IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM

DATED THIS THE   11^th  DAY OF NOVEMBER 2021

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.217/2020

1. Suma Zachariah,

W/o Zachariah Alex,  aged 62 years,

Malayil  House, Bhavana Nagar-272,

Town Limit, Kollam-691 008.

(By Adv.M.I.Alexander Panicker)          

2. Akash Alex Zachariah,

S/o Zachariah Alex, aged 30 years,

Malayil  House, Bhavana Nagar-272,

Town Limit, Kollam-691 008.

(By Adv.M.I.Alexander Panicker)          

3. Zachariah Alex Muthalaly,

S/o Alexander Muthalaly, aged 68 years,

Malayil  House, Bhavana Nagar-272,

Town Limit, Kollam-691 008.

(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. Ria AnnThomas,

W/o Thomas Daniel,Partner,

Popular Finance/Popular Traders,

Indikattil House, Vakayar,

Konni, Pathanamthitta 689 698.

5. Reba Mary Thomas,

D/o Thomas Daniel,Partner,

Popular Finance/Popular Traders,

Indikattil House, Vakayar,

Konni, Pathanamthitta 689 698.

ORDER

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

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

            The averments in the complaint are as follows:-

            The 1^st complainant is the mother of 2^nd complainant.  The 1^st complainant was working as Executive Director of an NGO and retired from the service.  The 2^nd complainant is an Engineer by profession and is working in IT field.  The 3^rd complainant is the husband of the 1^st complainant and father of the 2^nd complainant and he is a sick person.

            1^st opposite party is the husband of the 2^nd opposite party.  Opposite parties 3 to 5 are three daughters of 1^st and 2^nd opposite parties.  All of them claim to be the partners of business firms in the name and style Popular Finance and its sister concerns namely Popular Traders and Popular Dealers.  The profile published and advertised in various media and in the website claims that Popular Finance is a successfully functioning Gold Loan firm established in 1965, by founder chairman T.K.Daniel.  Hence it is claimed that Popular is at present conglomeration of various business concerns and the entire sister concerns support the parent organization by returning profits regularly.  It is claimed that Popular has been accepted by its customers as a synonym for stability and reliability.  Various business activities are carried out under sister concerns such as Popular Traders, Popular Dealers, Popular Developers, Popular Printers, etc.  All  these concerns under the brand name Popular are known collectively as Popular Group.  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 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 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 acknowledge the liability of the opposite parties to the complainant.  All the 16 accounts shown below are in their joint accounts and hence all 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:-

            The branches of 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 complaints 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. 

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 deliberately mislead the public with false claims and they were deliberate to cheat customers who trusted them.  They had deliberately received 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 private financiers and the opposite parties failed on their service as undertaken and promised to repay the amount with agreed rate of interest.  Total amount due as per the above 16 receipts to the complainant is Rs.10,99,745/-.  The complainant are also entitled to get the promised 12% interest rate for the whole amount from its w.e.f. date.  The complainants never cared to draw interest on each month.  Interest of Rs.54,987/- is also due from the opposite parties and totally an amount of Rs.11,54,732/- is due to the complainants from the opposite parties.  The said amount may be considered as the loss incurred to the complainants. 

The complainant on 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 Forum/Commission returned unserved stating that whereabouts of the opposite parties are not known.  Hence notice was served by effecting paper publication by publishing the notice in Indian Express Daily and produced a copy of paper publication on 16.08.2021.  On that day the opposite parties No.1 to 5 were called absent and hence set exparte.

            The 1^st complainant on behalf of the other complainants filed proof affidavit by reiterating the averments in the complaint and got marked Ext.A1 to A16 documents.  Heard counsel for the complainant and perused the records.  Exts.A1 to A16 are receipts indicating the deposit of various amount at the Popular Traders. Ext.A1 dated 22.07.2019 issued in the name of  Suma Zachariah & Akash Alex Zachariah receipt No.0570505 Popular Traders for Rs.20,000/-.  Ext.A2 issued in the name of  Suma Zachariah & Akash Alex Zachariah receipt No.0570506 Popular Traders for Rs.15,000/-Ext.A3 issued in the name of  Akash Alex Zachariah & Suma Zachariah  receipt No.0570507 Popular Traders for Rs.15,000/- .  Ext.A4 issued in the name of  Akash Alex Zachariah & Suma Zachariah  receipt No.0574656 Popular Traders for Rs.57,307/-.  Ext.A5 issued in the name of Suma Zachariah & Akash Alex Zachariah receipt No.0574657 Popular Traders for Rs.57,405/-.  Ext.A6 issued in the name of Suma Zachariah & Zachariah Alex Muthalaly receipt No.0574658 Popular Traders for Rs.44,800/-.  Ext.A7 issued in the name of Suma Zachariah & Akash Alex Zachariah receipt No.0574659 for Rs.28,000/-.  Ext.A8 issued in the name of Suma Zachariah & Zachariah Alex Muthalaly receipt No.0574660  Popular Traders for Rs.1,78,080/-.  Ext.A9 issued in the name of Suma Zachariah & Zachariah Alex Muthalaly receipt No.0574661 Popular Traders for Rs.56,000/-.  Ext.A10 issued in the name of Zachariah Alex Muthalaly & Suma Zachariah receipt No.0574662 Popular Traders for Rs.1,19,504/-.  Ext.A11 issued in the name of Zachariah Alex Muthalaly & Suma Zachariah receipt No.0574663 Popular Traders for Rs.1,19,559/-.  Ext.A12 issued in the name of  Suma Zachariah & Zachariah Alex Muthalaly receipt No.0574664 Popular Traders for Rs.61,040/-.  Ext.A13 issued in the name of  Suma Zachariah & Zachariah Alex Muthalaly  receipt No.0574666 Popular Traders for Rs.50,550/-.  Ext.A14 issued in the name of Suma Zachariah & Akash Alex Zachariah receipt No.0574667 Popular Traders for Rs.1,11,000/-.  Ext.A15 issued in the name of  Suma Zachariah & Zachariah Alex Muthalaly receipt No.0574774 Popular Traders for Rs.55,500/-.  Ext.A16 issued in the name of  Akash Alex Zachariah & Suma Zachariah receipt No.0574775 Popular Traders for Rs.1,11,000/- Name of the nominee is not shown in the above receipts.   The above receipts has been seen issued on different dates for different amounts.

            The unchallenged averments in the affidavit coupled with Ext.A1 to A16 documents would establish prima facie that 1^st complainant Smt.Suma Zachariah and other complainants had deposited Rs.10,99,745/- in their name  on different dates started from 27.01.2020.

The complainant has sworn in para 9 of the proof affidavit that they were not drawing interest .  Hence the amounts got accumulated with interest. However the branches of the opposite parties remained closed during Covid 19 Pandemic lock down period.  Though the lock down 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 payments 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 institution operated 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 in progress 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 there is deficiency in service and unfair trade practice on the part of the opposite parties in not returning the amount collected from the complainant along with interest/share of profits as agreed.

 Though the complainants would claim in the complaint as well as in the proof affidavit that the total amount of Rs.11,54,732/- has been deposited or in vested as per Ext.A1 to A16 receipt there is mistake in calculation.  The total amount of 16 deposits amounts only to Rs.10,99,745/- and not 11,54,732/- even if interest/profit due is added to the total deposited/invested amount.  However the complainants are also entitled to get promised rate of profit for the each investment right from the date of investment.  Therefore the complainants are entitled to get an order directing the opposite parties to pay the amount invested/ deposited as per each receipt along with offered share of profit/interest shown in Ext.A1 to A16 receipts from the date of receipts of amount.

            In the result complaint stands allowed in the following terms.

Opposite parties No. 1 to 5 are directed to return the amount covered by Ext.A1 to A16 receipts to the complainants along with agreed share of profit/interest from the respective date of deposit/investment 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.A1 to A16 receipts along with agreed share of profit from the date of investment

till the date of order and thereafter interest @ 9 % p.a. from the date of order till realization from the opposite parties No. 1 to 5 jointly and severally and from their assets.

Dictated to the Confidential Assistant  Smt. Minimol.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the 11^th  day of  November 2021.

STANLY HAROLD:Sd/-

  E.M .MUHAMMED IBRAHIM:Sd/-

        S.SANDHYA RANI:Sd/-

                                                                                                           Forwarded/by Order

                                                                                                              Senior superintendent

INDEX

Witnesses Examined for the Complainant:-Nil

Documents marked for the  complainant

Ext.A1            : receipt No.0570505 Popular Traders for Rs.20,000/-

Ext.A2            : receipt No.0570506 for Rs.15,000/-

Ext.A3            : receipt No.0570507 for Rs.15,000/-

Ext.A4            : Receipt No.0574656 for Rs.57,307/- 

Ext.A5            : receipt No.0574657 for Rs.57,405/- 

Ext.A6            : receipt No.0574658 for Rs.44,800/- 

Ext.A7            : receipt No.0574659 for Rs.28,000/- 

Ext.A8        : receipt No.0574660 for Rs.1,78,080/-

Ext.A9        : receipt No.0574661 for Rs.56,000/-

Ext.A10          : receipt No.0574662 for Rs.1,19,504/-

Ext.A11      : receipt No.0574663 for Rs.1,19,559/-

Ext.A12          : receipt No.0574664 for Rs.61,040/-

Ext.A13          : receipt No.0574666 for Rs.50,550/-

Ext.A14          : receipt No.0574667 for Rs.1,11,000/-

Ext.A15          : receipt No.0574774 for Rs.55,500/-

Ext.A16        :  receipt No.0574775 for Rs.1,11,000/-

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-Nil