BEFORE THE UDUPI DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

AT UDUPI (KARNATAKA)

PRESENT

SMT. ASHA SHETTY                 :        HON’BLE PRESIDENT

SRI T.C.RAJASHEKAR             :        HON’BLE MEMBER

CONSUMER COMPLAINT NO.09/2014

ORDER DATED : 16.10.2014

Between:

Sri Subraya Kamath,

Aged about 75 years,

House No.2-2-23,

Near TOONZ, Bannanje,

Udupi - 576101

(Sri P.Madhusudana Prabhu, Advocate for the Complainant)

………. Complainant

/  Vs.  /

The Director,

M/s Maha Rashtra Apex Corporation Ltd.,

Administrative Office: Syndicate House,

Manipal – 576119.

…………..Opposite Party

ORDER DELIVERED BY HON’BLE PRESIDENT SMT.ASHA SHETTY,

1.       The facts of the complaint in brief are as follows:

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

The Opposite Party has been running a financial institution having its Head Office at Manipal.  The Complainant claims to have deposited certain sum of money with the Udupi Branch of the Opposite Party under ‘Dhanalaxmi Cash Certificate’ the details of which are furnished in the schedule here below:-

The Complainant contends that, the above said deposit was matured on 16.09.2003 and submits that Opposite Party having committed default in repayment of the deposits, the Opposite Party filed a scheme for restructuring the terms of deposit before the Hon’ble High Court of Karnataka.  The Opposite Party had informed that the High Court has approved the Scheme of compromise vide order dated 08.10.2004.  As per the scheme of compromise the Opposite Party is bound to repay the deposit amount with accrued interest at 20% p.a. till 31.03.2002and in 5 installments from 15.06.2005 and 16.06.2009.  The Opposite Party is also liable to interest at 6% p.a. for delay in payment of installments as per the Scheme.  Though the Opposite Party was allowed 7 years time for repayment of deposit in 5 easy installments and moratorium in payment of interest for 7 years, the Opposite Party miserably failed and defaulted to pay the installments on the due date as per the scheme of compromise filed by it and approved by the Hon’ble High Court.   The Complainant contacted the Opposite Party several times for repayment of the deposit.  But the Opposite Party paid only Rs.5,175/- in 3 installments till date.  The 1^st installments of Rs.1,725/- was paid on 22.06.2005.  The 2^nd installment of Rs.2,300 was paid on 09.03.2007 after  a delay of one year from the due date and the 3^rd installment of Rs.2,875/- was paid on 22.10.2012 after a delay of 5 years from the due date and the Opposite Party defaulted to pay the 4^th installment of Rs.2,300/- due on 15.06.2008 and 5^th installment of Rs.13,000/- (20% of the deposit Rs.2,300/- and accrued interest on deposit till 31.03.2002 Rs.10,700/-) due on 15.06.2009 and the default interest at 6% p.a. due from the respective due dates.

          The Complainant is aged about 75 years.  The Complainant has deposited the gratuity and provident fund received by him on retirement with a hope of financial support during his old age.  But, the Opposite Party has betrayed trust and faith reposed on it.  The Complainant submits that the acts of the Opposite Party amounts to deficiency in service and unfair trade practice.  The Complainant had called upon the Opposite Party to pay the balance deposit amount with accrued interest on deposit till 31.03.2002 as pe the scheme amounting to Rs.15,300/- with default interest at 6% p.a. from the respective due dates till the date of notice amounting to Rs.5,300/- with compensation of Rs.25,000/- for deficiency in service and hardship suffered by the Complainant vide notice dated 28.12.2013.  The said notice was duly served on the Opposite Party.   Despite of that the Opposite Party failed to pay the amount which amounts to deficiency in service and hence filed the above complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Party to pay Rs.15,300/- with interest at 18% per annum from the date of complaint till payment and further to pay Rs.5,300/- the default interest at 6% per annum from the repsetive due dates till the date of complaint and Rs.25,000/- towards compensation and cost of the proceedintgs.

2.       Version notice served to the Opposite Party by RPAD.  Opposite Party appeared through their counsel filed version.  Opposite Party has admitted that the scheme of arrangement approved by the Hon’ble High Court and the Opposite Party had paid 3 installments in respect of the deposit of the Complainant as per the scheme.  On account of non-availability of Funds, the Opposite Party could not repay the remaining installments and has been making all efforts to pay the remaining installments and interest. 

          Opposite Party has contended that in any view of the case, the Complainant is not entitled to claim interest or compensation or cost from the Opposite Party in respect of the deposit amount and there is no deficiency of service committed by the Opposite Party as stated in the complaint.  There is no unfair trade practice induldged by the Opposite Party.

It is further contended that the complaint is not maintainable in view of the order of the Hon’ble High Court of Karnataka passed in Company Petition No.37/2003 dated 08.10.2004 and on this count alone the Complainant is liable to be dismissed in limine on preliminary point. Hence Opposite Party prayed to dismiss the complaint with cost.

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

1. Whether this  complaint is maintainable before this Forum?

1. Whether the Complainant proves that the Opposite Party has committed deficiency in service?

1. If so, whether the Complainant is entitled for the reliefs claimed

1. What order?

We have answered the above points as follows.

Point No.1 : In the Affirmative.

Point No.2 : In the Affirmative.

Point No.3 : In the Affirmative.

Point No.4 : As per final order.

4.         In support of the complaint, one Sri Subraya Kamath (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.  Ex C1 to C4 were marked for the Complainant as listed in the annexure.   One Susheela Chandrakumar, Law Officer of the Opposite Party filed counter affidavit and answered the interrogatories served on him.  Opposite Party has not produced any document.   Heard the parties.

Reasons

5.  Point No. (i) to (iv):

In the given case, the Opposite Party admitted the deposit kept by the Complainant.   The scheme of arrangement was accepted by the Hon’ble High Court and the Opposite Party had paid three installments and due to non-availability of funds, the Opposite Party could not repay the remaining two installments.  The Opposite Party submitted they have been making all efforts to pay the remaining installments and interest to comply with the scheme and contended that this complaint is not maintainable.

However, the parties i.e the Complainant deposited the amount with the Opposite Party Company is admitted before this Forum and only the contention is that the Opposite Party could not pay the remaining two installments due to non-availiabilty of funds.

We find that, in the version the Opposite Party that the Hon’ble High Court of Karnataka passed the scheme of arrangement and the Opposite Party paid three installments and not all the installments.  Under such circumstances, the Opposite Party cannot resist the Complainant to file a complaint before this FORA by stating that in view of the Hon’ble High Court of Karnataka order in Company Petition No.37/2003. 

Further the Opposite Party has contended in the version that the Hon’ble State Commission has dismissed various complaints of this type  in view of aforesaid said order passed by the Hon’ble High Court of Karnataka and as such this complaint is not maintainable and further stated that copies of above order furnished.  On going through the records, it is very clear that the Opposite Party has not produced to show that any order passed by the Hon’ble State Commission, in view of the reasons stated by Opposite Party.  There is no such order passed by the Hon’ble High Court produced before this FORA in order to show that the complaint is not maintainable.  When there is no specific order as stated above the complaint is maintainable and the Opposite Party is liable to refund the amount as approved by the Hon’ble High Court of Karnataka in Company Petition as admitted by them.

However, the Complainant in this case filed affidavit by way of evidence stating that as per the terms of the sanctioned proposal approved by the Hon’ble High Court of Karnataka the Opposite Party has to make entire payments in 5 installments commencing from 15.06.2005 and the last installment supposed to be paid on 16.6.2009. Further the Opposite Party has admitted in his evidence that they have already paid 3 installments in respect of the deposit of the Complainant as per the scheme and the Opposite Party failed to make payment in respect of two installments in accordance with the terms of the sanctioned proposal is proved before the FORA.  There is no contra evidence produced by the Opposite Party to show that the amount under deposit was paid by them to the Complainant till this date.  However, the Complainant agreed to receive the amount as per the installments approved by the Hon’ble High Court of Karnataka, under the above circumstances the Opposite Party Company ought to have paid the entire amount as approved by the Hon’ble High Court.  Since the Opposite Party failed to make payment, we are of the view  that the order  passed by the Hon’ble High Court of Karnataka does not stand in the way of the Complainant filing the complaint under Section 12 of the Consumer Protection Act until and unless there is a specific order to that effect.  When the Opposite Party Company has failed to repay the amount under the above certificates on the date of maturity or within a reasonable time thereafter amounts to deficiency in service.  The orders passed by this FORA will be subject to the order passed by the Hon’ble High Court of Karnataka.  Under such circumstances, we overrule the defence raised by the Opposite Party to that effect.

The Ex C1 produced by the Complainant in the case goes to show that the amount has matured for repayment on the date mentioned therein, which date has been already expired.  The Opposite Party Company has admitted the deposit and their failure to repay the same on the date of maturity or according to the approved scheme accepted by the Hon’ble High Court or reasonable time thereafter is a deficiency in service.  Since the Complainant accepted the approved scheme and received three installments under Dhanalaxmi Cash Certificate and  remaining two installments as per the approved scheme not paid by the Opposite Party.  Therefore, we hold that the Opposite Party i.e Maharasthra Apex Corporation Limited represented by its Director is hereby directed to pay to the Complainant Rs.2,300/- i.e. 4^th installment amount due on 15.06.2008 and Rs.13,000/- i.e. 5^th installment amount due on 15.06.2009 alongwith interest @ 10% per annum from the respective dues dates till the date of payment.  However, the interest as well as compensation both cannot be allowed. Interest is always inclusive of compensation and 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.  Opposite Party i.e Maharasthra Apex Corporation Limited represented by its Director is hereby directed to pay to the Complainant Rs.2,300/- (Rupees two thousand  three hundred only) alongwith interest @10% per annum from 15.06.2008 till payment and further Rs.13,000/- (Rupees thirteen thousand only) alongwith interest at 10% per annum from 15.06.2009 till the date of payment.  The Opposite Party is further directed to pay a sum of Rs.1,000/- (Rupees one thousand only) awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Page No.1 to 7 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 16^th October 2014.)

         MEMBER                                                    PRESIDENT