IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Thursday the 30th day of June, 2011
Filed on 22.04.09
Present
- Sri. Jimmy Korah (President)
- Sri. K. Anirudhan (Member)
- Smt. Shajitha Beevi (Member)
in
C.C.No.168/09
between
Complainant:- Opposite Parties:-
Smt.Molly Mathew, 1. Providence Finance,
Vadakkethara, Eramalloor.P.O., Cherthala.
Valamangalam North,
Thuravoor.P.O., 2. Sri.Thomas Antony, Nalampurackal House,
Cherthala – 688 532. Thuravoor.P.O., Cherthala.
3. Smt.Joyse Antony,
-do-
(By Adv.D.Jayasree)
4. Smt.Kathreena Augustine,
-do-
(By Adv.G.Priyadarsan Thampi)
5. Sri.Varghese Antony,
-do-
(By Adv.D.Jayasree)
6. Sri.Willson Antony,
-do-
7. Sri.Sibi Augustine,
-do-
(By Adv.G.Priyadarsan Thampi)
8. Sri.Saji Augustine.
-do-
(By Adv.G.Priyadarsan Thampi)
9. Sri.Sojan Augustine,
-do-
(By Adv.G.Priyadarsan Thampi)
10. Smt.Sony
-do-
(By Adv.G.Priyadarsan Thampi)
11. Smt.Mariyakutty Varghese,
-do-
12. Smt.Lissy,
-do-
13. Smt.Leena,
-do-
O R D E R
SRI.K.ANIRUDHAN (MEMBER)
Smt.Molly Mathew has filed this complaint before the Forum alleging deficiency in service on the side of the opposite parties. The main allegations are as follows:- The opposite parties were engaged in the business of financial dealings by name and style M/s. Providence Chitty Fund, and M/s. Providence Finance at Eramalloor, which is administered in giving money on the security of Gold and Land. They are also engaged in the business of accepting deposits from local people by offering attractive interest. On their assurance, she had deposited a total sum of Rs.2,36,500/- (Rupees two lacs thirty six thousand and five hundred only) before the said firm, M/s. Providence Finance. At the time of accepting deposits the opposite parties issued pass book to her after sealed and signed – A/c No.77/2006 – while so one of the partner Sri.Augustine expired on 23.02.2008 and after that the legal heir of the said members are administered the firm. Since the opposite parties defaulted the repayment, she had requested the opposite parties to return the amount. But the opposite parties have not turned up. The opposite parties had abanded the business from 09.12.2008 onwards and closed the firm. The depositor along with other depositors enquired about the said promoters. But it was learnt that the opposite parties were absconded. She has not obtained any relief from the opposite parties regarding the payment. Hence this complaint.
1. Notices were issued to the opposite parties. The opposite parties 4 and, 5, 6 and 8 to 11 have entered appearance and filed version. Other opposite parties are exparte.
2. In the version filed by the 4th opposite party, it is stated that the complaint is bad for non-joinder of parties and that opposite parties 6 and 7 have nothing to do with the business of the firm and they were never involved in the partnership. It is stated that they had retired from the said partnership business on 28.06.2007 and that the partnership firms were reconstituted on the said day by including new parties ie., opposite party 5 and 9 to 11 and the business is being carried out by the said newly included parties with effect from 29.06.2007. It is further stated that while they were parties along with Varghese Augustine the later started to do business of his own in the similar nature and used to collect funds from outsiders for his own purpose, and misused the goodwill. They are not partners of the firm as on the date of cause of action and they have not received any amounts from the complainant, and so they are not liable for the claim.
2. In the version filed by the 6th opposite party, they have stated the same matters as the version filed by the 4th opposite party. In the version filed by the 5th opposite party and the opposite parties 8 to 11, it is stated that the complainant is not a consumer as per the Consumer Protection Act. It is stated that M/s. Providence Chitty Fund and Finance was registered as per the Indian Partnership Act and they have no relation with the above firms and they have not acted in the said firm till date. Since they were not partners of the above firm, they have no right to participate in the firm. It is stated that the alleged deposit of amounts have no connection with them, and they have no information about the alleged transaction. It is further stated that their father expired on 23.02.2008. But they are fully unaware of the other details of the transaction.
3. Considering the contentions of the parties, this Forum has raised the following issues for consideration.
a) Whether there is any deficiency in service on the side of the opposite parties?
b) Whether the complainant is entitled to get the amount from the opposite party?
c) Compensation and costs?
Issues 1 to 3
4. Complainant has filed proof affidavit in support of his case and filed documents in evidence Ext.A1 and A2 marked. Ext. A1 is his Power of Attorney executed by the complainant appointing Sri.V.V.Antony as lawful attorney to follow up of this case. Ext.A2 is the original Pass Book issued by the opposite parties – A/s.No.77/2006 at the time of the deposit of the above amount, before the firm – M/s. Providence Finances - The Ext. A1 shows that an amount of Rs.2,36,500/- (Rupees two lacs thirty six thousand and five hundred only) is the outstanding amount to be repaid as on 19.11.2008.
5. Opposite parties have not filed the proof affidavit or any documents in evidence, even though several chances were given to them. The opposite parties were absent on the date fixed for hearing. So the Forum have heard the matter in detail on the side of the complainant.
6. We have fully verified the matter involved in this case and verified the documents produced by the complainant in evidence. It is alleged by the complainant that she had deposited a sum of Rs.2,36,500/- (Rupees two lacs thirty six thousand and five hundred only) on different dates in the firm of the opposite parties. Ext.A1 document clearly shown that matter. In spite of the repeated request of the matter the opposite parties have not take sincere attempt to repay the amount with interest to the complainant in time. Instead of taking necessary earnest steps to repay the amount, the opposite parties have evaded from the liability purposefully. The action of the opposite parties shows their cheating nature and unfair trade practice.
7. The complainant is fully entitled to get the amount from the opposite parties. But the opposite parties have not turned up. The entire action of the opposite parties shows that there is grossest deficiency in service, culpable negligence and unfair trade practice. The opposite parties are bound to repayment of the amount and that there is no justification on the side of the opposite parties to deny the repayment. The contentions of the opposite parties cannot be accepted as valid grounds to deny repayment and it lacks bonafides. Since there is grossest deficiency in service, culpable negligence, unfair trade practice and cheating on the side of the opposite parties, the opposite parties are fully liable to pay compensation and cost to the complainant. The contentions of the opposite parties raised by them, in this transaction, have no merit and cannot be accepted. The opposite parties have jointly and severally liable to repay the amount with interest to the complainant. So considering the facts and circumstances of this case and after perusal of the documents in evidence, we are of the strong view that the allegation of the complainant against the opposite parties are to be treated as genuine. In this context, the complainant is to be allowed. All the issues are found in favour of the complainant. Hence the complaint is allowed.
In this result we hereby direct the opposite parties to return the deposited amount of Rs.2,36,500/- (Rupees two lacs thirty six thousand and five hundred only) to the complainant with 12% interest from the date of deposit to till the repayment of the entire amount and further pay an amount of Rs.10,000/- (Rupees ten thousand only) as compensation to the complainant for her mental agony, pain, sufferings, physical strain, loss and harassment of the opposite parties by way of purposeful denial of the repayment of the deposit amount with interest in time to the complainant, due to the grossest deficiency in service, culpable negligence, cheating and unfair trade practice of the opposite parties and further pay an amount of Rs.2,000/- (Rupees two thousand only) to the complainant as costs of this proceedings. We hereby further ordered that the complainant is free to proceed against the assets of the opposite parties in case any default to pay the said amounts to her. We further direct the opposite parties to comply with this order within 30 days from the date of this order.
Complaint is allowed.
Pronounced in open Forum on this the 30th day of June, 2011.
Sd/-Sri. K. Anirudhan
Sd/-Sri. Jimmy Korah
Sd/-Smt. N. Shajitha Beevi
Appendix:-
Evidence of the complainant:-
Ext. A1 - The Power of Attorney dated, 14.08.2009
Ext. A2 - The original Pass Book A/c.No.77/2006
Evidence of the opposite parties:- Nil
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite Parties/S.F.
Typed by:- k.x/-
Compared by:-
