IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 16th day of September, 2011.
Present : Sri. Jacob Stephen (President).
Sri. N. Premkumar (Member)
C.C. No. 148/2009 & C.C. No. 149/2009 (Filed on 07.11.2009)
1. C.C. 148/2009
Between:
Vijayan. P.,
Navami, Azhoor,
Pathanamthitta.
(By Adv. K.T. Thomas) .... Complainant.
And:
1. Sree Gokulam Chits & Finance-
Company (P) Ltd.,
Sree Gokulam Towers,
Chennai – 600 024, represented
by the Managing Director.
2. Branch Manager,
Sree Gokulam Chits & Finance-
Company (P) Ltd.,
Pathanamthitta Branch,
Azad Complex, KSRTC Road,
Pathanamthitta.
(Adv. Ani. I. George) .... Opposite parties.
2. C.C. 149/2009
Between:
Vijayan. P.,
Navami, Azhoor,
Pathanamthitta.
(By Adv. K.T. Thomas) .... Complainant.
And:
1. Sree Gokulam Chits & Finance-
Company (P) Ltd.,
Sree Gokulam Towers,
Chennai – 600 024, represented
by the Managing Director.
2. Branch Manager,
Sree Gokulam Chits & Finance-
Company (P) Ltd.,
Pathanamthitta Branch,
Azad Complex, KSRTC Road,
Pathanamthitta.
(Adv. Ani. I. George) .... Opposite parties.
COMMON ORDER
Sri. Jacob Stephen (President):
The complainants and opposite parties in both cases are one and the same persons and the dispute is also the same in both cases. Hence a common order is passed for both cases for the sake of convenience.
2. The complainant’s case is that the first opposite party is a registered private limited company engaged in chitty business and the second opposite party is the Branch Manager of the Pathanamthitta branch of the first opposite party. The complainant subscribed 2 chitties conducted by the opposite parties. The total sala of each chitty is ` 50,000 with 25 instalments of ` 2,000 per instalment. The chittal numbers allotted to the complainant is ticket No. 5 and ticket No. 12. The chitty under ticket No.5 commenced on 19.10.2007 and it is terminated on 19.10.2009. The chitty under ticket No. 12 commenced from 23.01.2007 and terminated on 23.01.2009. The complainant had paid ` 25,705 in the chitty under ticket No. 5 and ` 42,000 in chitty under ticket No. 12 and the amounts paid by the complainant in both chitties falls due on 19.10.2009 and 23.01.2009. On maturity of both chtties, the complainant approached the second opposite party for getting the chitty amount already remitted by the complainant. But the opposite parties evaded the payment. The complainant is entitled to get the chitty amount paid by him. The non-payment of the chitty amount of the complainant by the opposite parties is a deficiency in service, which caused financial loss and mental agony to the complainant, and the opposite parties are liable for the same. Hence this complaint for the realisation of the chitty amount of ` 25,705 under ticket No. 5 (C.C. 148/09) and Rs. 42,000 under ticket No. 12 (C.C.149/09) with its interest at the rate of 12% per annum along with compensation of `10,000 for each chitty. The complainant also prays for allowing the cost of this case.
3. Opposite party entered appearance in both cases and filed separate versions. The contentions raised in both cases are one and the same. The contention of the opposite party is as follows: The opposite party admitted the transaction with the complainant. According to the opposite party, the complainant had subscribed 2 chitties and they have not auctioned the chitties. Without auctioning the said chitties, the complainant intelligently made his brother Manoharan as a subscriber in an another chitty of the opposite party having sala of ` 5 lakhs with 20 instalments on 04.01.2008 vide chitty No. J2H-1065/JMM/18. Thereafter on 20.05.2008, the said Manoharan auctioned his chitty for Rs. 3,71,910 and received the chitty amount of `3,71,910. In the said chitty, the wife of the said Manoharan and the complainant are the co-sureties. Further, the chitties in the name of the complainant was also pledged as a security for the release of the chitty amount due to the said Manoharan. Till then the complainant and the said Manoharan regularly paid the instalments in all chitties. Thereafter, the complainant and the said Manoharan defaulted the instalments. Thereafter on the maturity of the complainant’s chitties, the complainant approached the opposite parties and demanded the payment of the chitty amount paid by the complainant. But the opposite party told that the said Manoharan is not paying the chitty instalments and he is a defaulter and hence the chitty amount of the complainant cannot be returned without clearing the chitty arrears of the said Manoharan. Since the complainant is a co-surety and the complainant’s chitties are pledged for the release of the chitty amount auctioned by the said Manoharan and Manoharan defaulted the payment of the remaining instalments, the complainant is not entitled to get any amount from the opposite parties without clearing the due of Manoharan’s chitty. Moreover, the opposite parties are entitled to withhold the chitty amounts of the complainant till the settlement of the arrears of Manoharan as per the agreement executed by the complainant for the release of Manoharan’s chitty amount. Therefore, opposite parties have not committed any deficiency of service to the complainant. With the above contentions, opposite parties pray for the dismissal of both complaint.
4. On the basis of the pleadings of the parties, the only point to be considered is whether the above complaints are allowable or not?
5. The evidence in C.C. 148/2009 consists of the oral deposition of PW1 and DW1 and Exts.A1 and B1 to B6. The evidence in C.C. 149/2009 consists of the proof affidavit of the complainant and opposite party and Ext.A1. Since the dispute in both cases are one and the same and exhibits for the opposite parties are also one and the same, separate evidence for C.C. 149/2009 is not taken. However, the chitty pass book in respect of case No. 149/2009 is marked as Ext.A1 on the basis of the proof affidavit of the complainant. The evidence already taken in C.C. 148/2009 is adopted in C.C. 149/2009 also. After closure of evidence, both sides were heard.
6. The Point: The complainant’s allegation is that he had subscribed 2 chitties of the opposite parties and he had paid a total amount of ` 67,705 in both chitties. After the maturity of the chitty, the complainant approached the opposite parties for the release of the chitty amount remitted by him in both chitties. But the opposite parties denied the payment by saying that the said chitties are pledged for the chitty auctioned by one Manoharan, the brother of the complainant, and the said Manoharan defaulted the payments and hence the chitty amounts cannot returned without clearing the arrears of Manoharan. According to the complainant, he had not pledged his chitties as claimed by the opposite parties. So the opposite parties are liable to pay the chitty amount with interest, cost and compensation. The complainant prays for allowing both cases.
7. In order to prove the complainant’s case, the complainant filed separate proof affidavits in both cases in lieu of his chief examination along with 2 chitty pass books in the name of the complainant. On the basis of the proof, the complainant was examined as PW1 in C.C. 148/2009 and the chitty pass book in respect of C.C. No. 148/2009 is marked as Ext. A1. Since the dispute between the parties are same in C.C. 149/2009, the deposition of the complainant in C.C. 148/2009 is adopted in C.C. 149/2009 and the chitty pass book in respect of C.C. 149/2009 is marked as Ext.A1 in that case.
8. On the other hand, the contention of the opposite parties is that the complainant is a co-surety for his brother Manoharan and the chitties in the name of the complainant is also pledged for the release of the chitty amount to Manoharan. As per the agreement executed by Manoharan and the complainant in favour of the opposite parties for releasing the chitty amount to Manoharan, .the opposite party is not liable to pay the chitty amounts to the complainant without clearing the arrears of Manoharan. They argued for the dismissal of the complaints.
9. In order to prove the contentions of opposite parties, the second opposite party filed separate proof affidavit in both cases along with certain documents. On the basis of the proof affidavit in C. C. 148/2009, the second opposite party was examined as DW1 and the documents produced were marked as Exts. B1 to B6. Ext. B1 is an agreement-dated 20.05.2008 in stamp paper executed by Manoharan, P. Vijayan and Pushpa Manoharan. The gists of the contents of Ext. B1 is that, one Manoharan had received ` 3,71,910 from the opposite parties in connection with a chitty subscribed by the said Manoharan vide J2H/1065/JMM/18 and Manoharan’s wife and his brother were stood as sureties and the executants agreed to allow the opposite parties to release the dues, if any, in case of default by Manoharan from the movable and immovable properties of the executants including the 2 chitties in the name of the complainant. Ext.B2 is the details of prized chit schedule A & B in respect of Manoharn’s chitty and the complainant’s chitties. Ext. B3 is a stamped debt acknowledgment dated 20.05.2008 executed by the complainant, Manoharan and Manoharan’s wife Pushpa Manoharan in favour of the opposite parties. Ext. B4 is the chitty agreement executed by the complainant and Pushpa Manoharan in favour of the opposite parties in respect of Manoharan’s chitty. Ext. B5 is the certified copy of the plaint in O.S. 13/2011 of Sub Court, Pathanamthitta filed by the opposite parties against the complainant and others for the realisation of the chitty arrears of Manoharan. Ext. B6 is the certified copy of monthly ledger extract in respect of Manoharan’s chitty kept by the opposite parties obtained from Sub-Court, Pathanamthitta.
10. Since the matters in dispute in both cases are the same, separate evidence is not taken in C.C. 149/2009 for the opposite parties. But the entire evidence adduced by the opposite parties in C.C. 148/2009 is adopted in C.C. 149/2009 also.
11. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that there is no dispute between the parties with regard to the 2 chitties of the complainant with the opposite party and the chitty amounts paid by the complainant to the opposite party. The only dispute between the parties is in respect of the release of the chitty amount remitted by the complainant. According to the complainant, he is entitled to get the chitty amount remitted by him and the opposite party is not entitled to retain the said amount as he had not executed any document in favour of the opposite party for hypothecating his chitty as a security for Manoharan’s chitty. According to the opposite parties, complainant had hypothecated his chitties in favour of them as security for Manoharan’s chitty liabilities by executing proper documents in favour of the opposite party. In order to substantiate this contention, the opposite party is relying Exts.B1 to B4 documents alleged to have been executed also by the complainant. But the complainant’s argument is that the said documents were not executed by him and the signatures seen in the said documents are not put by him and they are fabricated documents. The signatures of the complainant seen in his Vakalath, complaint and in Exts.B1 to B4, are not identical and have some differences. So the contention of the opposite party that B1 to B4 are executed by the complainant is not acceptable. Further, as per Exts.B1 to B4 sala of Manoharan’s chitty is ` 5 lakhs and he had an outstanding liability of ` 3,72,000 as on the date of releasing the chitty amount. The sala of complainant’s 2 chitties comes only ` 1 lakh and the complainant had remitted only ` 67,705 in 2 chitties. Moreover, no specific assets, movable or immovable other than the complainant’s 2 chitties has not been scheduled in Exts.B1 to B4 as security for Manoharan’s chitty liabilities. The recitals and wordings in Ext.B1 agreement is vague and is not in a standard format. The overall appearance of Ext.B1 does not satisfies the minimum requirements of an agreement expected for a chitty having sala of `5 lakhs. All the aforesaid defects of Exts.B1 to B4 indicates that the said documents are not genuine and are fabricated solely for the purpose of retaining the complainant’s chitty amount. Therefore, we find that the retention of the complainant’s chitty amount by the opposite party on the strength of Ext.B1 to B4 cannot be justified and it is an illegal act of the opposite party, which is a clear deficiency in service, and hence these complaints are allowable.
12. In the result, the above complaints are allowed, thereby the opposite parties are directed to return the amounts due in favour of the complainant as per Ext.A1 in C.C.No.148/09 and as per Ext.A1 in C.C.No.149/09 with interest at the rate of 9% per annum from the date of filing of these complaints till this date along with cost of ` 3,000 (Rupees Three Thousand only) in total within 30 days from the date of receipt of this order failing which the complainant is allowed to realise the whole amount with interest at the rate of 12% from today till the realisation of the whole amount. Since interest is allowed, no separate compensation allowed.
Declared in the Open Forum on this the 16th day of September, 2011.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Appendix:
C.C. 148/09
Witness examined on the side of the complainant:
PW1 : P. Vijayan.
Exhibits marked on the side of the complainant:
A1 : Chitty pass book.
Witness examined on the side of the opposite parties:
DW1 : Vinu. V. Nath.
Exhibits marked on the side of the opposite parties:
B1 : Agreement-dated 20.05.2008 executed by Manoharan, P. Vijayan
and Pushpa Manoharan.
B2 : Details of prized chit schedule A & B in respect of Manoharn’s
chitty and the complainant’s chitties.
B3 : Stamped debt acknowledgment dated 20.05.2008 executed by the
complainant, Manoharan and Manoharan’s wife Pushpa
Manoharan in favour of the opposite parties.
B4 : Chitty agreement dated 20.05.2008 executed by the complainant
and Pushpa Manoharan in favour of the opposite parties in
respect of Manoharan’s chitty.
B5 : Certified copy of a plaint in O.S. 13/2011 of Sub Court,
Pathanamthitta filed by the opposite parties against the
complainant and others for the realisation of the chitty arrears of
Manoharan.
B6 : Certified copy of monthly ledger extract in respect of
Manoharan’s chitty kept by the opposite parties obtained from
Sub-Court, Pathanamthitta.
C.C. No. 149/09
Witness examined on the side of the complainant:
PW1 : P. Vijayan.
Exhibits marked on the side of the complainant:
A1 : Chitty pass book.
Witness examined on the side of the opposite parties: Nil.
Exhibits marked on the side of the opposite parties: Nil.
(By Order)
Senior Superintendent
Copy to:- (1) Vijayan. P., Navami, Azhoor, Pathanamthitta.
(2) Managing Director, Sree Gokulam Chits & Finance Company (P) Ltd., Sree Gokulam Towers, Chennai – 600 024.
(3) Branch Manager, Sree Gokulam Chits & Finance Company (P) Ltd., Pathanamthitta Branch, Azad Complex, KSRTC Road,
Pathanamthitta.
(4) The Stock File.
