Karnataka

Chitradurga

CC/129/2019

Sri G.H.Yrushabendra Reddy,S/o Hanumantha Reddy - Complainant(s)

Versus

Veerabhadrappa, S/o Papanna - Opp.Party(s)

Khalid Ahamed

17 Sep 2019

ORDER

COMPLAINT FILED ON:07/02/2019

DISPOSED      ON:17/09/2019

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

CC.NO:129/2019

DATED: 17^th  September 2019

PRESENT :-     Smt. C.M.Chanchala.                     …. President

                           B.A.L.,,LL.B.,                 

                            

                        SRI. SHIVAKUMAR.K.N    :              MEMBER

                     M.Com., LL.B.,

 

……COMPLAINANT/S	1. Sri. G.H. Yrushabendra Reddy, S/o Hanumantha Reddy, Aged about 55 years, Retired KEB Employee, Adi Shakthi Nagara, 1st Cross, Challakere Road, Chitradurga Town. 2. Smt. Sharada W/o G.H. Yrushabendra Reddy, Aged about 45 years, House wife, Adi Shakthi Nagara, 1st Cross, Challakere Road, Chitradurga Town.   (Rep., by Sri. Khalid Ahamed, advocate)
V/S
…..OPPOSITE PARTY	1. Veerabhadrappa S/o Papanna Aged about 68 years, Retired KEB Employee, Baragere Beedi, Holalkere road, Chitradurga  Town. (Rep., by Sri.P.L. Ramesh Babu, advocate for OP.1) 2. The chief Executive Engineer (Commercial), Law and Enforcement, Bescom, Chitradurga. 3. The Chief Engineer, K.R. Circle, Kaveri Bhavan,  Bengaluru.  ((Rep., by Sri. T.K. ChandraShekara Rao, advocate for OP.2 and 3)

 

Pronounced on 17^th of September  2019  .

Written by C.M.Chanchala, President.

ORDERS

1.    This is a complaint of alleged deficiency of service filed under section 12 of the Consumer Protection Act,1986 by Sri.G.H.Yrushabendra Reddy and Smt.Sharada the Complainants against the Opposite parties (for short ‘OPs’) prayed refund of the payment of Rs.2,50,000 and compensation towards loss, mental agony and cost of the proceeding - etc.

The Complaint:

2.  The case of the complainants are that the 1^st complainant had barrowed a sum of Rs. 1,00,000/- from OP No.1 on 03-01-2011, at the time of barrowing amount the OP No.1 had taken signature of the complainant and his wife’s on the blank pronote and by misusing the said pronote, he had written on it Rs. 2,50,000/- instead of Rs.100,000/- by falsely stating that the complainant had agreed to pay interest at the rate of 2 % am thereon and on the basis of above said pronote OP No.1filed a false suit vide O.S No. 198/2013 before the Civil Judge court, Chithradurga which was decreed. 

3.   Thereafter, the OP-1 filed a execution petition and as per the order of the Hon’ble court an amount of Rs.9,934/- was being deducted in every month from the salary of complainant from 03-09-2014 to 09-02-2016 and totally a sum of Rs. 1,68,878/- was deducted and apart from that, during the time of his retirement a sum of Rs. 2,81, 793/- was deducted from the DCRG/gratuity without any authority and thereby, the OP-1 in colluding with OP No.2 and 3 had deducted a sum of Rs. 2,81,793/- in contrary to the monthly installment of Rs. 9,934/-, there he has deducted excess amount against the decreed amount. Hence he filed the present complaint alleging that the act of OPs is illegal and contrary to law and deficiency of service which should be compensate. 

4.      After hearing on admission the complaint was admitted and  notice were ordered to be issued to the OPs  to file their written versions under section 13(2) of the Consumer Protection Act,1986 (  in short “the Act) . The OP 1 to 3 have appeared through their counsel and filed written version.

Defense:

5.    The contents of the written version filed by OP-No.1 are that, after the decree of suit, the OP-1 filed execution petition against the complainants, though the complainant had appointed an advocate, he failed to file objection and further he also did not file any written statement in original suit also, because the complainants have barrowed Rs. 2,50,000/- from OP.No.1. The OP No.1 further stated that as per the order of Hon’ble Court, the OP No.2 and 3 have attached the amount and sent the same to the Hon’ble court and hence there is no chance of creating documents. Further he stated that he had issued legal notice to the complainant, inspite of receiving the same he did not replied and as the Civil court already decided the matter on the same cause of action, this forum has no jurisdiction to entitle such complaint.

6.    OP No.2 and 3 in their written version contended that the complainant is not consumer as defined in consumer protection Act, and present complaint is not maintainable for non-joinder of necessary parties, and it is also barred by limitation. Further these OPs have not commented on the allegation made in the complaint except by stating that, they have made deduction in the DCRG and retirement benefit as the court order in Ex.Pet 98/2013 arisen out of O.S no. 198/2013 and hence, legality raised in this complaint is outside the preview of the consumer forum, accordingly, they prayed for dismiss the complaint.  

Evidence:

7.      The complainant No.1 got himself examined as PW-1 by filing his affidavit as a part of examination in chief and also got Ex.A-1 to A-3 marked and closed the evidence.

8.    The OP No.1 got himself examined as RW-1 by filing his affidavit as a part of examination in chief and also got Ex.R-1 to R-5 marked. On behalf of OP No.2 and 3 one Mr. Mallikarjunaswamy got examined himself as RW-2 by filing his affidavit as a part of examination in chief and also got Ex.R-6 to R-8 marked and closed the evidence.

Arguments:

9.      We have heard the complainant and perused the written arguments filed by both side advocates.   

10.    The points that arise for our determination are;

1. Whether the present complaint is maintainable before the this Consumer Forum as the Civil Court already decided in the suit regarding the subject matter involved in the present complaint.?

2. What order?

11.    Our finding on the above points are as under;

          Point No.1: In the Negative.

          Point No2: As per final order,

          For the following;

Discussion and Reasoning:

Point No.1 and 2:

 

 12.  The complainants alleged that they have barrowed a sum of Rs. 1,00,000/- from  OP-No.1, at the time of transaction OP-No.1 obtained the signatures of them on the blank pronote, by misusing the said pronote, he filed a suit for Rs. 2,50,000/- with interest as if the complainants agreed to pay 2 % interest p.a on the said amount and obtained decree from the Civil court and later, the OP-No.1 filed execution petition and illegally in collusion with OP No. 2 and 3 recovered more than Rs.4,50,671/- .

13.     On perusal of EX- A 3 certified copy of the judgment passed in O.S No.198/13 it shows that the OP No.1 filed the said suit against the present complainants for recovery of sum of Rs.2,50,000/- with interest of 2 % p.a and same was decreed for Rs. 3,81,000/- with interest at the rate of 1 % p.a from the date of filing the suit till the date of its realization. Further EX- A 4 reflected that Execution petition was filed in No.98/2013 for recovery of Rs. 4,40,757/-.

14.    At the time of Arguments, the counsel of OPs submitted that the above said amount has been recovered from the salary and retirement benefit of the complainant.

15.     Admittedly, the complainants have knowledge of original suit as well as execution petition filed by the OP No.1 against them, as their counsel appeared and filed vakalath in both cases. If the complainants have aggrieved by the order passed in O.S 198/2013, they could challenge the said order before the Appellate court. If in Ex.Pet 98/2013 the OP No. 2 and 3 illegally deducted excess amount, they could have also challenge the same before the Appellate court. Once the subject matter is adjudicated and decided by the civil court, the complaint before consumer forum on the same subject matter is not maintainable.

16.      The above view also taken by the National Commission in the judgment reported in 2012 (2) CPR 19, in Sri.Shankar Gupta Jadhav VS Heritage Motors Pvt.Ltd case. In the said case it is held that “ once out of several remidies, one of the remedy is selected, other suit/ complaint  is barred in order to avoid multiplicity of decision. It is principle of election of remedies that will apply”.

In the present case also, the civil court already adjudicated and decided the subject matter in Original suit as well as in Execution petition. Hence present complaint is not maintainable before this Forum. Accordingly, we answered this point in the Negative.

                                      : ORDER:

The present complaint is dismissed.

Both parties shall bear their own cost.

The assistant registrar is directed to send free copies of this order to the all the parties free of cost within a week from today.

(Dictated to the Stenographer, typescript edited, corrected and then pronounced in the open court this 17th  day of September 2019)

 

MEMBER

PRESIDENT

ANNEXURE

Witness examined for the complainant side:

 

Complainant- G. H. Yrushabendra Reddy has examined-in-chief by filing affidavit as PW1.

Documents marked for the complainant side:

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Statement of deductions made by the OPs 2 and 3.
02	Ex-A-2:-	Deductions made in DCRG by the OP.3 date4d 05/08/2017
03	Ex-A-3:-	Letter given by the complainant to stop the deductions dated 13/01/2016

 

Witness examined for the opponents 1:

RW-1:- Veerabhadrappa by filing affidavit evidence.

Witness examined for the opponents: OP 2 and 3

RW-2:- Mallikarjunaswamy by filing affidavit evidence.

Documents marked for the opponents 1:

01	Ex-R-1:-	Certified copy of the promissory note executed by the complainant
02	Ex-R-2:-	Vakalath.
03	Ex-R -3:-	O.S. No.198/2013 Judgement.
04	Ex-R -4:-	Ex. Case No. 98/2013.
05	Ex-R -5:-	Vakalath of the complainant in Ex No.98/2013.

 

 

Documents marked for the opponents  2 and 3

01	Ex-R-1:-	Calculation Sheet of recovery from July 2014 to 31/01/2016.
02	Ex-R-2:-	Pension payment order No. 202417
03	Ex-R-3:-	Notice in Ex.98/2013.
04	Ex-R-4:-	Authorisation No. RPAR 202417/2017-18 dated 05/08/2017.

 

        (C.M.Chanchala )

                       President.

                                                                                     

 

 

         (Shivakumar.K.N )

                                                                                     Member.