Manipal Sowbhagy Nidhi

**admin** · 09-07-2009, 05:01 PM

1. (a) This Complaint is filed on 7.2.2009 u/s 12 of the Consumer Protection Act, 1986 alleging deficiency of service by the Opposite Parties and seeking certain reliefs against the Opposite Parties which according to the Complainant, are appropriate.

The Complaint in brief is as hereunder; The 1st Opposite Party is a Company registered under the provisions of the Companies Act, 1956. The 2nd Opposite Party is the representative of the 1st Opposite Party-Company. The Complainant has invested/ deposited her hard earned savings in the 1st Opposite Party-Company in the form of Sowbhagya Lakshmi Cash Certificate. In all, there are 8 investments at the rate of Rs.2,000/- in between the period from 30.12.1997 to 13.8.1998 totalling Rs.16,000/-.
The total maturity value of those investments is to the tune of Rs.32,900/-. The amount so invested became matured on the completion of the 60th month from the respective date of investment. The Complainant after maturity of those investments, sought for payment, but, the Opposite Parties rejected that request. In that connection, a letter is also written to the Opposite Parties by the Complainant. That came to be replied by the 2nd Opposite Party on behalf of the 1st Opposite Party-Company stating that the matured amount would be refunded strictly in terms of the directions of the Hon’ble High Court of Karnataka before which the 1st Opposite Party-Company has filed an Application u/s 391 of the Companies Act, 1956 and that the said Company Petition is pending disposal. In that reply, they have also regretted for the delay in refund. Thereafter, the Complainant wrote one more letter expressing her urgency. There was no compliance though assured. It is learnt that the said Company Petition No.193/2002 on the file of the Hon’ble High Court of Karnataka (Company Court) came to be disposed-off as per the Order dt.1.9.2006. Significantly, it was so disposed-off in the light of the fact that the Opposite Party-Company had chosen to withdraw that very Company Petition and in the circumstances, the Hon’ble High Court had permitted to so withdraw only on heavy costs.
Even after the disposal of that case, the Opposite Parties have not bothered to refund the amount due to the Complainant touching those deposits. The above conduct of the Opposite Parties in the circumstances amounts to deficiency of service within the purview of the Consumer Protection Act, 1986 and that has resulted in agony, sufferance and financial loss to the Complainant. Hence, this Complaint is necessitated to direct the Opposite Parties to pay the matured amount of Rs.32,900/- along with an interest at 18% p.a. from the respective date of maturity on the respective matured amount, till payment and to compensate the Complainant in a sum of Rs.25,000/- for the mental agony, sufferance and loss to which she was put to on account of that deficiency of service and also to direct the Opposite Parties to pay the cost of this litigation. (b) Along with the Complaint, the Complainant has chosen to produce a list with as many as 7 documents. Most of them are xerox copies.

2. On admission of the Complaint, notices were caused to the Opposite Parties to produce their Version of the case. The notices have been sent through RPAD. They have been served on the Opposite Parties. In response to the same, the 2nd Opposite Party on behalf of the 1st Opposite Party-Company has chosen to produce a letter dt.7.3.2009 addressed to this Forum which was received in this Forum on 11.3.2009. On perusal of the same, this Forum has treated that letter as the Version of the Opposite Parties in this case. In substance, it is as hereunder; The amounts so invested by the Complainant have been matured long back. Hence, this very Complaint is hit by the law of limitation as per Sec.24 A of the Consumer Protection Act, 1986. This Forum has no jurisdiction even to admit this Complaint since the Opposite Parties are located beyond the jurisdiction of this Forum. Further, the Hon’ble Supreme Court of India (Ref.to: (2006) 1 SCC Page 164 in the matter between Haryana Urban Development Authority v/s B.K. Sood), has held that Sec.24A of the Consumer Protection Act, 1986 expressly casts a duty on the Authority under the said Act for admitting a Complaint to dismiss the same unless the Complainant satisfies the Authority that he/she had sufficient cause for not filing the Complaint within the period of two years from the date of cause of action. This has been followed by the subordinate Authorities.
Further, the Complainant had added the 2nd Opposite Party to this Proceeding just to harass him. He is not a Service-Provider to the Complainant. Just because he had caused a reply to the Complainant, the Complainant could not have made him a party to this Proceeding. In the circumstances, the Complainant is not entitled for any relief much less the reliefs sought in this case. Accordingly, this Complaint be dismissed.

3. Thereafter, the matter stood posted for evidence. The Opposite Parties have not chosen to enter appearance in this Proceeding on any date of hearing of this case. The Complainant has produced her evidence by way of affidavit on 31.3.2009 along with a Memo with the original documents detailed at Sl.Nos 1 to 4 in the said Memo. The Opposite Parties have no evidence as such in this case. At the end, this Forum heard on merits.

4. In the circumstances, the following points do arise for our consideration and decision and they are; (i) Whether this Complaint is hit by the law of limitation? (ii) Whether the 2nd Opposite Party is an unnecessary party to this Proceeding? (iii) Whether this Forum has the jurisdiction to maintain this Complaint? (iv) Whether the Complainant has established the alleged deficiency of service by the Opposite Parties? (v) Whether the Complainant is entitled for any relief against the Opposite Parties in this case? (vi) What Order?

5. Our Findings to these points are as hereunder: i) No ii) No iii) Yes iv) Yes v) Yes vi) As shown in the operative portion of the Order here below. 6. We shall substantiate our findings on the following:

R E A S O N S

POINT NO.1: (a) It is true Sec.24 A of the Consumer Protection Act, 1986 gives a mandate that no Complaint shall be maintained by any Authority under the said Act if the same is not filed within a period of two years from the date when the cause of action of the Complaint arose. However, the said Act has provided a remedy to the Complainant in such a situation. The remedy is, the Complainant has to explain to the satisfaction of the said Authority that there was sufficient cause for not filing the Complaint within the stipulated period of limitation and incase the Authority is satisfied, then, the Complaint can be maintained and entertained.

(b) Touching Sec.24 A of the Consumer Protection Act, 1986, there are several judicial pronouncements including one from the Hon’ble Supreme Court of India referred to by the Opposite Parties in their Version. The fundamental question is, whether there is delay in filing the Complaint? If there is delay, then only the question of condonation of delay arises and in that event, nodoubt it is mandatory for the Complainant to satisfy the Authority under the said Act as to the cause of delay in filing the Complaint. With this background, let us look into the case in hand.

(c) As revealed in the evidence, the Investor-Complainant on maturity of the amount so deposited did not keep quiet on maturity of the deposits. On the other hand, she moved the Opposite Party-Company making a demand to make payment of the same since matured. The earliest demand in that regard in the form of a letter is so made as revealed in the evidence, on 26.4.2003. A copy of the said letter is made available by the Complainant along with the Complaint itself in evidence. The 2nd Opposite Party has chosen to cause a reply to that letter and a copy of the same is also made available by the Complainant. It is dt.10.7.2003. In that letter, while admitting the facts and thanking the Investor-Complainant for the confidence, she reposed on the 1st Opposite Party-Company, it is contended that the demand for refund would be considered and would be refunded strictly in terms of the directions of the Hon’ble High Court of Karnataka before which an Application is filed by the 1st Opposite Party-Company u/s 391 of the Companies Act, 1956 which is pending disposal. Wherefore, the Opposite Parties have confirmed their liability without any refusal or denial to refund ofcourse, subject to the direction of the Hon’ble High Court of Karnataka in the concerned Application referred to above. Further, the Complainant had kept in touch with the Opposite Parties even thereafter with a request to expedite the refund and ultimately as revealed in the copy of the Order dt.1.9.2006, that Application so filed by the Opposite Party-Company before the Hon’ble High Court of Karnataka came to be disposed-off since it was not pressed by the Opposite Party-Company themselves. In the circumstances, the Hon’ble High Court of Karnataka has further ordered Petitioner Company to pay a sum of Rs.15,000/- to the Advocates Welfare Fund and that Order was so made having due regard to the conduct of the Opposite Party-Company who was the Petitioner therein. In the circumstances, the pendency of that Application has saved the limitation atleast during the pendency period.

(d) After the disposal of that Application, the Complainant again requested the Opposite Parties to refund the matured amounts and in that regard, evidence is made available by the Complainant by way of copy of the registered notice dt.13.10.2008. That registered notice has been sent to the Opposite Parties through RPAD and as revealed in the postal acknowledgements made available by the Complainants, that legal notice has been served on the Opposite Parties. It is also significant to note in the context that the Complainant herein is not a party to that Company Petition before the Hon’ble High Court of Karnataka and therefore, the Complainant could not have been in a position to know when exactly that Application came to be so disposed-off. However, the fact remains that having come to know of the fact of disposal of that Application, the Complainant has expedited and laid the demand to refund the amounts due and that inspite of that written demand, the Opposite Parties have not chosen to refund or atleast to respond. On the other hand, the 2nd Opposite Party in this case has chosen to take a strange contention that he is in no way connected to the 1st Opposite Party-Company. If that was really so, what made him to cause a reply to the previous letter of the Complainant which we have referred to above? Wherefore, from the conduct of the Opposite Parties, it is very much revealed that they have tried their level best to deny or atleast delay the performance of their part of the obligation of refunding the amount and ultimately, they have driven the Complainant to this litigation. Moreover, as already stated, there is no refusal on the part of the Opposite Parties to refund the amount due to the Complainant. Even in this Proceeding also, there was no such refusal. Wherefore, having regard to the above aspects, we are of the considered opinion that in the given case, there can be no justification on the part of the Opposite Parties to take shelter under the pretext of limitation. As rightly pointed out by the learned Counsel representing the Complainant, as far as the limitation is concerned, the facts of each case needs be considered from its own background and in a case like this, if the doors of justice are shut to the Complainant, it would certainly amount to denial of justice. Wherefore, in the absence of any refusal on the part of the Opposite Parties to refund, the cause of action for the Complainant has remained alive. Accordingly, this point is answered.

7. POINT NO.2: The 2nd Opposite Party nodoubt has contended that he is an unnecessary party to this Proceeding. But from his own commissions and omissions as stated supra while discussing Point No.1, we have come to the conclusion that such a contention is taken by the 2nd Opposite Party to deny or delay the fruits of the deposits made by the Complainant with the 1st Opposite Party by hook or crook. The very reply letter dt.10.7.2003 which we have referred to above would clearly go to show that it is the 2nd Opposite Party who is competent to represent the 1st Opposite Party-Company and accordingly, he had so replied to the letter of the Complainant dt.26.4.2003 which we have referred to above. Accordingly, this point is answered against the 2nd Opposite Party.

8. POINT NO.3 (a): Inter-alia, the Opposite Parties have raised a point of jurisdiction. However, we do not find force in that contention. In the very Complaint itself, the Complainant has averred that the Opposite Party-company has a Branch Office in Jayanagar, Bangalore and that she had approached that Branch Office seeking refund on the maturity of the amounts so deposited. Significantly, it is not the case of the Opposite Parties that they have no such Branch Office in Jayanagar, Bangalore or anywhere else in Bangalore. Moreover, they have not denied the above averments in their Version. In addition to the same, it has to be seen that the demand is laid in Bangalore seeking refund.

(b) Under law, a Complaint shall lie either in the place of residence of the Opposite Party or the work place of the Opposite Party or where their Branch Office is situate or when the cause of action either whole or atleast in part has arisen.

(c) When that is the position, it has to be opined that the point of jurisdiction has been raised by the Opposite Parties only to see that the Complaint is dismissed somehow or the other to make undue enrichment if possible. Accordingly, this point is answered against the Opposite Parties.

9. POINT NO.4: Under Law, when a deposit becomes matured and payable and when a demand is made for the refund of the same, the non-refund would amount to deficiency of service within the province of the Consumer Protection Act, 1986. The same thing has happened in this case also. It is not the case of the Opposite Parties that the amount payable to the Complainant has already been paid. On the other hand, the evidence is to the effect that it is still due. Therefore, the non-payment or non-refund of the said amount by the Opposite Parties would certainly amount to deficiency of service within the purview of the Consumer Protection Act, 1986. Accordingly, this point is answered.

10. POINT NO.5: The Opposite Parties do not contend that there is no liability on their part to refund the amount due touching those investments. According to the Complainant and also according to the evidence on record, a sum of Rs.32,900/- is due from the Opposite Party-Company to the Complainant. The Complainant has sought for the refund of the said amount with interest at 18% from the date of maturity of each amount under those deposits, till refund and in addition to the same, a compensation in a sum of Rs.25,000/- for the mental agony, sufferance and loss caused by the Opposite Parties by their commissions and omissions in not refunding the matured amount at the appropriate time. Having regard to the nature of the investments or deposits so made, we are of the opinion that award of interest on the said amount at 18% p.a. is quite reasonable. The payment of interest has arisen on account of the deficiency of service by the Opposite Parties in not refunding the amount at the appropriate time. Moreover, the unnecessary prolongation of the refund has certainly resulted in mental agony, sufferance and loss to the Complainant and the same need be compensated reasonably to secure the ends of justice and according to us, a sum of Rs.5,000/- if fixed would secure the ends of justice.

11. POINT NO.6: In the result, we proceed to pass the following:

ORDER

The Opposite Parties since found deficient in rendering services to the Complainant, they are hereby directed to refund a sum of Rs.32,900/- (Rupees thirty-two thousand nine hundred) to the Complainants along with an interest at 18% p.a. from the date of the maturity of the respective deposit/investment, till refund as detailed in the Complaint. In addition to the same, the Opposite Parties shall pay a sum of Rs.5,000/- (Rupees five thousand) to the Complainant by way of cost and compensation. The Opposite Parties are granted 30 days from this date to comply this Order.

**adv.sumit** · 10-12-2009, 10:40 AM

Mrs.Pushpavathi,

W/o. B.Gopal,

Kaveri Nilaya, Krishna Nagar

Chikkamudnoor Village,

Puttur Taluk, D.K. …. COMPLAINANT

VERSUS

Manipal Sowbhagya Nidhi Ltd.,

Regd. Office: Manipal House,

Manipal.

Represented by Chairman,

Sri T.Narayana Pai. …. OPPOSITE PARTY

1. The brief facts of the complaint are as follows:

The Complainant contended that the Opposite Party is a Private Limited Company, transacting non-banking financial business having registered office at Manipal and branch office at Puttur Taluk, D.K. District. The Complainant claims to have deposited certain sum of money with the Opposite Party under “Sowbhagyalaxmi Cash Certificate” before the branch office at Shimoga. The details of which are furnished in the schedule here below:-

Folio No.

Amount Deposited

Date of Deposit

No. of period

Rate of Interest

Maturity

Date

Maturity Value

009565

38,000/-

31.7.2001

12 months &

1 Day

11.50 %

1.8.2002

42,383/-

The Complainant contends that on the date of maturity, she approached the Opposite Party to pay the amount due under the certificate but the Opposite Party sought some time to pay the same, stating that she is in financial difficulty and will make arrangement to repay the deposits. The Complainant further submitted that, she has been continuously demanding the repayment of the above deposits from the Opposite Party from the date of maturity. Hence the cause of action is continuous cause of action. The Complainant contends that, the Opposite Party has committed deficiency in service and hence the complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction to the Opposite Party to pay Rs.42,383/- with interest at 11.5% p.a. from 1.8.2006 till payment and Rs.20,000/- as expenses and compensation.

2. Version notice served to the Opposite Party and Opposite Party sent version through post and submitted that this Forum has no jurisdiction to entertain the complaint and the complaint is barred by limitation and prayed for dismissal of the complaint.

3. On the basis of pleadings, the points that arise for our consideration are as follows:

(i) Whether this Forum has jurisdiction to entertain the complaint?

(ii) Whether the Complainant is a consumer and the complaint is barred by limitation?

(iii) Whether the Complainant proved that the Opposite Party has committed deficiency in service?

(iv) If so, whether the complainant is entitled for the reliefs claimed?

(v) What order?

4. In support of the complaint, the Complainant – Mrs. Pushpavathi (CW1) filed affidavit reiterating what has been stated in the complaint and produced Ex C1 and C2 were marked for the Complainant. The Opposite Party has not filed their counter affidavit. We have heard and perused the pleadings, documents and evidence placed on record and answer the points are as follows:

Point No.(i) to (iii): Affirmative.

Point No.(iv) & (v): As per the final order.

REASONS

5. POINTS NO.(i) to (v):

Earlier this Hon’ble Forum was pleased to dismiss the above complaint as per the order dated 13.2.2009. As against the said order, the Complainant has preferred an appeal in Appeal No.913/2009 before the Hon’ble State Commission. The said appeal was allowed and the matter is remitted to dispose of the matter afresh after due notice to the parties.

After the remand, fresh notice was issued to both the parties. The Complainant led additional evidence and the Opposite Party not filed any evidence. The evidence led/produced available in the file are considered for disposal of the complaint.

Since the issue No.(i) was already decided in Appeal No.913/2009 by the Hon’ble State Commission, the question of discussing the point No.1 does not arise and the point No.(1) held in favour of the Complainant.

Financial service is one of the services specifically mentioned in Clause (o) of Section 2(1) of the Act. It is a settled law that when a company/firm transacting non-banking financial business accepts deposits from the public, the person who has deposited money with such company/firm, hires the service of that Company/firm, which has accepted the deposits. We have, therefore hold that service undertaken to be rendered by the Opposite Party is a service within the meaning of the Act and the Complainant is consumer.

As far as limitation is concerned, sub Section (2) of Section 24A of the Consumer Protection Act states that not withstanding anything contending Sub-Section (1), the complaint may be entertained after the specified period, if the Complainant satisfies the District Forum within such period. Now it is a well-established proposition that when the person who received the fixed deposit has failed to repay the deposit on the date of maturity, it is a recurring cause of action for the depositor so long as the person who received the deposit has not denied his liability to repay the deposit.

The Opposite Parties have no case that they have denied the Complainants’ right to recover the deposit until they filed their version before this Forum. The Complainants’ right is denied for the first time in the version. Therefore, we are of the view that, the Complainant has recurring cause of action until and unless it has been proved that the entire deposited amount has been paid to the Complainant. Hence, the point No.(ii) is held in favour of the Complainant.

The Opposite Party Company has contended that, they have moved the petition under Section 391 of the Companies Act before the High Court of Karnataka, which is pending before the High Court. But it is not the case of the Opposite Party Company that notice of such proceedings before the High Court is served on the Complainant or that the Complainant is party to the proceedings pending before the High Court.

Under such circumstances, we are of the view that pendency if any of Company Petition before the High Court of Karnataka does not stand in the way of the Complainant filing the complaint under Section 12 of the Consumer Protection Act until and unless there is a specific order to that effect. When the Opposite Party Company has failed to repay the amount under the Shreyus Certificates on the date of maturity or within a reasonable time thereafter amounts to deficiency in service. Even if the Opposite Party has filed a company petition before the High Court and even if a Company Petition allowed by the High Court, the orders passed by this Forum will be subject to the order passed by the High Court. Under such circumstances, we overrule the objections raised by the Opposite Party to that effect.

The Ex.C1 i.e. Sowbhagyalaxmi Cash Certificate produced by the Complainant in the case go to show that the amount has been matured for repayment on the date mentioned therein, which date has been already expired. The Opposite Party Company has admitted the deposit and their failure to repay the same on the date of maturity or within a reasonable time thereafter is a deficiency in service. Therefore, we hold that, the Opposite Party i.e. Manipal Sowbhagya Nidhi Limited is hereby directed to pay to the Complainant the matured amount of Rs.42,383/- under the Sowbhagyalaxmi Cash Certificate No.009565 along with interest at the rate of 9% per annum from the date of maturity till the date of payment.

In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded and since it is a second round litigation Rs.1,500/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

6. In the result, we pass the following:

ORDER

The Complaint is allowed. The Opposite Party i.e. Manipal Sowbhagya Nidhi Limited is hereby directed to pay to the Complainant the matured amount of Rs.42,383/- under the Sowbhagyalaxmi Cash Certificate No.009565 along with interest at the rate of 9% per annum from the date of maturity till the date of payment. And further Rs.1,500/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

**adv.sumit** · 10-21-2009, 02:07 PM

Mrs.Pushpavathi,

W/o. B.Gopal,

Kaveri Nilaya, Krishna Nagar

Chikkamudnoor Village,

Puttur Taluk, D.K. …. COMPLAINANT

VERSUS

Manipal Sowbhagya Nidhi Ltd.,

Regd. Office: Manipal House,

Manipal.

Represented by Chairman,

Sri T.Narayana Pai. …. OPPOSITE PARTY

The Complainant contended that the Opposite Party is a Private Limited Company, transacting non-banking financial business having registered office at Manipal and branch office at Puttur Taluk, D.K. District. The Complainant claims to have deposited certain sum of money with the Opposite Party under “Sowbhagyalaxmi Cash Certificate” before the branch office at Shimoga. The details of which are furnished in the schedule here below:-

Folio No.

Amount Deposited

Date of Deposit

No. of period

Rate of Interest

Maturity

Date

Maturity Value

009565

38,000/-

31.7.2001

12 months &

1 Day

11.50 %

1.8.2002

42,383/-

The Complainant contends that on the date of maturity, she approached the Opposite Party to pay the amount due under the certificate but the Opposite Party sought some time to pay the same, stating that she is in financial difficulty and will make arrangement to repay the deposits. The Complainant further submitted that, she has been continuously demanding the repayment of the above deposits from the Opposite Party from the date of maturity. Hence the cause of action is continuous cause of action.

The Complainant contends that, the Opposite Party has committed deficiency in service and hence the complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction to the Opposite Party to pay Rs.42,383/- with interest at 11.5% p.a. from 1.8.2006 till payment and Rs.20,000/- as expenses and compensation.

2. Version notice served to the Opposite Party and Opposite Party sent version through post and submitted that this Forum has no jurisdiction to entertain the complaint and the complaint is barred by limitation and prayed for dismissal of the complaint.

3. On the basis of pleadings, the points that arise for our consideration are as follows:

(i) Whether this Forum has jurisdiction to entertain the complaint?

(ii) Whether the Complainant is a consumer and the complaint is barred by limitation?

(iii) Whether the Complainant proved that the Opposite Party has committed deficiency in service?

(iv) If so, whether the complainant is entitled for the reliefs claimed?

(v) What order?

4. In support of the complaint, the Complainant – Mrs. Pushpavathi (CW1) filed affidavit reiterating what has been stated in the complaint and produced Ex C1 and C2 were marked for the Complainant. The Opposite Party has not filed their counter affidavit. We have heard and perused the pleadings, documents and evidence placed on record and answer the points are as follows:

Point No.(i) to (iii): Affirmative.

Point No.(iv) & (v): As per the final order.

REASONS

5. POINTS NO.(i) to (v):

Earlier this Hon’ble Forum was pleased to dismiss the above complaint as per the order dated 13.2.2009. As against the said order, the Complainant has preferred an appeal in Appeal No.913/2009 before the Hon’ble State Commission. The said appeal was allowed and the matter is remitted to dispose of the matter afresh after due notice to the parties.

After the remand, fresh notice was issued to both the parties. The Complainant led additional evidence and the Opposite Party not filed any evidence. The evidence led/produced available in the file are considered for disposal of the complaint.

Since the issue No.(i) was already decided in Appeal No.913/2009 by the Hon’ble State Commission, the question of discussing the point No.1 does not arise and the point No.(1) held in favour of the Complainant.

Financial service is one of the services specifically mentioned in Clause (o) of Section 2(1) of the Act. It is a settled law that when a company/firm transacting non-banking financial business accepts deposits from the public, the person who has deposited money with such company/firm, hires the service of that Company/firm, which has accepted the deposits. We have, therefore hold that service undertaken to be rendered by the Opposite Party is a service within the meaning of the Act and the Complainant is consumer.

As far as limitation is concerned, sub Section (2) of Section 24A of the Consumer Protection Act states that not withstanding anything contending Sub-Section (1), the complaint may be entertained after the specified period, if the Complainant satisfies the District Forum within such period. Now it is a well-established proposition that when the person who received the fixed deposit has failed to repay the deposit on the date of maturity, it is a recurring cause of action for the depositor so long as the person who received the deposit has not denied his liability to repay the deposit.

The Opposite Parties have no case that they have denied the Complainants’ right to recover the deposit until they filed their version before this Forum. The Complainants’ right is denied for the first time in the version. Therefore, we are of the view that, the Complainant has recurring cause of action until and unless it has been proved that the entire deposited amount has been paid to the Complainant. Hence, the point No.(ii) is held in favour of the Complainant.

The Opposite Party Company has contended that, they have moved the petition under Section 391 of the Companies Act before the High Court of Karnataka, which is pending before the High Court. But it is not the case of the Opposite Party Company that notice of such proceedings before the High Court is served on the Complainant or that the Complainant is party to the proceedings pending before the High Court. Under such circumstances, we are of the view that pendency if any of Company Petition before the High Court of Karnataka does not stand in the way of the Complainant filing the complaint under Section 12 of the Consumer Protection Act until and unless there is a specific order to that effect.

When the Opposite Party Company has failed to repay the amount under the Shreyus Certificates on the date of maturity or within a reasonable time thereafter amounts to deficiency in service. Even if the Opposite Party has filed a company petition before the High Court and even if a Company Petition allowed by the High Court, the orders passed by this Forum will be subject to the order passed by the High Court. Under such circumstances, we overrule the objections raised by the Opposite Party to that effect.

The Ex.C1 i.e. Sowbhagyalaxmi Cash Certificate produced by the Complainant in the case go to show that the amount has been matured for repayment on the date mentioned therein, which date has been already expired. The Opposite Party Company has admitted the deposit and their failure to repay the same on the date of maturity or within a reasonable time thereafter is a deficiency in service.

Therefore, we hold that, the Opposite Party i.e. Manipal Sowbhagya Nidhi Limited is hereby directed to pay to the Complainant the matured amount of Rs.42,383/- under the Sowbhagyalaxmi Cash Certificate No.009565 along with interest at the rate of 9% per annum from the date of maturity till the date of payment.

In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded and since it is a second round litigation Rs.1,500/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

**adv.sumit** · 10-22-2009, 05:01 PM

Mrs.Pushpavathi,

W/o. B.Gopal,

Kaveri Nilaya, Krishna Nagar

Chikkamudnoor Village,

Puttur Taluk, D.K. …. COMPLAINANT

VERSUS

Manipal Sowbhagya Nidhi Ltd.,

Regd. Office: Manipal House,

Manipal.

Represented by Chairman,

Sri T.Narayana Pai. …. OPPOSITE PARTY

1. The brief facts of the complaint are as follows:

The Complainant contended that the Opposite Party is a Private Limited Company, transacting non-banking financial business having registered office at Manipal and branch office at Puttur Taluk, D.K. District. The Complainant claims to have deposited certain sum of money with the Opposite Party under “Sowbhagyalaxmi Cash Certificate” before the branch office at Shimoga. The details of which are furnished in the schedule here below:-

Folio No.

Amount Deposited

Date of Deposit

No. of period

Rate of Interest

Maturity

Date

Maturity Value

009565

38,000/-

31.7.2001

12 months &

1 Day

11.50 %

1.8.2002

42,383/-

The Complainant contends that on the date of maturity, she approached the Opposite Party to pay the amount due under the certificate but the Opposite Party sought some time to pay the same, stating that she is in financial difficulty and will make arrangement to repay the deposits. The Complainant further submitted that, she has been continuously demanding the repayment of the above deposits from the Opposite Party from the date of maturity. Hence the cause of action is continuous cause of action. The Complainant contends that, the Opposite Party has committed deficiency in service and hence the complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction to the Opposite Party to pay Rs.42,383/- with interest at 11.5% p.a. from 1.8.2006 till payment and Rs.20,000/- as expenses and compensation.

2. Version notice served to the Opposite Party and Opposite Party sent version through post and submitted that this Forum has no jurisdiction to entertain the complaint and the complaint is barred by limitation and prayed for dismissal of the complaint.

3. On the basis of pleadings, the points that arise for our consideration are as follows:

(i) Whether this Forum has jurisdiction to entertain the complaint?

(ii) Whether the Complainant is a consumer and the complaint is barred by limitation?

(iii) Whether the Complainant proved that the Opposite Party has committed deficiency in service?

(iv) If so, whether the complainant is entitled for the reliefs claimed?

(v) What order?

4. In support of the complaint, the Complainant – Mrs. Pushpavathi (CW1) filed affidavit reiterating what has been stated in the complaint and produced Ex C1 and C2 were marked for the Complainant. The Opposite Party has not filed their counter affidavit. We have heard and perused the pleadings, documents and evidence placed on record and answer the points are as follows:

Point No.(i) to (iii): Affirmative.

Point No.(iv) & (v): As per the final order.

REASONS

5. POINTS NO.(i) to (v):

Earlier this Hon’ble Forum was pleased to dismiss the above complaint as per the order dated 13.2.2009. As against the said order, the Complainant has preferred an appeal in Appeal No.913/2009 before the Hon’ble State Commission. The said appeal was allowed and the matter is remitted to dispose of the matter afresh after due notice to the parties.

After the remand, fresh notice was issued to both the parties. The Complainant led additional evidence and the Opposite Party not filed any evidence. The evidence led/produced available in the file are considered for disposal of the complaint.

Since the issue No.(i) was already decided in Appeal No.913/2009 by the Hon’ble State Commission, the question of discussing the point No.1 does not arise and the point No.(1) held in favour of the Complainant.

Financial service is one of the services specifically mentioned in Clause (o) of Section 2(1) of the Act. It is a settled law that when a company/firm transacting non-banking financial business accepts deposits from the public, the person who has deposited money with such company/firm, hires the service of that Company/firm, which has accepted the deposits. We have, therefore hold that service undertaken to be rendered by the Opposite Party is a service within the meaning of the Act and the Complainant is consumer.

As far as limitation is concerned, sub Section (2) of Section 24A of the Consumer Protection Act states that not withstanding anything contending Sub-Section (1), the complaint may be entertained after the specified period, if the Complainant satisfies the District Forum within such period. Now it is a well-established proposition that when the person who received the fixed deposit has failed to repay the deposit on the date of maturity, it is a recurring cause of action for the depositor so long as the person who received the deposit has not denied his liability to repay the deposit.

The Opposite Parties have no case that they have denied the Complainants’ right to recover the deposit until they filed their version before this Forum. The Complainants’ right is denied for the first time in the version. Therefore, we are of the view that, the Complainant has recurring cause of action until and unless it has been proved that the entire deposited amount has been paid to the Complainant. Hence, the point No.(ii) is held in favour of the Complainant.

The Opposite Party Company has contended that, they have moved the petition under Section 391 of the Companies Act before the High Court of Karnataka, which is pending before the High Court. But it is not the case of the Opposite Party Company that notice of such proceedings before the High Court is served on the Complainant or that the Complainant is party to the proceedings pending before the High Court. Under such circumstances, we are of the view that pendency if any of Company Petition before the High Court of Karnataka does not stand in the way of the Complainant filing the complaint under Section 12 of the Consumer Protection Act until and unless there is a specific order to that effect.

When the Opposite Party Company has failed to repay the amount under the Shreyus Certificates on the date of maturity or within a reasonable time thereafter amounts to deficiency in service. Even if the Opposite Party has filed a company petition before the High Court and even if a Company Petition allowed by the High Court, the orders passed by this Forum will be subject to the order passed by the High Court. Under such circumstances, we overrule the objections raised by the Opposite Party to that effect.

The Ex.C1 i.e. Sowbhagyalaxmi Cash Certificate produced by the Complainant in the case go to show that the amount has been matured for repayment on the date mentioned therein, which date has been already expired. The Opposite Party Company has admitted the deposit and their failure to repay the same on the date of maturity or within a reasonable time thereafter is a deficiency in service. Therefore, we hold that, the Opposite Party i.e. Manipal Sowbhagya Nidhi Limited is hereby directed to pay to the Complainant the matured amount of Rs.42,383/- under the Sowbhagyalaxmi Cash Certificate No.009565 along with interest at the rate of 9% per annum from the date of maturity till the date of payment.

In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded and since it is a second round litigation Rs.1,500/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

Manipal Sowbhagy Nidhi

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