IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM

DATED THIS THE    30^th  DAY OF JULY 2022

Present: -        Sri.E.M.Muhammed Ibrahim, B.A, LLM. President

           Smt.S.Sandhya   Rani. Bsc, LLB ,Member

         Sri.Stanly Harold, B.A.LLB, Member

    CC.No.305/2020

Leelamma T.Panicker,

Kallarakkal Thadathivila House,

Kundara, Kollam 691521.                               :           Complainant

(By Adv. P.Sajeev Babu)

V/s

1. Popular Traders

            Regd.Office Popular Towers,

      Vakayar , Pathanamthitta

   (Incorporated under the Companies Act 2013),

    Rep.by its Managing Partner,                                : Opposite Parties

    Thomas Daniel.

2. Y.Mathew Panicker,

              Former Branch Manager of Popular Traders

             Kundara, Residing at Maliyekkal Mathew Bhavan,

             Punnamukku, Perumpuzha P.O.

3. T.Mathunni Panicker,

           Branch Manager,

                Popular Dealers,

                Kundara residing at Plavila Thekkathil

            Raju Nivas, Ambipoika

ORDER

Sri. E.M.MUHAMMED IBRAHIM , B.A, LLM,President

            This is a case based on a complaint filed U/s 35 of the Consumer Protection Act 2019.

            The averments in the complaint in short are as follows:-

            The 1^st opposite party is a company registered under the Indian Companies Act 2013.  2^nd and 3^rd opposite parties are the former and present managers respectively of the Kundara Branch of 1^st opposite party.  As attracted by the advertisements made by the 1^st opposite party in the newspaper dailies and other

publications and also by believing the words of 2^nd opposite party, the complainant has deposited 40,000/-before the 2^nd opposite party for a period of 36 months and in turn the 1^st and 2^nd opposite party, signed and issued a fixed deposit receipt No.0560339 with A/c No.1020381900043 dated 08.05.2019.  Again the complainant deposited Rs.60,000/- on 10.12.2019 before 2^nd opposite party for a period of 12 months and in turn the 1^st and 2^nd opposite party signed and issued a fixed deposited receipt No.0575921 with A/c No.1020381900598.  Again on the same day the complainant deposited Rs.80,000/- before the 2^nd opposite party for a period of 12 months @ 12% per annum and in turn the 1^st and 2^nd opposite party signed and issued a fixed deposit receipt No.0575922 with A/c No.1020381900599 dated 10.12.2019.  The opposite parties have allowed the complainant to withdraw the accrued interest in each and every month.  Thus the opposite parties had paid the monthly interest to the complainant up to July 2020 and thereafter they have failed to pay the same.  Though the complainant had approached the opposite parties several times for the deposit amount and interest, they did not turned up and subsequently the complainant could realized that the opposite parties have closed their offices.  According to the complainant for the illegal enrichment of the opposite parties they have illegally withhold the deposit money of the complainant and which caused much mental agony and lot of inconveniences apart from financial loss.  This is a clear case of deficiency in service and unfair trade practice.  In the circumstances the opposite parties 1 to 3 are a) directed to pay Rs.1,80,000/- along with interest @12% per annum from

10.07.2020 till the date of payment to the complainant. b) directed to pay Rs.20,000/- to the complainant towards the compensation for mental agony, discomfort and inconveniences caused to the complainant. c) directed to pay Rs.10,000/- to the complainant towards the costs of this proceedings.  Hence the complaint.

            Though notice was issued, opposite parties 1 to 3 remained absent.  They were set exparte.  Complainant filed proof affidavit and got marked Ext.A1 and A2 series  3 in numbers documents.  Heard the counsel for the complainant and perused the records.

            Ext.A1 is copy of advertisement notice issued by San Popular Finance.  Ext.A2 series 3 numbers, in which Ext.A2 receipt indicates that the complainant Smt.Leelamma T.Panicker has contributed a sum of Rs.60,000/- to Popular Traders on 10.12.2019 @ 12% profit share for a period of 12 months w.e.f. from 17.10.2019.  Ext.A2(b) receipt indicates that the above Leelamma has contributed Rs.40,000/- to Popular Traders on 08.05.2019 @ 12% profit share for a period of 36 months w.e.f. 03.04.2019. Ext.A2 (c) receipt indicates that the above Leelamma has contributed  Rs.80,000/- to Popular Traders on 10.12.2019, @ 12%  profit share for period of 12 months w.e.f.8.11.2019 but which is only a photocopy and it is seen recorded as in handwriting with ink that “ original certificate received for payment” on 30.03.2020.  That the original of the Ext.A2(c) is not produced since it has been received by the opposite parties for the purpose of payment of money.  However the complainant has neither pleaded in the complaint nor in the chief affidavit that the original receipt has been received  by the opposite parties for payment.  In the circumstances it is to be presumed that when a document (Ext.A2(c) ) creating obligation is in the hands of the obligor (opposite party), the obligation has been discharged.,  Therefore the complainant is not entitled to get a decree or order based on Ext.A2(c) photocopy of receipt that the amount covered by that document has been paid to the complainant.

            In view of the unchallenged averments in the complaint coupled with Ext.A2(a) and A2(b) documents we are of the view that the complainant is entitled to get the amount covered by the two receipts along with agreed rate of share of profit with the date of effect of that deposit/contribution.

            It is clear from the available materials that the complainant has sustained much mental agony apart from financial loss due to the non-payment of the amount deposited or contributed along with agreed share of profit.  Hence there is deficiency in service and unfair trade practice on the part of the opposite parties and therefore the complainant is entitled to get reasonable compensation for mental agony also.      

            In the result complaint stands allowed in part directing the opposite parties 1 to 3 to return the amount covered by Ext.A2(a) and A2(b) documents with the agreed rate of profit @ 12% per annum from the date of deposit/contribution till the date of order and thereafter interest @ 9% per annum till the date of realization.

            The relief to recover amount covered by Ext.A2 (c) photocopy of the document stands dismissed.

            The opposite parties 1 to 3 are directed to pay compensation to the tune of Rs.10,000/- also directed to pay costs Rs.5,000/-.

            If the opposite parties fails to comply with the above directions within 45 days from the date of passing this order the complainant is entitled to recover the amount covered by relief No.1 to 3 from the opposite parties 1 to 3 jointly and severally and from their assets. 

Dictated to the Confidential Assistant  Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the  Open Commission this the  30^th  day of  July 2022.

E.M .MUHAMMED IBRAHIM:Sd/-

S.SANDHYA RANI:Sd/-

                                                                                    STANLY HAROLD:Sd/-

Forwarded/by Order

                                                                                       Senior superintendent

INDEX

Witnesses Examined for the Complainant:-Nil

Documents marked for the  complainant

Ext.A1            : Copy of advertisement notice issued by San Popular Finance

Ext.A2 series

(a), (b) & (c)    : Original Fixed Deposit receipts   

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-Nil