BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 16/05/2011

Date of Order : 31/03/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 247/2011

Between

And

C.C. No. 248/2011

Between

And

C.C. No. 249/2011

Between

And

C O M M O N O R D E R

A. Rajesh, President.

1. The dispute involved in the above complaints are the same and the opposite parties are the same, we are disposing off the above complaints by this common order. The counsel for the opposite parties have filed a memorandum dated 05-03-2012 to that effect, we accept it.

2. The case of the complainant in C.C. No. 247/2011 is as follows :

The 1^st opposite party is the Managing Partner of M/s. Surabhi Finance (Regd.), Valayanchirangara. The 2^nd opposite party is the partner of the said firm. Believing the promise made by the opposite parties to give attractive rate of interest, the complainant deposited Rs. 80,000/- with the opposite parties on 28-01-2010 for 12 months. The complainant approached the opposite parties to get back the amount on the maturity date, but the opposite parties did not refund the amount and on the other hand sought 3 months time for repayment. In the meantime, the opposite parties stopped the operation of the firm. Thereafter in spite of repeated requests, the amount has not been repaid so far. The purposeful omission on the part of the opposite parties to refund the amount deposited with them amounts to deficiency in service. The complainant is entitled to get refund Rs. 80,000/- along with interest at the rate of 15% from the date of deposit till realisation together with costs of the proceedings. The complaint hence.

3. In C.C. No. 248/2011 and in C.C. No. 249/2011, the facts of the complainant's case are similar to that of C.C. No. 247/2011.

4. The version of the opposite parties in C.C. No. 247/2011 is as follows :

The father and mother of the complainant have filed C.C. Nos. 248/2011 and 249/2011 separately respectively against the opposite parties in this Forum. This Forum has no jurisdiction to entertain the complaint. The 2^nd opposite party has no connection with Surabhi Finance. The amount deposited by the father of the complainant has been adjusted against advance sale consideration for a property sale agreement entered into between the father of the complainant and the 1^st opposite party. The original of the said agreement is with the father of the complainant. After the cancellation of the said sale agreement, the father of the complainant has accepted 3 deposit receipts from the 1^st opposite party together with a sum of Rs. 10,000/- in cash. The 1^st opposite party had been paying interest to the father of the complainant till the filing of the complaints. The opposite parties request to dismiss the complaint.

5. The opposite parties took similar contentions in C.C. Nos. 248/2011 and 249/2011 as well.

6. No oral evidence was adduced by the complainants in the above cases. Ext. A1 was marked in all the cases respectively. Consolidated proof affidavit has been filed by the 1^st opposite party. The 1^st opposite party was examined as DW1. Heard the counsel for the parties.

7. The common points that came up for consideration are as follows :-

1. Whether the complainants in the above cases are entitled to get Rs. 80,000/- from the opposite parties with interest @ 15% p.a.?

2. Whether the opposite parties are liable to pay costs of the proceedings to the complainants?

8. Point No. i. :- According to the complainants, the opposite parties are the partners of Surabhi Finance and the 1^st opposite party has received the amounts as per Ext. A1 (in all cases) in the capacity of Managing Partner. The opposite parties vehemently contended that the 1^st opposite party and the complainant in C.C. No. 248/2011 have entered into an agreement for sale of shop rooms belonging to the 1^st opposite party. According to the 1^st opposite party, Ext. A1 (in all the cases) have been executed in favour of the complainant in C.C. No. 248/2011 to return the advance sale consideration as per the said agreement.

9. It is pertinent to note that the opposite parties failed to produce any evidence to substantiate their contentions in this Forum. They at least ought to have produced the partnership deed and the sale agreement between the complainant in C.C No. 248/2011 and the 1^st opposite party. The non-production of partnership deed and the sale agreement between the 1^st opposite party and the complainant in C.C. No. 248/11 speaks against their endeavour to the contra. The execution of Ext. A1 (in all the cases) have not been disputed by the opposite parties. The onus is on the opposite parties to prove that they have issued Ext. A1 (in all the cases) in favour of the complainants against the discharge of the advance amount which the 1^st opposite party had received from the complainant in C.C. No. 248/2011 in which they have again failed. Law does not favour the late comer and necessarily law should not fail a further late comer. Ext. A1 (in all the cases) go to show that it is a fixed receipt for Rs. 80,000/- each dated on 28-01-2010 agreeing to repay together with 15% interest after the expiry of 12 months. The opposite parties are legally and contractually liable to repay the disputed amounts to the complainants in the above cases with interest.

10. Point No. ii. :- An exemplary costs of Rs. 1,000/- each is also awarded to the complainants in the above cases.

11. In the result, we partly allow the above complaints and direct as follows :-

1. In C.C. No. 247/2011, the opposite parties shall jointly and severally pay Rs. 80,000/- to the complainant together with interest @ 15% p.a. from 28-01-2010 to 28-01-2011, and thereafter pay interest @ 12% p.a. till payment. The opposite parties shall also pay Rs. 1,000/- to the complainant towards costs of the proceedings.

2. In C.C. No. 248/2011, the opposite parties shall jointly and severally pay Rs. 80,000/- to the complainant together with interest @ 15% p.a. from 28-01-2010 to 28-01-2011, and thereafter pay interest @ 12% p.a. till payment. The opposite parties shall also pay Rs. 1,000/- to the complainant towards costs of the proceedings.

3. In C.C. No. 249/2011, the opposite parties shall jointly and severally pay Rs. 80,000/- to the complainant together with interest @ 15% p.a. from 28-01-2010 to 28-01-2011, and thereafter pay interest @ 12% p.a. till payment. The opposite parties shall also pay Rs. 1,000/- to the complainant towards costs of the proceedings.

The above order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 31^st day of April 2012.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

In C.C. No. 247/2011 :-

Complainant's Exhibits :

Opposite party's Exhibits :: Nil

In C.C. No. 248/2011 :-

Complainant's Exhibits :

Opposite party's Exhibits :: Nil

In C.C. No. 249/2011 :-

Complainant's Exhibits :

Opposite party's Exhibits :: Nil

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