BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 30^th November 2010

PRESENT

                                                           SMT. ASHA SHETTY           :   PRESIDENT

   SMT.LAVANYA M. RAI       :   MEMBER

   SRI. ARUN KUMAR.K         :   MEMBER

COMPLAINT NO.184/2010

(Admitted on 3.7.2010)

H.B.Theertharama,

So. Late Bhojappa,

Aged about 69 years,

Rat. Hoddetti House,

Peraje Village,

Madikeri Taluk,

Coorg Dist.                                        …….. COMPLAINANT

(Advocate for Complainant: Sri. Sanjay.D)

          VERSUS

Shrikrishna,

Managing Partner,

Swathi Finance & Investment,

Sullia, D.K.                                      ….. OPPOSITE PARTY  

(Advocate for Opposite Party:Sri K.S.N.Rajesh)

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Party claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant submits that, the Opposite Party has been running a financial institution having its Head Office at Sullia.  Attracted by the advertisements, the Complainant had invested certain sum of money with the Opposite Party.  The particulars of the deposits are as under:

It is stated that, the Opposite Party is duty bound to return the above deposits on the date of maturity and promised to pay interest at 12% respectively.  Hence the Complainant approached the Opposite Party to pay the amounts due under the Fixed Deposit Certificates on the date of maturity.  But the Opposite Party sought some time to pay the same, stating that he is in financial difficulty and will make arrangement to repay the deposits.  On humanitarian grounds the Complainant waited for some time.  But even thereafter the amounts due under the above deposits has not been paid by the Opposite Party inspite of repeated demand made.  All amicable sorts of settlement of the dispute have gone vain.  Hence it is contended that the Opposite Party committed deficiency in service and indulged in unfair trade practice and hence, the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay a sum of Rs.50,000/- under the two cash certificates with interest at 12% per annum from 2.2.2005 till payment and also pay compensation and cost of the proceedings.

2.       Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version stated that denied the entire allegation alleged in the Complaint.  It is denied that the Opposite Party is duty bound to repay the amount due under the alleged fixed deposits certificates.

          It is submitted that the certificate bearing No.5/220 and 5/221 dated 2.2.2005 are Swathi Lakshmi Cash Certificates and the same are not fixed deposits.  The amount covered under the said cash certificates are already paid to the Complainant.  And it is further contended that the complaint is barred by law of limitation and the complaint is not maintainable and prayed for dismissal of the Complaint.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant is a consumer and the complaint is maintainable?
2. Whether the Opposite Party proves that the amount covered under the cash certificates are paid to the Complainant?
3. Whether the Complainant proves that Opposite Party committed deficiency in service?
4. If so, whether the Complainant is entitled for the reliefs claimed?
5. What order?

4.       In support of the complaint, the Complainant – Sri.H.B.Theertharama (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.  Ex C1 and C2 were produced for the Complainant as listed in the annexure.   One Srikrishna M.N. examined as (RW-1) on behalf of the Opposite Party and answered the interrogatories served on him.  Both parties are filed written notes of arguments.

We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                   Point No.(i) : Affirmative

Point No.(ii) to (v): As per the final order.

REASONS

5.      POINT NO. (i):

In the instant case, the Fixed Deposit Receipts produced by the Complainant i.e. Ex.C1 and C2 reveals that, the investment were made in the name of the Complainant with the Opposite Party   finance as evidenced from the above Deposit Receipts produced before this Forum. 

The financial service is one of the services specifically mentioned in clause (o) of Section 2(1) of the Act.  It is settled preposition of law that, when the Company/Firm/Society transacting non-banking financial business accept deposits from the persons for particular period, the person who has deposited the money with such Company/Firm/Society hires the service of that company.  We have therefore hold that, the service undertaken to be rendered by the Opposite Party finance is a service within the purview of the Act.  Therefore, the Complainant is a consumer.

 As far as limitation is concerned, Sub Section (2) of Section 24A of the Consumer Protection Act states that not withstanding anything contending Sub-Section (1), the complaint may be entertained after the specified period, if the Complainant satisfies the District Forum within such period.  Now it is a well-established proposition that when the person who received the fixed deposit has failed to repay the deposit on the date of maturity, it is a recurring cause of action for the depositor so long as the person who received the deposit has not denied his liability to repay the deposit.  The Opposite Party has no case that he has denied the Complainant right to recover the deposit until he filed his version before this Forum.  The Complainant right is denied for the first time in the version.  Therefore, we are of the view that the Complainant had a recurring cause of action. We relied upon a decision of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow in Grumeeth Singh and others V/s Rakesh Kumar Sharma and Another in II (2002) CPJ 209 wherein:- “it is held that the cause action will continue till such time the payment along with interest is made”.  Hence, the complaint is maintainable and point No.(i) is held in favour of the Complainant.

POINTS NO. (ii) to (v):

As far as deficiency is concerned, the Complainant filed affidavit in order to substantiate his case and produced Ex.C1 and C2 i.e. the original Swathi Lakshmi Cash Certificates bearing F.D.R.No.646 and 647.  The Complainant deposited Rs.25,000/- on 2.2.2005 with the Opposite Party under the cash certificate No.5/220 (Receipt No.646).  The Opposite Party inturn agreed to pay 12% interest per annum on the above said amount, the due date for payment shown as 2.2.2006.  Further the cash certificate bearing No.5/221(Receipt No.647), wherein the Complainant further deposited Rs.25,000/- with the Opposite Party on 2.2.2005, the Opposite Party inturn agreed to pay interest at the rate of 12% per annum, the due date for payment shown as 2.2.2006.  The above cash certificates were issued by the managing partner of the Opposite Party with seal and signature.  There is no material/cogent evidence to show that the Opposite Party paid the above said amount to the Complainant till this date. 

The Opposite Party in their version took a contention that, the alleged certificates are not fixed deposits.  The amount covered under the above said cash certificates are already paid to the Complainant.  But it is pertinent to note that the Opposite Party failed to produce any records to show that the above said amount has been already paid to the Complainant.  The Opposite Party being a money lender shall keep and maintain a cash book and a ledger, statement of accounts etc.  Except the oral assertion nothing has been placed on record to substantiate their version.  In the absence of the same, we hold that the Opposite Party in this case took a false and inconsistent contention in order to avoid the payment. 

In view of the above discussions, we hold that, the Opposite Parties inspite of receiving the above said Fixed Deposit amount from the Complainant not paid the said amount even after the maturity or within the reasonable time till this date amounts to deficiency.  Therefore, we hold that, the Opposite Party i.e. Swathi Finance and Investments, Sullia, D.K. District., Represented by its Managing Partner/Partners are here by directed to pay Rs.50,000/-  under (Rupees Fifty thousand only) under F.D.R.No.5/220 (Receipt No.646) and  5/221(Receipt No.647) along with interest at 12% per annum from the respective date of deposit till the date of payment  

In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded. Rs.1,000/- awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

6.       In the result, we pass the following:                  

ORDER

The complaint is allowed.  The Opposite Party i.e. Swathi Finance and Investments, Sullia, D.K. District., Represented by its Managing Partner/Partners are here by directed to pay Rs.50,000/-  (Rupees Fifty thousand only) under F.D.R.No.5/220 (Receipt No.646) and  5/221(Receipt No.647) along with interest at 12% per annum from the respective date of deposit till the date of payment  And Rs.1,000/- awarded towards the litigation expenses.  Payment shall be made within 30 days from the date of this order.

The F.D.R., if any, deposited by the Complainant be returned fourth with by substituting the certified.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.

(Page No.1 to 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30^th day of November 2010.)

    PRESIDENT                  MEMBER                  MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Sri.H.B.Theertharama – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 2.2.2006: Original of the Fixed Deposit Receipt No.646 issued by the Opposite Party.

Ex C2 – 2.2.2006: Original of the Fixed Deposit Receipt No.647 issued by the Opposite Party.

Witnesses examined on behalf of the Opposite Party:

RW-1: Srikrishna M.N., Agriculturist of Opposite Party.

Documents produced on behalf of the Opposite Party:   

-Nil-

Dated:30.11.2010                            PRESIDENT