^nd prayer of the complainant to give the total  chitty amount from the opposite parties. Moreover all terms and conditions agreed by the  complainant and auctioned the chitty for an amount of Rs.2,95,000/-. According to the complainant he auctioned the chitty for an amount of Rs.2,95,000/- due to his financial problems on 5/07/2012. DW1 deposed that Ext.A1 to A18 documents will be produced to send legal opinion. The opposite parties has not produced evidence to show that sufficient documents not produced by the complainant for giving auctioned chitty amount.

In the above discussions we are of the view that there is deficiency in service on the part of opposite parties. In the result complaint partly allowed. We order the following:

1.        The opposite parties jointly and severally liable to pay the complainant an amount of Rs.30,000/- (Rupees Thirty thousand only) as compensation for deficiency in service and pay Rs.2,000/- (Rupees Two thousand only) as cost of the proceedings.  Order shall be complied within one month from the date of receipt of order, failing which the whole amount shall carry 9% interest per annum from the date of order, till realization.

 

2.        Complainant shall handover  all the original documents and notarized copies  of the documents as per the rules of K.S.F.E. to the opposite parties within 10 days from the date of receipt of order. Opposite parties after legal scrutiny and other procedural formalities directed to issue the prized amount to the complainant within one month, failing which the complainant is entitled to  an additional amount of Rs.10,000/- (Rupee Ten thousand only)  

 

Seena H

President

Preetha G Nair

Member

Bhanumathi.A.K.

Member