KERAL A STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NOS.116/12 & 189/12
COMMON JUDGMENT DATED 24.9.12
PRESENT
SHRI.K.CHANDRADAS NADAR -- JUDICIAL MEMBER
APPEAL NO.116/12
M.N.Jayachandran,
S/0 Narayanan Nair, -- APPELLANT
Mundamattom House,
Thodupuzha P.O,Idukki Dist.
(By Adv.J.C.Stephenson)
Vs.
1. The Managing Director,
M/s.Sree Gokulam Chit &
Finance Co.(P) Ltd;
Sree Gokulam Towers No.66,
Arcot Road, Kodambakkom, -- RESPONDENTS
Chennai – 600024.
2. The Branch Manager,
M/s.Sree Gokulam Chit &
Finance Co.(P) Ltd;
Thodupuzha Branch,
Thodupuzha P.O, Idukki Dist.
APPEAL NO.189/12
1. M/s.Sri.Gokulam Chits & Finance Company (P) Ltd
Reg.Office, Chennai – 66004 reptd.
By its Managing Director,
Sri.Gokulan Gopalan through his
Power of attorney holder, Sri.Renjith C.R
S/o Chandrasekharan Nair, -- APPELLANTS
Legal Assistant, Sree Gokulam Chit &
Finance Co.Pvt.Ltd
Kowdiar, Thiruvananthapuram.
2. The Manager,
Sri.Gokulam Chits & Finance Company (Pvt) Ltd
Thodupuzha Branch, Thodupuzha.P.O.
(By Adv.Kollamcode D.S.Jayachandran)
Vs.
M.N.Jayachandran, -- RESPONDENT
S/o Narayan Nair,
Mundamattam House, Thodupuzha P.O,
Idukki Dist. PIN 685 584.
(By Adv.Sreevaraham N.G.Mahesh)
COMMON JUDGMENT
SHRI.K.CHANDRADAS NADAR, JUDICIAL MEMBER
In these appeals the order of the CDRF, Idukki in CC.223/10 dated 26..9.11 is challenged. The complainant is the appellant in FA.116/12. He was a subscriber of 3 number of chits conducted by the opposite parties. The chits were having price money of Rs.10 lakh each. The chits commenced on 4.4.06. Of the 3 chits the complainant prized chit No.14 in April 2004 and prized the 2 remaining chits in May 2005. The complainants furnished security and he received the prize money. It is alleged that the opposite parties forced the complainant to execute guarantee agreement along with his wife. The complainant could not remit the further instalments due to financial crisis. Even then the complainant paid Rs.6,92,900/- each in all the chits inclusive of the dividend on the amount paid. After that the complainant paid Rs.10,000/- each in the 3 chits on 4.7.06. The opposite parties issued 3 notices dated 6.11.06 to the complainant claiming an amount of Rs.2,97,100/- per chit along with the interest thereon. Another notice was served in the month of December 2006 through the lawyer of the opposite parties claiming Rs.3,33,203/- per chit including interest at the rate of 18% per annum. The opposite parties have also instituted false complaint against the wife of the complainant based on a cheque allegedly issued by the wife of the complainant. She was acquitted of the offence under Section 138 of the Negotiable Instrument Act. The complainant several times approached the opposite parties requesting for a settlement but the opposite parties insisted for payment of Rs.50,000/- each in the 3 chits. The complainant paid the same on 5.9.10 and spent about Rs.10,000/- for various trips to Madras, Guruvayoor and Ernakulam for discussing the matter with the first opposite party. But the matter was not at all settled and the opposite parties tried to realize the amount from the complainant. They have threatened the complainant and the sureties with action based on forged documents. The complainant was also served with a notice stating that the total outstanding amount is Rs.5,23,852/- with interest at the rate of 26% per annum. After termination of the chits 3 years have elapsed. Hence the opposite parties are not entitled to demand any amount from the complainant as the claim is barred by limitation. Hence the complaint for a direction to return the title deeds and other documents of the complainant and the sureties and for compensation.
2. The opposite parties/appellants in FA.189/12 contended that the complainant had received an amount of Rs.7,50,000/- in each chits. Thus, he received a total amount of Rs.22,50,000/- from the opposite parties. Blank signed cheque leaves were never obtained by the opposite parties from the complainant or his sureties. At the time of receiving the prize money, the complainant and his wife signed an agreement and agreed to pay interest at the rate of 18% per annum for the instalments due. After receiving the prize money, the complainant never remitted the instalments. Notice was issued to the complainant in the year 2006 demanding Rs.2,97,100/- in each chit and the amount was not paid by the complainant. The opposite parties have right to realize the amount with interest. There was no deficiency in service on their part and the complaint was liable to be dismissed.
3. Before the CDRF, Idukki, the complainant examined 4 witnesses including the complainant himself. Exts.P1 to P11 were marked on the side of the complainant. No oral evidence was adduced from the side of the opposite parties. Exts. R1 to R6 (series) were marked on the side of the opposite parties. The Forum held that demand for interest at the rate of 24% per annum was not justified and it amounted to deficiency in service on their part. Accordingly the forum allowed the complaint in part and directed the opposite parties to settle the chits on payment of Rs.2,47,100/- in each chit with interest at the rate of 9% per annum from the date of termination of the chits. Aggrieved by the order, the opposite parties have preferred FA.189/12 and the complainant has preferred FA.116/12. The main grievance of the complainant/appellant is that the forum failed to hold that the claim of the opposite parties was barred by limitation. The common questions that arise for determination are firstly whether there was deficiency in service on the part of the opposite parties and secondly whether the forum and this Commission are entitled to go into question of limitation of the claim by the opposite parties.
4. Admittedly, the complainant subscribed to 3 chits conducted by the opposite parties each having prize money of Rs.10 lakhs. The complainant prized the 3 chits and received a total amount of Rs.22,50,000/-. Admittedly, there was default in payment of the instalments after receipt of the prize money. It was accordingly the opposite parties demanded the amounts from the complainant based on the agreement executed at the time of receipt of the prize money. Such a demand is described as deficiency in service. The forum found that demand for interest at the rate of 24% per annum is gross deficiency in service on the part of the opposite parties Such a demand can never be characterized as deficiency in service. In matters which are governed by agreement it is not for the forum to say that the agreement was illegal or opposed to law. It is true that demand was made for payment of the balance amount from the complainant. But once such demand is not met, it is incumbent on the part of the opposite parties to approach a Civil Court for realization of the amount. Then the complainant would get every opportunity to defend the suit. In such a suit the bar of limitation can be raised as a valid defence. So, also the correctness of the amount demanded would be a matter for adjudication by the Civil Court. But a Consumer Forum is not entitled to adjudicate such matters. What is the concern of the forum is deficiency in service on the part of the opposite party or whether he is guilty of unfair trade practice. On the admitted facts no such deficiency in service or unfair trade practice on the part of the opposite parties is established. A demand for agreed rate of interest for the prize money received by the complainant and not repaid can never be characterized as deficiency in service. Hence the CDRF, Idukki went wrong in allowing the complaint. It follows that FA.116/12 is liable to be dismissed and FA189/12 is liable to be allowed.
In the result, FA.116/12 is dismissed and FA.189/12 is allowed. The order of the CDRF, Idukki in CC.No.223/10 dated 26.9.11 is set aside. The complaint is dismissed and considering the facts and circumstances of the case, the parties are directed to bear their respective costs in the appeal.
K.CHANDRADAS NADAR -- JUDICIAL MEMBER
