IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM

DATED THIS THE   13^th   DAY OF JANUARY 2022

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

       Smt.S.Sandhya   Rani. Bsc, LLB ,Member

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

    CC.No.225/2020

1. Leela Mathews,

W/o Georgee Ninan, aged

Palavilakandathil,Bhavana Nagr-273,

Town Limit, Kollam 691 008.

(By Adv.M.I.Alexander Panicker)

2. Georgee Ninan,

S/o Ninan, aged

Palavilakandathil,Bhavana Nagr-273,

Town Limit, Kollam 691 008.

Zachariah Alex Muthalaly,

 (By Adv.M.I.Alexander Panicker)                            :           Complainants

V/s                                                                                                     

1. Thomas Daniel,

The Managing Partner,

Popular Finance/Popular Traders,

Indikattil House, Vakayar,

Konni, Pathanamthitta 689 698.

2. Prabha Thomas,

W/o Thomas Daniel, Partner,

Popular Finance/Popular Traders,   

Indikattil House, Vakayar,

Konni, Pathanamthitta 689 698.                                :          Opposite parties

3. Rinu Marium Thomas,

D/o Thomas Daniel, Partner,

Popular Finance/Popular Traders,

Indikattil House, Vakayar,

Konni, Pathanamthitta 689 698.

4. Reba Mary Thomas,

D/o Thomas Daniel,Partner,

Popular Finance/Popular Traders,

Indikattil House, Vakayar,

Konni, Pathanamthitta 689 698.

ORDER

Smt.Sandhya Rani, B.Sc, LLB, Member

          This is a case based on a complaint filed U/s 35 of the Consumer Protection Act 1919.

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

          Complainants No.1 and 2 are mutually husband and wife and they are leading a retired life after completing their service as Secretary of  Co-operative Society (1^st complainant) and Dy.General Manager of KMML Chavara(2^nd complainant). 1^st opposite party is the husband of  the 2^nd opposite party and opposite parties 3 and 4 are their daughters.  Opposite parties 1 to 4 are claiming to be partners their firm in the name and style Popular Finance and its sister concerns, especially Popular Traders and Popular Dealers.  The said Popular Finance is a Gold Loan firm established in the year 1965, by the founder Chairman T.K.Daniel, having its head office at Vakayar, Pathanamthitta District.  They claimed that at present the Popular Finance is a conglomeration of various business concerns and the entire sister concerns support the parent organization by returning profits regularly.  During the last 10 years the opposite parties had opened their branches throughout Kerala and outside Kerala so as to mobilize funds and to 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.  They 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 saving on assurance that repayment will be prompt when and where required.  

By getting attracted by the wide publicity through newspaper, electronic media, social media and on direct canvassing through agents and officials of the opposite parties the complainants 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 they had not drawn interest 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 complainants.  All the 18 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 acknowledgment 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 fraudulently conducted 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 opposite parties as private financiers as they failed to return the amount received with agreed rate of interest.  Total amount due as per the above 18 receipts from the date of deposits is 17,27,443/.  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 since the complainants have not drawn interest on each month.  By way of interest totally Rs.2,07,293/- is also due from the opposite parties.  Altogether an amount of Rs.19,34,736/- 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 even 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 the Commission returned unserved stating that the whereabouts of the opposite parties are not known.  Hence notice were published in  Indian Express Daily and produced a copy of paper publication on 20.09.2021 and on that day the opposite parties No.1 to 4 were called absent and set exparte.

1^st complainant filed proof affidavit by reiterating the averments in the complaint and got marked Exts.P1 to P18 documents.  Complainants’ counsel was not ready to argue the matter hence taken up for orders.

All the documents Exts.P1 to P18 are original receipts which indicates the deposits of various amounts at the Popular Traders, out of which Ext.P1 receipt indicates that 1^st and 2^nd complainants have deposited Rs.25,000/- w.e.f.28.09.2019 for a period of 12 months and the profit share offered is 11% p.a.  Ext.P2 receipt indicates that 1^st and 2^nd complainants have deposited Rs.1,00,000/- w.e.f.09.07.2019 for a period of 12 months and the profit share offered is 12% p.a.  Ext.P3 receipt indicates that 1^st and 2^nd complainants have deposited Rs.1,00,000/- w.e.f. 09.07.2019 for a period of 12 months and the  profit share offered is 12% p.a.  Ext.P4 receipt indicating that 1^st and 2^nd complainants have deposited Rs.15,989/- w.e.f. 28.11.2019 for a period of 12 months and the profit share offered is 12% p.a.  Ext.P5 receipt indicates that 1^st and 2^nd  complainants  have deposited Rs.1,20,064/- w.e.f.26.09.2019 for a period of 12 months and the profit share offered is 12% p.a. Ext.P6 receipt indicates that 1^st and 2^nd  complainants  have deposited Rs.1,17,041/- w.e.f.28.11.2019 for a period of 12 months and the profit share offered is 12% p.a. Ext.P7 receipt indicates that 1^st and 2^nd  complainants  have deposited Rs.1,20,064/- w.e.f.20.09.2019 for a period of 12 months and the profit share offered is 12% p.a.  Ext.P8 receipt indicates that 1^st and 2^nd  complainants  have deposited Rs.58,527/- w.e.f.28.11.2019 for a period of 12 months and the profit share offered is 12% p.a. Ext.P9 receipt indicates that 1^st and 2^nd  complainants  have deposited Rs.1,51,913/- w.e.f.09.09.2019 for a period of 12 months and the profit share offered is 12% p.a. Ext.P10 receipt indicates that 1^st and 2^nd  complainants  have deposited Rs.34,303/- w.e.f.28.11.2019 for a period of 12 months and the profit share offered is 12% p.a. Ext.P11 receipt indicates that 1^st and 2^nd  complainants  have deposited Rs.1,43,651/- w.e.f.02.09.2019 for a period of 12 months and the profit share offered is 12% p.a. Ext.P12 receipt indicates that 1^st and 2^nd  complainants  have deposited Rs.1,23,418/- w.e.f.28.11.2019 for a period of 12 months and the profit share offered is 12% p.a. Ext.P13 receipt indicates that 1^st and 2^nd  complainants  have deposited Rs.1,20,064/- w.e.f.21.09.2019 for a period of 12 months and the profit share offered is 12% p.a. Ext.P14 receipt indicates that 1^st and 2^nd  complainants  have deposited Rs.1,22,080/- w.e.f.18.11.2019 for a period of 12 months and the profit share offered is 12% p.a. Ext.P15 receipt indicates that 1^st and 2^nd  complainants  have deposited Rs.73,248/- w.e.f.28.11.2019 for a period of 12 months and the profit share offered is 12% p.a. Ext.P16 receipt indicates that 1^st and 2^nd  complainants  have deposited Rs.1,21,769/- w.e.f.30.12.2019 for a period of 12 months and the profit share offered is 12% p.a. Ext.P17 receipt indicates that 1^st and 2^nd  complainants  have deposited Rs.1,20,821/- w.e.f.17.12.2019 for a period of 12 months and the profit share offered is 12% p.a. Ext.P18 receipt indicates that 1^st and 2^nd  complainants  have deposited Rs.60,391/- w.e.f.25.01.2020 for a period of 12 months and the profit share offered is 12% p.a. The above receipts have been seen issued on different dates for different amounts.

          The unchallenged averments in the affidavit coupled with Ext.P1 to P18 documents would establish prima facie that the complainants 1 and 2 have jointly deposited Rs.17,28,343/-.

The complainants have sworn in the complaint as well as proof affidavit that they had not drawing interest/share of profit so the amounts got accumulated.  However the branches of the opposite parties remained closed during Covid 19 Pandemic lock down 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 complainants 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 to 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 have caused unlawful loss of Rs.19,34,736/- being  the amount deposited and its agreed interest and the above act of the opposite party would definitely attract deficiency deficiency in service and unfair trade practice.

The complainant would claim in the complaint as well as in the proof affidavit that the total amount due as per 18 receipts is only Rs. 17,27,343/-.  Actually the sum total of the amount shown in the 18 FD receipts would come to Rs.17,28,343/- and the complainants are entitled to get that much amount as amount deposited.  They are also entitled to get the promised rate of profit for the each investment right from the date of investment till the date of maturity and thereafter entitled to get interest at the rate of 9 % per annum from the date of maturity till the date of realization.  In the circumstances the complainants are entitled to get back the deposited amount with agreed rate of proft/interest as prayed for in ‘a’ relief. 

The (b) relief sought for in the complaint is to award reasonable compensation.  But there are no sufficient pleadings to award compensation apart from awarding the alleged monitory loss sought in ‘a’ relief.  There is no pleadings either in the complaint or in the proof affidavit to the effect that due to the misfeasance, malfeasance and nonfeasance of the opposite parties the complainant has sustained any mental agony apart from the monitory loss.  In the circumstances we hold that the complainant is not entitled to get compensation as claimed in ‘b’ relief. Hence they are not entitled to get any compensation as prayed for in ‘ b’ relief.

          In the result complaint stands allowed in part in the following terms.

1. Opposite parties are directed to return the amount covered by Ext.P1 to P18 receipts to the complainants along with agreed share of profit from the respective date of deposit/investment till the date of maturity and thereafter interest at the rate of 9% per annum till the date payment/ realization.
2. Opposite parties 1 to 4 are further directed to pay costs Rs.5,000/- to the complainants as costs of the proceedings.
3. The prayer to grant compensation under ‘b’ relief stands dismissed.
4. Opposite parties 1 to 4 are directed to comply with direction No. 1 & 2 within 45 days from today failing which the complainants are at liberty to realize the same amount from opposite parties 1 to 4 are jointly and severally and from the assets of the Popular Finance/Popular Traders.

Dictated to the Confidential Assistant  Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the  Open Commission this the 13^th  day of  January 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             : Receipt No. 0570692 of Popular Traders for Rs.25,000/-

Ext.P2             : Receipt No. 0574485 of Popular Traders for Rs.1,00,000/-

Ext.P3             : Receipt No. 0574486 of Popular Traders for Rs.1,00,000/-

Ext.P4             : Receipt No. 0574487  of Popular Traders for Rs.15,989/- 

Ext.P5             : Receipt No. 0574488 of Popular Traders for Rs.1,20,064/-

Ext.P6             : Receipt No. 0574489 of Popular Traders for Rs.1,17,041/-

Ext.P7             : Receipt No. 0574490 of Popular Traders for Rs.1,20,064/-

Ext.P8             : Receipt No. 0574491 of Popular Traders for Rs.58,527/-

Ext.P9             : Receipt No. 0574492 of Popular Traders for Rs.1,51,913/-

Ext.P10           : Receipt No. 0574493 of Popular Traders for Rs.34,303/-

Ext.P11           : Receipt No. 0574494 of Popular Traders for Rs.1,43,651/-

Ext.P12           : Receipt No. 0574495 of Popular Traders for Rs.1,23,418/-

Ext.P13           : Receipt No. 0574496 of Popular Traders for Rs. 1,20,064/-

Ext.P14           : Receipt No. 0574497 of Popular Traders for Rs.1,22,080/-

Ext.P15           : Receipt No. 0574498 of Popular Traders for Rs.73,248/-

Ext.P16           : Receipt No. 0574547 of Popular Traders for Rs.1,21,769/-

Ext.P17           : Receipt No. 0574552 of Popular Traders for Rs.1,20,821/-

Ext.P18           : Receipt No. 0574665 of Popular Traders for Rs.60,391/-

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