IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

Monday the 14^th day of March 2022.

                                   Filed on  11. 12. 2021

 Present

1. Sri.S.Santhosh Kumar  BSc.,LL.B  (President )
2. Smt. P R Sholy, B.A., LLB (Member)     In

                                         CC/No.323/2020

                                                      between

Complainant:-                                                     Opposite parties:-

1.    Sri.Antony C S,                                       1.    Thomsons Chitty Fund and Financiers,

       S/o.Sebastian,                                                  H.O. Arthunkal,

       Charangattu House,                                        Rep.by its Foreman (Thalayall)/

       Arthunkal P O.,                                               Managing Partner,

       Cherthala.                                                        Benny Thomas,

2.    Smt. Anitha,                                                    S/o K P Thomas

       D/o. Antony C S                                             Kakkaraveliyil,

       Charangattu House,                                        Cherthala Southmuri, Arthunkal P O.,

       Arthunkal P O.,                                               Cherthala.

       Cherthala.                                                2.    Smt. Kunjumol Benny,

3.    Smt. Amitha,                                                   W/o. Benny Thomas,

       D/o. Antony C S                                             Kakkaraveliyil,

       Charangattu House,                                        Cherthala Southmuri, Arthunkal P O.,

       Arthunkal P O.,                                               Cherthala.

Cherthala.                                                       (Rep.Ops 1 & 2 by Adv.D Deepak)

       (Adv. E D Sakhariyas)

O R D E R

SMT.P.R SHOLY (MEMBER)

Complaint filed u/s 35 of the Consumer Protection Act. 2019

1. Material averments briefly stated is as follows:-

As per the request and demand of the opposite parties, the first complainant joined in a chitty number 202/2017 in chital (Subscriber) No.2 in class A XI.  The chitty commenced on 26/08/2017 and the completion period was on 21/08/2019.  The total instalment was 25 numbers.  The monthly instalment was Rs.4,000/- including dividend.  The subscriber has to remit the instalment after the deduction of the dividend.  The first complainant has remitted monthly instalments from 26/08/2017 to 21/08/2019.  The valuation of the chitty is Rs.1,00,000/-.  The first complainant is entitled to get Rs.100000/- with 12% interest from the opposite parties. As per the request of the Opposite Parties, the 1^st complainant also had subscribed  2 more kuries in the same chitty.

2.       As per the demand and request of the opposite parties, the first complainant had deposited Rs.10 lakhs on 28/03/2017 and the period of fixed deposit is 24 months and the deposit matured on 28/03/2019.  At the time of depositing the amount, the opposite parties assured and offered that 24% of interest will be given on the amount and accordingly the opposite parties had paid interest upto 28/05/2019.  The first complainant is entitled to get the fixed deposit amount Rs.10/- lakh with 24% interest from 29/05/2019 till realization. 

3.       As per the demand and request of the opposite parties, the first complainant had also deposited Rs.5/- lakhs in the name of the second complainant on 07/07/2016 and the period of fixed deposit is 4 years and the deposit matured on 07/07/2020.  At the time of depositing the amount, the opposite parties assured and offered that 24% of interest will be given on the amount and accordingly the opposite parties had paid interest of Rs.27000/-.  The second complainant is entitled to get the fixed deposit amount of Rs.5 lakhs with 24% interest.

4.       As per the demand and request of the opposite parties, the first complainant had deposited Rs.3/- lakhs in the name of the third complainant on 07/04/2018 and the period of fixed deposit is 3 years and the deposit will get matured on 07/04/2021.  At the time of depositing the amount, the opposite parties assured and offered that 24% of interest will be given on the amount and accordingly the opposite parties had paid interest from 07/05/2018 to 07/08/2019.  The third complainant is entitled to get the fixed deposit amount of Rs.3 lakhs with 24% interest.

5.       At the time of joining the chitties and depositing the amount, the opposite parties assured that the deposited chit premia and fixed deposit amount will be repaid on the completion period. But they did not pay the amount.  Therefore there is dereliction of service and unfair trade practice from the side of the opposite parties.

6.       With malafide intention to defraud the complainants, the opposite parties are taking hasty preparations to alienate their movable and immovable assets.  If they succeed in their unfair attempt, the complainants will be put to irreparable loss, injury and hardships.  The acts of the opposite parties have caused mental agony, harassment, inconvenience frustration disgrace etc.., to the complainants and the complainants are entitled to get compensation of Rs.3,00,000/- (Rs.Three lakhs only) towards the same.

7.       Statement of account.

c.   Amount deposited by the first complainant in the name

     of  second complainant on 07/07/2016                              Rs.5,00,000/-

    24% interest on the amount from 07/074/2016 till date is        Rs.5, 20,000/-

                                                          Total amount is        Rs.10,20,000/-

                       Interest paid by the opposite parties is          Rs.18,000/-

        Balance amount is Rs.10,02,000/- (Rs.10,20,000/-  -  Rs.18,000/-)

d.   Amount deposited by the first complainant in the name of

      third  complainant on 07/04/2018                                               Rs.3,00,000/-

      24% interest on the amount from 07/074/2016 till date is      Rs.    84,000/-

                                                            Total amount is     Rs.3,84,000/-

Grand total is         Rs.30,71,000/- (a+b+c)

8.       The complainants have directly demanded the amount deposited in the chit premia and the FD amount with agreed interest but the opposite parties deliberately delayed the payment.  Despite demands, the complainants were constrained to file this complaint for the realization of the chit amount and FD receipts with interest.  The first complainant is a non prized subscriber.  He is entitled to get dividend and interest in the chitty transaction.  The last demand for chit premia and FD amount was on 04/12/2020.  Both the opposite parties are jointly and severally liable for the amount stated above.

9.       Version of the opposite parties are as follows:-

The statement that the 1^st opposite party is the Managing Partner and the 2^nd opposite party is the Partner of Thomson Chit Funds and Financiers is false.  The 2^nd opposite party is the 1^st opposite party’s wife and she is a government employee.  Chit business was run in the name Thomson Chitty Funds.  It is true that there was a firm named Thomson Chit Funds and the same was founded and run by 1^st opposite party’s father, K.P.Thomas.  After his death, from 2009, the said firm was closed.  In the event of a law suit, filed by any of the parties, the heirs of the deceased Thomas must be included in the party and failing to do so would be detrimental to the non-joinder of necessary parties to the petition.  The statement in the petition that the parties are engaged in the day to day activities of the aforesaid chit company is false and untrue.  The complainant did not join or make any payment in any of the chits mentioned in the complaint.  The chitty as described in the said sections has not been done by the opponents.  Thomson Chitty Financiers has never made such chit transaction.  Thus no amount was seized by the opposite parties.  The 1^st opposite party, Benny Thomas had borrowed Rs.5/- lakhs from complainant in the year 2018 and the said amount was repaid including interest and the transaction was closed.  At that time blank cheques and signed white paper and old receipt of the firm run by the opposite parties father was given to the complainant.  After that the complainant demanded more money to be repaid, i.e., 5 lakhs and the 1^st opposite party denied the same.  At that time the complainant filed the above said receipts and made illegal documents against the opposite party.  Those illegal documents are submitted to the Commission.  There is no dealing between the opposite parties and the complainant.  The details given by the complainant are not true hence denied.  There is no monetary dealing or chitty dealings are done between the opposite parties and the complainant.  All the documents submitted are false and illegally written. 

10.     On the above pleadings points were considered are:-

1. Whether the complaint is barred by non-jointer of necessary parties?
2. Whether there is any dereliction of service or unfair trade practice on the

part of opposite parties?

3. Whether the 1^st complainant is entitled to realize an amount of Rs.3,45,000/- with

interest at 12% per annum on the amount of Rs.3 lakhs from opposite parties as prayed for?

4. Whether the 1^st complainant is entitled to realise an amount of Rs.13,40,000/- with

24% interest on the amount of Rs.10 lakhs from the opposite parties as prayed for?

5. Whether the 2^nd complainant is entitled to realize an amount of Rs.10,02,000/-

with 24% interest on the amount of Rs.5 lakhs from opposite parties as prayed for?

6. Whether the 3^rd complainant is entitled to realize an amount of Rs.3,84,000/- with

24% interest on Rs.3 lakhs from opposite parties as prayed for?

7. Whether the complainants are entitled to realize an amount of Rs.3 lakhs as

compensation for mental agony?

8. Reliefs and cost?

11.     Evidence in this case consists oral evidence of PW1 and Ext A1 to A6on the side of complainant and oral evidence of RW1 on the side of opposite parties.  Counsel appearing for this opposite parties filed notes of argument.  Heard both counsels.

12.     Point No.1 to 7:-

For avoiding repetition of discussion these points are considered together.  PW1, 1^st complainant filed an affidavit in tune with the complaint and got marked Ext A1 to A6.  Complainants case in nutshell is that as per the request and demand of opposite parties on 26/08/2017 1^st complainant joined in a chitty No.202/17 in 3 chittal Nos 2,3 and 4 in Class A XI valued Rs.1/- lakh each.  The completion period was on 21/06/2019 and total instalment was 25 numbers of a monthly instalment of Rs.4,000/- including dividend.  The 1^st complainant had remitted monthly instalments from 26/08/2017 to 21/08/2019 and is entitled to get Rs.1 lakh with 12% interest from the opposite parties for each chitties.  The complainants also alleged that as per the demand and request of opposite parties the 1^st complainant had deposited Rs.10 lakhs on 28.03.2017 for a period of 24 months matured on 28.03.2019, on 07.07.2016 1^st complainant had deposited Rs.5 lakhs in the name of 2^nd complainant for a period of 4 years matured on 07.07.2020 and on 07.04.2018 the 1^st complainant had deposited Rs.3 lakhs in the name of 3^rd complainant for a period of 3 years matured on 07.04.2021.  The complainants further alleged that at the time of depositing the said amounts the opposite parties assured and offered 24% of interest and accordingly the opposite parties had paid interest upto 28.05.2019 for the 1^st deposit mentioned above and had paid a total amount of Rs.27,000/- as interest for the 2^nd deposit and had paid interest upto 07/08/2019 for the 3^rd deposit mentioned above.  Ext A1 to A3 were issued for chitty transaction and A4 to A6 passbook were given to the complainants by the opposite parties.  The 1^st complainant averred that he had deposited the amounts for securing to meet the expenses for the marriage and education of his 2 children, 2^nd and 3^rd complainants arrived at by selling his vehicles, Tipper and Lorries.

13.     Even though it was assured and offered by the opposite parties that the deposited chit premia and fixed deposited amount will be repaid on the completion period if not prized and also the maturity of the FD amount and offered that the bid amount will be repaid without any delay if prized, the opposite parties had turned around from their offer and assurance given to the complainants.  Though the complainants approached on several occasions the opposite parties evaded from disbursing the amount to the complainants, hence the complaint was filed for realizing a total amount of Rs.30,71,000/- with further interest and for compensation of Rs.3 lakhs for mental agony.  Opposite parties entered appearance and filed version denying the transactions.  They had not collected any amount from complainants as alleged and issued the passbook.  The 1^st opposite party admitted that his father K.P.thomas had been conducted chitty transaction in the name and style of Thomsons Chitty Fund and Financiers and other institutions from 1990 onwards.  However he further contented that all the institution including the said chitty institution was running its business at joint venture of legal heirs of said Thomas including 1^st opposite party.  According to the opposite parties, in the said circumstance, the complaint is unsustainable due to non-joinder of other legal heirs of said Thomas.  However it is to be noted that during cross examination RW1, the 1^st opposite party categorically deposed that he took the chitty and finance institution.  For more clear it is deposed as “OP1 Øm]\w Fsâ ]nXmhv XpS-§n -h-¨-Xm-Wv. ]nXmhv 31/08/2009  BWv acn-¨-Xv.  Sn Øm]\w IqSmsX Nn«n tKmÄUv tem¬ & Traders  Fsâ t]cn-ep-ffXmWv.  Thomson Offset & Printing Press   Dw D­m-bn-cp-¶p.  OP1 Øm]\w DÄs¸sS 5 Hmfw Øm]-\-§Ä ]nXm-hn\v D­m-bn-cp-¶p.  R§Ä 4 a¡Ä Bbn-cp-¶p.  ]nXm-hnsâ ac-W-tijw Øm]-\-§-sfms¡ a¡-fmb R§Ä Gsä-Sp¯v \S-¯n-h-cp-¶p.  Ct¸mÄ Øm]-\-§Ä Hs¡ Rm³ Gsä-Sp¯v \S-¯n-h-cp-¶p. 

17.     Moreover that during cross examination, when the learned counsel appearing for the complaint put specific question that, “അച്ഛൻ ജീവിച്ചിരുന്നപ്പോൾ complainant ചിട്ടിയിൽ ചേർന്നിരുന്നോ?(Q) he answered, “മരണശേഷമാണ് ചേർന്നത്” (A) In the above discussion it is understood that the only person responsible in connection with Thomsons Chitty and Financiers is 1^st opposite p/arty only.  It is also convinced from Ext A1 to A6 that in the said documents on several transactions signed as similar to the signature of RW1 affixed in his deposition.  In the said circumstance the contention of Non-joinder of necessary parties is unsustainable and hence we found no merits on that point.

18.     For defending the complaint and disproving the Exts A1 to A6 the opposite parties contenting that the said documents were forcibly obtained by the 1^st complainant in connection with a payment made by the complainant to 1^st opposite party in the year 2018.  During cross examination RW1 also deposed that the name was written by him in the cash receipt, but it is not his signature in the document.  Here also we affirmed the point discussed earlier that the signature shown in the deposition of RW1 is having resemblance with the signature put in the said documents.  Moreover the main reason to believe the said documents is that on all occasions the signature shown on each date is similar to that of the same person.  As deposed by the PW1, while cross examination, that on some occasions the document signed by staff of the chitty concern some of the signatures are different in nature.  Even if the said contention is accepted for argument sake how the opposite parties can issued a document of a non-existing institution.  At this time it is also to be noted that the RW1 categorically stated that he had availed loan from 1^st complainant during 2018 and on that occasion 1^st complainant forcibly obtained the said documents which issued against the opposite party.  The 1^st opposite party averred in the version as well as deposed during cross examination that he had closed the chitty business in the year 2014 after taking charge during 2010.  If that is to be true whether the documents in connection with the said chitty is available in the year 2018, is an ordinary prudent man willing to accept such a document as security of his money.  Admittedly there is no evidence adduced by the RW1 proving his contention with respect to the payment of money to the complainant and its repayment.  Accordingly on an all evaluation of the evidence we could not found any discrepancy in the documents produced in this complaint, on the other hand there is dereliction of service on the side of 1^st opposite party against the complainants.  The ruling cited by the learned counsel appearing for the opposite parties s not relied in this case since the facts and circumstances are different.  It is also to be noted that at nowhere in the complaint, chief of PW1 and in Ext A1 to A6 the involvement of 2^nd opposite party in the transactions leads to the complaint.  During cross examinations PW1 also admitted that “രണ്ടാം എതിർകക്ഷിയുമായി പണമിടപാട് നടത്തിയതായി രേഖ ഹാജരാക്കിയിട്ടുണ്ടോ” (A) “ഇല്ല”. Here we found dereliction of service on the part of 1^st opposite party only and complainants are entitled to recover the amount paid through chitty transaction and FD from 1^st opposite party and from his assets.  Considering the facts and circumstances no compensation awarded.

19.     Point No: 8:-

In the result complaint allowed, hence conditional attachment allowed in IA No: 230/20 made absolute.

1. 1^st opposite party is directed to pay Rs.3,45,000/- along with interest @ 12% per annum from the date of complaint till realization
2. 1^st opposite party is directed to pay Rs.10 lakhs along with interest @ 24% per annum from 29/05/2019 to 11/12/2020 to the complainants.
3. 1^st opposite party is directed to pay Rs.5 lakhs along with interest @ 24% per annum from 08/07/2019 to 11/12/2020 to the complainants.
4. 1^st opposite party is directed to pay Rs.3 lakhs along with interest @ 24% per annum from 08/08/2019 to 11/12/2020 to the complainants.
5. Complainants are entitled to recover Rs.5,000/-as litigation cost from 1^st opposite party.

Order shall be complied within 1 month of receipt of this order, in default the complaint is entitled to recover interest to reliefs B to D @ 9% per annum from 1^st opposite party.

Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 14^th day of March, 2022.

Sd/-Smt. P.R Sholy (Member)

Sd/-Sri.S.Santhosh Kumar (President)

Appendix:-

Evidence of the complainant:-

PW1                     -     Sri. Antony C S

  Ext.A1                -     Chitty pass book No.2

Ext.A2                 -     Chitty pass book No.3

Ext.A3                 -     Chitty pass book No.4

Ext.A4                 -     FD receipt in the name of 1^st complainant

 Ext.A5                -     FD receipt in the name of 2^nd complainant

Ext.A6                 -     FD receipt in the name of 3rd complainant

Evidence of the opposite parties:-

RW1                    -     Sri Benny Thomas

//True Copy ///

To     

          Complainant/Oppo. party/S.F.

                                                                                                     By Order

                                                                                                 Assistant Registrar

Typed by:-Br/-

Compared by:-