O R D E R
(By Mr. D.Shanker Rao, Member)
1. The brief-facts set-out in the complaint are that the complainant has deposited Rs.5,00,000/- (Rupees Five Lakhs only) as fixed deposit with the opposite party chits & finance under the name and style of “Deepa Chits & Finance” at Morthad village in Nizamabad district. In turn the opposite party has issued fixed deposit certificate bearing No.ECF268 for Rs.5,00,000/- (Rupees Five lakhs only) in the name of complainant for the period of one year from the year 15-5-2010 to 15-5-2011 year to be matured with the value of 3% interest every month. As per agreed rate of interest the opposite party has to pay Rs.15,000 – to the complainant towards interest. The opposite party asked the complainant to take the principal and interest together after one year and the complainant agreed for the same. After expiry of one year, the complainant approached the opposite party and demanded to pay the principal and interest amount, but the opposite party requested the complainant for some time for repayment of amount. Even after expiry of two years, the opposite party postponing repayment on one or other pretext and not giving suitable answers to the complainant. Apart from the above fixed deposit amount, the complainant also made another fixed deposit on 1-5-2010 for a sum of Rs.4,00,000/- under fixed deposit certificate bearing No.ECF269 and also gave a sum of Rs.5,00,000/- to the opposite party under promissory note on 13-12-2010. To utter surprise, the complainant has received an insolvency notice from the Hon’ble Senior Civil Judge court Nizamabad on 21-8-2012 in I.P.No.23 of 2012 wherein the complainant was shown as 1st respondent in schedule “A” for the liability of Rs.5,00,000/- with wrong date as 15-8-2009. Further the post dated cheques under said promissory note for Rs.6,00,000/- and Rs.72,000/- were dishonored which were issued by opposite party in repayment of said pronote. Hence the complainant has filed a civil suit bearing No.O.S.NO.169 of 2012 on the file of Hon’ble Senior Civil Judge court at Nizamabad for recovery of said promissory note amount. The complainant also will file separate consumer case for claiming another fixed deposit amount for Rs.4,00,000/- under fixed deposit certificate bearing No. ECF 269. Therefore there is gross negligence and deficiency of service on the part of opposite party when he failed to repay the fixed deposit amount of Rs.5,00,000/- with accrued interest @ 36% interest per annum.
The claim of the complainant is for Rs.9,21,500/- (Rs.5,00,000/- Fixed Deposit + Rs.4,21,500/- interest upto on 17-9-2012) with 24% interest from the date of complaint till realisation besides compensation for Rs.30,000/- and costs for Rs.10,000/-.
2. The opposite party remained ex-parte to the end of entire proceedings.
3. During enquiry, the complainant B.Limba Reddy has filed his affidavit as PW1 evidence and marked Ex.A1 to A4 documents and closed his evidence. The opposite party remained ex-parte throughout the proceedings.
4. Heard arguments.
5. The points for consideration are :
1) Whether the complaint is maintainable in view of the insolvency petition
bearing I.P.No.23 of 2013 filed by opposite party ?
2) Whether there is any deficiency of service on the part of opposite party ?
3) To what relief?
6. POINT No.1 : It is an admitted fact that the opposite party has filed insolvence petition bearing I.P.No.23 of 2012 before the Hon’ble Senior Civil Judge Court at Nizamabad as per Ex.A4. It is also not disputed that the complainant name is shown in the said I.P. as respondent No.1 and as creditor No.1 in schedule – ‘A’ property for the amount of Rs.5,00,000/- which is stated to be payable by opposite party. The pleas taken by opposite party in the said I.P. as far as concerned with the transaction of complainant are quiet different than the pleas taken by complainant in his complaint. The opposite party has not pleaded anywhere in the said I.P. that he has set-up finance business under the name and style of ‘Deepa Chits & Finance’ stated to be registered with registration No.3765 at Morthad village and suffered loss. It is the case of opposite party as per Ex.A4 that he was one of the partner in ‘Vinayaka Constructions’ and Gokul Apartments which are Real Estate business and suffered loss. However the opposite party has not rebut to the pleas and evidence adduced by the complainant and he remained ex-parte in spite of service of substitute notice by way of publication published in Eenadu Telugu daily district tabloid paper on 21-2-2013 which is held sufficient for the service of notice against opposite party. The counsel for the complainant has vehemently argued that the opposite party has filed the said insolvence petition with an ill-motive and intentionally not shown the real facts and real liability so far concerned with the complainant and purposefully he would dragon the said insolvence petition till the liabilities to be time barred. Further argued that the complainant has filed the complaint is in order to save the limitation for his transaction and its protection, in case the opposite party fails to get declaration as insolvent in the said insolvence petition and further submit that the relief involved in the complaint is subject to result of the said insolvance petition.
In view of aforesaid discussions and submissions, we are of the considered opinion that the relief involved in the complaint is subject to result of the said insolvence petition filed by opposite party. Therefore the complaint is maintainable though there is insolvence petition bearing I.P.No.23 of 2012 on the file of Hon’ble Senior Civil Judge court at Nizamabad filed by opposite party which is pending for disposal.
7. POINT No.2: The case of the complainant is that he has deposited an amount of Rs.5 Lakhs with the opposite party chits & Finance under name and style of Deepa Chits & Finance at Morthad village as fixed deposit on 15-5-2010 for the period of one year and to be matured on 15-5-2011 with its maturity value of Rs.3 rupees interest in every month. In order to substantiate his claim, the complainant himself examined as PW1 and marked Ex.A1 to A4 documents. Ex.A1 is the fixed deposit certificate stated to be issued by opposite party. There is no rebut to the Ex.A1 document as the opposite party remained ex-parte.
However, on perusal of Ex.A1, the maturity value of fixed deposit amount is not mentioned. But mentioned it as ‘every month Rate 3.0 three’. The contention of the complainant is that the interest @ Rs.3/- every month as pleaded in the complaint as well as in the affidavit of complainant as PW1 evidence are not matching with the endorsement in Ex.A1 at the maturity amount column. Hence we are of the considered opinion that the maturity value is not mentioned in the maturity column and such endorsement as ‘every month Rate 3.0 three’ will not sufficient for calculation of interest either @ 3% per month or @ 36% per annum. Therefore in absence of actual rate of interest figure in Ex.A1 the 9% Rate of interest per annum is quite reasonable and the opposite party also liable for the same from the date of deposited the fixed deposit till realisation of entire amount in Ex.A1 with said rate of accrued interest but subject to result of the insolvance petition bearing No. I.P. 23 of 2013 filed by opposite party on the file of the Hon’ble Senior Civil Judge at Nizamabad.
8. POINT No.3: In view of findings in point 1 & 2, the opposite party is liable to refund the Ex.A1 fixed deposit amount of Rs.5 Lakhs with 9% interest from 15-5-2010 till realisation to the complainant subject to the result of the insolvence petition bearing No. I.P. 23 of 2012 filed by opposite party on the file of the Hon’ble Senior Civil Judge at Nizamabad. However there shall be no compensation & costs in the circumstances of the case.
9. IN THE RESULT, the complaint is allowed in part, and directing the opposite party to refund the Ex.A1 fixed deposit amount of Rs.5 Lakhs with 9% interest from 15-5-2010 till realisation to the complainant subject to result of the insolvence petition bearing No.I.P. 23 of 2012 filed by opposite party on the file of the Hon’ble Senior Civil Judge Court at Nizamabad. There is no order to compensation & costs in the circumstances of the case.
Typed to dictation, corrected and pronounced by the Member in Open Forum on this the 26th day of March 2013.
