| ORDER | BEFORE THE DISTRICT FORUM: KURNOOL Present: Sri K.V.H.Prasad, B.A., LL.B., President And Smt.C.Preethi, Hon’ble Lady Member Monday the 18th day of December, 2006 C.C. No.74/2006 Dr. K. Lakshma Naik, S/o. K.Surya Naik, aged about 45 years, working as Medical officer, Resident of H.No.49-1-2, upstairs, Laxmi Nagar, Kurnool. …Complainant -Vs- The Foreman, Margadarshi Chit Funds Private Limited, Bhupal Complex, Kurnool. …opposite party This complaint coming on this day for orders in the presence of Sri. R. Sudheshna Reddy, Advocate, Kurnool for complainant, Sri. G.Madhu Sudhan Reddy, Advocate, Kurnool for opposite Party and stood over for consideration till this day, the Forum made the following:- ORDER As per Sri. K.V.H. Prasad, Hon’ble President 1. This case of the complainant is filed U/S 12, of C.P. Act, seeking a decree in favour of the complainant against the opposite party for a compensation of Rs.20,000/- for mental agony on account of not allowing the complainant to withdraw the fixed deposit amount and interest at 12% per annum on said fixed deposit alleging deficiencies on the part of the opposite party in its conduct of not allowing the withdrawal of his F.D amount of Rs.1,00,000/- opened on 22-06-2003 for a period of seven months with his prize amount of Rs.94,990/- adding to it an additional account of Rs.5,010/- and inspite of efflux of time of said fixed deposit, on the pretext of his joint liability as guarantor to K.Mruthyunjaya who defaulted in payment of monthly installments to the chit number L.T.63mq/10/2003 and the adjustment of said F.D.amout towards the guarantee of complainant to the said chit amount and as a suit has been filed against the said chit member and his guarantors. 2. In pursuance of the receipt of the notice of this forum as to this case of the complainant, the opposite party appeared through counsel and contested the case filling a written version denying any deposit of Rs.1,00,000/- by the complainant in the form of a fixed deposit for a period of seven months and its any maturity on 03-10-2004. But it alleges the complainant as one of the guarantor to chit number L.T.63-mq/10 of K.Mruthyunjaya, who was successful bidder on 22-06-2003, foregoing Rs.45,000/- out of chit amount of Rs.1,00,000/-, and G.Vijayalakshmi devi, K.Lakshmi naik and S.Bhaskar stood as guarantors executing an agreement of guarantee and relevant papers and the complainant agreeing for a lien on his chit prize amount of Rs.94,900/- for the future periodical subscriptions amount of said chit of said K. Mruthyunjaya and the said K. Mruthyunjaya committing default of chits subscriptions thereafter to the tune of Rs.88,000/- and hence a filling a suit in Principal Junior Civil Judge Court, Kurnool against said defaulter and his guarantors including the complainant here in as O.S.No.819/2004 for recovery of Rs.84,779/-after adjusting Rs.10,000/- paid by defendant No.1 of said suit before to filling the suit, and the said court ordering attachment before judgement of the said amount of complainant vide order in I.A. No.1058/2004 and the said court ultimately decreeing the said suit on 23-01-2006 and the said decree becoming the final as no appeal was sought thereon and the said court for realising the decree amount passing a pro-order in E.P.No.493/06 against the amount of Rs.62,169/- from prize amount of the complainant, and the said judgement of decree and its existence stands as res-judicata to this case of the complainant and so denying any of its deficiencies and so seeking the dismissal of the complainant’s case with costs.3. In substantiation of the contentions while the complainant’s side has taken reliance on the documentary record in Ex.A1 and A2 besides to his sworn affidavit and replies of opposite party to its interrogatories, the opposite party side has taken reliance on documentary record in Exhibits B1 to B11 besides to its sworn affidavit and replies of the complainant to its interrogatories.4. Hence, the point for consideration is whether the complainant has made out any deficiencies of the opposite party and thereby the later’s liability to the complainant’s claim.5. The Ex.A1 is office copy of legal notice sent under courier receipt dt:12-11-2005 to the opposite party by the counsel for the complainant. The Ex.A1 alleges that the complainant holds with the opposite party a chit bearing number S.T.024 P9/16/2002-03 for the value of Rs.1,00,000/- and in the auction held on 28-03-2004 the complainant was successful bidder for a prize amount of Rs.94,990/- and adding to that a further amount of Rs.5,010/- the complainant depositing an amount of Rs.1,00,000/- on 03-04-2004 as a fixed deposit for a period of seven months and on maturity the opposite party not paying the mature F.D. amount in spite of several demands and so demanding the due amount.6. The Ex.A2 a notice caused by B.Vijayalakshmi devi, W/o. K.Mruthyunjaya to the opposite party alleging her self and complainant as some of the guarantors to her husbands chit number L.T. 63mq/10/2003 and request the opposite party thereby to adjust her amount of Rs.39,610/- towards the fixed deposit of Rs.1,00,000/- of complainant attached by opposite parties office and pay said F.D. amount of Rs.1,00,000/- to said complainant.7. Except the said self serving Ex.A1 of complainant and Ex.A2 that of 1. B.Vijaya Lakshmi Devi W/o.K.Mruthyunjaya, there appears any cogent material as to the alleged fixed deposit of Rs.1,00,000/- of the complainant with the opposite party. The complainant, if has really deposited an amount of Rs.1,00,000/- as alleged towards a fixed deposit for a period of seven months, he would have obtained the said fixed deposit receipt in token of said deposit and would not have omitted in his pleadings and Ex.A1 to take a mention of the number of said F.D and its relevant particulars. In the same way, if there is any truth in the contentions of the Ex.A2 as to the complainant obtaining an F.D. for Rs.1,00,000/- as alleged on 03-04-2004, the said notice in Ex.A2 would not have omitted to furnish therein at least the number of said F.D.R.. While the Ex.A2 alleges attachment of the said fixed deposit receipt of the complainant by the opposite party, the notice in Ex.A1 caused for the complainant does not at all whisper as to any attachment on his fixed deposit by the opposite party. Nor the notice in Ex.A2 says as to why the said Rs.1,00,000/- F.D.R. of the complainant was attached by the opposite party. Hence there appears every suspicion on the complainant’s conduct as to suppression of some relevant facts as to why his alleged F.D.R. was with held by the opposite party.8. While the matters stood thus with the material on complainant side giving rise to a suspicion on the bonafidies of the complainant’s case, the material in Ex.B1 to B11 marked on opposite party side makes out an entirely different case which is not only in consistent to the case of the complainant but also an invalid case of the complainant which is in suppression of real and relevant facts having adverse bearing on the complainant’s case and its entitleness for the claim from the opposite party. Hence there appreciation .9. The Ex.B1 is the reply dt:17-11-2005 of the opposite party to the Ex.A1 notice of complainant denying the truth in the contents of the Ex.A1 and alleging the sub-judice of matter in Civil Suit filed against the complainant, K.Mruthyunjaya and others for recovery of Rs.94,774/- with future interest and costs. There is any relevant mention of it in complainant’s pleadings even though this complaint is filed on 20.03.2006 i.e., sufficiently after to the date of said reply notice in Ex.B1. As the contents of Ex.B1 being not discredited by the complainant either prior to filling of this case or subsequent to filing of this case, there appears any material to discredit the worthiness of the Ex.B1 and its bearing on the merits of the complainant’s case.10. While the matters stood thus in appreciation of Ex.B1 in Visa vis to the conduct of the complainant in the case, the perusal of Ex. B2 to B11 indicates as to the civil suit proceedings in O.S. No.819/2004 and its interlocutary applications and execution petition in principal Junior Civil Judge Court, Kurnool in between the opposite party as plaintiff and K.Mruthyunjaya, B.Vijayalakshmi Devi, Dr.K.Lakshma Naik (complainant of this case), K.Lakshmi Naik and S.Bhaskar as defendants 1 to 5 for recovery of Rs.94,774/- with interest as K.Mruthyunjaya as defaulted the payment of chit premiums and the other defendants stood as guarantors to said defaulter, and the defence taken by this complainant as its third defendant that his F.D. amount of Rs.1,00,000/- cannot be withheld by the plaintiff there in on the pretext of guarantor to another chit holders default in payment of premium and the prohibitory order passed in said court in I.A. No.1058/2004 after contest of it by this complainant as respondent No.3 therein with his counter of same defence taken in written statement and the ultimate passing of a decree by said court for Rs.94,774/- and costs of Rs.7,591/- in appreciation of the liability of the defendants arising out of agreement of guarantee dt:20-08-2003 (Ex.B9), demand promissory note dt:20-08-2003 (Ex.B10) executed by them which is leaving some bearing on Ex.B11- the chit agreement of complainant and the decree so passed against the defendants therein and the first defendant as main borrower and the other defendant there in as guarantors for payment of Rs.1,00,000/-in fifty monthly installments and the attachment of complainant amount by said court by a pro-order vide the proceedings in E.P. No.493/06 of said original suit.11. As there being any cogent material as to the alleged fixed deposit theory of the complainant and its with holding illegally by the opposite party and on the other hand the amount of this complainant was lawfully attached by pro-order if the court which still remains good and intact on account of any of it being set aside by higher court there remains hardly any bonafidies in the complainant’s cause of action and any status to this complaint as any consumer disputes to work out any deficiencies of the opposite party to hold the liability of the opposite party to the complainant’s claim. 12. Consequently, there being any merit and force in the claim of the complainant and any liability of it on the opposite party, the complaint is dismissed with its costs and simultaneously ordering U/S 26 of C.P. Act, the payment by complainant an amount of Rs.2,000/- as exemplary costs to the opposite party within a month of the receipt of this order, for prosecution of this false, frivolous and vexatious complaint against the opposite party. Dictated to the Stenographer, transcribed by him, corrected and pronounced in the Open bench on this the 18th day of December, 2006. MEMBER PRESIDENT APPENDIX OF EVIDENCE Witnesses Examined For the Complainants: Nil For the Opposite Parties: Nil List of Exhibits marked for the complainant:- Ex.A1 Office copy of legal notice, dt:02-11-05 along with courier receipt No.1999201. Ex.A2 Letter, dt:24-10-05 of Smt. Vijaya Lakshmi Devi addressed to opposite party. List of Exhibits marked for the opposite party:- Ex.B1 Office copy of Reply notice, dt:17-11-05. Ex.B2 Certified Copy (cc) of plaint in O.S.No.819/2004 of Principal Junior Civil Judge Court, Kurnool. (No.in 6 pages). Ex.B3 C.C. of written statement filed in O.S.No.819/2004 (No.in 3 pages). Ex.B4 C.C. of affidavit petition in I.A.No.1058/04 in O.S.No.819/04 & the order passed there in on 23-11-06. (No.in 4 pages). Ex.B5 C.C. of the counter of I.A. No.1058/04. (No.in 2 pages). Ex.B6 C.C. of the decree of O.S.No.819/04 (No.in 2 pages). Ex.B7 C.C. of the E.P. No.493/06 of O.S. No.819/04 of Principal Junior Civil Judge Court, Kurnool. (No.in 3 pages). Ex.B8 Attested certified copy of pro-order, dt:17-07-06 E.P.No.493/06 in O.S.No.819/04. Ex.B9 C.C. of agreement of guarantee, dt:20-08-2003 (No.in 4 pages). Ex.B10 C.C. of the demand promissory note, dt:20-08-2003 (No.in 4 pages). Ex.B11 Original Chit agreement of the complainant. (No. in 2 pages). MEMBER PRESIDENT Copy to: 1. Sri. R. Sudheshna Reddy, Advocate, Kurnool. 2. Sri. G. Madhu Sudhan Reddy, Advocate, Kurnool. Copy was made ready on: Copy was dispatched on: Copy was delivered to parties: | |
