DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 31st day of December 2009.

Present : Smt. Seena.H (President)

: Smt. Preetha.G. Nair (Member)

: Smt. Bhanumathi.A.K. (Member)

C.C.No.125/2008

R.N. Unni

Sree Vihar

Cheroor

Trissur - 8 - Complainant

( Adv.P.Jyothirmayan)

V/s

1. R. Kasi Viswanathan & Brothers

Veera Mani Textiles & Readymades

Wholesale & Retail Piece Goods Merchants

Represented by K.Kasiviswanathan

Managing Partner

Post Box No.2

Pattambi – 679 303

(Adv .P.Gopinath)

2. K.Kasiviswanathan (Died)

Managing Partner

Veera Mani Textiles & Readymades

Wholesale & Retail Piece Goods Merchants

Post Box No.2

Pattambi – 679 303

3. Girija Kasi Viswanathan - (Supplimentary Opposite parties)

7/265, Bazar, Pattami

Managing Partner

R. Kasiviswanathan & Brothers,

Veera Mani Textiles & Readymades

Wholesale & Retail Piece Goods Merchants

4. V. Kalyani - (Supplimentary Opposite parties)

W/o. R. Veeramani

Managing Partner,

R. Kasiviswanathan & Brothers,

Veera Mani Textiles & Readymades

Wholesale & Retail Piece Goods Merchants - Opposite parties

O R D E R

By Smt. Seena.H, President

The case of the complainant in brief

Complainant deposited an amount of Rs.30,000/- (Rupees Thirty thousand only) with

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the 1^st Opposite party on 29/07/2005. When the deposit matured the opposite party promised to give attractive interest @ 15% per annum and requested the complainant to renew the deposit. Accordingly it was renewed on 29/09/2006. The opposite parties promised to pay an amount of Rs.375/- per month as interest and interest was to be paid quarterly. The term of deposit was for three years and if required the complainant is entitled to withdraw the amount even before the stipulated period by giving 2 months notice to the opposite party.

The opposite parties issued post dated cheques for the deposited amount of Rs.30,000/-. The grievance of the complaint is that opposite parties have stopped giving interest from the month of July 2008 onwards. Complainant approached the opposite party on 01/08/2008 and requested them to give the interest and also return the deposit by 1^st October 2008. Time of 2 months notice was given to the opposite parties. The opposite parties have neither returned the deposit nor paid the interest due from the month of July 2008.

The petitioner issued a lawyer notice dated 14/10/2008 to the opposite party and the same was returned as unclaimed. The refusal of the opposite parties to return the deposit amount and interest from the month of July 2008 onwards has caused severe mental agony to the complainant. Hence the complaint.

Complainant prays for an order directing the opposite parties to refund the deposit amount of Rs.30,000/- and pay interest @ 15% per annum from the month of July 2008 and compensation of Rs.20,000/-.

The opposite parties entered appearance and filed version. 2^nd Opposite party was reported to be no more and accordingly supplimentary 3^rd and 4^th opposite parties were impleaded. Notice against supplimentary 3^rd and 4^th opposite parties returned unclaimed and hence was set exparte. 1^st opposite party was also seen to be represented by 2^nd opposite party. Version and affidavit of 1^st and 2^nd opposite parties were already filed.

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As per the contentions of 1^st opposite party, the complainant was given a cheque for Rs.30,000/- dated 29/09/2009 for the repaymental of the amount. It is not correct to say that the complainant approached the opposite parties on 01/08/08 and requested them

to give the interest and return the deposit by 1^st October 2008. The 1^st opposite party due to certain financial problems was approached by the creditors and a committee of creditors was formed. The complainant was also a member of the committee. On the basis of the discussions with the committee of creditors, the 1^st opposite party has sold properties belonging to his relatives to the committee of creditors where by they have agreed to sell property worth Rs. 30 crores to distribute among the creditors. As the complainant is also a member of the said committee, he cannot now turn around and claim the amount as there is waiver of his rights.

The evidence adduced consists of affidavit of complainant. Exhibit A1 to A3 marked on the side of complainant. Even though 1^st opposite party filed an affidavit along with two documents, it was not marked. 2^nd opposite party was reported no more and supplimentary 3^rd and 4^th opposite parties impleaded. 3^rd and 4^th opposite parties has not appeared before the forum and was set exparte.

Now the issues for consideration are:

1. Whether there is any deficiency in service if so

2. What is the reliefs and costs?

Issues 1 & 2

The undisputed facts of the complaint are that the opposite parties has received deposit of Rs.30,000/- from the complainant. Opposite parties have issued apost dated cheque for the amount deposited i.e, for Rs.30,000/- dated 29/09/2009. It is also admitted by the opposite parties that they could not repay the stipulated amount to the complainant. According to the opposite parties 2 months prior notice is necessary for the withdrawal of the amount. The 1^st opposite party due to some financial problem was approached by the creditors and committee of creditors was formed wherein the complainant is also a member. On the basis of the discussions with the committee of creditors the 1^st opposite

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party has sold properties belonging to his relatives to the committee of creditors where by they have agreed to sell the property worth Rs.30 crores and distribute among creditors. As the complainant is also a member of the said committee, he cannot now claim the amount as there is waiver of rights.

Even though a photostat copy of the sale agreement was produced and and it was not marked hence it cannot be taken as evidence. On bare perusal of the sale deed and agreement it is not clear that whether the complainant is a member of the said committee of creditors Documents were not marked and hence cannot be taken as evidence. Supplimentary opposite parties were set exparte.

In view of the above stated facts and circumstances of the case, we are of the view that the act of opposite parties amounts to deficiency in service.

In the result complaint allowed. Supplimental 3^rd and 4^th opposite parties are jointly and severally directed to pay complainant an amount of Rs.30,000/- with 15% interest from July 2008 till realization. Order to be complied within one month from the date of receipt of order.

Pronounced in the open court on this the 31^st day of December 2009.

PRESIDENT (SD)

MEMBER (SD)

MEMBER (SD)

Forwarded/By Order

Senior Superintendent

Date of fair copy: 23/01/2010

Date of despatch: