BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI Dated this the 31st day of December, 2009
Present: SRI.LAIJU RAMAKRISHNAN PRESIDENT SMT.SHEELA JACOB MEMBER SMT.BINDU SOMAN MEMBER
C.C No.153/2008 Between Complainant : Annamma Devasia aged 15 years, Represented by her mother Alice Raju, Vechoorethu House, Ettumanoor P.O, Pin 686 631. (By Adv: Shiji Joseph) And Opposite Parties : 1. Cardamom Marketing Corporation, Vandanmettu - 685 551, Idukki District, represented by its Managing Partner R. Krishnaswamy, 109/14, Nandagopal Kovil Street, Cumbam, Theni District, Tamilnadu. 2. K.S.Scaria Jr, aged about 78 years, S/o Scaria Sr., Partner, Cardamom Marketing Corporation, residing at Mycology Estate, Pottakulam(Poochakkal), Mundakayam P.O, Kottayam. 3. R.Krishnaswamy, aged 82 years, Managing Partner, Cardamom Marketing Corporation, residing at 109/14, Nandagopal Kovil Street, Cumbam, Theni District, Tamilnadu. 4. Mathew Scaria, aged 68 years, S/o Scaria Sr., Partner, Cardamom Marketing Corporation, residing at, Pottakulam(Raju), Mill Heaven, Koottickal P.O. Mundakayam, Kottayam. (All by Advs: A.M.Michael & Prazeeda.K.Pillai) 5. V.J. Devassia, S/o Joseph, Partner, Cardamom Marketing Corporation, residing at Vachoorath, Ettumanoor, Kottayam. (By Adv: K.J.Thomas) 6. K.K. Varkey, aged 56 years, Partner, Cardamom Marketing Corporation, residing at Kummelil House, Packil P.O, Nattakam, Kottayam. 7. Mohan Varghese, S/o Varghese Partner, Cardamom Marketing Corporation, residing at Madavana Farms, Puttadi P.O. Vandenmedu, Idukki. 8. Mathew Oommen, Partner, Cardamom Marketing Corporation, residing at Polachirackal House, Puthenangadi, Kottayam. 9. Tarun Mathew Ninan, Partner, Cardamom Marketing Corporation, residing at Polachirakkal House, Mattethara Colony, Kottayam-686 001. 10. Late George Joseph (Vakkamma), Partner, Cardamom Marketing Corporation, residing at Kokkappallil House, Chempalam, Nedumkandam, Idukki. 11. T.K.S Reghupathy, Partner, Cardamom Marketing Corporation, residing at Door No.2D/24.K.V. R. Kovil Street, Cumbam, Theni District, Tamilnadu-625516. 12. D. Sampath Kumar, Partner, Cardamom Marketing Corporation, residing at K.K patty, Cumbam, Theni District, Tamilnadu. 13. M.S. Murugesan, Partner, Cardamom Marketing Corporation, residing at M.S. Nagar, K.K Patty (via), Cumbam, Theni Dist. Tamilnadu. (All by Advs: A.M. Michael & Prazeeda .K.Pillai) 14. Santhamma W/o George, Kizhakkethalackal House, Mannarakkayam, Vayalumuri, Kanjirappally. 15. Giju George, Kizhakkethalackal House, Mannarakkayam, Vayalumuri, Kanjirappally. (By Adv: V.C. Sebastian) 16. Regi George, Kizhakkethalackal House, Mannarakkayam, Vayalumuri, Kanjirappally. 17. Chackochan, Kizhakkethalackal House, Mannarakkayam, Vayalumuri, Kanjirappally. 18. Ginu George, Kizhakkethalackal House, Mannarakkayam, Vayalumuri, Kanjirappally. 19. Dhanya Tom, Parekkattu, Bharananganam. 20. Paval Ammal W/o R. Krishnaswamy, 109/14, Nandagopal Kovil Street, Cumbam, Theni District, Tamilnadu-625 516. 21. K. Sakthikumar S/o R.Krishnaswamy, 109/14, Nandagopal Kovil Street, Cumbam, Theni District, Tamilnadu-625 516. 22. K. Ulakanathan S/o R. Krishnaswamy, 109/14, Nandagopal Kovil Street, Cumbam, Theni District, Tamilnadu-625 516. 23. A. Vijaya W/o R.T. Ashok kumar, Kula Thever Street, Cumbam, Theni District, Tamilnadu-625 516. O R D E R SRI.LAIJU RAMAKRISHNAN(PRESIDENT) The complainant is a minor aged 15 years and she is represented by her mother Alice Raju. The complainant deposited Rs.10 lakhs on 01.10.2001 with the 1st opposite party, the Cardamom Marketing Corporation, which is a partnership firm engaged in helping cardamom growers and also in the auction of Cardamom. OP2 to OP13 are the partners of the firm. The opposite parties agreed to pay an interest at 9% per annum in every quarter, that is in March, June, September and December. The 1st opposite party was in financial difficulties due to some financial mis-management by some of the partners, responsible for the day-today affairs of the firm. Inspite of repeated demands of the complainant to the repayment of the amount, the OP1 issued a balance confirmation letter on 31.03.2007. As per the confirmation, the opposite party is liable to pay Rs.13,49,066/- to the complainant. The opposite party paid Rs.13,066/-as interest on 30.11.2007 vide cheque No.749417 and Rs.6,000/- on 19.07.2008 vide cheque No.741651 drawn on the Madurai District Central Co-operative bank limited, Cumbum Branch. But the deposit amount is not repaid by the opposite party even after repeated demands. So the petition is filed for getting the deposited amount with interest from the opposite parties. Opposite parties 1 to 13 are jointly and severally liable for the money deposited for the firm.
2. As per the written version of OP1 to 4, 6 to 9 and 12, the complainants in CC No.151/08 to 159/08 are caused to be filed at the instance of 5th opposite party, who is popularly known as Raju Joseph. The complainants in CC No.151/08, CC No.152/08, CC No.154/08, CC No.157/08 and CC 158/08 are the close relatives of the 5th opposite party. The complainants in CC No.153/08, CC No.155/08, CC No.156/08 and CC No.159/08 are the children and wife of the 5th opposite party. The 5th opposite party colluded with the complainants, manipulated the documents and accounts illegally. The complaint itself is not maintainable in law because the alleged transaction only discloses at the most a creditor- debtor relationship and not availing any service or purchase of any goods for consideration. The 1st opposite party is not a Banker and he is not having any business of accepting deposit as part of this business port folio. This petition is filed before this Forum as experimentally and also to avoid court fee. The 1st opposite party had carried on the activity of an auctioneer of Cardamom for more than 40 years. But the Manager of the 1st opposite party colluded with some bank officers and committed fraud. The deposits of the friends and relatives were all along maintained in the Cardamom Marketing Corporation's Head Office account and the said deposits were never transferred to any division of the 1st opposite party. The 5th opposite party without the knowledge of the other partners clandestinely made an entry in the books of the Agro Division of Cardamom Marketing Corporation, that a sum of Rs.33,12,381/- is transferred to the Agricultural division. Subsequently the 5th opposite party issued cheque leaves of various dates from cheque Nos. 749415 to 749425 and 741651 to 741659. He also executed letters purported to be confirmation of the balance, all dated 20.06.2007 to his relatives. Consumer complaint numbers 152/08 to 159/08 are identical and also prepared at the instance of the 5th opposite party. The 5th opposite party fraudulently issued the cheques in order to make an impression that there is payment of part of the debt, intended to help his own kith and kin. The agricultural division did not have any worthwhile activity after May 2005 and there was no need to operate the account at all. So the cheques were issued to save the limitation period. The OP2 to OP4 and OP6 to OP13 did not make any promise for interest to the complainant. They never received any deposit from the complainant and made any promise to pay any interest. The complainant is not entitled to get Rs.13,49,066/-. The cheques issued by the opposite party are also doubtful and no balance confirmation was issued to the complainant. The complainant never demanded any money from the opposite party, so there is no deficiency in service on the part of the opposite parties.
3. As per the written version of the 5th opposite party, it is admitted that the respondent 5 is the partner of the Firm. In the General body meeting held on 27.07.2005, 5th opposite party was appointed as the Manager of the Agro Division of the firm with effect from 1st September 2005, so the 5th opposite party is looking all the affairs of the firm. Deposits of the amount by the Auction division are as per the unanimous decision of the partners and agreed to pay 9% interest. The interest were paid to the depositors by cheque after deducting the income tax. The firm was in financial difficulties, and the respondents except the 5th respondent were absconding. The opposite parties issued balance confirmation to the depositors, no amount is paid to the complainant till this day. 4. Opposite parties 1 and 3 are one and the same person. Opposite parties 1, 3 and 10 expired, after filing this petition. So the legal heirs of opposite parties 1, 3 and 10 are impleaded as opposite parties 14 to 23. Opposite parties 16 to 23 were absent, so called exparte.
5. Opposite party 15 filed written version stating that he is not a necessary party in the proceedings and totally a stranger to the Ist opposite party firm.
6. 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?
7. Exts.P1 to P5(series) marked on the side of the complainant and Ext.R1marked on the side of the opposite parties. The evidence of DW1 in C.C No.156/2008 is common and adopted in this case also.
8. The POINT:- The complaint is filed for getting the amount deposited to the Cardamom Marketing Corporation, a Partnership firm. No oral evidence adduced by the complainant. The complainant deposited Rs.10 lakhs to the opposite parties' firm. The opposite party issued a balance confirmation letter for Rs. 13,49,066/- which is marked as Ext.P1 dated 20.06.2007, in which it is stated that the balance amount is Rs. 13,49,066/- as on 31.03.2007 in her account. All the documents of the Corporation are with CBI now. The complainants in CC No.153/08, CC No.155/08, CC No.159/08 are the children of the 5th opposite party. Ext.P3(series) is the General Profit and Loss account for the year ended 31.03.2005 of the opposite party Corporation. Ext.P5 is the details of the loan and the other borrowings of the opposite party as on 31.03.2005. Ext.P4 is the copy of the details of payments to Mrs.Alice Devasia. Ext.P2 is the partnership agreement on behalf of OP1 to OP6,OP7, OP9, OP11 and OP13. As per DW1, Ext.P5(series) is a forged one. The balance confirmation statement was signed by the 5th opposite party. No such power was given to OP5 to sign such a document. No authorization was given to OP5 to issue cheque leaves to the depositors. Ext.R1 is the copy of the plaint in OS No.69/06 at the Sub Court Kattappana, which is filed by one of the depositors of the firm against the firm in order to get the deposit money because it is a civil dispute.
On perusing the evidence, it is admitted that Rs.10 lakhs was deposited by the complainant in the opposite party firm. But some amount was given back. But the balance is not yet paid. As per the complainant, OP5 who issued the balance confirmation to the complainant. As per the written version of the OP5, it is admitted that the complainant deposited the amount to the firm and now also the amount is pending. Balance confirmation statement was also issued by OP5. But as per DW1, and the written version of the other opposite parties, it is stated that the documents produced are forged by OP5 and the complaint filed itself is by the result of the collusion between the OP5 and the complainant, who is a close relatives of the OP5. Ext.P1 is created only for overcoming the limitation period. So we think that, the 5th opposite party admitted all the allegations in the complaint and also admitted the balance statement signed by him. As per OP1, they never authorized the 5th opposite party to issue, such a cheque or balance confirmation statement. It makes us to suspect that the complainant has colluded with the 5th opposite party. Moreover, the complainant is the daughter of the 5th opposite party. So we think that the version of the opposite parties, except OP5 are more believable than that of the complainant. Moreover the amount deposited or amount given to the 1st opposite party by the complainant is for getting interest to the deposit, which is really a money transaction. There is no purchase of goods or service is rendered in anywhere for consideration between the complainant and the opposite parties. So this petition cannot comes under the definition of Consumer Protection Act 1986, which is absolutely a Civil dispute and the complainant can approach an appropriate Civil Court for further remedy.
Hence the petition dismissed. No cost is ordered against the complainant.
Pronounced in the Open Forum on this the 31st day of December, 2009 Sd/- SRI.LAIJU RAMAKRISHNAN(PRESIDENT)
Sd/- I agree SMT.SHEELA JACOB(MEMBER) Sd/- I agree SMT.BINDU SOMAN(MEMBER)
APPENDIX
Depositions : On the side of Complainant : Nil On the side of Opposite Parties : Dw1 - Mathew Scaria Exhibits: On the side of Complainant: Ext.P1 - Balance Confirmation Statement as on 31.03.2007 for Rs.13,49,066/- issued by the opposite party Ext.P2 - Photocopy of Amended Agreement of Partnership Ext.P3 - Photocopy of General Profit & Loss Account for the year ended 31.03.2005 Ext.P3(a) - Photocopy of Consolidated Balance Sheet as on 31.03.2005 Ext.P4 - Details of Payments and tax deduction on interest paid to Mrs.Alice Devasia Ext.P4(a) - Form No.16A(Certificate of deduction of Tax at source under Section 203 of the Income Tax Act, 1961 Ext.P4(b) - Photocopy of Profit & Loss Account for the year ended 31.03.2005 Ext.P5 - Details of Loans and other borrowings as on 31.03.2005 Ext.P5(a) - Details of Loans and other borrowings as on 31.03.2006 On the side of Opposite Parties : Ext.R1 - Copy of Plaint filed by one of the depositors against the opposite parties before the Sub Court, Kattappana as O.S.69/09
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