Complainant/s:              1. Smt. Lalita W/o Shankarappa Pete,

                                               Age: 38 Years, Occ: House Hold,

                                               R/o Adhyapak Nagar, Nargund,

                                                District: Gadag.

                                                2. Shankarappa S/o Shivaji Pete,

                                               Age: 46 Years, Occ: Agriculturist,

                                               R/o Adhyapak Nagar, Nargund,

                                                District: Gadag.

                                                (Rep. by Sri.C.S. Rachayyanavar,  

                                              Advocate)   

V/s

JUDGEMENT

JUDGEMENT DELIVERED BY SMT. YASHODA BHASKAR PATIL, MEMBER:

The complainants filed the complaint for compensation of Rs.1,50,000/- with interest @ 12% p.a from the date of FD till filing of the complaint, Rs.50,000/- towards deficiency of service and Rs.10,000/- towards cost.

The brief facts of the complaint are as under:

         2.  The complainants and OPs are permanently residing in the address as mentioned in the cause title.  OP No.1 is the President and OP No.2 is the Secretary of “ Shri Ram Gruha Nirmana Sahakari Sangha ”, Adhyapak Nagar, Nargund.  The OP Society is a non-banking financial institution and established on 25.02.1983, carrying the personal account No.PAN-AAFAS7246A.  The said society lending loan and accepts the Fixed Deposits from the members.  The complainants have deposited a sum of Rs.50,000/- on 13.08.2018 and Rs.1,00,000/- on 08.01.2019 for the period of one year with interest @ 12% p.a.  After maturity, in spite of repeated requests and demands, the OPs have not refunded the said amount with interest.  Complainants being the consumers issued legal notice on 20.09.2021 to remit the said deposit amount with interest within seven days from the date of service of the notice.  In spite of service of the notice, they have not remitted the said amount, hence filed this complaint.

          Complainants filed IA.No.I u/Section 35(1)(c) of the C.P. Act, 2019 to permit them to contest and conduct the complaint jointly.  Complainant No.1 is a wife of complainant No.2.  OP is common who issued FD receipts in favour of complainants separately.  Complainants are having common interest.  Of course there is no common cause of action arose or common interest.  However, as per the decision reported in 2022 (I) CPR 1 (NC) in the case of Brigade Enterprises Limited V/s Anil Kumar Virmani & Others wherein it is held as under:

(B) Consumer Protection Act, 2019 – Sections – 35(1)(c) and 38(11) -  Civil Procedure Code, 1908 – Order 1 Rule 8 – Joint complaint – Maintainability of class action by aggrieved Apartment Buyers – Delay on part of builder in handing over possession, was primary ground on which compensation was sought by respondents – Since “sameness of interest” is pre-requisite for an application under Order I Rule 8, CPC read with Section 35(1)(c) of Consumer Protection Act, 2019, it was necessary for respondents to include in consumer complaint, sufficient averments that would show sameness of interest – National Commission could not have granted permission to respondents in this case, to file complaint in a representative capacity for and on behalf of owners of all 1134 flats – However, it does not mean that complaint filed by respondents itself is liable to be thrown out – Complaint filed by respondents may have to be treated as a joint complaint and not a complaint in a representative capacity on behalf of 1134 purchasers.

          The facts and circumstances of the case and ratio in the decision is similar with the case on hand.  Hence, IA.No.I came to be allowed and permitted them to file joint complaint.  

          3.       After registering the case, in pursuance of service of notice, OPs remained absent and have not chosen to appear before the Commission and put forth their defence.

          4.       To prove the case, complainant filed affidavit evidence and marked the documents as Ex.P-1 to Ex.P-7.

          5.       Heard the counsel for complainants.

          6.       The points for our consideration arose are as under:

          i)        Whether the complainants prove that, they had                      deposited FD for Rs.1,50,000/- with interest @                             12% p.a?

          ii)       Whether the complainants prove that, there is a                     deficiency of service by the OPs? 

         iii)      Whether the complainants are entitled for the                        relief as sought for?

          iv)      What order?

          7.       Our findings on the above points are as under:   

                   Point No.1: Affirmative

                   Point No.2: Affirmative

                   Point No.3: Partly Affirmative

                   Point No.4: As per final order.

REASONS

          8.       Point No.1 to 3:- The points are taken together to avoid the repetition of facts.  The learned counsel for the complainants argued that, as per complaint, affidavit and documents, complainants have proved the case and entitled for the relief as sought for. 

                   On careful perusal of the materials placed before us, the complainant No.1 has filed affidavit on self and on behalf of complainant No.2 and reiterated the contents of the complaint. The complainant states that, they and OPs are permanently residing in the address as mentioned in the cause title.  OP No.1 is the President and OP No.2 is the Secretary of “ Shri Ram Gruha Nirmana Sahakari Sangha ”, Adhyapak Nagar, Nargund.  The OP Society is a non-banking financial institution and established on 25.02.1983, carrying the personal account No.PAN-AAFAS7246A.  The said society is lending loan and accepts the Fixed Deposits from the members.  The complainants have deposited a sum of Rs.50,000/- on 13.08.2018 and Rs.1,00,000/- on 08.01.2019 for one year FD with interest @ 12% p.a.  After maturity, in spite of repeated requests and demands, the OPs have not returned the said amount with interest. 

          Ex.P-1 and P-2 are the FD receipts issued by the OP society reveal that, FD amount a sum Rs.50,000/- and Rs.1,00,000/- deposited respectively for a period of one year.  After maturity, OP society has not repaid the deposited amount with interest.  Ex.P-3, the legal notice issued by counsel for complainants to the OPs demanding to repay the said amount.  Ex.P-4 and P-5 are the postal receipts.  Ex.P-6 and P-7 are the postal acknowledgements reveal that, in spite of service of notice, OPs did not repay the amount. 

          Even after registering the case, notice issued to the OPs, they remained absent and not chosen to appear before the Commission and put fort their defence.  So, oral and documentary evidence of the complainant remained unchallenged.  There is no reason to disbelieve the evidence of the complainants.  As per oral and documentary evidence it clearly goes to show that, the OPs have intentionally failed to repay the FD amount with interest and thereby they have committed deficiency of service.  Therefore, complainants are entitled for the agreed rate of interest @ 12% p.a from the date of issuance of the FD receipts till lodging of the complaint on 12.10.2021.  So, complainant No.1 is entitled for Rs.50,000/- with an interest of Rs.19,000/- as per Ex.P-1 FD receipt dated 13.08.2018 till filing of the complaint on 12.10.2021 interest @ 12% p.a and complainant No.2 is entitled for Rs.1,00,000/- as per Ex.P-2 FD receipt issued on 08.01.2019 till 12.10.2021 with an interest @ 12% p.a of Rs.34,133/-.  So, complainants are jointly entitled for the principal amount with interest in all Rs.2,03,133/-.  Further from the date of filing of the complaint till realization, complainants are entitled for future interest @ 8% p.a.  Complainants have suffered a lot due to the non-repayment by the OPs, they have suffered mental agony and incurred expenses.  Hence, the complainants are entitled for Rs.1,000/- towards cost, Rs.5,000/- towards deficiency of service.  For the above, we answer Point Nos. 1 and 2 in the affirmative and Point No.3 partly in affirmative.

          9.       Point No.4:- In the result, we pass the following: 

    //O R D E R//

The complaint filed u/Sec.35 of the Consumer Protection Act, 2019 is allowed in part.

The Complainants are jointly entitled for a sum of Rs.2,03,133/-.

Further, the complainants are entitled for future interest @ 8% p.a from the date of complaint till realization on the principal amount of Rs.1,50,000/-.

Further, complainants are entitled compensation a sum of Rs.5,000/- towards deficiency of service and Rs.1,000/- towards expenses.

OPs are directed to repay the above amount within two months from the date of receipt of this order.

Office is directed to send the copies of this order to the parties free of cost.

           (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us in the Open Court on this 31^st day of March-2022)

,            

(Shri Raju N. Metri)      (Shri. D.Y. Basapur)   (Smt.Yashoda Bhaskar. Patil)

        MEMBER                 PRESIDENT              WOMAN MEMBER

-: ANNEXURE :-

EVIDENCE ON BEHALF OF COMPLAINANT/S:

PW-1: Smt. Lalita Shankrappa Pete.

DOCUMENTS ON BEHALF OF COMPLAINANT/S

Ex.P-1 & P-2: FD receipts

Ex.P-3: Legal Notice

Ex.P-4 & 5: Postal receipts

Ex.P-6 & 7: Postal Acknowledgements.

EVIDENCE ON BEHALF OF OPs:

                    -NIL-

DOCUMENTS ON BEHALF OF OPs:

                   -NIL-

(Shri Raju N. Metri)    (Shri. D.Y. Basapura)   (Smt.Yashoda Bhaskar. Patil)

        MEMBER                 PRESIDENT              WOMAN MEMBER