D.o.F:31/07/2010
D.o. Order:4/12/2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.NO.169/10
Dated this, the 4th day of December 2012
PRESENT:
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.BEENA.K.G : MEMBER
1. P.Appa Kunhi (deceased)
2. Susheela.K.B, w/O Late P.Appa Kunhi
3. Shailaja .P,
4. Ravindran,S/ O
5. Usha.P ,
6. Sugandhi.P,
7. Sashikumar.P,S /O
8. Latha.P, complainants Nos 3 to are children of : Complainants.
Late P.Appa Kunhi, R/at Latha Nivas,
Palakunnu, Bekal Po, Pallikkara,
Kasaragod.
(Adv.Rajagopala.A,Kasaragod)
1.Mr. V.V. Khalid Haji,
R/at Vallana Valappil, V.V.K.Sons,
Chemmad, Thirurangadi Po, Malappuram Dt. : Opposite parties
2. M/s Everstar India Agro Industries Ltd,
Rep by its C M D, Mr. V.V. Khalid Haji,
Kinfra park, Seethangoli,Kasaragod-4.
(Adv.A.K.Abdul Razak,Calicut)
ORDER
SMT.P.RAMADEVI : MEMBER
The facts of the complaint in brief is that the complainant deposited a sum of `10,00,000/- under the opposite party towards the fund mobilization of Everstar India Agro Industries Ltd on a condition that a sum of `25,000/- shall be paid to the complainants towards the interest thereof monthly and a deposit agreement dtd.7/8/2007 was also entered between the parties . As per the terms of the above agreement the opposite party issued 12 post dated cheque slips of `25,000/- each to the complainant towards interest. Apart from issuing the above post dated cheques opposite party also issued another cheque for `10,00,000/- towards the deposit amount. The 12 post dated cheques have been periodically honoured but to the surprise of the complainant, the cheque for `10,00,000/- thus issued by opposite party as per cheque No.220346 of the State Bank of Travancore, Kasaragod branch dt.7/8/2008 was dishonoured. Then the complainant approached opposite party and where upon the opposite party No.1 being the Chairman and Managing Director of Opposite party No.2 has sought 5 months further time for repayment of deposit of `10,00,000/- and infact, for the said 5 months the opposite party has paid `25.000/- each towards interest. But after 5 months also the opposite party failed to repay the amount. Hence this complaint is filed alleging deficiency in service against opposite parties.
2. The first opposite party filed their version . According to him the complaint is based on an agreement alleged to be executed between the complainant and Ist opposite party as the Chairman and Managing Director of M/s Everstar India Agro Industries Ltd . But the execution of the agreement is denied by the Ist opposite party. According to the Ist opposite party the signature shown in the alleged agreement is not his signature and it is a forged one. The Ist opposite party further submitted that he is not having any account in SBT, Therefore no question of issuing post dated cheques of SBT to the deceased complainant. According to the Ist Opposite party this Forum lacks jurisdiction to entertain the complaint since the subject matter involved in this are nowhere comes within the purview of Consumer Protection Act. The complainant would have filed a complaint under sec.138 of the Negotiable Instrument Act or would have file a company petition to wind up of the company under Sec.439 of the Companies Act 1956. Hence this complaint is liable to be dismissed.
3. During the pendency of the case the original complainant died and his Legal heirs are impleaded as supplemental complainants Nos. 2 to 8
4. Here the complainant was filed affidavit in lieu of chief examination and answered the interrogations served on him by the Ist opposite party and Exts.A1 to A10 marked on the side of complainant . Ist opposite party filed affidavit in lieu of chief examination but he failed to appear before the Forum to face cross examination. At the instance of complainant Ext.X1 produced.
5. Heard the complainant’s counsel and documents perused. On going through the entire facts on records the following issues are raised for consideration.
1. Whether the complaint is maintainable before the Forum under the Consumer Protection Act.?
2. Is there any deficiency in service or unfair trade practice on the part of the opposite party?
3. If so what is the order of relief as costs and compensation?
6. According to the opposite party this Forum lacks jurisdiction to entertain the complaint since the subject matter involved in this case nowhere comes within the purview of consumer Protection Act. The complainant would have filed a complaint U/S 138 of the Negotiable Instrument Act or he would have filed a company petition to wind up of the company under Sec.439 of the Companies Act 1956 for want of satisfying debt.
The contention raised by the opposite party is not sustainable. The complainant filed this complaint relying on an agreement executed between him and the opposite party. As per the recitals of the agreement it is clear that complainant has deposited a certain sum of money with the opposite parties and in return the opposite parties would pay `25000/- per month as share. From this it can be realized that the complainant deposited the amount of `10,00,000/- and in return the opposite party promised to pay 25,000/- per month as interest termed as share. The complainant also produced the unpaid returned cheque for `10,00,000/- issued by the MD of M/s Everstar India Agro Industries Ltd towards the discharge of his debt. This cheque is produced as a supplementary document and the complainant is mainly relying in the agreement.
Now the question is whether the depositor in a company or a firm can be considered as a consumer as envisaged under the Consumer Protection Act or not?
The Hon’ble Nation Consumer Disputes Redressal Commission in the case of MP State Industrial Development Corporation vs. Bureau of Indian Standard and Another reported in 2007 CTJ and 821(CP) NCDRC has held as below
‘’ Where a company or firm invite deposits from the public on the promises of giving attractive rate of interest, the transaction of such nature would make the depositor a consumer under the Consumer Protection Act’’.
From the above decision rendered by the Hon’ble National Commission it is clear that a depositor in a company who in turn receive interest is a consumer. Moreover as contended by the opposite party the remedy available to the complainant for the redressal of his grievance is not only approaching the criminal court or High Court by filing company petition. Being a consumer he can approach the consumer Forum also. Sec.3 of the Consumer Protection Act make it specific that the Act is in addition to and not in derogation of any other laws.
The Hon’ble Supreme Court in the case of Chairman Thiruvallur Transport Corporation vs. Consumer Protection Council (1995)2SCC 479 has held
As per section 3of Act the provisions of the Act shall be in addition to and not in derogation of any other provisions of any other laws for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of consumers, better the provisions are to be interpreted broadly positively and purposefully to give meaning to additional extended jurisdiction, particularly where Sec.3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clear bar. So as per the above said authority despite provisions for referring the dispute to arbitration in certain Acts/laws the object and purpose of Consumer Protection Act cannot be frustrated as the provisions of the consumer protection act are in addition to and not in derogation of any other law in force.
In view of the judgments of apex court and on considering the facts in issue we are of the view that this Forum has ample jurisdiction to try the complaint and complaint is maintainable before the Forum. This issue is already decided by the Forum as per order in IA 323/12.
7. Issue No.2 : Here the specific case of the complainant is that he has deposited `10,000,000 under the opposite party towards the fund mobilization of Everstar India Agro Industries Ltd and Ext.A1 agreement is executed between the parties. According to the complainant Ist opposite party is the Chairman and CMD of m/s Everstar India Agro Industries Ltd ie, 2nd opposite party. But Ist opposite party denied that during the relevant period he was the Chairman and CMD of m/s Everstar India Agro Industries Ltd. In order to prove the aspect the complainant produced Exts.A6 to A10. Ext.A6 is the agreement between Chairman and CMD of m/s Everstar India Agro Industries Ltd. And M/s Mohammed Ali and partner company. Here the Ist opposite party i.e V.V.Khalid Haji is signed this agreement as the CMD of m/s Everstar India Agro Industries Ltd. Ext.A7 is the extract of the minutes of the Board of Directors meeting of m/s Everstar India Agro Industries Ltd.held on 15th July 2007 at Kasaragod. It shows that Mr. V.V. Khalid Vellanavalappil is appointed as the chairman and managing director of the company. Ext.A8 shows the names of newly appointed Directors. There also V.V. Khalid Vellana Valappil is the chairman and managing director.Ext.A9 is the copy of the letter issued by Chairman and Managing Director of m/s Everstar India Agro Industries Ltd. to the Branch Manager, Andhra Bank Kasaragod.Ext.A10 is the newspaper cuttings showing the advertisement of Everstar India Agro Industries Ltd. There also the name of chairman is shown as V.V. Khalid Haji.
On going through the Exts.A6 to A10 it is clear that Ist opposite party i.e V.V.Khalid Haji is the Chairman and Managing Director of m/s Everstar India Agro Industries Ltd. That means opposite party one and two are one and the same person. Moreover during the relevant period that is at the time of Ext.A1 V.V.Khalid Haji is the Chairman and Managing Director of the above company.
8. According to the complainant as per the terms of Ext.A1 agreement he has received 12 monthly instalments of `25,000/- towards the interest of his deposit. The opposite party issued cheques of State Bank of Travancore. All those cheques except one cheque were honoured. But the cheque issued for the deposit amount i.e for `10,000,00/- was dishonoured . The opposite party defended that he has no account with SBT Kasaragod branch and he never issued cheques to the complainant. Here in order to prove the case of the complainant he furnished Ext.X1 issued by SBT Kasaragod branch. Ext.X1 is the statement of account of m/s Everstar India Agro Industries Ltd shows that on 8/8/2007 as cash deposit of ` 9,20,000/-. From this entry it is clear that the opposite party received the amount from the complainant and from that amount of ` 9,20,000/ is deposited. The account also shows that the cheque issued to the complainant towards the interest is also honoured. That means the complainant deposited the amount with the opposite party and the complainant received interest on the deposit. There is no contra evidence on the part of the opposite party to disprove the case of the complainant. Considering all the facts and circumstances of the case we are of the opinion that Ist opposite party accepted deposit from the complainant for 2nd opposite party company and the opposite party failed to refund the deposit accepted by him. Here the question is whether any unfair trade practice on the side of opposite party. Here Ist opposite party straight away denied the transactions with complainant and tried to made believe the Forum that he is not the Chairman and Managing Director of m/s Everstar India Agro Industries Ltd. Utter denial of true facts amounts to unfair trade practice and the opposite party committed unfair trade practice against the complainant and hence the opposite party is liable to compensate the complainant.
9. Here the Ist opposite party filed affidavit in lien of chief examination through his counsel. But the Ist opposite party has not appeared before the Forum and he failed to face cross examination. Since he is absent we are not in a position to accept the affidavit filed by the counsel for Ist opposite party.
Therefore the complaint is allowed and the opposite parties 1&2 are jointly and severally directed to pay `10,00,000/-(being the amount deposited by the com0plainant) with interest @ 12% per annum from the date of complaint till payment and opposite parties are further directed to pay `50,000/- for mental agony and sufferings and also pay `5000/- towards cost of the proceedings to the complainants. Time for compliance is 30 days from the date of receipt of copy of the order.
Exts:
A1-dt.7/8/07original deposit agreement
A2-dt.7/8/08- Dishonoured cheque
A3-9/2/09-memo issued by SBT Kasaragod
A4-17/12/09-lawyer notice
A5-Postal acknowledgment
A6- copy of agreement
A7 -copy of the extract of the minutes
A8 shows the names of newly appointed Directors
A9- copy of the letter issued by2nd op the Branch Manager, Andhra Bank Kasaragod
A10 - newspaper cuttings
X1- statement of account issued by SBT Kasaragod branch.
Sd/ Sd/ Sd/
MEMBER MEMBER PRESIDENT
eva /Forwarded by Order/
SENIOR SUPERINTENDENT
