SRI.K. VIJAYAKUMARAN, PRESIDENT.

Complaint for realization of chitty amount and costs.

The averment s in the complaint can be briefly summarized as follows:

The complainant was a subscriber of Chitty No.22/03 of the opp.party.   The sala of the chitty was Rs 1,00,000/-.  The chitty was  prized in the name of the complainant in the 10^th instalment and the opp.party informed the complainant to receive the amount.   Since the complainant was unable to furnish sufficient security he could not receive the amount.   The opp.party informed the complainant  that  since the surety is not sufficient prized amount may be kept in the  Fixed deposit with the opp.party.   But the opp.party has not done so which amounts to deficiency in service.   After the termination of chitty the complainant contacted the opp.party demanding the amount of  10^th instalments remitted by him and thereupon he was informed by the opp.party that the amount deposited by him were given to other subscriber as veetha palisa.   The complainant is entitled to get the  amount paid by him.  Hence the complaint

The opp.party  filed version contending, interalia, that the complaint is not maintainable either in law or on facts.  The averments in para1 and2 are admitted  It is admitted that the complainant  was a subscriber of Chitty No.22/03 and the sala was Rs.1.00,000/-.   The averment that the chitty was  prized in the name of the complainant in the 10 the instalment is not correct.   The chitty was prized in the name of the complainant  in the first  auction itself on 16.8.2003 AND THE PRIZE MONEY WAS Rs.70,000/- As per  the conditions of the chitty the prized subscriber had to give sufficient security for an amount of Rs.95,000/-  to get the prized money of Rs.70,000/-  from the opp.party.    But he had failed to offer sufficient security and also  failed to deposit the same  in the  fixed deposit.  He  has not turned up  to the request of the opp.party  to come and sign the documents to deposit the amount in the Fixed Deposit.  The opp.party had  never  informed  the complainant  that they will deposit the amount in the absence of the complainant.   The prized money  can be deposited only after complying  with the rules and regulations  existing .   The complainant  had to fill in and sign  the form for it.   But the complainant  had failed to comply  with the conditions and also failed to offer security.  The prized money was kept  with the opp.party  and was shared among the other subscribers on every month till the termination of chitty.  Since the complainant had defaulted in payment of monthly instalments after the10th instalments.   The complainant had paid only Rs.19,475/- in 10 instalments at the rate of Rs.2500/-.  He had  to pay Rs.95,000/-  to the opp.party in forty instalment.     The  prized money of the complainant would be shared with the other subscribers on each and every month  till the closing of the chitty was  within the knowledge of the complainant.   There is no deficiency in service on the part of the opp.party.  The complaint is filed as experimental  measure.  Hence the opp.party  prays to dismiss the complaint.

Points that would arise for consideration are:

[1] Whether  there is deficiency in service on the part of the opp.party

[2] Reliefs and costs.

For the complainant PW.1 is examined.   Ext. P1 is marked.

No oral or documentary evidence by the opp.parties.

POINTS:

There is no dispute that the complainant was a subscriber of chittyNo.22/03 conducted by the opp.party and that the chitty was prized in the name of the complainant.   According to the complainant the chitty was prized in his name in the 10^th instalment whereas the contention of the opp.parties is that the chitty was prized in the name of the complainant in the first instalment itself.  However at the time of evidence PW.1 has  admitted that the  chitty was prized in his name in the first instalment itself.

There is  also no dispute that the complainant has not received the prized amount as he has not produced sufficient security.  According to the opp.party the complainant was informed of the prizing of the chitty in his name when the complainant came  for the remitting the 2 instalment of subscription, which is not disputed by the complainant also, and even  after that since no security was furnished the amount was kept in a separate account by the opp.party.  It is further contended by the opp.party  that the complainant neither receive the prize money producing sufficient security

nor inform the opp.party that he does not require the prized  amount nor any  application for keeping the amount in the Fixed Deposit was also  filed by the complainant  It goes without saying that for depositing  the amount in a fixed deposit necessary requests from the subscriber is necessary and PW.1 in cross examination at page No.3 has stated that he did not requests the opp.party to transfer the amount to the Fixed Deposit.  So in these circumstances the opp.party can only retain the amount.  It is also pertinent to point out that the complainant never inform the opp.party that he does not want the prize amount which he has admitted in cross examination at page No.3 To use his own words “1 h\d,A goe chukxx vj}julnk\ vj}jfkd Sin\m tr\rk Qgj]hkA eyB\Bj}jh\h\ ? Th\h So the opp.parties cannot be  blamed for keeping the amount in a separate account.  The opp.party  has to pay the instalments of chitty to the persons infavour of whom  the subsequent chittes are prized.   According to the opp.party the complainant did not turn up till the termination of the chitty and after termination he has applied for refund of 10 instalments which he has remitted.   As point out earlier  there is no dispute that the complainant has remitted 10 instalments of chitty.  According to the opp.party after prizing of  the chitty in the name of the  complainant a sum of Rs.95,000/- was required for payment of prize money to the subscribers in whose favour the chitty was prized subsequently whereas the prize money of the complainant was Rs.70,000/- only  and therefore the amount remitted by the complainant has also to be appropriated for the same.

The learned counsel for the complainant would  argue that the  name of the complainant was included in the draw without his consent and therefore the complainant is entitled to get back the amount deposited by him.   As argued by the opp.party the complainant has no case in the complaint that his name was included in the bid without his permission and such a contention was advanced at the time of the argument which is not sustainable.  According to  the opp.party  in the case of a defaulter after termination of the chitty if there was any balance   amount it would be given to him.   Since the complainant has been a prized subscriber and a defaulter he is  entitled to get the amount remitted by him only if there is balance after payment of balance subscription.    In cross examination the complainant admitted that the opp.parties had collected only the amount for the remaining instalments and dividend.  To use own words vj}j akm]A igkf\fjufk\ akfH vj}j fJgkA isg Lmu\S]n\m fkdukA iJf ehjCukA alYfalnk\ TOml]juj}kxxfk\ tr\rk\ eyukr\rk; ?   Cgjulnk\;  rjuaegaluj Lmv\v fkd domj dj}lR LG<fujh\hlf\ffksdln\mlnk\ rHdlfjgkr\rfk\ ?   Cgjulnk\  From  the admission of the complainant it is clear that there is  no deficiency in service on the part of the opp.party. Therefore the complaint is not maintainable.  Point found accordingly.

In the result the complaint fails and the same is hereby dismissed.  No costs.

Dated this the    29^th     day of  May, 2010.

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I N D E X

List of witnesses for the complainant.

PW.1. – Wilson

List of documents for the complainant

P1. – chitty variyola

List of witnesses for the opp.party :NIL

List of documents for the opp.party: NIL