Kerala

Idukki

CC/311/2016

Deepa Sreekumar - Complainant(s)

Versus

The Managing Director Belyins - Opp.Party(s)

30 Jul 2022

ORDER

DATE OF FILING : 10.11.2016

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the   30^th  day of  July,  2022

Present :

                   SRI. C. SURESHKUMAR                 PRESIDENT

SMT. ASAMOL P.                            MEMBER

SRI. AMPADY K.S.                          MEMBER

CC NO.311/2016

     Between

Complainant                             :   Deepa Sreekumar, W/o. Sreekumar,

                                                               Krishnakripa,

                                                               Thodupuzha.   

     (By Advs: T.J. Jomon&Basil John)

        And

Opposite Party                                   : 1. The Managing Director,

                                                                 Bell Chits Pvt. Ltd.,

                                                                 HB4, Panampilly Nagar,

                                                                 Kochi – 36.

                                                             2. The Branch Manager,

                                                                 Bell Chits Pvt. Ltd.,

       Udaya Building,       

                                                                 Near Co-operative College,

                                                                Thodupuzha.

      (By Adv: Sathyan S.)

 

O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.  Complaint averments are briefly discussed here under :

         

          Complainant had subscribed for 10 numbers of chitty, each having a price amount of Rs.10 lakhs, conducted by a Chitty Company, of which 1^st opposite party is Managing Director and 2^nd opposite party  Manager of its Thodupuzha branch.  Chitty had commenced on 9.5.2014 and was to terminate on 9.12.2015.  Subscribers were to remit Rs.8,85,000/- for each ticket in 20 instalments and upon termination of chitty, they will be entitled to Rs.1,15,000/- inclusive of dividend for each ticket. It was also let known by opposite parties thatafter payment of 5 instalments, subscribers would be entitled to bid in auction for price amount and if in case, they are not able bid successfully in the auction, there was an understanding that 75% of  price amount will be disbursed to them.  This had lured the complainant to join the chitty. There was a facility to pay                                                                                                             (cont….2)

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monthly installments by daily remittances also.  Due to financial contingency, complainant was unable to pay the chit instalments correctly and there was default.  Yet, she had paid all the chit amount due, on 20.6.2016 in lump.  At the time of clearing the dues, 2^nd opposite party had made the complainant to pay Rs.2,24,940/- in excess.  When questioned, complainant was informed that Rs.22,494/- was excess interest for each ticket, total being Rs.2,24,940/- (Rs. 22,494 x 10).  Complainant submits that there was default  in payment of Rs.1,43,900/-  in each ticket, total defaulted amount being Rs.14,39,000/-, that  interest is calculated upon this amount.  According to complainant, she was made to pay 32% of the amount due towards interest which is against provisions of Money Lenders Act.  Such acts would also amounts to deficiency in service and unfair trade practice also.  Apart from this, complainant was not paid the dividend due.  When she had asked for dividend, she was informed by opposite party that subscriber will lose the right to get dividend, when chit instalment is defaulted.  Complainant submits that upon payment of entire dues, her right to get dividend revived and hence non-payment of dividend will also amount to deficiency in service and unfair trade practice.  Hence this complaint.  Complainant prays for an amount of Rs.2 lakhs as compensation for the mental and financial difficulties she was put to, owing to deficiency in service and unfair trade practice, for Rs.3,50,000/- with 12% interest, from opposite parties, being dividend due towards 10 tickets of the chitty, for Rs.2,24,940/- with 12% interest from opposite parties being excess interest charged and litigation cost which this Commission will deem fit and proper to grant.

 

          2. Opposite parties have entered appearance and filed written version.  Their contentions are briefly discussed hereunder :

 

          According to opposite parties, complaint is not maintainable in law or upon facts.  Complainant was subscriber of 10 tickets of the chitty referred in complaint.  She had successfully bid for all the chits and had received the price amount.  However, she had committed default in payment of monthly subscription.  Only those subscribers who correctly remitted instalments due are entitled to get dividend. Payment of instalment was defaulted as is evident from monthly ledger extract.  Though the complainant had later cleared the dues in all the 10 tickets, she will not be entitled for dividend since monthly subscription were not duly paid.  Complainant was entitled to get Rs.81,500/- towards dividend for the monthly instalment paid correctly and this amount has already been paid to her.  It is incorrect to say that excess amount was calculated and collected from complainant.  Complainant had come to the office of 2^nd opposite party and collected details of arrears of 10 tickets subscribed by her.  She had then paid the entire amount and cleared the liability towards 1^st opposite party.  She had no grievances with regard to arrears of subscription and dividend in respect of 10 tickets when she paid the                                                                                                             (cont….3)

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dues on 20.6.0216.  She had, without any notice, filed this complaint after 5 months of clearing the dues.  If complainant had any grievances with regard to dues paid, she could have atleast send a notice to opposite parties.  This was not done with the sole intention of harassing the opposite party and to make unlawful gains.  There is no deficiency in service from the part of opposite parties or any unfair trade practice.  Complainant is not entitled for any relief and her complaint is to be dismissed with compensatory costs.

 

          3. After filing of written version, case was posted for evidence after affording sufficient opportunity to both sides to give evidence.  During the pendency of proceedings, my learned predecessors had given leave to complainant to be represented by her power of attorney holder who is none else, but her husband.  He was examined as PW1, on her behalf and Ext.P1 to P3 were marked.  No evidence was tendered from the side of opposite parties.  Evidence was closed and both sides were heard.  Now the points which arise for consideration are :

1)  Whether complainant was entitled to receive dividend for the 10 tickets subscribed by her in the chitty?

2)  Whether she was made to pay excess interest for the amount due from her ?

3)  Whether there was any deficiency in service or unfair trade practice on the part of opposite parties ?

4)  Reliefs and costs ?

 

Point Nos.1 to 3 are considered together :

 

          As far as claim for dividend is concerned, admitted evidence would reveal that chitty period was from 9.5.2014 till 9.12.2015.  Subscription payable for each ticket per month was Rs.50,000/-.  Dividend credited to each member is in fact the difference between the price amount and auctioned amount.  Ordinarily only those members who are correctly paying chitty instalments will be entitled to get dividend which is the share in profit as such.  In this case, it is admitted by  complainant that she had defaulted in payment of monthly instalments.  During her cross examination, she has admitted that though facility for paying monthly instalments on a daily basis was granted, even amount due per day was not paid by her.  She has further admitted that she will be entitled to receive dividend only if monthly instalments are correctly paid.  Though she would claim that there was no default in monthly instalments, this does not appear to be correct, in the light of earlier admission that there was failure on her part in paying daily remittance towards monthly instalments due.  The fact,  that there was default in payment of monthly instalments, is evident from Ext.P2 and P3 series 10 in numbers, of ledger extract of pass book produced by complainant herself.

 

                                                                                                                   (cont….4)

 

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          Yet another contention advanced is charge of excess interest.  Complainant has raised a specific plea that interest was charged against provisions of Kerala Money Lenders Act.  At this juncture, it would be pertinent to note that as per clause (ix) of Section 2(5) of Kerala Money Lenders Act, 1958, advances made in any chit fund scheme or kuri is exempt from the purview of loan that apart the foreman will not come within the definition of term ‘money lender’ as defined in Section 2(7) of Kerala Money Lenders Act, 1958.  This position has been made clear by hon’ble High Court of Kerala in Yohannan  M.M. and another Vs. State of Kerala [2019(5) KHC 908].  Apart from this, we also notice that the complainant had successfully bid for all the chitties and received the price/auction amount also.  She has not mentioned this fact specifically in the complaint.  We conclude this on the premises that she has a case of default and of having cleared the dues after the termination of chit.  That apart case of opposite parties in written version that complainant had auctioned all the 10 tickets has not been controverted in proof affidavit filed by complainant.  Apart from not mentioning the date on which chit ticket were auctioned, complainant has also not stated what was the default in payment of daily remittances towards monthly instalments and how much amount was outstanding towards monthly instalments as  on the date of termination of the chits, which according to her was on 9.12.2015.  It is also seen from the complainant, that she had cleared the arrears only on 20.6.2016.  Her contentions that interest was calculated only from 9.12.2015 as represented by opposite parties, defies reason and logic.  Ordinarily, if a subscriber defaults in payment of monthly instalments of chit after having auctioned and received the price amount, entire price amount is taken as due and collected from the subscriber.  So also contention advanced in the complaint that there is a right for ‘successfully’ auctioning chit after payment of only 5 instalments and if bid were to be unsuccessfull for getting 75% of prize amount of Rs.10,00,000/- despite this is unbelievable.  If this were to be so, every member would collect 75% of the price amount after paying only 5 instalments.  Price amount in each ticket is Rs.10 lakhs.  No member will miss the chance for getting 75% in advance after paying only 5 subscriptions which would come to only Rs.2,50,000/-, each installment being Rs.50,000/- maximum.

 

          To put it shortly, even according to complainant, she had forfeited her right to receive dividend upon committing default in payment of chit instalments.  Her contention, that excess interest has been charged, is also factually and legally incorrect.  Apart from all these, during cross examination, PW1 has admitted that complainant was having a business in 2014, which was subsequently continued by her  power of attorney holder who is none else, but her husband.  Amount was evidently collected for business purpose.  This fact was concealed in the complaint.  To overcome this difficulty, it is mentioned in proof affidavit of PW1 that the business was being conducted for the livelihood of  complainant.  This evidence is totally unconvincing, in view of the fact                                                                                                           (cont….5)

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that complainant had auctioned the chit for her business purpose and not mentioned this fact in the complaint.  That being so, complainant will not fit into the definition of ‘consumer’ as defined in Section 2(d) of the old Act.  As mentioned earlier, complainant had miserably failed to prove that she is entitled for getting dividend and for repayment of any amount which she  claimed as excess interest from opposite parties.  Therefore, we find that she is not entitled to get any reliefs claimed in the complaint.  Point Nos.1 to 3 are answered accordingly.

 

Point No.4 :

 

          In view of our findings entered into earlier, we are of the view that  no relief is to be granted.  In so far, litigation costs is concerned, opposite parties have not appeared or given any evidence.  Therefore, we are of the view that the parties have to suffer their own respective costs. 

 

          In the result, complaint is dismissed without costs.

 

                         Pronounced by this Commission on this the  30^th   day of July, 2022

 

                                                         

SRI. C. SURESHKUMAR, PRESIDENT

 

 

SMT. ASAMOL  P., MEMBER

 

 

SRI. AMPADY  K.S., MEMBER

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1        -   Sreekumar A.K.

On the side of the Opposite Party :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1    -   Power of attorney.

Ext.P2    -   copy of passbooks.

Ext.P3     -   copy of ledger extracts.

On the side of the Opposite Party :

Nil.