Patakoti Sathyanarayana Vs. the Foreman Kapil Chit Funds Pvt. Ltd. and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1148035
CourtAndhra Pradesh State Consumer Disputes Redressal Commission SCDRC Hyderabad
Decided OnMar-21-2014
Case NumberF.A.No. 850 of 2013 against C.C.No. 44 of 2012, District Forum, Adilabad
JudgeGOPALA KRISHNA TAMADA, PRESIDENT, THE HONOURABLE MR. T. ASHOK KUMAR, MEMBER & THE HONOURABLE MR. S. BHUJANGA RAO, MEMBER
AppellantPatakoti Sathyanarayana
RespondentThe Foreman Kapil Chit Funds Pvt. Ltd. and Others
Excerpt:
oral order: (gopalakrishna tamada, president) the complainant before the district forum, adilabad is the appellant and he preferred this appeal dis-satisfied with the order dated 04-3-2013 in c.c.no.44/2012 whereby the district forum has deducted an amount of rs.57,730/- out of the chit amount of rs.5 lakhs and awarded only a sum of rs.4,42,270/- with interest @ 7.5% p.a. from the date of filing of the complaint till realization of the said amount. the brief facts of the complaint are that the complainant is a member of chit no.adt02j-20 for an amount of rs.5,00,000/- and the said chit has been terminated and he paid the monthly subscriptions in time. the complainant demanded the opposite party no.2 several times to pay the said amount but the opposite parties evaded to make payment and therefore he got issued a notice for which opposite party no.2 gave a reply with false allegations. the complainant alleged that one g.satyanarayana, asst.bpo of the opposite party visited him and asked him to give consent for deducting the amount as he stood as surety to others. it is the case of the complainant that till today neither the opposite parties 1 and 2 nor the prized subscribers to whom he stood as surety or any competent authority confirmed the due amount payable by the said persons and therefore got issued legal notice to opposite parties declining to give consent to deduct the amount but there was no response. as such, the complainant got issued a legal notice on 02-3-2012 to the third opposite party, registrar of chits and as there was no response, alleging that non payment of rs.5,00,000/- amounts to deficiency in service, he approached the district forum claiming the said amount of rs.5 lakhs with interest @ 6 paisa per rupee per month besides compensation of rs.2 lakhs and costs of rs.10,000/-. opposite parties 1 and 2 resisted the complaint and contended that the complainant stood as surety to one dr.megha dattu vide chit bearing no.fadt01p-11 who defaulted in payment of further instalments of rs.98,763/- and also to one dr.vinay kumar vide chit no.adt01j-25 for an amount of rs.29,845.00 and the employees of the opposite parties several times visited the clinics of the above persons and requested them to clear the dues and later dr.megha dattu cleared the due amount but dr.vinajy kumar has not paid the due amount. as per clause 17(d) of the agreement entered into by the complainant dated 19-2-2009, the opposite parties have right to deduct the defaulted amount from the amount of guarantor/surety and after deducting the amount, they offered a cheque for rs.4,44,955/- but the complainant refused to take the same and submitted that there is no deficiency in service on their behalf. opposite party no.3 also resisted the complaint and stated that it has given reply to the notice of the complainant on 09-3-2012 and stated that as there is lien over the surety amount, as per the chit agreement, the same can be recovered from the surety and the opposite parties 1 and 2 acted as per law. having considered the entire material on record and the evidence i.e. exs.a1 to a6 on behalf of the appellant and ex.b1 to b3 on behalf of the respondents, the district forum allowed the complaint in part directing the opposite parties 1 and 2 to pay an amount of rs.4,42,270/- with interest @ 7.5% p.a. from the date of filing of the complaint till realization and dismissed the complaint against opposite party no.3. as stated supra, the said order is under challenge before us. the main contention of the learned counsel for the appellant is that there is no evidence filed by the respondents 1 and 2 herein that the appellant herein stood as surety to one dr.vinay kumar and that the said dr.vinay kumar has become a defaulter subsequent to the auction and has to pay an amount of rs.26,664-00. the learned counsel for respondents herein filed written arguments and alleged that the appellant stood as a surety to dr.vinay kumar who became a defaulter to a tune of rs.26,664-00 and with interest the amount has worked out to rs.32,730/- and an amount of rs.25,000/- was deducted towards commission and thus an amount of rs.57,730/- has been deducted from out of the total amount of rs.5 lakhs. from a perusal of the ex.b3 marked on behalf of the respondents chit fund company i.e. opposite parties 1 and 2, what can be inferred is only to the extent that appellant stood as surety to one muga dattu for an amount of rs.7,60,000/- for chit no.fadto1p-11 and according to them the said megha dattu has cleared his amount and no material whatsoever was placed by the respondents to show that the appellant herein stood as guarantor to one dr.vinay kumar and there is nothing that can be inferred from the said ex.b3. the respondents 1 and 2 in addition to ex.b3 have not come forward with any evidence whatsoever to establish the fact that the said dr.vinay kumar has become a defaulter and the appellant stood as a surety. even in case if the appellant has stood as guarantor to the said dr.vinay kumar, the defaulted amount has to be shared among all the guarantors and the appellant alone cannot be made liable and the same has to be recovered from the complainant after taking redressal from a court of law and no such order or evidence whatsoever is placed to establish the said fact. in those circumstances, in our considered view, the said deduction of rs.26,664/- with accrued interest etc. i.e. rs.32,730/- is illegal and cannot be sustained. so far as rs.25,000/- which was deducted by the chit company is concerned, the learned counsel for the appellant fairly conceded that the chit fund company is justified in deducting the said amount towards its commission. in these circumstances, the order of the district forum awarding only an amount of rs.4,42,270/- cannot be sustained and it is modified by directing the respondents to pay an amount of rs.4,75,000/- with interest at 7.5% p.a. from the date of filing of the complaint till the date of realization and further pay an amount of rs.5,000/- towards costs. the appeal against opposite party no.3 stands dismissed. accordingly this appeal is allowed in part and the order of the district forum is modified by directing the respondents 1 and 2 to pay an amount of rs.4,75,000/- with interest at 7.5% p.a. from the date of filing of the complaint till the date of realization and also pay an amount of rs.5,000/- towards costs within a period of four weeks from the date of receipt of the order. the appeal against r3/opposite party no.3 stands dismissed.
Judgment:

Oral Order: (GopalaKrishna Tamada, President)

The complainant before the District Forum, Adilabad is the appellant and he preferred this appeal dis-satisfied with the order dated 04-3-2013 in C.C.No.44/2012 whereby the District Forum has deducted an amount of Rs.57,730/- out of the chit amount of Rs.5 lakhs and awarded only a sum of Rs.4,42,270/- with interest @ 7.5% p.a. from the date of filing of the complaint till realization of the said amount.

The brief facts of the complaint are that the complainant is a member of Chit No.ADT02J-20 for an amount of Rs.5,00,000/- and the said chit has been terminated and he paid the monthly subscriptions in time. The complainant demanded the opposite party No.2 several times to pay the said amount but the opposite parties evaded to make payment and therefore he got issued a notice for which opposite party No.2 gave a reply with false allegations. The complainant alleged that one G.Satyanarayana, Asst.BPO of the opposite party visited him and asked him to give consent for deducting the amount as he stood as surety to others. It is the case of the complainant that till today neither the opposite parties 1 and 2 nor the prized subscribers to whom he stood as surety or any competent authority confirmed the due amount payable by the said persons and therefore got issued legal notice to opposite parties declining to give consent to deduct the amount but there was no response. As such, the complainant got issued a legal notice on 02-3-2012 to the third opposite party, Registrar of chits and as there was no response, alleging that non payment of Rs.5,00,000/- amounts to deficiency in service, he approached the District Forum claiming the said amount of Rs.5 lakhs with interest @ 6 paisa per Rupee per month besides compensation of Rs.2 lakhs and costs of Rs.10,000/-.

Opposite parties 1 and 2 resisted the complaint and contended that the complainant stood as surety to one Dr.Megha Dattu vide chit bearing No.FADT01P-11 who defaulted in payment of further instalments of Rs.98,763/- and also to one Dr.Vinay Kumar vide Chit NO.ADT01J-25 for an amount of Rs.29,845.00 and the employees of the opposite parties several times visited the clinics of the above persons and requested them to clear the dues and later Dr.Megha Dattu cleared the due amount but Dr.Vinajy Kumar has not paid the due amount. As per clause 17(d) of the agreement entered into by the complainant dated 19-2-2009, the opposite parties have right to deduct the defaulted amount from the amount of guarantor/surety and after deducting the amount, they offered a cheque for Rs.4,44,955/- but the complainant refused to take the same and submitted that there is no deficiency in service on their behalf.

Opposite party No.3 also resisted the complaint and stated that it has given reply to the notice of the complainant on 09-3-2012 and stated that as there is lien over the surety amount, as per the chit agreement, the same can be recovered from the surety and the opposite parties 1 and 2 acted as per law.

Having considered the entire material on record and the evidence i.e. Exs.A1 to A6 on behalf of the appellant and Ex.B1 to B3 on behalf of the respondents, the District Forum allowed the complaint in part directing the opposite parties 1 and 2 to pay an amount of Rs.4,42,270/- with interest @ 7.5% p.a. from the date of filing of the complaint till realization and dismissed the complaint against opposite party No.3.

As stated supra, the said order is under challenge before us.

The main contention of the learned counsel for the appellant is that there is no evidence filed by the respondents 1 and 2 herein that the appellant herein stood as surety to one Dr.Vinay Kumar and that the said Dr.Vinay Kumar has become a defaulter subsequent to the auction and has to pay an amount of Rs.26,664-00.

The learned counsel for respondents herein filed written arguments and alleged that the appellant stood as a surety to Dr.Vinay Kumar who became a defaulter to a tune of Rs.26,664-00 and with interest the amount has worked out to Rs.32,730/- and an amount of Rs.25,000/- was deducted towards commission and thus an amount of Rs.57,730/- has been deducted from out of the total amount of Rs.5 lakhs.

From a perusal of the Ex.B3 marked on behalf of the respondents chit fund company i.e. opposite parties 1 and 2, what can be inferred is only to the extent that appellant stood as surety to one Muga Dattu for an amount of Rs.7,60,000/- for Chit No.FADTO1P-11 and according to them the said Megha Dattu has cleared his amount and no material whatsoever was placed by the respondents to show that the appellant herein stood as guarantor to one Dr.Vinay Kumar and there is nothing that can be inferred from the said Ex.B3. The respondents 1 and 2 in addition to Ex.B3 have not come forward with any evidence whatsoever to establish the fact that the said Dr.Vinay Kumar has become a defaulter and the appellant stood as a surety. Even in case if the appellant has stood as guarantor to the said Dr.Vinay Kumar, the defaulted amount has to be shared among all the guarantors and the appellant alone cannot be made liable and the same has to be recovered from the complainant after taking redressal from a court of law and no such order or evidence whatsoever is placed to establish the said fact. In those circumstances, in our considered view, the said deduction of Rs.26,664/- with accrued interest etc. i.e. Rs.32,730/- is illegal and cannot be sustained. So far as Rs.25,000/- which was deducted by the chit company is concerned, the learned counsel for the appellant fairly conceded that the chit fund company is justified in deducting the said amount towards its commission. In these circumstances, the order of the District Forum awarding only an amount of Rs.4,42,270/- cannot be sustained and it is modified by directing the respondents to pay an amount of Rs.4,75,000/- with interest at 7.5% p.a. from the date of filing of the complaint till the date of realization and further pay an amount of Rs.5,000/- towards costs. The appeal against opposite party no.3 stands dismissed.

Accordingly this appeal is allowed in part and the order of the District Forum is modified by directing the respondents 1 and 2 to pay an amount of Rs.4,75,000/- with interest at 7.5% p.a. from the date of filing of the complaint till the date of realization and also pay an amount of Rs.5,000/- towards costs within a period of four weeks from the date of receipt of the order. The appeal against R3/opposite party no.3 stands dismissed.