IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the    25^th      Day of  February   2022

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

       Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                   Sri.Stanly Harold, B.A.LLB, Member

                                                    CC.233/2020

1. Dr.Sunil George                                :         Complainant

         S/o George Oommen

         Thattupurackal

         Thevally Nagar-22

         Kollam-691009.

2. Shereen Sunil

         W/o Dr.Sunil George

         Thattupurackal

         Thevally Nagar-22

         Kollam-691009.

[By Adv.M I Alexander Panicker]

V/s

1.        Thomas Daniel                             :         Opposite parties

The Managing Partner

                  Popular Finance/Popular Groups

Indikattil House

Vakayar, Konni,

                 Pathanamthitta-689698.

2.        Prabha  Daniel

W/o Thomas Daniel

Partner

                 Popular Finance/Popular Groups

Indikattil House

Vakayar, Konni,

                  Pathanamthitta-689698.

3.        Dr.Rinu Marium Thomas

D/o Thomas Daniel,

                 Partner

                 Popular Finance/Popular Groups

Indikattil House

Vakayar, Konni,

                 Pathanamthitta-689698.

4.         Ria Ann Thomas

D/o Thomas Daniel,

                  Partner

                 Popular Finance/Popular Gropus

Indikattil House

Vakayar, Konni,

                  Pathanamthitta-689698.

5.         Reba Mary Thomas

D/o Thomas Daniel,

                 Partner

                  Popular Finance/Popular Groups

Indikattil House

Vakayar, Konni,

                 Pathanamthitta-689698.

6.         Martin J.Gomez

S/o J.Gomez

Branch Manager

Mary Rani Popular Nidhi Ltd.

High School Junction, Kollam-691013

Residing at Thushara, Near Taluk Office

                  Kollam-691001.

FINAL   ORDER

Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                This is a case based on a complaint filed u/s 12 of the Consumer Protection Act 1986.

          The averments in the complaint in short are as follows:-

          Complainants No.1&2 are mutually husband and wife and 1^st complainant is working as a Dentist and 2^nd complainant is a teacher employed in an unaided school.  Opposite parties No.1&2 also mutually husband and wife.  Opposite party No.3 to 5 are daughters of Opposite party no.1&2 couples.  All of them are claiming to be partners of their firm in the name of Popular Finance and its sister concerns, especially Popular Traders.  The said Popular finance is successfully functioning gold loan firm which was established in the year 1965 by the founder chairman T.K.Daniel having its head office at Vakayar, Pathanamthitta district.  During the last 10 years the opposite parties had opened their branches throughout Kerala and outside Kerala so as to mobilize funds and do finance business.  Extensive media campaign and marketing was done by the opposite parties to attract customers.  The 6^th opposite party is the Branch Manager of the Mary Rani Popular Nidhi Limited functioning at High School Junction, Kollam.  The sudden spurt of development of the business firms of the opposite parties gained public attention and confidence in them.  The opposite parties were very cautious and prompt in repayment and payment of monthly interest to those who want to collect interest monthly. 

          Opposite parties had placed a sign board of Mary Rani Popular Nidhi Ltd. Company outside the branch office of Popular Finance without change of original sign board and cunningly posted a reputed person of the locality as its Branch Manager who is none other than the 6^th opposite party.  The said Manager under his influence on people of the locality and also on taking advantage of the fact that the 2^nd opposite party belonged to that church, many members of the said church had trusted the opposite parties and had entrusted their savings in the said branch.  The complainants also as members of the said church were canvassed to deposit their savings on assurance that repayment will be prompt when and where required.  Both the complainants out of their savings intended to deposit their money in some banks but got attracted to the wide publicity through newspaper, electronic media, social media and on direct canvassing through agents and officials of the opposite parties, the complainants too were made to believe that the opposite parties are reliable and trust worthy private financiers and they are authorized and competent to receive deposits and would return the deposited amount with interest as promised.  The complainants had deposited their savings and were not drawing interests so the amounts got accumulated and from their accounts the following receipts were issued in the name of  Popular Traders so as to acknowledged the liability of the opposite parties to the complainant.  All the 12 accounts shown below are in their joint accounts and hence both of them are entitled to recover the amount from the opposite parties.  Details of the acknowledgement of liability in the form of receipts are shown below:-

1. Copy of Receipt No.0154218 dated 01.09.2019 of Popular Dealers issued to 1^st and 2^nd complainants for Rs.1,00,000/-.
2. Receipt No.0154620 dated 09.09.2019 of Popular Dealers issued to 1^st and 2^nd complainants for Rs.1,00,000/-.
3. Receipt No.0005223 dated 23.10.2019 of Popular Exports issued to the 1^st complainant for Rs.3,00,000/-.
4. Receipt No.0158545 dated 26.11.2019 of  Popular  Traders issued to the 1^st complainant for Rs.1,00,000/-.
5. Receipt No.0159349 dated 20.12.2019 of Popular Dealers issued to the 1^st and 2^nd complainants for Rs.1,00,000/-.
6. Receipt No.0163893 dated 30.05.2020 of Popular Dealers issued to 2^nd and 1^st complainants for Rs.1,00,000/-
7. Receipt No.0163894 dated 30.05.2020 of Popular Dealers issued to 1^st and 2^nd complainants for Rs.1,50,000/-.
8. Receipt No.0163895 dated 30.05.2020 of Popular Dealers issued to 1^st and 2^nd complainants for Rs.1,00,000/-.
9. Receipt No.0163896 dated 30.05.2020 of  Popular Dealers issued to 1^st and 2^nd complainants for Rs.1,13,000/-.
10. Receipt No.0163897 dated 30.05.2020 of Popular Dealers issued to 2^nd complainant for Rs.1,00,000/-.
11. Receipt No.0163888 dated 01.06.2020 of Popular Dealers issued to 1^st and 2^nd complainant for Rs.1,50,000/-.
12. Digital copy of Deposit Ledger of A/c No.1029972000013 dated 22.07.2020 issued to the 1^st complainant for Rs.1,67,000/-.

Totally  Rs.15,80,000/- is due to the complainants as on the  dates mentioned therein.

Branches of the opposite parties remained closed during  Covid 19 Pandemic lock down period.  After lifting of lockdown restrictions also the functioning of the branches were restricted and to those who want to withdraw their deposits were not paid immediately and started deferring payments on lame excuses.  The complainants had also approached the concerned branch office of the opposite parties to get back their due amount but not paid.  Slowly the complainants realized that the financial institutions run by the opposite parties are being closed and customers started lodging complaints to the police and police registering cases against the opposite parties and the opposite parties absconded with an intention to flee away to foreign countries.  The police had arrested all the opposite parties and investigation is going on to search and find the huge amounts they received and diverted.  Now the complainants are convinced that the opposite parties were engaged in unfair trade practices and were fraudulent to conduct financial business without proper license or permission from RBI.  The opposite parties were deliberate to mislead the public with false claims and they were deliberate to cheat customers who trusted them.  They were deliberate to receive deposits on false promises and forging documents in the name of  paper firms.  They have forged and fabricated documents and misappropriated the amount entrusted to them so as to cause unlawful loss to the complainants and unlawful gain to the opposite parties.  There is deficiency in service on the part of the opposite parties as they failed to repay the amount with agreed rate of interest.  Total amount due as per the above 12 receipts from its w.e.f date is Rs.15,80,000/-.  The complainants are also entitled to get the promised rate of interest @12% p.a on the whole amount from its w.e.f date.  The complainants never cared to draw interest on each month.  Totally Rs.90,000/- is also due from the opposite parties by way of interest.  Thus totally an amount of Rs.16,70,000/- is due to the complainants from the opposite parties.  The said amount may be considered as the loss caused to the complainants. The complainant even before the expiry of the respective periods shown in the receipts wished to get back the promised amount, but was deferred on lame excuses.  The complainant had contacted the opposite parties in person and requested to refund the entire deposit amount by closing all accounts prematurely, but the opposite parties were not ready to return the amount so that the loss and injury caused to the complainants can never be equated.  Hence the complaint.

          Notice issued from this Forum/Commission returned un served stating that the  whereabouts  of the opposite parties are not known.  Hence notices were published in Indian Express daily and produced a copy of paper publication on 10.12.2021 and on that day the opposite parties No.1 to 5 were called absent and set exparte.

          The 2^nd complainant filed proof affidavit on behalf of both complainants by reiterating the averments in the complaint and got marked Ext.P1 to P12 documents.  Heard the counsel for the complainant and perused the records.  Ext.P1 to P12 are 12 receipts indicating the deposits of various amounts at the Popular Traders out of which all receipts except Ext.P1 and P12 are original receipts and Ext.P3,P4, and P10  are individual receipts.  Ext.P2 indicates that the complainants 1&2 have jointly deposited Rs.1,00,000/- w.e.f 30.08.2019 for a period of 12 months and the profit share offered is 12%.  Ext.P3 indicates that the 1^st complainant Dr.Sunil George has deposited Rs.3,00,000/- w.e.f 17.09.2019 for a period of 12 months and the profit share offered is 12%.  Ext.P4 indicates that the 1^st complainant Sunil George has deposited Rs.1,00,000/- w.e.f  21.11.2019 for a period of 12 months and the profit share offered is 12%.  Ext.P5 indicates that the complainants 1&2 have jointly deposited Rs.1,00,000/- w.e.f 18.12.2019 for a period of 12 months  and the profit share is 12%.  Ext.P6 indicates that the complainants 1&2 have jointly deposited Rs.1,00,000/- w.e.f  11.04.2020 for a period of 12 months and the profit share offered is 12%.  Ext.P7 indicates that the complainants have jointly deposited Rs.1,50,000/- w.e.f 10.04.2020 for a period of 12 months and the profit share is 12%.  Ext.P8 indicates that the complainants have jointly deposited Rs.1,00,000/- w.e.f 31.03.2020 for a period of 12 months and the profit share offered is 12%.  Ext.P9 indicates that the complainants have jointly deposited Rs.1,13,000/- w.e.f 31.03.2020 for a period of 12 months and the profit share offered is 12%.  Ext.P10 indicates that the 2^nd complainant Shereen Sunil has deposited Rs.1,00,000/- w.e.f  29.04.2020 for a period of 12 months and the profit share offered is 12%.  Ext.P11 indicates that the complainants 1&2 have jointly deposited Rs.1,50,000/- w.e.f 29.04.2020 for a period of 12 months and the profit share offered is 12%.   

          Ext.P1 is not the original FD receipt.  But it is a photocopy of the FD receipt for Rs.1,00,000/-.  According to the complainant the original of Ext.P1 has been received and sent for closing the F.D by the opposite parties.  Whether the amount after closing the FD has been received or not is not mentioned either in the complaint or in the proof affidavit.  In the circumstance and in view of presumption under Section 114(i) of the Indian Evidence Act it is clear that when a document creating obligation is in the hands of the obliger the obligation is discharged.  Ofcourse the presumption is rebuttable.  But the complainant has no case that though the opposite parties have received back the original of FD receipt, they have not repaid the amount involved in the said FD receipt.  In the circumstances we are not inclined to allow the complainant to realize the amount involved in Ext.P1 copy of the FD receipt.   

          There is also no  whisper regarding the non production of originals of  P12 recurring deposit receipt in the complaint as well as in the affidavit filed by the complainants.  On perusal of Ext.P12 which is a copy of recurring deposit account, there is nothing on record to indicate that it was issued by the opposite parties.  When any amount is deposited in any financial institution either as FD or in any recurring deposit, the obliger used to issue signed and sealed receipt.  The non production of original receipt casts doubt in the mind of the Commission whether P12 is genuine or not or whether by using the original of P12, the complainant has encashed the deposit or not.  Hence we are not inclined to allow the complainant to realize the amount covered by Ext.P12 copy of the ledger account also.

          The unchallenged averments in the affidavit coupled with Ex.P2 to P11 documents would establish prima facie that the 2^nd complainant Shereen Sunil has deposited Rs.1,00,000/- in her own name as per Ext.P10 on 30.05.2020 and 1^st complainant Dr.Sunil George has deposited Rs.5,67,000/- in his own name as per Ext.P3 and P4  in different dates.  The complainants together deposited Rs.8,13,000/-.  Altogether both the complainants 1and 2 together deposited Rs.13,13,000/-.  As per the agreed rate the complainants are entitled to get share of profit  as agreed in Ext.P2 to P11 documents.

It is also clear from the available materials that the branches of the opposite parties remained closed during Covid 19 pandemic lockdown period.  Though the lockdown was lifted they imposed restrictions for the functioning of the branches and those  who want to withdraw their deposits were not paid immediately and started deferring payment on lame excuses.  The complainants had approached branch office concerned to get back the amount due  but not paid.  Later the complainant realized that the financial institutions run by the opposite parties are being closed and customers started lodging complaints before police and accordingly cases were registered against the opposite parties and hence the opposite parties absconded with an intention to flee away foreign  countries.  But the police has arrested the opposite parties and investigation is going on to search and find the huge amounts they received from various customers and diverted.   On evaluating the entire materials available on record we are of the view that the above act of the opposite parties would constitute deficiency in service and unfair trade practice.

          The complainants are entitled to get the promised rate of interest/profit for each investment right from the date of investment till the date of order and thereafter  entitled to realize the amount invested/deposited shown in Ext.P2  to P11 F.D receipts along with interest at the rate of 9% p.a from the date of  order  till realization.

          In the result complaint stands allowed in part in the following terms:-

          Opposite parties are directed to return the amount covered by Ext.P2 to P11 receipts with agreed share of profit from the respective date of deposit/investment till the date of order within 45 days from the date of receipt of a copy of this order failing which the complainants are at liberty to recover the amount covered by Ext.P2 to P11 receipts along with share of profit as stated in those documents from the date of each deposit/investment till the date of order and thereafter interest @9% p.a till realization from opposite parties No.1 to 6 jointly and severally and from their assets.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the   25^th day of  February    2022.

S.Sandhya Rani:Sd/-

      E.M.Muhammed Ibrahim:Sd/-

          Stanly Harold:Sd/-

        Forwarded/by Order

        Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-Nil

Documents marked for the  complainant

Ext P1 :  Copy of Receipt No.0154218 dated 01.09.2019 of Popular Dealers issued to 1^st and 2^nd complainants for Rs.1,00,000/-.

Ext P2:  Receipt No.0154620 dated 09.09.2019 of Popular Dealers issued to 1^st and 2^nd complainants for Rs.1,00,000/-.

Ext.P3 :  Receipt No.0005223 dated 23.10.2019 of Popular Exports issued to the 1^st complainant for Rs.3,00,000/-.

Ext.P4:   Receipt No.0158545 dated 26.11.2019 of  Popular  Traders issued to the 1^st complainant for Rs.1,00,000/-.

Ext.P5:   Receipt No.0159349 dated 20.12.2019 of Popular Dealers issued to the 1^st and 2^nd complainants for Rs.1,00,000/-.

Ext.P6 :   Receipt No.0163893 dated 30.05.2020 of Popular Dealers issued to 2^nd and 1^st complainants for Rs.1,00,000/-

Ext.P7 :   Receipt No.0163894 dated 30.05.2020 of Popular Dealers issued to 1^st and 2^nd complainants for Rs.1,50,000/-.

Ext.P8:   Receipt No.0163895 dated 30.05.2020 of Popular Dealers issued to 1^st and 2^nd complainants for Rs.1,00,000/-.

Ext.P9  : Receipt No.0163896 dated 30.05.2020 of  Popular Dealers issued to 1^st and 2^nd complainants for Rs.1,13,000/-.

Ext.P10: Receipt No.0163897 dated 30.05.2020 of Popular Dealers issued to 2^nd complainant for Rs.1,00,000/-.

Ext.P11: Receipt No.0163888 dated 01.06.2020 of Popular Dealers issued to 1^st and 2^nd complainant for Rs.1,50,000/-.

Ext.P12: Digital copy of Deposit Ledger of A/c No.1029972000013 dated 22.07.2020 issued to the 1^st complainant for Rs.1,67,000/-.

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-Nil

S.Sandhya Rani:Sd/-

    E.M.Muhammed Ibrahim:Sd/-

        Stanly Harold:Sd/-

        Forwarded/by Order

       Senior Superintendent