IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the   30^th  Day of  April  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.223/20

1. George Oommen                                :         Complainants

         S/o Oommen

        Thattupurackal

       Thevally Nagar-22

        Kollam-691009.

2. Valsa George

        W/o George Oommen

           -Do-

[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 Thomas

W/o Thomas Daniel

                  Partner

                  -Do-

          3.   Rinu Marium Thomas

                S/o Thomas Daniel

                Partner

                   -Do-

          4.   Ria Ann Thomas

                D/o Thomas Daniel

                Partner

                   -Do-

           5.   Reba Mary Thomas

                 D/o Thomas Daniel

                 Partner

                 -Do-

FINAL   ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

1.This is a complaint filed under section 35 of the Consumer Protection Act 2019.

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

The complainants No.1&2 are husband and wife respectively.  Opposite party No.1&2 are also husband and wife respectively.  Opposite party No.3 to 5 are daughters of 1^st and 2^nd opposite party and claims to be partners of the business firms in the name and style Popular Finance and its sisters concerns.  Opposite parties had opened  a branch office of the Popular Finance/Popular Groups at the shopping complex  of St.Thomas Orthadox Cathedral, Kollam and cunningly posted a reputed person of  the said church as its Branch Manager.  Now the branch manager is no more.  The said manager under his influence on parishioners and also on taking advantage of the fact that the 2^nd opposite party belonged to that church,  another branch office was opened at Polayathodu just infront of the family house of the 2^nd opposite party.  Many local people and members of her parental church had trusted the opposite parties and had entrusted their savings in the said branch and also in the branch opened at Church premises.  The complainants were canvassed to deposit their savings on assurance that repayment will be prompt when and where required.  Both the complainants wished to deposit their money in some banks but got attracted to the wide publicity through news paper, 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 in their accounts.  The opposite parties very cunningly issued the following receipts in the name of Popular Traders, Popular Dealers, Vakayar Lab, My Popular Marine Products and Mary Rani trading, so as to acknowledge the liability of the opposite parties to the complainant.  All the 10 accounts shown below are in their joint accounts and hence both of them are entitled to recover the amount from the opposite parties.

2.  Details of the acknowledgement of liability in the form of receipts are shown below:-

1.  Receipt No.0569434 dated 29.07.2019 of Popular Traders issued to 1^st and 2^nd complainants for Rs.1,87,562/-.
2. Receipt No.0573993 dated 16.10.2019 of Popular Traders issued to 1^st and 2^nd complainants for Rs.50400/-.
3. Receipt No.0574638 dated 18.01.2020 of Popular Traders issued to the 1^st and 2^nd complainant for Rs.74331/-.
4. Receipt No.0584250 dated 23.05.2020 of Popular Traders issued to the 1^st complainant for Rs.62700/-
5. Receipt No.0164059 dated 08.06.2020 of Popular Dealers, issued to the 2^nd complainant for Rs.1,12,000/-.
6. Receipt No.0518226 dated 12.11.2019 of Popular Dealers issued to 2^nd complainant for Rs.2,24,000/-.
7. Receipt No.0158433 dated 21.11.2019 of Popular Dealers issued to 2^nd complainant for Rs.1.00,000/-.
8. Receipt No.0000257 A/c No.1029991900028 of Vakayar Lab, issued to 2^nd complainant dated 05.04.2019 for Rs.1,75,000/-.
9. Receipt No.0006483, A/c No.1029991902806 of My Popular Marine Products, issued to 2^nd complainant, dated 20.09.2019 for Rs.1,50,000/-.
10. Receipt No.0003681, A/c No.1029991801700 of Mary Rani Trading issued to 2^nd complainant, dated 26.11.2018 for Rs.1,00,000/-.

Totally to the complainants owe Rs.12,35,993/- as on w.e.f dates mentioned therein.

          3. 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 excused.  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 casers 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 an unlawful gain to the opposite parties. There is deficiency in service of the opposite parties as private financiers and the opposite parties failed on their service by undertaking and promise to repay the amount with agreed rate of interest.  Total amount due as per the above 10 receipts from its w.e.f date is Rs.12,35,993/-.  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.1,23,590/- is also due from the opposite parties by way of interest.  Thus totally an amount of Rs.13,59,583/- is due to the complainants from the opposite parties.  The said amount may be considered as the loss incurred to the complainants.  The complainant even before 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.

          4. Though notice was issued,  opposite party No.1 to 3&5 remained absent.  They were set exparty. Paper publication was effected against opposite party No.4.  Even then opposite party No.4 remained absent and she also remained exparty and exparty evidence was recorded.  Complainant filed proof affidavit and got marked Ext.P1 to P10 documents.  Heard the counsel for the complainant.  Perused the records.  The complainant has filed a detailed proof affidavit by reiterating the averments in the complaint.  The unchallenged averments in the affidavit coupled with Ext.P1 to P3 documents would indicate that the complainants No.1&2 have made joint deposit for Rs.1,87,562/- on 28.07.2019 for a period of 12 months, Rs.50,400/- on 25.09.2019, Rs.74331/- on 13.01.2020.   Ext.P4 would indicate that the 1^st complainant has deposited Rs.62700/- on 23.05.2020 in his own name.  Ext.P5 to P7 are various amounts deposited in the name of 2^nd complainant Valsa George, out of which Ext.P5 is Fixed Deposit receipts issued in the name of Valsa George for Rs.1,12,000/- w.e.f  05.05.2020.  Ext.P6 is original fixed deposit receipts for Rs.2,24,000/- in the name of the 2^nd complainant w.e.f  02.11.2019.  Ext.P7 is another original receipts indicating that an amount of Rs.1,00,000/- has been deposited in the name of the 1^st complainant w.e.f 15.11.2019.  Ext.P9 is the original receipts issued in the name of 2^nd complainant indicating that she has deposited Rs.1,50,000/- w.e.f 20.09.2019.  All the above 8 deposits are made for a period of 12 months from the effective date and share of profit offered is 12% p.a.

          5. Ext.P8&P10 are only photo copies of Certificate of  Contribution to LLP that on 05.04.19 the 2^nd complainant has contributed a sum  of Rs.1,75,000/- being contribution towards her share of contribution to LLP(Limited Liability Partnership agreement of the firm).  Ext.P10 copy would indicate that on 26.11.2018 the 2^nd complainant has contributed a sum of Rs.1,00,000/- as contribution towards her share of partnership in the LLP.  On the face of both the copy of the certificate it is seen recorded as in handwriting with ink that “Received for closing on 14.08.20 and original received on 07.08.2020”.  Ext.P8&P10 are photo copy of the certificate creating monitory obligation in favour of the 2^nd complainant.  But the original of the above 2 are not produced  since it has been received by the opposite parties for the purpose of closing.  However the complainant has neither pleaded in the complaint nor in the proof affidavit though the original has been received by the opposite parties for closing transaction amount covered by those 2 certificates along with agreed share of profit has not been given to the complainant.  In the circumstances and in view of Section 114(i) of the Indian Evidence Act it is to be presumed that when a document creating obligation(original of Ext.P8 and P10) is in the hands of the obliger (opposite parties), the obligation has been discharged.  Therefore the complainants are not entitled to get a decree or order based on Ext.P8 and P10 photo copy of the certificates creating obligation especially when the complainant has pleaded and proved though the original of above 2 documents have been received by the opposite parties.  The amount covered by those 2 documents has been paid to the 2^nd complainant.

          6. In view of the unchallenged averments in the complaint coupled  with Ext.P1  to P7 and P9 documents we are of the view that the complainant No.1&2 are entitled to get the amount covered by each receipt/certificate along with the agreed rate of share of profit with the date of effect of that deposit/contribution. 

          7. It is clear from the available materials that the complainants No.1&2 have sustained much mental agony apart from financial loss due to the nonpayment of the amount deposited or contributed along with agreed share of profit.  Hence there is deficiency in service and unfair trade practice on the part of the opposite parties and therefore they are entitled to get reasonable compensation for the mental agony also. 

8. In the result complaint stands allowed in part directing the opposite party No.1 to 5 return the amount covered by Ext.P1 to P7 documents with the agreed share of profit @ 12% p.a from the date of deposit/contribution till the date of order and thereafter interest @ 9% p.a till  date of realization.

The relief to recover amount covered by Ext.P8&P10 photo copy of the documents stands dismissed for the reasons stated under paragraph 5.

   The opposite parties are directed to pay compensation to the tune of Rs.50,000/-(Rupees Fifty Thousand only)  and also directed to pay costs Rs.5000/-.

          If the opposite parties failed to comply with the above directions within 45 days from the  date of passing this order the complainants are entitled to recover the amount covered by relief No.1,3&4 from the opposite parties No.1 to 5 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  30^th  day of  April   2022.

E.M.Muhammed Ibrahim:Sd/-

           S.Sandhya Rani:Sd/-

           Stanly Harold:Sd/-

          Forwarded/by Order

           Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-Nil

Documents marked for the  complainant

Ext.P1:        Receipt No.0569434 dated 29.07.2019 of Popular Traders issued to 1^st and 2^nd complainants for Rs.1,87,562/-.

Ext.P2:        Receipt No.0573993 dated 16.10.2019 of Popular Traders issued to 1^st and 2^nd complainants for Rs.50400/-.

Ext.P3:        Receipt No.0574638 dated 18.01.2020 of Popular Traders issued to the 1^st and 2^nd complainant for Rs.74331/-.

Ext.P4:        Receipt No.0584250 dated 23.05.2020 of Popular Traders issued to the 1^st complainant for Rs.62700/-

Ext.P5:        Receipt No.0164059 dated 08.06.2020 of Popular Dealers, issued to the 2^nd complainant for Rs.1,12,000/-.

Ext.P6:        Receipt No.0518226 dated 12.11.2019 of Popular Dealers issued to 2^nd complainant for Rs.2,24,000/-.

Ext.P7:        Receipt No.0158433 dated 21.11.2019 of Popular Dealers issued to 2^nd complainant for Rs.1.00,000/-.

Ext.P8:        Copy of Receipt No.0000257 A/c No.1029991900028 of Vakayar Lab, issued to 2^nd complainant dated 05.04.2019 for Rs.1,75,000/-.

Ext.P9:        Receipt No.0006483, A/c No.1029991902806 of My Popular Marine Products, issued to 2^nd complainant, dated 20.09.2019 for Rs.1,50,000/-.

Ext.P10:      Copy of Receipt No.0003681, A/c No.1029991801700 of Mary Rani Trading issued to 2^nd complainant, dated 26.11.2018 for Rs.1,00,000/-.

Witnesses Examined for the opposite party:-Nil

Documents marked for the  opposite party:-Nil

                                                                         E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent