FA 784 OF 2011  against CC  112/2010, Dist. Forum, Karimnagar

Between:

1)  The Zonal Recovery Cell

Kapil Chit Fund P. Ltd.

Branch TNGOs building,

Mankammathota

Karimnagar,

R.O. at 3-1-3. CVRN Road

Karimnagar.

2)  Kapil Chit  Fund P. Ltd.

Rep. by its Branch Manager

B.O. at  8-4-197/2

Kaman Road, Rampur

Karimnagar.                                                ***                         Appellants/

                             Ops

And

Smt. Methuku  Vijaya Laxmi

W/o.  Balakishan

H.No. 10-3-627/5, Road No. 5

Mehar Nagar, Karimangar.                          ***                         Respondent/

                                                                                                Complainant

Counsel for the  Appellant :                        M/s.  N. Amarnath

Counsel for the  Respondent :                     Mr. Deepak Bhattacharjee

CORAM:

                              SMT. M. SHREESHA, PRESIDING MEMBER

&

                              SRI  S. BHUJANGA RAO, MEMBER

TUESDAY, THE TWENTY SIXTH  DAY OF MARCH  TWO THOUSAND THIRTEEN

ORAL ORDER:  (Per Smt. M. Shreesha, Member)

***

1)                Aggrieved by the order in CC No. 112/2010  on the file of the Dist. Forum, Karimnagar  the opposite party chit fund company preferred this appeal u/s 15 of the Consumer Protection Act.

 2)               The brief facts as stated in the complaint are that she enrolled as a member in the Op chit group bearing No. RT16F-16 for a chit value of Rs. 1 lakh to be paid in 50 equal instalments  at Rs. 2,000/- per month.   The complainant paid 38 instalments  and that she is a non-prized chit holder and because the Ops stopped sending their agents she could not pay the balance instalments and  that Ops sent a notice  dt. 19.4.2010 stating that she is a  non-prized subscriber and she stood as a surety to  one Sri Kusumba  Srinivas who has committed default in payment of chit instalments and a suit was filed in OS No. 212/2008  and as per company rules and chit fund rules if the prized subscriber commits default, the non-prized chit amount of  surety  will be transferred to the prized chit towards due amount.  The prized  chit due amount is  Rs. 1,24,600/- under OS No.  212/2008 has to be cleared.  The complainant in her  reply notice dt. 19.4.2010 specifically stated that the subject matter of  suit  in OS  212/2008  is against  the defaulter K. Srinivas is subjudice before the Senior  Civil Judge,  Karimnagar and the parties have to abide by the decree.   The opposite parties do  not have any prima facie case against the defendants as  the Ops without bringing  the LRs of the deceased debtor filed  the  suit against the dead person without exhausting their  remedy  as against LRs.  In spite of assurance to the Ops in  her  letter 29.4.2010 that she would abide by the decree still the Ops failed to pay the non-prized amount of Rs. 1 lakh.  Hence this complaint seeking direction to  opposite parties  to refund Rs. 76,000/- with interest, compensation and costs.

3)                 The opposite parties did not choose to file any counter before the Dist. Forum.

4)                 Based on the evidence adduced i.e.,  Ex. A1 to A3 and the pleadings put forward the Dist. Forum allowed the complaint directing the Op to pay Rs. 76,000/-  and Rs. 1,000/- towards costs with default interest @ 6% p.a., from the date of complaint  till the date of realization.   

5)                 Aggrieved by the said order the  opposite parties  preferred this appeal.

6)                The learned counsel for the appellant/Ops submitted that the complainant stood as one of the guarantors to K. Srinivas in chit No. MKT02J-07 for a chit value of Rs. 5 lakhs and on default committed by him, a civil suit  in OS No. 212/2008 was filed for recovery of Rs. 1,24,600/-.   The complainant has admitted that she stood as guarantor to one Mr. K. Srinivas  and the net subscription received  is only Rs. 58,999/- excluding dividend for 38 chit instalments and the complainant’s amount of Rs. 44,000/- was adjusted out of Rs. 58,999/- and balance amount of Rs. 9,849/- is lying to the credit of the complainant.  The other two guarantors  viz.,  Mr. Pradeep Reddy and Mr. Raju also paid  an  amount  of Rs. 80,000/- to the appellant company in the said suit. 

7)                It is not in  dispute that the complainant joined as a member in the Op chit bearing No. RT16F-16 for a chit value of Rs. 1 lakh payable in 50  equal instalments @ Rs. 2,000/- per month evidenced under Ex. A1 pass book and that she had paid an amount Rs.  76,000/- in 38 instalments.  Ex. A2 is the letter addressed by Ops to the complainant stating that she stood as surety to K. Srinivas who committed default in payment of chit amount, the non-prized chit amount of surety belonging to the complainant will be transferred to prized chit amount.   This letter also specified that Ops filed OS No. 212/2008    for the prized chit  amount due of Rs. 1, 24,600/-.    Ex. A3  is the  letter addressed by  the complainant to  the Ops stating that  she has filed  her written statement  in OS No. 212/2008 and that the matter is still pending and   it is subjudice and she would abide by the decree.  The learned counsel for the appellant relied on the clause 17(b) of  the chit agreement which states lien over amounts.  It reads as follows :

          If the chit  subscribers are indebted to the foreman for any amount either personally  or as surety  the foreman will have in respect of such  liabilities  first charge over  any amount that may be due to such subscribers  from the foreman and other assets  lying with the foreman.   The foreman has a right  to adjust such amount towards his liabilities  without prior  notice to such  subscriber.   Only  the balance if any, will be paid to the subscribers.   As per clause 17(d)  of the chit agreement  executed by the respondent/complainant  if the subscriber is a surety to any prized subscriber  who is a defaulter the amount paid by such subscriber  will be foreclosed by the foreman and the amount will be adjusted towards the  defaulted subscriptions  of such prized subscriber, as this subscriber is jointly and severally liable to such debts.  

8)                When it is not in dispute that the complainant stood as guarantor to K. Srinivas a prized subscriber who committed default and a suit has been filed by the appellant in OS No. 212/2008 and the complainant herein also filed written statement therein, and the suit has been filed in the year 2008 prior to filing of the complaint  which was filed in June, 2010, the complainant ought to have raised all these pleadings in the  written statement that she has filed in OS No. 212/2008.     We see no grounds to attribute any deficiency in service on behalf of  opposite parties  as they have rightly exercised their lien as per clause 17(b) of the chit agreement and the complainant admittedly stood as guarantor to the defaulted prized subscriber. 

9)                In the result the appeal is allowed and the order of the Dist. Forum is set-aside.  Consequently the complaint is dismissed.   However, with an observation that the Opposite parties  may refund the amount lying to the credit of the complainant.  No costs.

1)      _______________________________

PRESIDING MEMBER 

2)           ________________________________

MEMBER  

26/03/2013

*pnr

UP LOAD – O.K.