FA.No.952/2011 against C.C.No.370/2009 District Forum-II,  Hyderabad

Between

M/s.Kapil Chit Fund (P) Ltd.,

Having its branch office at No.135,

1^st floor, Ansari Classic complex,

S.D.Road, Secunderabad

Rep. by its Branch Manager.                                          ..Appellant/

                                                                                  Opp.party No.1

                And

1.  Smt.P.Usha Sri W/o.P.Ramu

     Aged about 40 years, Occ:Housewife

     R/o.8-311, Ferozguda, Gowthamnagar,

     Old Air port Road, Secunderabad-500 011.

2. Mr.Sridhar S/o.not known to the complainant

    Aged major, Occ:Branch Manager,

    M/s Kapil Chit Funds Pvt. Ltd., 1^st floor

    D.No.9-1-9, Vasavinagar Branch

    Tirumalgiri, Secunderabad.                                        ..Respondent/

                                                                        Complainant/O.P.2

Counsel for the Appellant               :  Mr.N.Amarnath

Counsel for the Respondent           :  M/s. K.Kondala Rao-R1

                                                      R2-notice held sufficient.

QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT,

SMT.M.SHREESHA, HON’BLE MEMBER,

          AND

SRI S.BHUJANGA RAO, HON’BLE MEMBER.

MONDAY, THE TENTH DAY OF DECEMBER,

TWO THOUSAND TWELVE

Order (Per Smt.M.Shreesha, Hon’ble Member)

***

Aggrieved by the order in  C.C.No.370/2009 on the file of District Forum-II, Hyderabad opposite party No.1 preferred this appeal.

The brief facts as set out in the complaint are that the complainant joined as a Member of opposite party No.1 chit series on 01-4-2004  for a value of Rs.1,00,000/- and the monthly subscription is Rs.4,000/-.  The complainant submitted that opposite party No.1 represented by opposite party No.2, the then Manager informed the complainant that she was the successful bidder in the auction held in May, 2005 and had got the chit value of Rs.80,000/- and Rs.15,000/- was the dividend and the balance of Rs.5,000/- was paid towards company commission. The complainant submitted that as she was unable to produce the required sureties for release of bid amount, the then Branch Manager of opposite party No.2 advised her to keep the prized amount of Rs.80,000/- in a fixed deposit and the interest accrued on the fixed deposit be adjusted towards her balance monthly subscriptions.  The complainant submitted that she agreed for the same and the opposite party No.2, the then Manager of opposite party No.1 promised the complainant that he  will the send the FDR receipt after making FD to her address but had not sent the same.  The complainant submitted that on enquiry she came to know that the branch Manager was transferred to another branch and that the   chit was concluded in the month of March, 2006 and also expressed that they are not aware of the F.D. in the name of the complainant.  The complainant was shocked to hear the same and thereby got issued a legal notice to opposite party No.1 to pay the said chit/FD amount and the interest accrued thereon and after receipt of notice, opposite party No.2 approached her and requested that he will arrange the said amount with interest accrued thereon within one month and requested her not to take legal steps.  The complainant submitted that believing the representation of opposite party No.2 she waited for some time and approached opposite party No.1 severaL times demanding the amount and they avoided, hence the complainant got issued a fresh notice to opposite parties 1 and 2 and the notice on opposite party No.1 was served but notice sent to opposite party No.2 returned with an endorsement ‘no such person’.  Thereafter opposite party No.1 gave a reply admitting the chit transaction but denying that there is any fixed deposit with them and further stated that a sum of Rs.48,700/- was kept to the credit of chit account as on 29-9-2005 and a sum of Rs.1,544/- towards 13thchit instalment due an amount of Rs.24,706/- was adjusted towards chit No.TL 4G-36 and an amount of Rs.3,750/- towards health insurance scheme and the chit instalments 14^th to 25^th were not paid by the complainant and hence the said instalments were adjusted out of the prized amount and agreed to pay a sum of Rs.2,224/- lying with it to the complainant.  After receipt of reply from opposite party No.1, the complainant got issued a rejoinder notice on 09-2-2009 requesting to produce the particulars of adjustment of Rs.45,000/- and also the particulars of payment of Rs.24,706/- to chit TL 4G-36 and any authorization letter executed by the complainant for doing the same and to furnish the particulars at whose instance a sum of Rs.3,750/- was paid towards health insurance scheme  but there was no reply to the rejoinder.  The complainant submits that the acts of the opposite party and its staff amount to deficiency in service and hence the complaint for a direction to the opposite parties  to pay the prized amount of Rs.80,000/- with interest @24% p.a. from the date of completion of chit i.e. April, 2006 till the date of payment together with compensation of Rs.1,00,000/-.

Opposite party No.1 filed counter resisting the complaint.  It admitted that the complainant  is a prized subscriber for the chit value of Rs.1,00,000/- and executed an agreement to abide by the terms and conditions.  It denied that the complainant was regular in payment of monthly instalments and also denied that the then Manager requested her to keep the prize amount of Rs.80,000/- in FD and that the accrued interest will be adjusted towards balance chit instalments payable and submitted that there is no such procedure with opposite party No.1 company.  It further denied that the staff of opposite party No.1 informed the complainant that the chit was concluded in March, 2006  and submitted that when the auction was concluded on 28^th May, 2005 according to the complainant  and the alleged first notice was issued on 23-8-2007  i.e. for a period of more than two years, how the complainant kept quiet and submitted that the complaint is barred by limitation and also denied receipt of legal notice dated 23-8-2007.  It submitted that in reply notice dated 25-1-2009 they  stated that the complainant expressed her inability to furnish sureties for withdrawal of prize amount and requested it to keep the balance prize amount to the credit of chit account after adjustment of defaulted instalments and accordingly a sum of Rs.48,700/- was kept in credit to the chit account as on 29-9-2005 and after adjustment of Rs.1,544/- towards 13^th chit instalment due and an amount of Rs.24,706/- to chit No.TL4G-36 and an amount of Rs.3,750/- towards health insurance scheme and since the date of chit auction the complainant was not paying the chit instalments for which opposite party No.1 adjusted the said credit amount towards chit instalments due for the period from 14^th instalment to 25^th instalment out of the chit credit amount of Rs.48,700/- and the balance amount Rs.2,224/- is lying with it to the credit of chit account and the complainant is entitled to withdraw the said amount and submitted that there is no deficiency in service and prayed for dismissal of the complaint.

Based on the evidence adduced i.e. Exs.A1 to A10 and B1 to B6 and the pleadings put forward, the District Forum allowed the complaint in part directing opposite party No.1 to pay the actual amount of monthly instalments paid by the complainant after deducting the company commission of Rs.5,000/- within 40 days and in default awarded interest @9% p.a.

Aggrieved by the said order, opposite party No.1 preferred this appeal.

        The facts not in dispute are that the complainant is a prized chit subscriber in chit group TS 13 F-2 for the chit value of Rs.1,00,000/- payable in 25 months at Rs.4,000/- per month. The complainant paid 13 instalments for the chit commencing from 01-4-2004 and became a successful bidder in the auction held in May, 2005.  It is the complainant’s case that they kept the bid amount in an FDR. 

It is the opposite parties case that the complainant did not pay the subsequent instalments.  It is the complainant’s case that she got issued a legal notice on  10-1-2012   vide Ex.A2 calling upon the opposite party no.1 to pay the FD amount together with interest which was received by opposite parties vide Ex.A3 acknowledgement.   Opposite parties filed Ex.B4 letter dated 4-7-2005 stating that the complainant herself asked for deposit adjustment and payment of sum of Rs.24,706/- out of the prized and therefore they have transferred the said amount to the account of one Mr.V.Veerander Rao, TLO, 4G-36, whereas the complainant in her affidavit stated that the Manager has promised that he would sent FDR receipt to her which was never sent and she was under the impression that the chit amount of Rs.80,000/- was kept in fixed deposit and inspite of issuance of Ex.A2, there was no response and so she got issued another legal notice dated 10-1-2009 evidenced under Ex.A4 which was served on opposite party no.1 vide Ex.A5.  Ex.A7 is the reply of the legal notice of opposite party dated 25-1-2009 in which opposite party No.1 stated that Rs.24,706/- was adjusted as per her letter Ex.B4 and that the complainant is not paying the balance chit amounts and Rs.2,224/- is lying to the credit of the complainant’s account and to withdraw the same.  They deny that there was any fixed deposit in her name.  Thereafter the complainant got issued another notice vide Ex.A8 asking for the particulars of adjustment of Rs.45,000/- and Rs.24,706/- and also how Rs.3,750/- was paid towards health insurance.  The said rejoinder notice was served on opposite party no.1 advocate on 15-2-2009 vide Ex.A9 but there was no response. 

We also observe from the record that the complainant’s address as per  her daughter’s school records is flat No.203, Sumitra Residency, HAL colony, R.R.Nagar, Old Bowenpally, Secunderabad from 2005 to 2008 whereas the address in the chit agreement which the complainant contends has been taken with blank signatures is H.No.3-14-79/3, Begumpet, Hyderabad-3 in which address the complainant submits that she never resided.  The address on Ex.B4, T.Ushashree, 3-14-79/3 which the complainant disputes, she also denies that she has ever signed Ex.B4.    The opposite party did not take any steps to establish that the signature on Ex.B4 is that of the complainant’s.  The learned counsel for the appellant/opposite party contended that Rs.48,700/- was adjusted in her account as the sureties was not furnished and the chit period was over and the complainant had defaulted from 14^th instalment onwards.  When the complainant denies that any authorization was given by her, the burden of proof shifts to the opposite parties to establish that Ex.B4 is genuine.   We also observe from the record that there are no specific instructions given by the complainant to pay the health insurance and the opposite party also did not keep the bid amount in a Nationalized bank as stipulated in the chit fund Act but instead deny that any FDR request was ever made.  The complainant had repeatedly stated in her legal notices, Exs.A2, A4 and A8 that she had requested the then Manager, Mr.Sridhar to keep the bid amount in a fixed deposit and the interest accrued on the amount may be adjusted towards the balance monthly subscription.   There was no reply to the notice given by the complainant vide Ex.A2 and the opposite parties deny that any such request was made and did not choose to file the affidavit of the Manager and also did not give any substantial reasons, as to why the bid amount was not kept in a fixed deposit.  To reiterate when the complainant is denying issuance of Ex.B4 and the opposite parties are relying on that document, they ought to have taken steps to establish the genuineness of that document which was not done.  Therefore, we are not inclined to interfere with the order of the District Forum.

In the result this appeal fails and is accordingly dismissed.  Time for compliance four weeks.

                                                                                Sd/-PRESIDENT.

                                                                                Sd/-MEMBER.

Sd/-MEMBER.

JM                                                                             Dt.10-12-2012