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.157/2008

Between

Complainant : Lovely Kurian,

G 414, Thoppil House,

Panampilli Nagar,

Cochin – 682 036.

(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)

On 10.02.1999, the sister of the complainant Smt.Rosamma Joseph transferred Rs.5 lakhs from her deposit to the 1^st 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 1^st 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.4,34,573/- to the complainant. The opposite party paid Rs.4,573/- as interest on 28.6.2008 vide cheque No.749422 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 with 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 5^th 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 5^th 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 5^th opposite party. The 5^th 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 1^st 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 1^st opposite party had carried on the activity of an auctioneer of Cardamom for more than 40 years. But the Manager of the 1^st 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 1^st opposite party. The 5^th 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 5^th 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 5^th opposite party. The 5^th 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 have never received any deposit from the complainant and made any promise to pay any interest. The complainant is not entitled to get Rs.4,34,573/-. 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 to 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 5^th 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, 5^th opposite party was appointed as the Manager of the Agro Division of the firm with effect from 1^st September 2005, so the 5^th 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 5^th 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.R1 marked on the side of the opposite parties. The evidence of DW1 in C.C No.156/2008 is common 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.5 lakhs to the opposite parties' firm. The opposite party issued a balance confirmation letter for Rs. 4,34,573/- is marked as Ext.P1 dated 20.06.2007 in which it is stated that the balance amount is Rs. 4,34,573/- as on 31.03.2007 in her account. The opposite party paid interest at the agreed rate till 30.06.2005. 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 5^th opposite party. Ext.P2 is the partnership agreement. Ext.P3(series) is the General Profit and Loss account for the year ended 31.03.2005 of the opposite party Corporation. Ext.P4 is the copy of the details of payments to Mrs.Alice Devasia. Ext.P4(b) is the Profit and Loss Account for the year ended 31.03.2005 of the opposite parties' Auction Division. Ext.P5 is the details of loan and other borrowings of the opposite party as on 31.03.2005. Ext.P5(a) is the details of loan and other borrowings of the opposite party as on 31.03.2006. As per DW1, Ext.P5(series) is a forged one. The balance confirmation statement was signed by the 5^th 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.5 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 5^th 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 5^th opposite party to issue such a cheque or balance confirmation statement. It makes us to suspect that the complainant has colluded with the 5^th 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 1^st 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 will not 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.4,34,573/- 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