Karnataka

Kolar

CC/5/2017

Mr.Mohamad Musthafa - Complainant(s)

Versus

The Manager, Margadarshi Chits Private Limited - Opp.Party(s)

Sri.A.V.Ananda

16 Feb 2018

ORDER

 

Date of Filing: 17/01/2017

Date of Order: 16/02/2018

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 16^th DAY OF FEBRUARY 2018

PRESENT

SRI. K.N. LAKSHMINARAYANA, B.Sc., LLB., PRESIDENT

SMT. A.C. LALITHA, BAL, LLB.,  ……  LADY MEMBER

 

CONSUMER COMPLAINT NO. 05 OF 2017

Mr. Mohamad Musthafa,

S/o. Pyarejan,

Aged About 65 Years,

R/at: Mubarak Traders,

Tippu Sulthan Road, Kolar.                                  ….  COMPLAINANT.

(Rep. by Sri. A.V. Ananda, Advocate)

 

- V/s -

1) The Manager,

Margadarshi Chits (KAR)

Private Limited, 1^st Floor, Hermain

Clx, BTM 2^nd Stage, 16^th Main,

BTM Layout, Bangalore-560076.

(Rep. by Sri. C.B. Jayarama, Advocate)

 

2) Sri. Hari, Margadarshi Chit Agent,

S/o. Chengaiah,

Aged About 40 Years,

R/at: Beside Gangamma Temple,

Doomlight Circle, Kolar.

(Exparte)                                                                      …. OPPOSITE PARTIES.

 

-: ORDERS:-

BY SMT. A.C. LALITHA, LADY MEMBER,

01.   The complainant having submitted this complaint on hand as envisaged Under Section 12 of the Consumer Protection Act, 1986 (hereinafter in short it is referred as “the Act”) against the opposite parties has sought relief of issuance of directions to pay a sum of Rs.10,00,000/- (Rupees Ten Lakhs Only) together with interest at the rate of 24% per annum and also sought compensation of Rs.10,000/- (Rupees Ten Thousand Only) towards damages and costs has been sought.

 

02.   The facts in brief:-

(a)    It is contention of the complainant that, OP No.1 running a chit business and OP No.2 is the agent of OP No.1.  The complainant had become a subscriber to the said chit with OP No.1 which was commenced on September-2012 and its duration is 50 months, with chit reference No. LT008X BT/18, P.S.O.No.32/2012-13 and value of the said chit after completion is a sum of Rs.10,00,000/- (Rupees Ten Lakhs Only), payable monthly subscription is Rs.20,000/- (Rupees Twenty Thousand Only) and the date of auction is on every 3^rd Sunday.  Accordingly the agent of OP No.1 i.e., OP No.2 used to visit Kolar on every 3^rd Sunday to collect the said monthly subscription of the said chit.

 

(b)    It is further submitted that, even after completion of the said chit OP No.1 did not paid the chit amount, hence the complainant got issued legal notice on 19.12.2016 through his learned counsel.  But OP No.1 instead of complying, replied by repudiating his claim as the complainant had stood as guarantor to one P.M. Srinivasappa.  The dispute against him for recovery of amount is still pending.  Without clearance of the said due the chit amount will not be payable and will deduct the due amount of Sri. P.N. Srinivasappa from the chit amount of the complainant.

 

(c)    Further it is contended that, at the time of commencement of the said chit no such contract between the complainant and the Ops, as such the present chit is no way concern to the said due, already Ops have filed a dispute on him.  The complainant is the resident of Kolar and OP agent used to collect the chit amount from his shop situated at Kolar, hence this Forum has jurisdiction to entertain the complaint.  The Ops by repudiating the claim of the complainant has rendered deficiency in service.  So contending, the complainant has come up with this complaint on hand by seeking the above set-out reliefs.

 

03.   As per the proceedings noted in the order-sheet dated: 05.06.2017, OP No.2 came to be placed exparte. 

 

04.   In response to the notice issued by this Forum, OP No.1 has put in its appearance through the said learned counsel and filed version by admitting, the complainant is its subscriber and had paid the said dues and date of auction is on every 3^rd Sunday and complainant had become successful bidder through lot member in the last installment and entitled for a Prize Amount of Rs.9,50,000/- (Rupees Nine Lakhs Fifty Thousand Only) and denied rest of all the allegations of this complaint.

 

(a)    It is specifically contended that, this Forum has no jurisdiction to entertain this complaint as per Section 11 of the Consumer Protection Act, 1986 since OP No.2 Mr. Hari is the employee of the OP No.1 and at any point of time he never have been resides in Kolar.  He is the resident of Peddauppara palli of Chitoor District of Andhrapradesh.  And also this complaint is not comes under Section 2(1)(g) of the Consumer Protection Act, 1986. 

 

(b)    It is contended that, the claim of complainant was repudiated because the complainant has stood as a Guarantor to the suit filed chit vide No. TT001V MH-04 at one of our sister concern Marathahalli Branch vide dispute No.55/16-17 on the file of Hon’ble Deputy Registrar of Chits, which is still pending for adjudication.  In this regard OP No.1 had issued letter to the complainant on 23.12.2016 by clearly mentioning about the guaranteed suit filed on him.  But there was no response and failed to take any action.  Hence as per the provisions contemplated Under Chit Fund Act, 1982 and as per the terms and conditions of the Chit Agreement and Agreement of Guarantee this OP No.1 is having lien right over the complainant’s prize amount.  As the matter is sub-judice before the Civil Court (Deputy Registrar of Chits is equivalent to Civil Court as Per Section 71 of the Chit Funds Act).  The complainant to escape from the liability as the guarantor has filed this frivolous complaint. 

 

(c)    In the version OP No.1 has quoted these citations:- (i) M/s. Jabalpur V/s Sedmal Jainarain & Others reported in 1995 SCC SUPPL (4), (ii) Synco Industries V/s State Bank of Bikaner and Jaipur and Others reported in (2002) CPJ 16 (SC: 2002 (1) SCALE, (iii) AIR 2000 Kant 201, Charanjeet Kaur V/s State Bank of Patiala.  As per the above version and also Under Section 68(4) of disputes liability to the chit business OP No.1 prayed for dismissal of the complaint cost has been sought.

 

05.   The complainant has submitted his affidavit evidence by way of examination-in-chief and also submitted below mentioned original documents:-

(i) Office copy of the legal notice dated: 19.12.2016

(ii) Office copy of the reply notice.

(iii) Original pass-book pertaining to Margadarshi chits.

(iv) Original amount paid receipts

(v) Copy of the original computerized cash paid bills.

 

06.   On behalf of OP No.1 Sri.D.Ragu Ramaiah, S/o. D.Venkata Rathnam, Manager of OP No.1 has sworn to his affidavit evidence and submitted the copies of below mentioned documents and citations:-

1. Revision Petition No.3988 to 3989 of 2014 between Charanjeet Kaur V/s. State Bank of Patiala.
2. Appeal (Civil) No.6453 of 2000 between Synco Industries Vs State Bank of Bikaner And Jaipur
3. 1995 SCC, Supl. (4) 107 JT 1995(8) 155 between M/s. Jabalpur Tractors V/s Sedmal Jainarain & Anr.
4. AIR 1992 SC 1066 between Syndicate Bank Vs Vijay Kumar & Others.
5. Air 2000 Kant 201, 2001 106 Compcas 509 Kar between Smt. K.S. Nagalambika vs Corporation Bank & Anr.,
6. Authorization to file suits, execution petitions, etc., dated: 09.02.2014.
7. Resolution passed by the Board at its meeting held at its corporate office
8. Certificate to chit business
9. Permission letter dated: 23.03.2011
10. Chit Agreement
11. Acknowledgment
12. Cash/Bank voucher dated: 25.12.2012
13. Promise note dated: 25.12.2012
14. Agreement of Guarantee dated: 25.12.2012
15. Particulars of surety
16. Subscribers account extract
17. Letter dated: 28.12.2016
18. Letter dated: 22.12.2016
19. Acknowledgement
20. Letter dated: 23.12.2016
21. Letter dated: 18.11.2016
22. Acknowledgement
23. Letter dated: 26.12.2016
24. Petition copy before Deputy Registrar of Chits
25. 2002(1) SCR 225
26. 1995 SCC Spl 4 107
27. AIR 1992 SC 1066
28. Air 2000 Kant 201

 

07.   OP No.1 has submitted its written arguments.  Heard arguments of both sides.

 

08.   Therefore the points that do arise for our consideration are:-

(1) Whether this Forum has jurisdiction to entertain this complaint as per Section 11 of Consumer Protection Act, 1986 and is it be a consumer dispute as per Section 2(1)(g) of the Consumer Protection Act, 1986?

 

(2) If so, whether the complainant has proved deficiency of service on the part of the Ops?

 

(3) If so, whether the complainant is entitled for the relief as he sought?

 

(4) What order?

 

09.   Our findings on the above stated points are:-

POINT (1):-      In the Affirmative

POINT (2):-      In the Affirmative

POINT (3):-      In the Affirmative

POINT (4):-      As per the final order

for the following:-

REASONS

POINT (1):-

10.   The OP No.1 has specifically contended that, this Forum lacks jurisdiction to entertain the said complaint as per Section 11 of the Consumer Protection Act, 1986 since the agent of OP No.1 Sri. Hari i.e., OP No.2 is the resident of Peddaupparapalli of Chittor District of Andhra Pradesh, he never resides at Kolar and this dispute is not a consumer dispute as per Section 2(1)(g) of the Consumer Protection Act, 1986. 

11.   It is worth to note that a portion of Section 11(2)(b) reads thus:-

“any of the Ops, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain:

 

(c)      the cause of action, wholly or in part, arises”.

       

It means where the OP may resides or having an office or carries a business would have the jurisdiction to file complaint.  In this case, on perusal of original documents submitted by the complainant the receipt No. 1356792 issued by OP No.1 dated: 29.06.2016 towards receipt of due amount of Rs.19,960/- which was paid by this complainant to OP No.1 through cheque bearing No.432303 dated: 27.06.2016 through his account at Vijaya Bank, Kolar.  Another cheque bearing No.432301, dated: 12.05.2016, for Rs.19750/- was paid on 13.05.2016 through OP No.1 receipt bearing No.0927710.  Another cheque bearing No.432304, dated: 29.07.2016 for Rs.19,960 was paid to OP No.1 from his Vijaya Bank account Kolar Branch on 31.07.2016 as per the receipt No.1360447.  Another cheque bearing No.432302, dated: 25.05.2016 for Rs.19,960/- was paid to the OP No.1 through his Vijaya Bank account, Kolar. Another cheque bearing No.432306, dated: 30.09.2016 for Rs.19996/- was paid to the OP No.1 through his Vijaya Bank, Kolar.  Thus the complainant had paid the dues of said chit through his Vijaya Bank account at Kolar.  Hence the transaction happened between the complainant and OP No.1 at Kolar itself.  On perusal of original receipts vide Nos.3482, 3463, 16342, 28019, 16332, 16301, 16314, 28032 it clears that, Sri. Hari i.e., OP No.2 had collected the dues from complainant at Kolar itself and the receipts bears the signature of Sri. N. Hari too ( OP No.2).  Therefore as per the provision 11(2)(b) & (c) the business i.e., collection of payment was carried out at Kolar itself.  Therefore this Forum has jurisdiction to entertain the complaint in hand.

 

12.   Further with regard to another contention of OP No.1 that this complaint is not a “Consumer dispute” as per Section 2(1)(g) of Consumer Protection Act, 1986.

 

13.   It is an admitted fact that, the complainant is the subscriber to the OP No.1, thus a contract exists in between complainant and OP No.1.  So no doubt complainant is the Consumer to OP No.1.  The moment when OP No.1 had repudiated the claim of complainant is the dispute arised between them.  Hence absolutely this complainant is a consumer to OP No.1 and the dispute between them is consumer dispute as per the provisions of Consumer Protection Act, 1986.

 

POINT (2) & (3):-

14.   To avoid repetition in reasonings and as these points do warrant common course of discussion, the same are taken up for consideration at a time.

 

15.   It is an admitted fact that the complainant is the bidder through lot member in the last installment of OP No.1 scheme and is awarded a prize amount of Rs.9,50,000/-.  But OP No.1 had specifically contended that, since the complainant had stood as guarantor to one Sri. P.N. Srinivasappa, and the dispute is still pending before the Deputy Registrar of Chit business, so the claim of complainant cannot be tenable. 

 

16.   In this context our attention has been drawn to the conditions as envisaged in the Margadarshi Chits Karnataka Private Limited Chit agreement which is submitted by OP No.1.  On careful perusal of this document it never reveals not even a single word about the specific contention of OP No.1 since complainant stood guarantor for another person should not entitled for his own chit awarded amount. 

 

17.   When the said chit policy conditions does not bear any such conditions while beginning of the said chits or later on stages also it is untenable of taking such contention by OP No.1 by repudiating the claim of complainant.  The principle enunciated in the citations submitted by OP No.1 does not applicable to the case on hand hence not considered.

 

18.   On perusal of original documents submitted by the complainant as well as the OP No.1, no doubt this complainant is the subscriber to OP No.1 and also paid installments regularly and awarded chit amount of Rs.9,50,000/-.  Even if the complainant is the guarantor to Sri. P.M. Srinivasappa as per the records the dispute No.55/16-17 before the Deputy Registrar of Chit business is pending.  If at all this complainant proved guilty that will go in a separate manner as per the provisions of law in a separate way that will not come in any way to this complaint on hand. 

 

19.   Once there is specific contention it requires to be proved and we cannot be imagine the link to come to conclusion so this OP No.1 has failed to prove its contention.  Therefore we come to the conclusion that, repudiation of complainant’s claim by OP No.1 did cause inconvenience and agony to him and this were only on account of deficiency in service on the part of OP No.1 as such claim of complainant for the awarded amount of said chit and also compensation as made by the complainant is bound to be held.

 

20.   Now we are bound to fix the liability.  Indisputably OP No.2 is the agent of OP No.1.  As OP No.2 being agent of OP No.1 his duty is to collect the dues from its subscribers and handing over to OP No.1, there ends the part of OP No.2.  The complete contract and transaction and dispute is only in between the complainant and OP No.1.  Hence OP No.1 is bound to be held as exclusively accountable to the said claim of complainant and compensation with interest.  As per the original pass-book of complainant issued by OP No.1 the complainant had paid 50 months installments to the said chits as Rs.20,000/- monthly subscription.  In total he paid Rs.10,00,000/- (Rupess Ten Lakhs Only) to OP No.1, same is complainant is entitled to receive from OP No.1.

 

POINT (4):-

21.   In view of the above discussions on Point (1) to (3) we proceed to pass the following:-

ORDER

01.   For foregoing reasons this complaint stands allowed as against OP No.1 with costs of Rs.5,000/- and dismissed as against OP No.2 with no costs.

 

02.   The complainant is held entitled to receive the awarded prize amount of Rs.10,00,000/- (Rupees Ten Lakhs Only) from OP No.1 along with interest at the rate of 9% per annum from the date of repudiation made by the OP No.1 till realization.  The OP No.1 is also directed to pay Rs.10,000/- as compensation.

 

03.   We direct the OP No.1 to comply the above said order within 30 days from the date of communication of this order.

 

04.   Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 16^th DAY OF FEBRUARY 2018)

 

 

LADY MEMBER                                PRESIDENT