IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the   11^th      Day of  November  2021

  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.219/20

1. Jacob.T.M                                         :         Complainants

       S/o Mathen

      Thanungattil,Anjili Road

       Kollam-691001.

2. Omana Jacob

        W/o Jacob

       Thanungattil,Anjili Road

       Kollam-691001.

    [By Adv.M I. Alexander Panicker]

    V/s

1. Thomas Daniel                             :         Opposite parties

The Managing Partner

Popular Finance/Popular Traders

Indikattil House,Vakayar, Konni, Pathanamthitta-689698.

2. Prabha  Thomas

         W/o Thomas Daniel

       Partner

    ….do.....

3. Rinu Marium Thomas

D/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

                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 they are very old and leading a retired life.  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 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. 

          The opposite parties had opened a branch office at the shopping complex of the St.Thomas Cathedral, Kollam and cunningly posted a reputed person of the said Church as its Branch Manager.  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, 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 5 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:-

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 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 5 receipts from its w.e.f date is Rs.2,12,584/-.  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.17,800/- is also due from the opposite parties by way of interest.  Thus totally an amount of Rs.2,30,384/- 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 excused.  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 16.08.2021 and on that day the opposite parties No.1 to 5 were called absent and set exparte.

          Power of attorney holder of the 1^st complainant filed IA 292/21 claiming that the 1^st complainant is aged 87 years  and has been suffering from old age deceases and hence including heart deceases  he is unable to appear and give evidence and therefore the complainant has authorized himself by giving a power of attorney to appear and conducting the case before this Commission.  The power of attorney accepted and permission has been granted to conduct the case by the power of attorney holder.

          The power of attorney holder filed proof affidavit by re-iterating the averments  in the complaint and got marked Ext.A1 to A6 document.  Heard the counsel for the complainant and perused the records.  Ext.A1 is the power of attorney executed by the original 1^st complainant in favour of Jacob.T.M who filed the affidavit.  Ext.A2 to A6 are 5 receipts indicating the deposit of various amounts at the Popular Traders, out of which Ext.A2 &A3 are individual receipts dated 14.11.19 issued in the name of Jacob.T.M, Thanungattil, Kollam who is the 1^st complainant in this case.  Ext.A2 is a receipt indicating that the 1^st complainant has deposited Rs.63001/- w.e.f 10.11.2019 for a period of 12 months and the profit share offered is 12%.  The nominee shown in the above 2 receipts is Omana Jacob who is the 2^nd complainant.  Ext.A4 to A6 are 3 receipts issued in the joint name of Jacob T.M and Omana Jacob(Complainants No.1&2).  The above receipts has been seen issued on different dates for different amounts.  Ext.A4 receipt is for Rs.33005/- dated 03.02.2020 with retrospective effect from 31.01.2020 for a period of 12 months and the share of profit offered is 12%.  Ext.A5 dated 12.02.2020 for Rs.24752/- w.e.f 08.02.2020 for a period of 12 months.  Share of profit offered is 12% and Ex.A6 is printed as register instead of receipt.  In fact the content of Ext.A6 indicate that an amount of Rs.18025/- was deposited by both the complainants together on 05.03.2020 and share of profit offered is 12%.

          The unchallenged averments in the affidavit coupled with Ext.A2 to A6 documents would establish prima facie that the 1^st complainant Sri.Jacob.T.M has deposited Rs.121802/- in his own name on 16.11.2019 for a period of 12 months and both the complainants together for deposited Rs.75782/- on different  dates starting from 31.01.2020 till 05.03.2020.  Altogether both the complainants together  deposited  Rs.197584/-.(But the total amount claimed to have deposited by both the complainants are erroneously shown in the complaint as Rs.2,12,584/-)

          The complainant has sworn in paragraph 9 of the proof affidavit that they were not drawing interest so the amounts got accumulated.  However 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.

          Though the complainant would claim in the complaint as well as in the proof affidavit that the total amount due as per 5 receipts is Rs.2,12,584/-,  the total of actual amount  of the above 5 deposits is Rs.1,97,584/- only.  The complainants are also entitled to get promised rate of 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.A2 to A6 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 the following terms:-

          Opposite parties are directed to return the amount covered by Ext.A2 to A6 receipts with agreed share of profit from the respective rate 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.A2 to A6 receipts along with share of profit as agreed 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 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   11^th   day of  November   2021.

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 A1        :  General Power of Attorney

Ext A2        :  Receipt for Rs.63001/-

Ext.A3        : Receipt for Rs.58801/-

Ext.A4        : Receipt for Rs.33005/-

Ext.A5        : Receipt for Rs.24752/-

Ext.A6        : Receipt for Rs.18025/-

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-Nil

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent