BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, GADAG. Basaveshwar Nagar, Opp: Tahasildar Office, Gadag         COMPLAINT NO.137/2019   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

JUDGEMENT

JUDGEMENT 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.3,21,450/- 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.3,21,450/- towards Chits fund to OP, who has issued receipts, Statement and passbook.  On 11/12/2017 paid Rs.1,60,725/- to Chit No.85011/22 Rs.5,00,000/- and on 11/12/2017 paid Rs.1,60,725/- to Chit No.85011/21 and Chit value is  Rs.5,00,000/-. Complainant asked to give receipt for the installment amount.  But did not heed the request. Therefore, complainant stopped to pay the further installments. Complainant several time requested the OP  for refund of the chits fund amount of Rs.3,21,450/-, but did not refund. Therefore, complainant has got issued legal notice on 29.07.2019. 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 19.06.2016 and obtained membership for Rs.5,00,000/-. The complainant entered into agreement  and received the amount of Rs.3,00,000/- excluding Rs.2,00,000/-, complainant paid the amount of 17 installment only and failed  to pay remaining 28 installments and also due future liability of 5 installments. 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 10.12.2016 bearing chit No.85011/21, through cheque No.076394 of Rs,13,000/-, and made false entry in the Pass book. 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-24.

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.1,60,725/- under Chit        No.85011/21   and Rs.1,60,725/- under        Chit No.85011/22   to the Op?.

        ii)     Whether the Op proves that, the complainant                         participated in the Bid on 19.06.2016 and                      received the Bid amount after deduction a                    sum of Rs.2,96,725/- each to both the Chit                       No.85011/21 and 85011/22?.

        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;

                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.3,21,450/- towards Chits fund to OP, who has issued receipts and Statement and passbook dtd:11/12/2017 Rs.1,60,725/- receipt No.85011/22 Rs.5,00,000/- and dtd:11/12/2017 Rs.1,60,725/- receipt No.85011/21 Rs.5,00,000/-. Complainant asked to give receipt for the installment amount.  But did not heed the request. Therefore, complainant stopped to pay the further installments. Complainant several time requested the OP  for refund of the chits fund amount of Rs.3,21,450/-, but did not refund. Therefore, complainant has got issued legal notice on 29.07.2019. Op has replied evasive answer.  So, OP has committed the deficiency of service.

        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 19.06.2016 and obtained membership for Rs.5,00,000/-. The complainant entered into agreement  and received the amount of Rs.3,00,000/- excluding Rs.2,00,000/-, complainant paid the amount of 17 installment only and failed  to pay remaining 28 installments and also due future liability of 5 installments. 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 10.12.2016 bearing chit No.85011/21, through cheque No.076394 of Rs,13,000/-, and made false entry in the Pass book. Therefore, there is no deficiency of service committed by the Op.

        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.

 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 &  Ex.C-2 are the Pass books which reveals that, the complainant paid the installments from 11.07.2016 to 11.12.2017 a total amount of Rs.2,30,000/- for both the Chit No.85011/21 and 85011/22. As per complainant, Ex.C-1 & Ex.C-2 are issued  by Op and  entries are also made. On the other hand, OP contends that, Ex.C-1 &  Ex.C-2 some 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 & Ex.C-2 reveals that, on 09.12.2017 & 11.12.2017 cheques are issued for Rs.20,000/- each for both the Chit No.85011/21 and 85011/22 and similarly Ex.C-3 statement reveals that on 09.12.2017 Rs.20,000/- is transferred by NEFT and also on 11.12.2017paid through cheque is unbelievable as stated by the complainant. Ongoing through Ex.P-25 & Ex.P-26 issued by Karnataka Bank and Indian Bank marked in CC.No.125/2019, the said case is also posted for Judgment today, wherein, these parties are one and the same. Both the letters issued by both Banks reveals that, no cheque book were issued to the complainant. So,  it is clear that, the complainant paid the amount only by cash, and the amount paid by NEFT and cheque cannot be relied as no supporting documents to that effect are produced.  

        12. Ex.OP-7 and Ex.OP-8 ledger maintained by OP reveals that, complainant paid the amount till 29.09.2017 a sum of Rs.1,20,725/-. So, Op admitted the amount of Rs.1,20,725/- each for Chit No.85011/21 and 85011/22 for both the Chits and denied the remaining amount of Rs.40,000/- as stated, being paid by the complainant on 09.12.2017 and 11.12.2017.  Complainant has not produced any relevant documents to show that he paid Rs.3,21,450/- for both the Chits. Ex.C-1 to Ex.C-3 are not believable that, complainant paid Rs.3,21,450/-. Ex.C-4 to Ex.C-10 receipts issued by Op are not disputed, complainant has not produced receipt for remaining balance, except Ex.C-4 to Ex.C-10. Anyhow, Op has already admitted that, complainant has paid Rs.1,20,725/- as per Ex.Op-7 and Ex.Op-8 in both Chit.  So, on perusal of material placed on record, the complainant is entitled for Rs.1,20,725/- each for both Chits.  Complainant has failed to prove that, he has paid the remaining amount of Rs.40,000/- each for both the chits. Hence, complainant is entitled only for  Rs.1,20,725/- each for both the Chits. 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.5,00,000/-. After deducting the service tax, verification charges Rs.2,96,775/- is paid  to both the Chits. Op has not produced the list of Bidders as per Sec.33 and 34 of Chit Fund Act. OP has also not produced documents to show that, complainant is due to pay remaining 28 installments for a sum Rs.5,20,000/- for both the Chits.  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.R-5 & Ex.R-6, Chit agreement which are not original agreements. Ex.C-24 to Ex.C-26 three 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-5 and 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-24 to Ex.C-26 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 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 and marked as Ex.C-24 which can be compared with the signature behind the cheques with bare eyes differ as per provisions of evidence Act. On perusal of signatures on Ex.C-24 to Ex.C-26 which are stated to be complainants, reveals that, style of writing is not similar with admitted signature on Vakalath and complaint. Even, Ex.C-24 cheque No.436218, Ex.C-25 Cheque No.436193 reveals that staff of Bank adjusted to CA/1349 for Rs.1,96,775/- and Rs.1,00,000/-.  So, it goes to show that, the said cheque amount is adjusted to current account of some other person. In all the three cheques Ex.C-24 to Ex.C-26 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 paid the amount through Ex.C-24 to Ex.C-26 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.1,20,725/- to both chits in all  Rs.2,41,450/-. 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.2,41,450/- with interest at 8% p.a. from the date of complaint 18.11.2019 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