D.o.F:04/2/2010

D.o.O:14/10/2010

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

                                         CC.31/10         

                        Dated this, the 14^th   day of October 2010.

PRESENT

SRI.K.T.SIDHIQ                                             : PRESIDENT

SMT.P.RAMADEVI                                      : MEMBER

P.Ambunhi,

S/o Kannan(late),Padachery House,                                   : complainant.

Padinhattam Kozhuval,

 PO.Nileshwar, Hosdurg-671314

 (in person)

1 President,Pudukkai Vainingattu Sree Vairajathan

   Eashwaran   Kshethra committee, Puthukai           :

    Vaininghat, Po.Uppilikkai,Hosdurg 

2. V. Balachandran, S/o Krishnan,Secretary,

   Pudukkai Vainingattu Sree Vairajathan

   Eashwaran   Kshethra committee,                         :

    Vaininghat, Po.Uppilikkai,Hosdurg                                                         

3.C.V.Krishnan, S/o Koman Treasurer,          :  Opposite parties

  Pudukkai Vainingattu Sree Vairajathan

   Eashwaran   Kshethra committee,                        :

    Vaininghat, Po.Uppilikkai,Hosdurg

(Ops 1 to 3 Exparte)

4. V.Subramanyan,   S/o Kunhundan,

    Accountant ,  Pudukkai Vainingattu Sree Vairajathan

   Eashwaran   Kshethra committee,                        :

    Vaininghat, Po.Uppilikkai,Hosdurg,

 R/  Near Manthampurathu kavu,Nileshwar Po.

(Adv.Anantharaman,Kasaragod)

                                               ORDER

SRI.K.T.SIDHIQ : PRESIDENT:

 Complaint is admitted on the file after condoning delay  as per order in IA.38/10.

       The case of the complaint in brief is that he joined in the chitty conducted by opposite   

parties 1 to 4 believing that they have  valid license to run chitty .  But they appropriated the installments paid in the chitty.  The total chitty  amount on maturity to be received was  ` 1,00,000/-. He joined in the chitty on 16/07/ 2004 and paid 31 monthly installments of ` 2000/- each totaling  `` 62,000/- in  both chitty. Before completing the chitty Opposite parties  absconded  closing the chitty offices and  appropriating chitty amounts  by   hundreds of chittalans including that of the complainant.  Hence the complainant  praying for an order of refund of   ` 62,000/- along with   ` 20,000/-  as compensation and  cost of ` 2000/-.

2.    Notices were issued to all opposite parties by registered post with acknowledgment

due.  But notice to opposite parties NO.1 and 2 were returned  unserved.  Even though

opposite party No.3 was served with the notice but not turned up to defend the case. 

Hence notice to opposite parties 1 & 2 were made  through  paper publication.  Even after

publication of notice they  did not appear to defend the case.  Hence  opposite parties 1 to

3 were set exparte.

3. Version of 4^th  opposite party.

       According to    Opposite party No.4 he is not an accountant 1^st opposite party

or other opposite parties.   He has no connection  with the complainant and he did not request the complainant to join the chitty.  He is also not aware about the payment of ` 62,000/- allegedly  made by the complainant There is no privity of contract between the complainant and  he is  a total stranger to 4^th opposite party.   Opposite party No.4  was working as a daily wage employee under opposite parties 1 to 3 and he   had no control  over the assets and liabilities of the  chitty(Kury) run by opposite parties 2& 3  .  Opposite parties 1 to 3 utilised the benefits of the chitty run by them and  4^th opposite party  did not  get any benefits from them except of  daily wages for the work done by him in their office for short period.  Apart from   him some other employees were also working in the office run by  opposite parties 1 to 3.  He has not requested the complainant to join in the chitty.  So  he is not liable to compensate the complainant. The complaint is barred by limitation . The amount claimed by the complainant is highly excessive.  The entries made in the passbook are not correct.  The 4^th opposite party heard that several persons have misused the passbooks and other documents of the opposite parties 1 to 3 by  trespassing into the office building of Ist opposite party while 3^rd opposite party was in judicial custody for some time and misappropriated the documents and assets.  The complaint is without any merit.  Hence the complaint is liable to be dismissed.   

4.   .    Complainant  examined as PW1 and Exts A1 &A2  marked .   The  passbook

issued bearing the seal of opposite parties committee is produced and marked as Ext.A1.

Ext.A2 is  the copy of registered by-law.   4^th opposite party  filed counter affidavit.  Both

sides heard and the documents produced. 

5 .  Now the points arises for consideration are

1.Whether the complaint is barred by limitation

2.      whether there is any deficiency in service on the part of the opposite parties in not refunding the  chitty instalments to the complainant and what is the relief and cost?

6.         The contention of 4^th opposite party  that the complaint is barred by limitation is not  sustainable in view of Sec.24(A) of the Consumer Protection Act.  The complainant filed  an application to condone the delay with  an affidavit and as per Sec.24(A) (2) of C.P.Act if the complainant satisfied the District Forum State Commission or National Commission that he had sufficient cause  for not filing the complaint within such period then delay can be  condoned complainant in his affidavit has stated that he was waiting  and expecting that the opposite parties  would pay back the amount  but they did not pay the amount .  Subsequently he became  bedridden also.  We are satisfied with the explanation offered by the  complainant for not filing the complaint in time .  Further the Hon’ble Supreme Court in a catena  of decision has held that when substantial justice and technical  consideration are pitted  against each other cause of  substantial justice  deserves to be preferred for the reason that other side cannot claim to have vested right in injustice being done because of non-deliberate delay (AIR 1987 SC 1353).

    The law of limitation is  enshrined in the maxim interest reipublicae sit finis litium ( it is for the general welfare that a period be put to litigation).   Rules of  limitation are not meant to destroy the right of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

  7.    In  N Balakrishnan vs. M.Krishnamurthy (1998) 7 SCC 133 the Apex court explained the scope of limitation and condonation of delay observing as under:

   The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice.  The time limit fixed for approaching the court in different  situations is not because on the expiry of such a time a bad cause would transform in to a good cause.  Rules of limitations are not meant to destroy the rights of parties.  They are meant to see that parties do not resort to dilatory tactics but seek then remedy for the redress of the legal injury suffered.  The law of  limitation is  thus founded on public policy.”

   8.           In Smt. Prabha  Vs.  Ramprakash Kelra (1987)( Suppl) SCC 338 the Hon’ble  Supreme Court took the view that the court should not adopt an injustice oriented approach  in rejecting the application for condonation of delay.

               In view of the above decisions we condoned the delay in  filing the complaint .  Moreover if the delay is condoned the maximum that will happen is that the complaint will be decided on merits and it will no way affect the interest of the other side if he has a good defence.

9.       The case of the complainant is that   he had deposited 31 instalments of ` 2000/- each in the chitty conducted by opposite parties 1 to 4.  Ext.A1 is the pass book issued  by  

opposite party NO.1 committee evidencing the payments of chitty instalments.  The passbook  shows  that the complainant deposited ` 62,000/-  in  the chitty. 

  10.        In the version  4^th opposite party   says that  he was working as  a daily wage

employee for a short period with  Ist opposite party. Apart from him other employees were

also working in the said office    Except working for some period as daily wage employee he has no other connection with 1^st opposite party and opposite party No.4 or with the  chit fund run by them  with the complainant.  Hence he is an unnecessary party to the above case.  But  as against this contention it is proved in   Ext.A2  , the registered by-law of the society  that  opposite party No.4 is not  an employee under Opposite parties 1 to 3 but he is an executive committee member of the committee.  The executive committee of the society was having wide powers as per the by-law.  Therefore 4th opposite party cannot be treated  as an employee or  mere collection agent  of the  chitty run by opposite parties 1to 3 .He was actively engaged in  conducting  the chitty on behalf of opposite party No.1 committee in which he was an executive member.  Therefore he is personally also liable to compensate the complainant for the loss hardships  caused to him. The  registered by-law does not confers  any authority  on the Society to conduct any chitty.  Hence what the Society done by conducting the chitty was beyond their powers and therefore they can in no way get the protective cover of the society  any they have any such cover.   Therefore, the deficiency is more grave and in no way opposite parties can escape from liability of  paying compensation to the complainant. 

11.   The Hon’ble National Consumer Disputes Redressal Commission in the case of

Ashish Ramesh Chandra Birla & ors. Vs. Muralidharar Rajdhar Patil & ors reported in 2009

CTJ 20 (CP) (NCDRC) has held that in  certain case the directors of corporate body can be

personally liable for the deficiency in service of the corporate body.  In that case the society

involved was one registered under Co-operative societies Act.  There the Hon’ble

Commission has observed

  We are also aware that a large number of Cooperative Societies have been superseded

because of the mismanagement and misappropriation of funds by the  Chairman and  the

Directors of the Society.  They even run the society as if it is their personal fiefdom.  We

would like to remove the Corporate/Co-operative veil and hold that Directors are

responsible for the deficiency in service by the society.

12.           Applying the principle enunciated in the above order we have no hesitation to hold that 4th opposite party is also personally liable to compensate the complainant.  In these cases  the further contention of 4^th       opposite party is that the complaint is bad for non- joinder of necessary parties.    That  is also not sustainable  because  the complainant deposed that except 4^th opposite party  no other executive members of the society persuaded or collected any amount from him, Moreover  no complaint can be dismissed for  such technicalities  and justice  cannot be     denied basing on the rules of technicalities. 

        In the result, complaint is allowed and opposite parties Nos 1,to 4 are  jointly and

severally directed to refund `.62, 000/- with interest @9% per annum from the date of

complaint till payment with a cost of ` 3000/-.  Time for compliance is limited to 30 days

from the date of receipt of copy of the order. 

MEMBER                                                                      PRESIDENT

Ext.A1- chitty pass book

A2- copy of registered  by law.

 eva/