State Consumer Disputes Redressal Commission
The Kodagu Coffee Grower Co-Operative & ... vs K.P.Thimmaiah on 17 August, 2011
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE Appeal No.2454/2010 Filed on 17/06/2010 Disposed Off 17/08/2011 BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE. DATED THIS THE 17th DAY OF AUGUST 2011 PRESENT HONBLE JUSTICE MR.K. RAMANNA : PRESIDENT SRI. A.M. BENNUR : MEMBER
SMT. RAMA ANANTH : MEMBER Appeal No.2454/2010
01. The Kodagu Coffee Growers Co-Operative Society Ltd., Coffee Krupa, Madikeri, Repted by its Secretary.
02. The President, The Kodagu Coffee Growers Co-Operative Society Ltd., Coffee Krupa .....Appellants O.Ps before the D.F. (By Shri/Smt. N.Ramachandra, Adv.,) V/s K.P.Thimmaiah S/o Late Poovaiah, R/o Badaga Village, Murnad, Madikeri Taluk, Kodagu District.
.....Respondents Complainant before the D.F. (By Shri/Smt. B.S.Basavaraju, Adv.,) :-O R D E R:-
BY HONBLE JUSTICE SRI K. RAMANNA : PRESIDENT This appeal is filed by the O.P. Nos.
1 & 2 to set-aside the order dated 28/04/2010 passed by the D.F.Madikeri in C.C.No.4/2010, whereby the complaint filed by the respondent came to allowed in part directing the ops to pay the balance amount of Rs.30,000/- along with interest at the rate of 10% Per Annum from the date of deposit till realization within 60 days.
2. Being aggrieved by the said order, they have come up with this appeal contending that conclusion arrived at by the D.F. that the cause of action arose on 06/01/2010 on the date of issue of legal notice is misconstrued as the cause of action as per the averment is 01/12/1997. Instead of dismissing the complaint, the complaint came to be allowed, which is illegal and incorrect. The D.F. failed to consider that though the respondent filed a complaint after lapse of 17 years which is barred by limitation and that the respondent being a member of the Society and party to the resolution, he cannot contend before the D.F. for alleged non payment of the balance of deposit amount. Hence, prays for dismissal of the complaint and to allow the appeal.
3. He has also filed an application U/s 5 of the Limitation Act to condone the delay with an affidavit of deponent explaining the delay.
4. After notice the respondent appeared through counsel and resisted the claim petition.
5. We have heard the arguments of the learned counsel for the appellants and in spite of sufficient time granted, the respondent did not turn up to put-forth his arguments. Hence, argument of respondent is taken as closed. We have perused the records.
6. The points for determination:-
(1) Whether the appellants have shown sufficient and reasonable grounds to condone the delay?
(2) Whether the D.F. is justified in allowing the complaint filed by the respondent/complainant?
(3) If so what order?
7. Our answers to the above points are:-
Point No(1) : In the Affirmative Point No(2) : In the Affirmative Point No(3) : As per final order for the following:-
REASONS Point No.(1):-
8. On careful scrutiny of the affidavit filed in support of the I.A.1, it reveals that there is a delay of 20 days in preferring this appeal. The order under challenge has been passed by the D.F. on 28/04/2010, which has been received in the first week of May 2010. Accordingly the matter was placed before the Board meeting, after discussion, the Board has passed resolution to prefer an appeal.
Therefore, there is a delay in preferring the appeal. If the delay is not condoned, the appellants will be put to great hardship and inconvenience.
9. As could be seen from the material that the order under challenge passed by the D.F. on 28/04/2010. The certified free copy signed by the Assistant Registrar cum Administrative Officer on 28/04/2010. Since the appellant being a Society, it cannot take individual decision.
Therefore, they have placed the matter before the Board meeting whether to prefer an appeal or not against the order under challenge. After discussion it is seen that a resolution came to be passed by the appellant to prefer an appeal. In such type of cases, such type of delay is bound to occur. The delay of 20 days is negligible and the same has been explained satisfactorily. Hence, point No.1 is answered in affirmative.
Point Nos (2) & (3):-
10. It is an undisputed fact that the respondent is a member of the Society. Apart from that he has deposited a sum of Rs.40,000/- with the appellants. At the time of deposit, the appellants have agreed to pay the amount covered under the deposit after maturity period and only on 01/12/1997 a sum of Rs.10,000/- has been paid out of Rs.30,000/- vide receipt No.1706, which is not in dispute. Since the appellants/O.Ps have not paid the balance of deposit amount in spite of repeated requests and demands together with interest at 12% Per Annum. Therefore, he got issued legal notice and then filed a complaint.
11. The contention taken before us that the complaint filed by the respondent after 17 years which is barred by limitation. The D.F. in its order Para-19 clearly discussed that the cause of action arose in the year 1995-96, 01-12-1997 and on 06/01/2010. Since the balance of deposit amount has not been paid, therefore, requests made by the respondents continuously and finally got issued legal notice on 06/01/2010. Therefore, the complaint filed by the respondents well in time. Therefore, the contention of the appellant does not hold water. Hence, it is not accepted.
12. The other contention taken by the appellants is that the respondent being a member and is a party to the resolution passed by the Society. In Para-26 of the impugned order, the D.F. has recorded its finding stating that the burden of proving that the respondent/complainant is party to the resolution that any amount received by the Society is not in a position to re-pay as it is under loss. But the appellants failed to prove that the respondent/complainant is a party to the resolution being a member of the Society, the respondent has deposited Rs.40,000/- and out of it Rs.10,000/- has been paid and the remaining amount of Rs.30,000/- is to be payable to the respondent with interest. Therefore, the D.F. is right in allowing the complaint filed by the respondent and directing these appellants to pay Rs.30,000/- with interest at the rate of 10% Per Annum with litigation expenses of Rs.2,000/-. Accordingly we proceed to pass the following:-
:-ORDER:-
The appeal is DISMISSED. No order as to costs.
The amount if any deposited by the appellants shall be transferred to the concerned D.F., immediately for needful.
MEMBER PRESIDENT MEMBER TSS**