BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, GADAG. Basaveshwar Nagar, Opp: Tahasildar Office, Gadag         COMPLAINT NO.125/2019   DATED 22nd  DAY OF NOVEMBER-2022

BEFORE:       HON'BLE MR. D.Y. BASAPUR, B.Com, L.L.B(Spl.,)                                                                     PRESIDENT                                                           HON'BLE Mr. RAJU. N. METRI, B.Com, L.L.B(Spl.,)                                                                     MEMBER     HON'BLE Mrs. YASHODA BHASKAR PATIL,                                               B.Com, L.L.B(Spl.,) M.Ed.,                                                          WOMAN MEMBER

Complainant:              Sri. Sunil S/o Basanagouda Patil

                                            Age:27 Yrs, Occ:Private Job.

                                            Nandishwar Nagar, Kalasapur Road,                              

                                            Gadag, Tq: & Dist:Gadag-582103.

                                                (Rep. by Sri. R.B.Challamarad Advocate)   

V/s

JUDGMENT

ORDER DELIVERED BY SRI. D.Y. BASAPUR, PRESIDENT

        This complaint filed by the complainant U/Sec. 12 of Consumer Protection Act, 1986, for Chit fund amount of Rs.18,00,000/- with @18% p.a. Rs.1,00,000/- towards mental agony and cost.

        Brief facts of the complaint are as under:-

        2)     The complainant has alleged that, OP is receiving chit fund business in the name and style as Shivasangam Chits Pvt. Ltd., Gadag. OP is mobilizing chit fund money from its customer. Complainant has paid Rs.18,00,000/- towards Chits fund to OP, who has issued receipts, Statement and passbook.  On 31/03/2018 paid Rs.18,00,000/- to Chit  No.50001/43 for Chit value is Rs.25,00,000/-. Complainant asked to give receipt for the installment amount.  But did not heed the request. Therefore, complainant stopped to pay further installments. Complainant several time requested the OP  for refund of the chits fund amount of Rs.18,00,000/-, but did not refund. Therefore, complainant has got issued legal notice on 29.07.2019, and  Op has got evasive reply.  So, OP has committed the deficiency of service.  Hence, filed this complaint.

3) After service of notice, Op appeared through counsel and filed the written version. 

Brief facts of the written version are as under:-

4) Op denied the various allegations, and contended that, complainant participated in the Public Auction on 20.04.2016 and accepted the bill for Chit value Rs.25,00,000/-. The complainant entered into agreement  and received the amount of Rs.15,00,000/- excluding Rs.10,00,000/-, complainant paid the few installment only and failed  to pay remaining 21 installments for Rs.10,38,880/-. Parents of the complainant are executive members of brother institution Shivasangam Multiple Co-Op. Ltd. Gadag and also father worked as a Manager. Sister of complainant is a Legal adviser. Later, parents of complainant were dismissed from executive board. During the said period father of the complainant created false entry in the Pass book and also miss-utilized the cheques of  other customer on 16.02.2016 bearing Cheque No.129362 of Rs.60,000/- and on 04.11.2017 and mentioned as a cheque without number for installments 32 to 36. Therefore, there is no deficiency of service committed by the Op. Hence, prays for dismissal of the complaint.

5)     In order to prove the case, the complainant himself filed affidavit and examined as PW-1 and got marked the documents Ex.C-1 to Ex.C-28.  Shivakumar Hallikeri for OP filed affidavit and examined as RW-1 and got marked the documents Ex.Op-1 to Ex.OP-61.

6)     Both counsel for complainant and Op filed their written arguments. Heard the arguments on          

                both sides.

7)     The points for our consideration arose are as        under:

        i)      Whether the complainant  proves that,    he paid Rs.18,00,000/- under Chit      No.50001/43 to the Op?.

ii)     Whether the Op proves that, the complainant participated in the Bid on 20.04.2016 and received the Bid amount after deduction a sum of Rs.15,00,000/- the Chit No.50001/43?.

        iii)    Whether the complainant  proves that,            Op has  committed the deficiency of                     service.?

iv)    Whether the complainant proves  that he is    entitled for the relief as sought for?

                v)     What order?

       8)      Our answer to the above points are as under:

                Point No.1        : Partly affirmative.

                Point No.2        : Negative.

                                Point No.3        : Partly affirmative.

                Point No.4: Partly affirmative.

Point No.5: As per final order for the  

                                  following.

R E A S O N S

9.     Point No.1 : On careful perusal of the materials placed before us, PW-1 filed affidavit and reiterated the contents of complaint. PW-1 has  stated that, OP is receiving chit fund business in the name and style as Shivasangam Chits Pvt. Ltd., Gadag. OP is mobilizing chit fund money from its customer. Complainant has paid Rs.18,00,000/- towards Chits fund to OP, who has issued receipts, Statement and passbook.  On 31/03/2018 paid Rs.18,00,000/- to Chit  No.50001/43 for Chit value is Rs.25,00,000/-. Complainant asked to give receipt for the installment amount.  But did not heed the request. Therefore, complainant stopped to pay further installments. Complainant several time requested the OP  for refund of the chits fund amount of Rs.18,00,000/-, but did not refund. Therefore, complainant has got issued legal notice on 29.07.2019, and Op has got evasive reply.  So, OP has committed the deficiency of service.

The learned counsel for Op argued that, a serious dispute is involved and complaint may be returned to file before competent Commission. The learned counsel for complainant argued that, this Commission has got jurisdiction as dispute arising for adjudication is not complicated and seeking relief available under the Act are in addition to, and not derogation of the provisions of the any other law.

        10. Per contra, RW-1 has filed affidavit and reiterated the contents of the written version. RW-1 has stated that, Op denied the various allegations, and contended that, complainant participated in the Public Auction on 20.04.2016 and accepted the bill for Chit value Rs.25,00,000/-. The complainant entered into agreement  and received the amount of Rs.15,00,000/- excluding Rs.10,00,000/-, complainant paid the few installment only and failed  to pay remaining 21 installments for for Rs.10,38,880/-. Parents of the complainant are executive members of brother institution Shivasangam Multiple Co-Op. Ltd. Gadag and also father worked as a Manager. Sister of complainant is a Legal adviser. Later, parents of complainant were dismissed from executive board. During the said period father of the complainant created false entry in the Pass book and also miss-utilized the cheques of  other customer on 16.02.2016 bearing Cheque No.129362 of Rs.60,000/- and on 04.11.2017 and mentioned as a cheque without number for installments 32 to 36. Therefore, there is no deficiency of service committed by the OP.

The learned counsel for complainant is relying on judgment passed in appeal (Civil) 7228/2001 dtd:29.08.2003 on the file of Supreme Court of India in CCI Chambers Co-OP. HSG, Society Ltd., V/s Development Credit Bank Ltd., Wherein, it is held that.

 “Merely because recording of evidence is required are some question of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any forum under the Act to the person aggrieved.  It is only when the dispute arising for adjudication is such as would require recording of lengthy evidence not permissible  within the scope of a summary enquiry  that forum under the Act may ask the complainant to approach the Civil Court. The  for a made available under the Act are in addition to, and not in derogation of the provisions of any other law  for the time being in force and the jurisdiction of the conventional courts over such matters as are now cognizable under the Act has not been taken away. Mere complication either of facts or  of law can be a ground for the denial of hearing by a forum under the Act”.

Facts circumstances and ratio of the decision is similar with the case on hand. 

        11. Ex.C-1 Pass book, reveals that, the complainant paid the installments from 30.06.2015 to 31.03.2018 a total amount of Rs.18,00,000/-. Ex.C-2 statement reveals that, installments paid from 30.06.2015 to 31.03.2018.  As per complainant, Ex.C-1 & Ex.C-2 are issued  by Op and  entries are also made. On the other hand, Ex.C-1 &  Ex.C-2 entries are not admitted by Op and complainant himself has created the bogus entries.  PW-1 specifically stated that, he has paid all the installments by cash,  but not through cheques. Ex.C-1 reveals that, on 16.12.2016, 04.11.2017 to 31.03.2018 cash paid through cheques and similarly Ex.C-2 statement reveals that on 12.07.2016 &  29.09.2017 mentioned as B.P. ADJ, on 04.077.2017, 16.11.2017, 17.11.2017 mentioned as through cheque, on 22.11.2017, 27.11.2017, 11.12.2017 mentioned as NEFT is unbelievable as stated by the complainant. Ongoing through Ex.P-25 & Ex.P-26 issued by Karnataka Bank and Indian Bank marked. Both the letters issued by both Banks reveals that, no cheque book were issued to the complainant. However, in Ex.C-1 and Ex.C-2 amount installment paid not only cash. But also through cheque and NEFT. So,  it is clear that, the complainant paid the amount only by cash cannot be accepted as no supporting documents to that effect are produced.  

        12. Ex.OP-7 ledger maintained by OP reveals that, complainant paid the amount till since 30.06.2017 till 25.01.2018 a sum of Rs.10,38,880/-. So, Op admitted the amount of Rs.10,38,880/- and denied the remaining amount.  Complainant has not produced any relevant  documents to show that he has paid Rs.18,00,000/-. Ex.C-1 and Ex.C-2 are in consistent to each other and they are not believable. 
Ex.C-3 to Ex.C-7 receipts issued by Op are not disputed, complainant has not produced receipt for remaining balance, except Ex.C-3 to Ex.C-7. Anyhow, Op has already admitted that, complainant has paid Rs.10,38,880/- as per Ex.Op-7. So, on perusal of material placed on record, the complainant is entitled for Rs.10,38,880/- and complainant has failed to prove that, he has paid the amount of Rs.18,00,000/-. Hence, complainant is entitled only for  Rs.10,38,880/-. Hence, point No.1 is answered partly in affirmative.

        13. Point No.2:- Op has contended that, the complainant participated in the Public Auction and accepted the Bid for Rs.25,00,000/-. After deducting the service tax, verification charges Rs.15,00,000/- is paid. Op has not produced the list of Bidders as per Sec.33 and 34 of Chit Fund Act. OP has also not produced any documents to show that, complainant is due to pay remaining 21 installments for a sum Rs.10,38,880/-. As per audit report for the year 2016-17, schedule-7 in the other current liabilities particulars column, no arrears are due from the complainant. Ex.OP-6, Chit agreement which is not original agreements. Ex.C-16 to Ex.C-23 eight cheques issued by Op through Karnataka Bank are bearers cheques. As per guidelines of Reserve Bank of India, bearer cheque withdrawal should not exceed more than Rs.50,000/-. Even Chit Agreement Ex.Op-6 column No.9 reveals that, price amount shall be paid through cross cheque only.   However, Op failed to issue A/C Payee cheque.  So, Ex.C-16 to Ex.C-23 are bearer cheques issued in favour of complainant are not as per the agreements. On back side of the cheques, signature of complainant is not found, but simply it is mentioned as Sunil.B.P., below the name there is a signature, but the said signature are not similar with signature of complainant put in complaint, Vakalath, affidavit and specimen signature of complainant while opening an account in Karnataka Bank which was called for and is produced in CC No.125/2019,  which can be compared with the signature behind the cheques with bare eyes it differs as per provisions of evidence Act. On perusal of signatures on Ex.C-16 to Ex.C-23 which are stated to be complainants, reveals that, style of writing is not similar with admitted signature on Vakalath and complaint. Even, in cheques reveal that staff of Bank adjusted to CA/1337.   So, it goes to show that, the said cheques amount is adjusted to current account of some other person. In cheques behind the cheque signature of the staff is found. Further, the proceeding conducted for the Bidding and the minutes proceedings are not produced by the OP.  So, the contention of Op that, they have paid the amount through Ex.C-16 to Ex.C-23 to complainant cannot be accepted.

        14. Similarly when, Ex.C-27 & Ex.C-28 are perused it reveals that, one Iranna Huballi has lodged a complaint against the Directors of Op in private complaint No.3/21 before 1^st Additional J.M.F.C. Gadag and cognizance has been taken for the offence punishable U/Sec. 417 to 420 etc., and registered the CC No.3900/21. For the above, stated reasons it clearly goes to show that the OP has not conducted the Bidding proceeding and the complainant has not participated in the Bidding procedures and the OP instead of issuing a cross cheque which is mandatory as per Chit Fund Act, have issued a bearer cheques.  Accordingly, we answer point No.2 in negative.

        15. Point No.3 & 4: As per the reasons stated above, complainant proved that, Op has failed to repay the amount deposited by him and committed the deficiency of service. Hence, complainant is entitled for the amount of
Rs.10,38,880/-. Complainant is also claiming an interest at the rate of 18% p.a. which is on the higher sider.  So, as per rate of interest in the Nationalized Bank, it is proper to award interest @ 8% p.a. from the date complaint till realization. Complainant has suffered mental agony, even though he paid the installments. So, complainant is entitled for a sum of Rs.15,000/- towards mental agony and Rs.5,000/- towards cost of the complaint. Accordingly, we answer Point No. 3 & 4 in the partly affirmative and point No.2 in the negative.         

        16.   Point No. 5: In the result, we pass the following:

//O R D E R//

The complaint filed U/Sec.12 of the Consumer Protection Act, 1986, is partly allowed.

Complainant is entitled from OP a sum of Rs.10,38,880/-. with interest at 8% p.a. from the date of complaint 19.11.2019 till realization.

Further, the complainant is entitled for Rs.15,000/- towards mental agony and Rs.5,000/- towards cost of litigation.

Op is directed to pay the entire claim amount to the complainant, within two months from the date of this order.

Office is directed to send the copies of this order to the parties free of cost.

        (Dictated to the Stenographer, directly on computer, corrected and then pronounced by me in the Open Court on this   22^nd   day of November- 2022)

   (Shri Raju N. Metri)    (Shri. D.Y. Basapur)   (Smt.Yashoda Bhaskar. Patil)

              MEMBER                  PRESIDENT            WOMAN MEMBER

\\ANNEXURE//

Witness examined on Behalf of the complainant

PW-1 – Sri. Sunil S/o Basanagouda Patil

Documents marked on behalf of the complainant

Witness examined on Behalf of the OP.

RW-1: Shivakumar S/o Shankrappa Hallikeri

Documents marked on behalf of the OP.

Shri Raju N. Metri)      (Shri. D.Y. Basapur)     (Smt.Yashoda Bhaskar. Patil)

       MEMBER                 PRESIDENT               WOMAN MEMBER