DATE OF FILING : 7.7.2011

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 30^th day of September, 2011

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.BINDHU SOMAN MEMBER

C.C No.152/2011

Between

Complainant : Mathew Mathew,

Parathazhathu House,

Pappuzha P.O.,

West Kodikkulam, Idukki District.

(By Adv:K.M. Sanu)

And

Opposite Parties : 1. The Manager,

LIS Group,

Branch Office,

Choorappuzha Tower,

Thodupuzha P.O.,

Idukki District.

2. P.V. Chacko,

Chairman - LIS Group, Palackal Court,

M.G. Road,

Kochi – 682035.

(By Adv: Lissy M.M.)

O R D E R

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

The complainant and his son joined in the deposit project of the opposite party named “Deepasthambham” by depositing an amount of Rs.75,000/- and Rs.1,250/- in the name of the complainant and an amount of Rs.62,500/- in the name of the son of the complainant named Sijo Mathew. The complainant entrusted Rs.1,250/- in the name of the complainant and Rs.62,500/- in the name of the son to the opposite party on 25.7.2005and also an amount of Rs.75,000/- was entrusted to the opposite party in the name of the complainant on 29.7.2005. The receipt was also issued by the opposite party for the same. At the time of depositing that amount, the opposite party promised that after 2 years, the amount will become double. Believing the same, he deposited the same. So after 2 years, the opposite party ought to have repaid Rs.1,52,500/- to the complainant and Rs.1,25,000/- to the son of the complainant and so a total of Rs.2,77,500/-. Several times the complainant requested the opposite party for getting the amount with interest after the maturity period. But not even a

(cont.....2)

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single amount has been given by the opposite party as per the assurance. The

complainant is entitled to get the amount with 18% interest from 29.7.2007, the date on which the term was expired. So this petition is filed for getting the amount of Rs.2,77,500/- with 18% interest from the opposite party.

2. As per the written version filed by the opposite party, the petition is barred by limitation because the amount was deposited on 25.7.2005 and on 29.7.2005. Hence the time limit for filing a complaint for money had already been over. The petition is filed stating that P.V. Chacko, Chairman, LIS Group, Palackal Court, MG Road, Ernakulam, which is the 2^nd opposite party and the complainant entrusted in the LIS Deepasthambham project, but the P.V. Chacko is not the chairman of the LIS Group and it is a registered partnership firm which is not having a chairman. There is no cause of action against him. It is admitted by the opposite party that the complainant entrusted Rs.1,38,750/- on 25.7.2005 and 29.7.2005 and it is for availing the service rendered by the opposite party firm by purchasing lottery tickets and issuing college magazine and the opposite party never received any cash deposit. They never promised to give double amount at any time after 2 years and so they are not entitled to pay Rs.2,77,500/-. The complainant joined in the scheme solely because of his appreciation of all the rules and conditions and rather the better functioning of the scheme. It is not the activity of the opposite party firm to accept deposits from any person and to give double the amount as alleged. In order to purchase lottery tickets and magazines, they have advanced the amount on behalf of the members of the scheme. Major portion of the commission amount availing out of these purchase is sparing to the members in such a way that the “first come first” basis and never promised any maturity period or time stipulation. In the rules of the scheme it is categorically stated that, benefits will be given to the members as and when, to what extend the lottery purchase commission is available and that too strictly according to the seniority of the members joining in the scheme. The agreement between the opposite party and the complainant was to purchase lottery tickets and college magazines over a certain period of time on behalf of them with the money entrusted at the opposite party. Out of Rs.1,38,750/- received from the complainant, the opposite party had paid Rs.12,484/- as lottery prize and purchased lottery tickets worth Rs.77,700/- and issued college magazine there at. So the entire amount was intended to be spent on behalf of the complainant. In addition to the above, the opposite party firm have offered an additional benefit of “commission” to the amount entrusted with them by sharing the purchase commission they received from the purchase of lottery and magazines. But the benefit stated above was to be paid to the members only on 2 conditions; (a) it will be paid only when we get sufficient purchase commission on the purchase of lottery and magazines and (b) it will be paid strictly according to the seniority of the members joining in the scheme. Unfortunately, on 10.5.2006, at the behest of some interested parties, police raided

(cont.....3)

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the office of the opposite party firm and registered a criminal case and directed to

stop the entire business activities. Subsequently, the Additional Chief Judicial Magistrate Court, Ernakulam, vide CMP No.4483/2006, dated 11.8.2006 has directed to freeze the entire bank accounts of the opposite party firm. Thus the activity of purchasing lottery tickets and magazines were stopped and the opposite party firm could not continue the business thereafter. Now this matter is under the consideration on the Hon'ble Chief Judicial Magistrate Court, Ernakulam. When the Karnataka police have registered false criminal cases against the opposite party firm and others at Karnataka, they approached the Hon'ble High Court of Karnataka and the Hon'ble High Court of Karnataka as per the orders dated 21.1.2008 and 27.5.2008 in Crl.P. No.1942/2007 and connected matters directed to refund the amount collected from the members after deducting the cost of lottery tickets and magazines supplied to the members from the amount entrusted by them. Hence the complainant is only entitled to get the amounts as directed by the Hon'ble High Court of Karnataka. The opposite party is ready to give back the entrusted amount after deducting the cost of lottery tickets and magazines supplied to the complainant along with lottery prize if any. The complainant is not entitled to get interest from the opposite parties.

3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

4. The evidence consists of oral testimony of PW1 and Exts. P1(series) to P3 marked on the side of the complainant and Ext.R1 marked on the side of the opposite parties.

5. The POINT :- The complainant produced evidence as PW1. PW1 joined in the “Deepasthambham”project of the opposite party by depositing an amount of Rs.1,250/- in the name of the complainant and Rs.62,500/- in the name of his son Sijo

Mathew on 25.7.2005 and another amount of Rs.75,000/- was deposited on 29.7.2005 in the name of the complainant and Ext.P1(series) are the receipts issued for the same by the opposite party. At the time of joining in the project, the opposite party offered to repay the double amount after 2 years. But it was not done by the opposite party after repeated demand of the complainant. Deposit certificate issued by the opposite party for the amounts of Rs.75,000/- Rs.1,250/- and Rs.62,500/- are marked as Ext.P2(series). On cross examination of the learned counsel for the opposite party, PW1 deposed that the opposite party never told about the lottery tickets and magazines to the PW1. Ext.P3 is the copy of paper cutting of the Malayala Manorama daily dated 7.3.2007 has been produced stating that the amount deposited in the “Deepasthambham” project of the 1^st opposite party will be returned with

(cont.....4)

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double amount, by the Chairman P.V. Chacko of the LIS Group, eventhough it is objected by the counsel for the opposite party stating that the document is not marked

through the editor of the daily.

As per the complainant, he and his son had deposited a total amount of Rs.1,38,750/- to the opposite party in the “Deepasthambham” project believing on the assurance given by them that the double amount will be repaid after 2 years. But it was not done by the opposite parties. The opposite parties' counsel argued that this project is not at all assuring any double benefit for the amount, but they are only giving commission by purchasing lottery tickets and magazines with that amount and that amount will be distributed among the members of the scheme as per the rules and regulations of the firm. That means, “first come first” basis and the opposite party never assured any double amount to the members of the scheme and never received any deposit for the same. They received the amount as membership fee. They are also ready to give back the amount to the complainant. But unfortunately, the office of the opposite parties were raided by the police on 10.5.2006 and a criminal case is pending before the Chief Judicial Magistrate Court, Ernakulam and the court ordered to freeze the accounts of the opposite parties. Another criminal petition has been disposed by the Hon'ble High Court of Karnataka on behalf of the police complaint filed at Karnataka by the persons made the payments. An order of the Hon'ble High Court of Karnataka is also produced which is marked as Ext.R1.

On perusing Ext.R1 Order of the Hon'ble High Court of Karnataka, it is stated that, “it is just and proper to direct the petitioners to refund the amount received from the remaining subscribers after deducting the charges, if any, towards the cost of magazines and lottery tickets supplied to them”. It is also directed to submit the report regarding refund of the amount to the remaining 395 subscribers within 15 days from the Order dated 27^th May, 2008. So it is very clear from the Order of the Hon'ble High Court of Karnataka, it is a case filed by P.V. Chacko and others for quashing the charge sheet filed against the petitioners by the Tilak Nagar Police, Bangalore, Yeshwanthpur Police, Bangalore, J.B. Nagar Police, Bangalore and the Upparpet Police, Bangalore and the Hon'ble High Court of Karnataka ordered to refund the amount to 395 subscribers who have filed the complaint before the concerned police stations and the amount could be disbursed from the Federal Bank, Koramangala Branch, Bangalore. So it is not at all concerned with the case of the complainant. The complainant had never filed a complaint before any of the Police station mentioned in the Order of the Hon'ble High Court of Karnataka. It is also directed in the Order of the Hon'ble High Court of Karnataka dated 27^th day of May, 2008, that the petitioners in similar petitions which are complainants P.V. Chacko, Kuriachan Chacko, Achamma Chacko, Leenu Joy and Rajagopal, to submit the report regarding the refund of the amount of the remaining 395 subscribers within 15 days

(cont....5)

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from the date of order. But the 1^st petitioner is the Chairman of the LIS Company and the 5^th petitioner is the Manager of the LIS Company who are the 2^nd and 1^st opposite parties in this petition respectively. There is no evidence produced by the opposite party to show that the petitioners had refunded such an amount to the remaining 395 subscribers and such a report has been filed before the Hon'ble High Court of Karnataka, stating the same as per the order. So no such a payment has been done and no report has been filed even 3 years has been expired after the order of the Hon'ble High Court of Karnataka.

Another contention of the opposite party is that the amount has been spent for the purchase of lottery tickets and magazines and they were supplied to the complainant. But no evidence has been produced by the opposite party to show that the amount received from the complainant has been used for the purchase of lottery tickets and magazines and that were supplied to the complainant. As per the rules and regulations and the agreement with the opposite parties they are issuing commission from the purchase of the lottery tickets and magazines, but no such an agreement or rules and regulations has been signed by the complainant, is produced by the opposite party to prove the same. The opposite party submitted that a criminal case is pending before the Hon'ble Additional Chief Judicial Magistrate Court, Ernakulam and the accounts of the opposite parties has been freezed by that court. But there is no evidence produced by the opposite party to show that a criminal petition is pending before the Chief Judicial Magistrate Court, Ernakulam regarding the dispute of the complainant and the bank account of the opposite party has been freezed. There is no order from the Chief Judicial Magistrate Court, Ernakulam or any other authority has been produced by the opposite party to show that the same matter is pending before any other judicial proceedings.

So it is admitted by the opposite party that they have received Rs.1,38,750/- from the complainant and they are also ready to give back the amount to the complainant. But Exts.P1(series) to P3, shows that the complainant deposited the amount as per the assurance of the opposite party that the amount will be given with double benefit after 2 years and it was not done by the opposite party. So it is a gross deficiency from the part of the opposite party and it is also admitted by the opposite party in the written version that they are ready to give back the amount. So we think that the opposite party should repay the amount to the complainant with 9% interest from the date of receipt of the same as per Ext.P1(series).

Hence the petition allowed. The opposite parties are directed to pay Rs.1,38,750/- with 9% interest per annum from the date of the receipt of the same as per Ext.P1(series), to the complainant and his son, within 30 days of receipt of a copy

(cont.....6)

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of this order failing which the amount shall carry 12% interest per annum from the date of default.

Pronounced in the Open Forum on this the 30^th day of September, 2011

Sd/-

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

Sd/-

SMT. BINDHU SOMAN (MEMBER)

APPENDIX

Depositions :

On the side of the Complainant :-

PW1 - Mathew Mathew

On the side of the Opposite Parties :-

Nil.

Exhibits :

On the side of the Complainant :-

Ext.P1(series) - Copy of the acknowledgement receipts issued by the opposite party.

Ext.P2(series) - Deposit certificates issued by the opposite party for the payments

- 3 Nos.

Ext.P3 - Copy of the paper cutting of the Malayala Manoram daily

dated 7.3.2007.

On the side of the Opposite Parties :-

Ext.R1 - Copy of the order of the Hon'ble High Court of Karnataka,

dated 27.5.2008.