IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA, Dated this the 16th day of August, 2010. Present : Sri. Jacob Stephen (President). Smt. C. Lathika Bhai (Member) N. Premkumar (Member) O.P. No. 90/2005 (Remanded) (Filed on 09.06.2005) Between: T.R. Raveendran, KIP Quarters, Nellimoottil Padi, Adoor – 691 523. (By Adv. P.B. Padmakumar) .... Complainant. And: 1. V. George Babu, Forman, Moozhiyil Kuries, Adoor – 691 523. (Moozhiyil- Veedu, Thengamam P.O., Pallickal) 2. Ammini, Manager, Moozhiyil Kuries, Adoor P.O. (By Adv. S. Lathika) .... Opposite parties. ORDER Sri. Jacob Stephen (President): The complainant has filed this complaint against the opposite parties for getting a relief from the Forum. 2. The complainant’s case can be summarized as follows: The first opposite party is the Foreman and the second opposite party is the Manager of Moozhiyil Kuries, Adoor. The opposite parties are conducting chitty and gold loan business. The complainant subscribed 2 chitties conducted by the first opposite party, (MF/K-104/2004). The chittal number of the complainant in the above said chitty is 5 and 11. The total sala of each chitty is ` 50,000 and the period of said chitties is 25 instalments and the instalment amount is ` 2,000. The said chitties started during February 2004. Out of the 2 chitties, the first chitty (chittal No.5 in MF/K/104/04) prized in favour of the complainant at its 7th instalment and the prized amount is ` 35,000 i.e. less 30% of sala amount. Thereafter, the complainant executed necessary security documents in favour of opposite party for getting the prize money and the complainant received the prize money. At the time of payment, the opposite party also obtained signed blank cheques and signed stamp paper also from the complainant. The complainant had remitted the monthly instalments promptly upto the 15th instalment. Thereafter, the second chitty was also auctioned in favour of the complainant during its 15th instalment, as no subscribers were present at the time of auction. 3. After auction, the complainant approached opposite party, and asked to settle complainant’s gold loan account of ` 7,000 and its interest from the prize money and also asked to pay ` 10,000 for the complainant’s immediate needs. Accordingly, the opposite party closed the complainant’s gold loan account and paid ` 10,000 to the complainant from the prized amount as per the request of the complainant. Thereafter, the opposite party denied the balance payment of the chitty amount. Moreover, interest collectd by the opposite party in the loan account is excess, opposite party arbitrarily included the complainant in a new chitty by taking ` 1,750 from the chitty amount without knowledge of the complainant and the opposite party told that the total prize money for the second chitty is only ` 40,000 instead of ` 47,500. The non-payment of the balance chitty amount to the complainant and the realisation of excess interest for the gold loan and the taking of ` 1,750 and the offered of ` 40,000 by the opposite party are clear deficiency in service and illegal acts. Because of the above said deficiency and the illegal acts of the opposite party, the complainant had sustained financial loss and mental agony. Hence this complaint for the realisation of the balance chitty amount, the realisation of the excess interest collected in the gold loan account and for getting the signed blank cheques and other papers along with compensation for the mental agony and financial loss sustained by the complainant. The complainant also prays for the cancellation of the chitty licence. 4. The opposite parties filed version with the following contentions. They have challenged the maintainability of the complaint also. The contention regarding the maintainability is that the transactions between the parties is in respect of a chitty transaction and the dispute between the parties have to be decided either by refering the matter to Registrar for Arbitration or as per the provisions contained in the talavariola. The other contentions are as follows: The above complaint is not maintainable either in law or on facts. The opposite parties admitted the entire transactions and dealings between the complainant and the opposite parties. The opposite parties denied the entire allegations raised by the complainant against the opposite parties. According to the opposite parties, they have not committed any illegal acts or any deficiency in service to the complainant. The first chitty amount was released to the complainant after obtaining necessary security documents. For the second chitty, the complainant failed to execute the necessary security documents required for the release of the second chitty amount and hence they have not paid the said amount. However, as per the request of the complainant, they have released certain amount to the complainant without obtaining any security documents. It was so done based on curtsey and as per the request of the complainant. The balance payment was withheld due to the non-execution of necessary security documents and due to the subsequent defaults of the chitty instalments by the complainant and on the basis of the information regarding the complainant’s credibility. The opposite parties are not liable to pay the chitty amount without getting proper security documents. They have not collected any excess interest in the loan account. An amount of ` 1,750 was taken with the knowledge of the complainant. As per the terms and conditions of variola, complainant is entitled to get ` 40,000 only in the second chitty. With the above contentions, the opposite parties pray for the dismissal of the complaint as they have committed any illegal acts or any deficiency of service. 5. On the basis of the contentions regarding the maintainability and on the basis of an application filed by the opposite parties, this Forum considered the question of maintainability and dismissed the complaint on the finding that this Forum lacks jurisdiction to entertain this complaint. 6. Aggrieved by the order of this Forum, the complainant preferred an Appeal before the Hon’ble Consumer Disputes Redressal Commission, Thiruvananthapuram as Appeal No.162/06. After hearing the parties, Hon’ble CDRC found that this Forum has jurisdiction to entertain this complaint and allowed the Appeal and remanded the case to this Forum for fresh disposal after permitting the parties to adduce evidence. 7. Thereafter, the complainant filed a replication. The contention of the replication is more or less the same as that of the averments in the complaint. 8. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not? 9. The evidence of this complaint consists of the oral deposition of PW1 and DW1 and Exts.A1 to A8 and B1 and B2. After closure of evidence, both sides were heard. 10. The Point: The complainant’s allegation against the opposite parties can be summarized as follows: The complainant had joined in 2 chitties of the opposite parties. 2 chitties were auctioned/prized in favour of the complainant. The amount of first chitty was given to the complainant by the opposite parties as per the terms and conditions of the talavariola and a portion of the second chitty amount was given by the complainant by way of cash and by adjusting in the complainant’s gold loan account as per the request of the complainant. The balance of the second chitty amount was not given to the complainant. Moreover, the interest collected by the opposite party is higher than the actual interest and without the knowledge of the complainant, the opposite party had taken an amount of ` 1,750 and included the complainant as a chittal in a new chitty. Apart from the above, the complainant also had a case that instead of prized amount of ` 47,500 in the second chitty, the opposite party arbitrarily and illegally fixed the prized amount as ` 40,000 for the second chitty. Consequent to the non-payment of the chitty amount to the complainant, and on the basis of the dispute arosed between the parties, the complainant stopped the payment of the remaining chitty instalment from the 15th instalments onwards. 11. In order to prove the complainant’s case, the complainant had filed a proof affidavit in lieu of chief examination along with certain documents. On the basis of the proof affidavit, the complainant was examined as PW1 and the documents produced were marked as Exts.A1 to A8. Ext.A1 is the chitty pass book of chitty No.MF/K/104/04 issued by the opposite party in the name of the complainant. Exts.A2 and A2(a) are the chitty receipts Nos. 634 and 636 for ` 2,000 each issued by the opposite party for the payment of 15th instalment of the complainant’s chitties. Exts.A3 is the photocopy of the Advocate Notice sent by the complainant to the opposite party. Ext. A3(a) is the postal receipt of Ext.A3. Ext.A4 is the reply notice dated 12.05.2005 of Ext.A3 Advocate Notice. Ext.A4(a) is the postal cover of Ext.A4 reply notice. Ext.A5 is Advocate Notice (original) dated 06.07.2005 issued by the opposite party to the complainant. Ext.A6 is the photocopy of the letter-dated 02.05.2005 issued by Caarmel Engineering College, Perunad in the name of the complainant. Ext.A7 is the cash receipt dated 08.06.2005 for ` 45,412 issued by Caarmel Engineering College, Perunadu in the name of Vishnu Raveendran. Ext. A8 is an agreement dated 08.05.2005 executed between the complainant and one Manmadhan Pillai son of Gopala Pillai. 12. On the other hand, the opposite parties contention is as follows: The opposite parties admitted the entire transactions with the complainant. But they denied all the allegations of the complainant. According to the opposite parties, as per the talavariola and the rules governed by the chitty business, the prized subscribers are bound to execute a bond in favour of the foreman for getting the chitty amount. Accordingly, the complainant had executed proper security documents in favour of the opposite party for getting the chitty amount of the first chitty and after getting the security documents, they have paid the first chitty amount to the complainant. Later, the second chitty was allotted to the complainant and the amount entitled to the complainant as per the terms and conditions of the talavariola is only ` 40,000 and not ` 47,500 as claimed by the complainant. Before executing the security documents for the payment of the second chitty amount of `40,000, the complainant approached opposite party and requested to pay some amount as advance from the second chitty amount for meeting some immediate needs of the complainant. Since the complainant was a customer of the opposite party and after considering the circumstances, opposite party paid ` 10,000 as cash and closed the gold loan account of the complainant by adjusting an amount of ` 7,840 in the complainant’s gold loan account and released the pledged ornaments to the complainant. The interest collected in the gold loan account is normal and not at the rate of 24% as alleged by the complainant. Thereafter, the complainant demanded the balance chitty amount without executing security documents in favour of the opposite party. Since the complainant was not prepared to execute the security documents, the payment of the second chitty amount was not effected. The inclusion of the complainant in the third chitty was made as per the request and with the full knowledge of the complainant. So according to the opposite parties, they have not committed any illegal acts or any deficiency of service. Moreover, the complainant defaulted the entire instalments, subsequent to the above said incidents. 13. In order to prove the contentions of the opposite parties, the first opposite party filed a proof affidavit and 2 documents. On the basis of the proof affidavit, the first opposite party was examined as DW1 and the documents produced were marked as Exts.B1 and B2. Ext.B1 is the copy of slab using by opposite parties in their chitty transaction showing the amount that can be allowed to prized subscribers for each instalments. Ext.B2 is the certified copy of the complaint in C.C.180/93 of the Judicial First Class Magistrate Court, Adoor against the wife of the complainant filed by one O. Joykutty under Sec.138 of the Negotiable Instrument Act. DW1 was cross examined by the counsel for the complainant partially in the box and further cross was made by putting interrogatories by writing which was answered by DW1. 14. On the basis of the contentions of the parties, the only question to be considered is whether the opposite party has committed any deficiency of service as alleged by the complainant. On a perusal of materials on record, the parties have no dispute regarding the transactions and dealings. The dispute raised by the complainant against the opposite parties is that the opposite parties had not given the balance prize money in the second chitty. The opposite party had offered ` 40,000 only as the prize money in the second chitty instead of ` 47,500 entitled to the complainant, the opposite party had taken an amount of ` 1,750 and included the complainant as a chittal in a new chitty without the knowledge of the complainant and the opposite party had collected excess interest for the complainant’s gold loan. 15. As per the rules governed for chitty business, execution of sufficient security documents by a prized chittal for the release of the prized money is essential. In this case, the opposite parties case is that the complainant had not executed any security documents for the release of the second chitty amount and due to the above said reason, they have not given the balance amount of the second chitty. 16. From the available evidence, it is clear that the complainant had not executed any security documents to the opposite party for the release of the balance chitty amount. There is no evidence to show that the complainant was willing to execute security documents to the opposite party and they have not accepted the complainant’s willingness. So we find no deficiency of service in the issue of non-payment of the balance prized money to the complainant. With regard to the total prized money of the second chitty, the opposite party is not entitled to say that the prized money of the second chitty is only ` 40,000 in the light of the 9th clause in the variola which is the portion of Ext.A1 pass book. Ext.B1 slab produced by the opposite party for substantiating his contention is not acceptable as it is not an authenticated document. So, we find that the complainant is entitled to get ` 47,500 as the prized money in the second chitty. In the absence of any evidence for a duly executed variola, the opposite party cannot be justified in taking an amount of ` 1,750 for including the complainant as a chittal in a new chitty. In the absence of any cogent evidence to show the agreed rate of interest for the gold loan, we are not inclined to accept the allegation of the complainant that the opposite party had collected excess interest in the gold loan account. Though certain deficiencies are found against the opposite party, the complainant cannot be justified in not remitting the subsequent chitty instalments at least in the first chitty and thereby the complainant had violated the terms and conditions of the variola as well as the security documents executed by him in favour of the opposite party. 17. On a perusal of the statement of accounts submitted and admitted by the parties, an amount of ` 52,840 is with the complainant whereas the complainant’s actual remittance is less than ` 52,840. The contention of the complainant that the opposite party has not asked the complainant to execute security documents for the release of the prized money in the second chitty is not sustainable as the execution of the security documents is a usual practice in chitty transactions. The attitude taken by the complainant in this respect and the non-payment of the remaining chitty instalments cannot be justified. In the circumstances, even though certain deficiencies are committed by the opposite party, the non-execution of the security documents in the second chitty and the non-payment of the remaining chitty instalments by the complainant negates the deficiency committed by the opposite party. Hence the complainant is not entitled to get any of the reliefs prayed for in the complainant. 18. In the result, this complaint is dismissed. No costs. Pronounced in the Open Forum on this the 16th day of August, 2010. (Sd/-) Jacob Stephen, (President) Smt. C. Lathika Bhai (Member) : (Sd/-) Sri. N. Premkumar (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : T.R. Raveendran. Exhibits marked on the side of the complainant: A1 : Chitty pass book of chitty No.MF/K/104/04 issued by the opposite party in the name of the complainant. A2&A2(a): Chitty receipts Nos. 634 and 636 for ` 2,000 each issued by the opposite party to the complainant. A3 : Photocopy of the Advocate Notice sent by the complainant to the opposite party. A3(a): Postal receipt of Ext.A3. A4 : Reply notice dated 12.05.2005 of Ext.A3 Advocate Notice. A4(a) : Postal cover of Ext.A4 reply notice. A5 : Advocate Notice (original) dated 06.07.2005 issued by the opposite party to the complainant. A6 : Photocopy of the letter dated 02.05.2005 issued by Caarmel Engineering College, Perunad in the name of the complainant. A7 : Cash receipt dated 08.06.2005 for ` 45,412 issued by Caarmel Engineering College, Perunadu in the name of Vishnu Raveendran. A8 : Agreement dated 08.05.2005 executed between the complainant and one Manmadhan Pillai son of Gopala Pillai. Witness examined on the side of the opposite parties: DW1 : V. George Babu. Exhibits marked on the side of the opposite parties: B1 : Copy of slab using by the opposite parties in their chitty transaction. B2 : Certified copy of the complaint in C.C.180/93 of the Judicial First Class Magistrate Court, Adoor. (By Order) Senior superintendent Copy to:- (1) T.R. Raveendran, KIP Quarters, Nellimoottil Padi, Adoor – 691 523. (2) V. George Babu, Forman, Moozhiyil Kuries, Adoor – 691 523. (Moozhiyil- Veedu, Thengamam P.O., Pallickal) (3)Ammini, Manager, Moozhiyil Kuries, Adoor P.O. (4) The Stock File.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
