Karnataka

Belgaum

CC/178/2015

Vishwanath S Wadageri - Complainant(s)

Versus

The Secretary Of Yamakanmardi Urban Co-Op Cr Scty - Opp.Party(s)

A B Chougale

04 Apr 2016

ORDER

(Order dictated by Shri. B.V.Gudli, President)

ORDER

          U/s. 12 of the C.P. Act, the complainant has filed the complaint against the O.Ps. alleging deficiency in service of non payment of the amount of matured F.D.R.

          2) O.Ps. 1 and 2 in their version denying the deficiency in service, have contended that this Forum has no jurisdiction to decide the complaint and legal notice was not issued etc.,

          3) In support of the claim in the complaint, the complainant has filed his affidavit and the original F.D.R. is produced. On the other hand, the 1^st O.P. has filed the affidavit.

4) We have heard the arguments of the learned counsel for the complainant and O.Ps. 1 and 2 and have perused the records.

          5) Now the point for our consideration is that whether the complainant has proved deficiency in service on the part of the O.Ps. and entitled to the reliefs sought?

          6) Our finding on the point is partly in affirmative, for the following reasons.

:: R E A S O N S ::

            7) The complainant stated that on 20/4/1995 his father (he was in minor) had kept an amount of Rs.5,000/- in the form of fixed deposit vide F.D.R. No.0172 under the scheme Makkala Abhviruddhi Cash Certificate for the period of 17 years in O.Ps. society and on 20/4/2012 the maturity amount is Rs.61,116/-. These facts pleaded in the complaint are stated by the complainant in the affidavit and that statement is corroborated by the original FDR. issued by the O.P. society.

          8) Though, the O.Ps. made futile attempt to deny all the allegations in the complaint, considering the evidence on record particularly the undisputed original F.D.R the claim of the complainant that there is  deposit, is proved.

          9) The grievance of the complainant is that inspite of the demands made, the O.Ps. did not pay the maturity amount. O.Ps. denying the said allegation, have contended that the complainant never approached and directly filed the complaint. But considering the evidence on record and the circumstances, the claim of the complainant has to be believed, because, if really the O.Ps. were ready and willing to pay the amount, the complainant spending huge amount, could not have approach the Forum.

          10) The O.Ps. contend that the complainant has not pleaded in the complaint regarding deficiency in service. As noted here before, all along the complainant has alleged that inspite of the demands made, the amount remained unpaid. 1^st O.P. in the affidavit has falsely stated that there is no allegations regarding deficiency in service but infact, there is specific plea in the complaint.

11) There are series of reported cases of the Hon’ble Apex Commission and Apex Court holding that non payment of the amount, amounts to deficiency in service. Some of such rulings are reported in II (2012) CPJ 531 and another one is II (2012) CPJ 597 of the Hon’ble National Commission. Admittedly, the deposit is not paid and hence, there is deficiency in service on the part of the O.Ps.

          12)    Though there is no pleading, the 1^st Op in the affidavit has stated that in view of section 70 of the K.C.S Act, the complaint is not maintainable but considering decision of the Hon’ble Supreme Court as well as National Commission, the complaint is maintainable.

          13) In the affidavit 1^st O.P. has stated that the society had financial problems etc., This fact itself establish inability to refund the amount and the claim of the complainant that inspite of the demands made, maturity value was not paid, has to be believed.

          14) It is the contention of the O.Ps. that there is no cause of action for the complaint but considering the discussion made here before, there is no substance.

           15) Taking in to consideration of the facts, evidence on record and the discussion made here before deficiency in service on the part of the O.Ps. has been proved.

           16) Taking in to consideration of various aspects and the decision of Hon’ble Apex Court reported in (2011) SCCR 268 and of the Hon’ble Apex Commission reported in 2013 (2) CPR 574 as well as other subsequent decisions absolutely it is just and necessary to impose cost on daily basis if order remains uncomplied within the period fixed for compliance of the order, so as to have feeling and pinch.

          17) Accordingly, following order.

ORDER

          Complaint is partly allowed.

          The O.P. society represented by the Secretary and Chairman jointly and severally are hereby directed to pay to the complainant a sum of Rs.61,116/- in respect of F.D.R. No.0172 with future interest at the rate of 8% P.A. from 21/4/2012 till realization of the entire amount.

          Further, the O.P. society represented by the Secretary and Chairman jointly and severally are hereby directed to pay to the complainant a sum of Rs.2,000/- towards costs of the proceedings.

          The order shall be complied by the O.Ps. within 30 days from the date of the order.

          If the order is not complied within 30 days the O.P. society represented by the Chairman and Secretary jointly and severally are hereby directed to pay to the complainant a sum of Rs.50/- per day till compliance of the order.

(Order dictated, corrected and then pronounced in the open Forum on: 4^th April 2016)

            Member                   Member                    President.

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