Complaints filed on: 26-03-2021

                                                      Disposed on: 27-06-2022

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, TUMAKURU

CC.No.33/2021

DATED THIS THE 27^TH DAY OF JUNE, 2022

PRESENT

SMT.G.T.VIJAYALAKSHMI, B.Com, L.L.M, PRESIDENT

SRI.KUMARA.N, B.Sc., L.L.B, MEMBER

SMT.NIVEDITA RAVISH, B.A., L.L.B, LADY MEMBER

Complainant: -   

Hanumantharaju, C.N

S/o. late Narasimhamurthy,

Aged about 52 years,

R/at Sri Harsha,Puttanjuneya Swamy temple Road, Kuvempunagara, Tumakuru

(By Sri.N.R. Lokesh, Advocate)

V/s

Opposite parties:-

1. The President, Sri Vinayaka Souharda Pattina Sahakari Niyamitha, Lakshmiram building, Behind Dwaraka hotel,

MG Road, Tumkur-01

2. The Secretary, Sri Vinayaka Souharda Pattina Sahakari Niyamitha, Lakshmiram building, Behind Dwaraka hotel,

MG Road, Tumkur-01

3. B.N.Puttanarasareddy, Ex-President, Present Director  of Sri Vinayaka Souharda Pattina Sahakari Niyamitha, Lakshmiram building, Behind Dwaraka hotel,

MG Road, Tumkur-01

4. T.R. Radha,

W/o Sri B.N.Puttanarasareddy Aged about42 Years,R/at SIRI Nilaya, Bettalur Cross,Bellavi Hobli.SSMC post,Bheemasandra,

(OP No.1 by Sri LNT ,

OP Nos 2 and 3- Exparte)

                                                (OP No.4 by Sri.L.Ramanjaiah, Advocate)

                                                          :O R D  E R :

SRI.KUMARA,N.  MEMBER

This complaint was filed under Section 35 of Consumer Protection Act, 2019 to direct the Opposite parties (hereinafter called as OPs) to pay a sum of Rs.4,00,000-00 which was deposited as Fixed Deposit under FDR No 434 and 431 of Rs 2,00,000-00 each and RD amount of Rs 75,168-00 with accrued interest and compensation of Rs 1,00,000-00 towards mental agony and litigation expenses to the complainant.

2. It is the case of complainant that the OP Nos.1 and 2 are the present President, and Secretary and OP Nos. 3 and 4 are Ex president and Ex Director respectively. The OP Nos. 1 to 3 are present Directors of Sri Vinayaka Souharada Patthina Sahakari Niyamitha, Tumakuru.  On the request made by the OP No 3, the complainant has deposited a sum of Rs.4,00,000-00 on 03-10-2020 vide Fixed Deposit Receipts No. 434 and 431 of Rs 2,00,000-00 each and maturity date was 03-02-2021. Further the complainant had opened RD Katha bearing No 211 for the period of 36 months with monthly payment of Rs 2,349-00. Accordingly the complainant has paid 28 installments accounting to Rs 75,168-00. The complainant has approached the OPs for return of the matured fixed deposit and RD amount. The OPs in spite of several requests have failed to return the matured fixed deposit and RD amount. Hence, this complaint.     

3. Initially Sri NRL filed vakalath for OP Nos.1 but has not filed version and thereafter remained absent for rest of the proceedings. OP No 2 despite the service of notice remained exparte. Notice of OP No.3 was published in Samyakta Karnataka Kannada daily newspaper and even after publication of notice proceeded exparte.

4. Complainant counsel has filed IA under Order XXXVlll Rule 5 of CPC along with six documents and heard the learned counsel on said IA. Section 38 of CP Act, 2019 empowers this commission to pass interim order. The complainant alleged that OP No 3 has purchased some properties out of the society funds in his wife name Smt.T.R. Radha and in turn she has gifted same properties to her daughter and brother which purchased by OP NO.3 in her name. By considering the complainant’s apprehension of transferring properties before disposal of the complaint and further complainant had made out a prime facie case to pass an interim order by this commission on the application filed by the complainant passed exparte order restraining the OP No 3, his wife, daughter and brother in law of OP No 3 from alienating, transferring or creating charge over the said properties till disposal of this complaint.

5.       Sri LRJ filed vakalath along with IA under Order 1 Rule 10 of CPC to implead Smt T.R. Radha as necessary party to this complaint (Proposed OP No.4) since she was ex Director of Sri Vinayaka Souharada Patthina Sahakari Niyamitha, Tumakuru. On hearing said IA, by imposing cost of Rs 300-00 OP No 4 impleded as party, i.e.  OP No4 . Later on OP No 4 counsel filed IA regarding maintainability of interim order passed by this commission under Order 38 Rule 5 of CPC r/w Section 38 of CP Act, 2019 restraining the OP No 3, his wife, daughter and brother in law of OP No 3 from alienating, transferring or creating charge over the said properties till disposal of this complaint.

6. OP 4 counsel produced 12 documents and following citations.

1.       Judgment in W.P.No.5223/2009 passed by the Hon’ble High Court of Judicature of Bombay Bench at Aurangabad, Dt:22.12.2010.

2.       AIR 2003 SC 1043 (1) State of Karnataka V/s Vishwabharati Housing Building Co-Operative and others dated:17.01.2003 in Appeal (Civil) No.9927/1996 passed by the Hon’ble Supreme Court of India.

7.       Complainant counsel produced totally 17 documents and following citations.

1. 2000 AIR (Alahabad)97

2. 2004 AIR (Kerala) 245

3. 1990 AIR (Punjab) 28

4. Commentary on order 38 Rule 11 of CPC

8.       On perusal of IA We heard the arguments of both the parties on IA.

9.       One Sri Sridharababu, advocate filed IA along with affidavit on behalf of Sri Bramhananda Reddy T.R S/o  Ramareddy residing at Thippural, ID Hally Hobli, Madhugiri Taluk, Tumkur District to implead them as he is necessary party to the complaint (Proposed OP No 5)

10.     On perusal of IA, we heard the arguments of both the counsels.

11. The complainant filed his affidavit evidence on 21-04-2022 and produced 17 documents which are marked Exs.P1 to P17.

12. The OP No.1 and 4 neither filed their version nor affidavit evidence.

13. Heard the arguments of the learned counsel for the complainant. Further OP No.1 and 4 did not come forward to advance their arguments.

14.  On hearing the arguments of learned counsel for complainant and perusal of the documents the points would arise for determination are as under;

1. Whether the complainant proves the deficiency of service on the part of OPs?

2. Is complainant entitled to the relief sought for?

15.      Our findings on aforesaid points are as under:

Point No.1: In the affirmative

Point No.2: In the partly affirmative for the below            

:R E A S O N S:

Point Nos.1 and 2:

16.     The learned counsel for the complainant submitted that the OPs have failed to return the fixed deposit amount and amount in the RD account. The complainant in the affidavit evidence has reiterated the averments of complaint. The complainant has produced Exs.P1 to P17 documents.

17. The complainant has deposited total a sum of Rs.4,00,000-00 on 03-10-2020 vide Fixed Deposit Receipts No 434 (Ex P2) and 431 Ex P1) of Rs 2,00,000-00  each and maturity date was on 03-02-2021.The complainant produced Ex P3 which was copy of RD account of complainant with OP society,which revels Rs 75168=00 payment made by the complainant. The OP society is running finance transactions by collecting deposits from the public including the complainant. It was the obligation on the part of OP society to return the FD amount immediately after maturity or on the demand made by the depositors/complainant. The complainant has produced Ex.P5 which was requisition letter of complainant dated 05-01-2021, which was given to the OP society to return his FD amount.  The OPs though they have served with notice did not come forward to challenge the case of complainant. The OPs have agreed to give interest @ 8 % p.a. on the FD amount. The OPs have committed deficiency of service in not retuning the amount deposited by complainant. The OPs have compelled the complainant to approach this Commission thereby he suffered mental and physical agony and for that the OPs shall pay compensation of Rs.20,000-00 and litigation cost of Rs.10,000-00 to the complainant.

18. Sri LRJ filed vakalath along with IA under Order 1 Rule 10 of CPC to implead Smt T.R. Radha as OP No.4 since she is necessary party to this complaint. On hearing said IA, by imposing cost of Rs 300-00 OP No 4 impleded as party. Later on OP No 4 counsel filed IA regarding maintainability of interim order passed by this commission under Order 38 Rule 5 of CPC r/w Section 38 of CP Act, 2019 restraining the OP No 3, his wife, daughter and brother in law of OP No 3 from alienating, transferring or creating charge over the said properties till disposal of this complaint. OP No 4 counsel produced Ex R 1, Bank statement of T.R. Bramhananda Reddy who is brother of OP No 4, transferred Rs 200000=00 to the OP No 3 bank account. Ex R 2 to R 3 Rd account statement of OP No 3, Ex R 4 Bank receipt of OP society where in OP 3 paid Rs 400000=00 loan amount, Ex R5 to R7 Bank statements of OP No 3 and 4,Ex R 8 to 11 copy of police complaint acknowledgement, Ex R 12 – 13 copy of the IT returns of OP No 4 for the year 2015-16  2016-17,Ex R 14 to 18 copy of documents related to beauty parlor of OP No 4.  Further OP No 4 has not produced any evidence with regard to source of income to purchase the said properties from her husband OP No.3. The OP No.4 in order to dupe the depositors of OP society and to avoid to eat of the fruits of complaint intentionally has gifted away and transferred by way of sale deed the said properties in favour of her daughter and brother respectively. The OP NO.3 to cheat the depositors of OP society has purchased immovable properties out of OP society amount in the name of his wife OP No.4 and in turn she has gifted and transferred away in favour of her daughter and brother names respectively. The OP No.3 and 4 have not made out any case to vacate the exparte order passed by this commission. hence, IA is liable to be dismissed.

19. One Sri Sridharababu, advocate filed IA along with affidavit on behalf of Sri Bramhananda Reddy T.R S/o  Ramareddy residing at Thippural, ID Hally Hobli, Madhugiri Taluk, Tumkur District to implead them as he is necessary party to the complaint (Proposed OP No 5 ). On hearing of IA it reveals that Sri.Bramhananda Reddy T.R is own brother of OP No.4. In the preceding paragraph it is held that OP NO.4 has not placed any evidence to show that out of her own source of income she has purchased immovable properties. The OP NO.3 has purchased properties in the name of his wife out of OP society funds. Further OP No.4 was also director of said OP society. The husband and wife to cheat the investors have purchased properties in the name of OP No.4 and later on transferred in the name of daughter and brother of OP No.4 by way of gift and sale deed respectively. In view of the above discussion, we have come to conclusion that Sri Bramhananda Reddy T.R is neither present nor ex director of the OP society Sri Vinayaka Souharda Pattina Sahakari Niyamitha, Tumkur. The attachment of property shall be continued to protect the interest of depositors of OP society. If the attachment is raised, the investors will not get fruits of the complaint. The said Sri.Brahmanand Reddy T.R is neither necessary nor formal party hence, said IA deserves to be dismissed.

20. For the forgoing reasons, the complaint deserves to be allowed. In the result, we proceed to pass the following;

:O R D E R:

The complaint is partly allowed directing OP Nos.1 to 4 shall jointly and severally liable to pay a sum of Rs.4,00,000-00 and Rs  75,168-00 (Rs. Four lakhs and Rs Seventy five thousand one hundred sixty eight only) with interest @ 8 % p.a. from the date of deposit i.e.  03-10-2020 till the date of payment to the complainant.

It is further ordered that the OPs shall pay compensation of Rs.15,000-00 and litigation cost of Rs.10,000-00 to the complainant within 30 days from the date of this order, otherwise, it carries interest @ 9% p.a. from the date of default till payment.

The exparte order of attachment of immovable properties is hereby made absolute.  

Furnish the copy of order to the complainant and opposite parties at free of cost.