State Consumer Disputes Redressal Commission
Buggavarapu Peraiah Gupta, ... vs Jaya Enterprises, Rep. By Its Managing ... on 11 March, 2013
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD. F.A.No.585/2011 against C.C.No.145/2008, Dist. Forum, Prakasam Dist. at Ongole. Between: 1. Buggavarapu Peraiah Gupta, S/o.Subramanyam, 2. Guggilam Bhaskar Krishna Murthy, S/o.Narasimha Swamy, 3. Guggilam Dinesh Kumar, S/o.Bhaskar Krishna Murthy, 4. Guggilam Chandana, S/o. Bhaskar Krishna Murthy, 5. Guggilam Pavan Kumar S/o. Bhaskar Krishna Murthy, 6. Patchilam Pitchaiah Gupta, S/o.Venkata Subbaiah, 7. Palllaothu Radhakrihsna Murthy, S/o.Lakshminarayana, 8. Idupulapati Sri Lakshmi, D/o.Basavaiah, 9. Idupulapati Usha Sri, W/o.Siva Kumar, 10.Idupulapati Basavaiah, S/o.Venkata Subbaiah, 11.M/s.Saidurga Raymonds retail Shop Prop. Utukuri Yekambareshwara Rao, S/o.Narasimha Rao, 12.Kakaraparthi Venkata Prasad, S/o.Venkateswarlu, 13.Appal Nageswara Rao, S/o.Venkateswarlu 14. Sri Githa Vani Handlooms, Prop. Grandhi Badari Narayana, S/o.Ranganayakulu, 15.Thallam Padmavathi,W/o.Veerabhadra Rao. 16.Kota Lakshmikumari, W/o.Veeranjaneyulu, 17.Penugonda Dhana Lakshmi, W/o.Srinivasulu All are residents of Chirala (V & M ) Prakasam Dist. Complainants 1 to 17 on their behalf its Special Power of Attorney Mocherla Subba Rao, S/o.Narasimham , Age 50 years, Hindu, near Pattabhi Bhavan , Bose Nagar, Chirala, Prakasham Dist. Appellants/ Complainants And 1.Jaya Enterprises, rep. by its Managing Partner, Kandikanti Babu Rao College Road Ikollu (V & M ) Prakasham Dist. 2. Kandikanti Babu Rao, Jaya Enterprises College Road, Ikollu (V & M ) Prakasam Dist. 3. Utukuri Ranganayakulu, Ex.Managing Director, Jaya Enterprises, House No.26, M.C.H.Colony,Chirala, Prakasham Dist. 4. K.Ram Kumar, H.No.173, M.G.H.Colony, Chirala. 5. K.Meeravali, , D.No.4-102 Denin Super Delux, Ikollu ( V & M ) Prakasham Dist. 6.Narne Venkateswarlu, Jaya Enterprises, D.No.2-70 Krishna Nagar Ikollu (V & M ) Prakasam Dist. Respondents/ Opp.parties Counsel for the Appellants : Mr.M.Ram Gopal Reddy Counsel for the Respondents : M/s.V.Gowrisankar Rao R1 & R2 Mr.P.Srinivasa Rao-R4 R3 & R6-Notice served. R5-Notice returned with an endorsement No such address. QUORUM: SMT.M.SHREESHA, HONBLE INCHARGE PRESIDENT, And SRI S.BHUJANGA RAO, HONBLE MEMBER.
MONDAY, THE ELEVANTH DAY OF MARCH, TWO THOUSAND THIRTEEN.
Oral Order : (Per Sri S.Bhujanga Rao, Honble Member).
*** The unsuccessful complainants preferred the above appeal against the order dt.10.5.2011 by District Forum, Prakasam Dist at Ongole made in C.C.No.145/2008, where under the complaint filed by the appellants/complainants was dismissed.
For the sake of convenience, the parties are described as arrayed in the complaint.
The brief case of the complainants as set out in the complaint is as follows:
The opposite party no.1 is running the firm under the name and style of Jaya Teak Firm Estates at Renanivaram Village and all the complainants joined as members by paying Rs.1000/- each, as face value for a period of 60 months. After 60 months, the firm will pay Rs.1000/- + Bonus Rs.1000/-
or face value of Rs.1000/- and two teak plants, as per the scheme. The leaflets were distributed by opposite party no.1 regarding the benefits of the scheme. The complainants and other members attracted by the publication, obtained Cash Certificates from opposite party no.1 by paying Rs.1000/-. The complainant came to know that opposite party no.1 did not take any care of teak plantation situated at Rengangivaram Village. They also came to know that out of the amount collected from the public, the opposite parties purchased some other land at Renangivaram Village. When approached, the opposite party represented that the teak plants are well growing and the amount would be settled shortly. But till the date of filing of the complaint, the opposite parties have not come forward for amicable settlement. The opposite parties misused the funds of the complainant, as well as other public. The estimated value of two teak trees after 15 years is Rs.50,000/-. The complainants are entitled to receive the Cash Certificate value of Rs.1000/- + value of two teak trees at Rs.50,000/-
from the opposite parties. The opposite parties are bound to pay the said amount to the complainants. Their failure to do so is nothing, but deficiency in service. Hence the complaint.
The opposite parties 1 and 2 filed their counter/written version and additional counter/written version contending as follows:
The alleged cash certificates issued to the complainant by opp.party are utterly false and fabricated and created by the complainants Mocherla Subba Rao, only for the purpose of earning money, by instituting similar complaints, before the Forum and chosen easy money by colluding with opposite parties 3 and 4, who have managed opposite party no.1 prior to opposite party no.2. Taking advantage of management of opposite parties 3 and 4, the complainants put forward Mr.Subba Rao for wrongful gain and the said Subba Rao produced cash certificate of value of Rs.1000/- of opposite party no.1 scheme and filed the complaint to gain easy money from the Firm. They have admitted that the opposite party no.1 running the firm under the name and style of Jaya Teak Estates at Renangivaram Village and the complainants, who joined as members by paying Rs.1000/- as face value for a period of 60 months and that the firm was shifted from Inkollu to Chirala in the year 2001. The cash certificates filed by the complainants disclose that the cash certificates are issued by opposite party no.3 and not by opposite parties 1 and 2. They denied the allegation that the opposite party no.1 firm failed to comply with the terms and conditions and object of the firm as false.
These opp.parties further contended that while the matter stood thus, the opposite parties 1 and 2 filed Civil Suit in O.S.No.20/2005 against opp.parties 3 and 4 and another, for rendition of accounts with regard to opposite party no.1 firm and the same is pending on the file of Prl.Junior Civil Judge at Parchur. The Special Power of Attorney filed by Mocherla Subba Rao is not maintainable either on facts or on law. The 8th complainant Edupulapati Srilaxmi is aged 14 years and she is represented by her father the complainant no.10 by name I.Basavaiah, but she signed in the power of attorney at Sl.No.7. A minor cannot enter into a contract and the contract entered by her is void. The complainant no.10 and 12 are not parties to the Special Power of Attorney and as such, the complaint is not maintainable and cash certificates filed by the complainant do not disclose the value of the teak tree. Therefore the value of two teak plants at Rs.50,000/- does not arise. The maturity date of cash certificate is 30.5.2001. The complaint was filed on 8.5.2008. Thus the complaint which was filed after lapse of 5 years period is barred by limitation. The complainants have no right to claim any amount from these opposite parties and the complaint is therefore liable to be dismissed.
Opposite party no.3 filed his separate counter/written version contending that the present complaint is barred by limitation, so the complainants are not entitled to reliefs prayed for in the complaint. The opposite party no.2 is the present Managing partner of opposite party no.1. So opposite party no.2 is responsible for discharge of the claims, if the claims are legal and sustainable under law. The complainants are not entitled to claim any relief as against opposite party no.3 and opposite party no.3 is unnecessarily impleaded. Hence the complaint against opposite party no.3 is liable to be dismissed with costs.
Opposite party no.4 remained exparte.
Opp.parties 5 and 6 filed a memo adopting the counter/written version filed by the opp.parties 1 and
2. During the course of enquiry, before the District Forum, in order to prove their case, the complainants filed Exs.A1 to A7. Opp.parties have not filed any documents in support of their contentions.
Upon hearing the counsel for both the parties and on consideration of the material on record, the District Forum came to the conclusion that the complaint is barred by limitation and consequently dismissed the complaint without costs.
Aggrieved by the said order, the complainants preferred the above appeal urging that the order of the District Forum is contrary to law, weight of evidence and probabilities of the case. That the District Forum failed to see that condition no.5 printed on the back side of the cash certificate that after 4 years, the members have to exercise their option either to receive Rs.1000/- + 2 teak trees or Rs.1000/- + Bonus of Rs.1000/- or Rs.1000/- + special bond for teak trees after expiry of the scheme period i.e. after 5 years. In the present case, the complainants have not exercised their option after expiry of 4th year, nor received special bonds for teak trees. The complainants have not surrendered the cash certificates for receiving the maturity value nor received the special bonds for the teak trees which give right to them to claim the teak trees after 15 years. If they only exercise option and received the special bonds of teak trees after expiry of 5 years, then only the limitation for teak trees would be saved. That the District Forum ought to have seen the attitude of the respondents in filing the civil case against the orders in O.S.No.22/2008 on the file of Dist . Judge Ongole against P.O.P.No.33/2005 on the file of Jr. Civil Judge, Parchur to set aside the order of the Dist Forum in C.C.No.165/2002 & 267/2003 and that the Dist. Forum has failed to see that no limitation applies for Fixed Deposit Receipts. The amount can be refunded on demand. The appellants/complainants finally prayed for allowing the appeal and to set aside the impugned order of the District Forum.
We heard counsel for the complainant and counsel for R1 and R2 and perused the entire material on record.
Now the point for consideration is whether the order of the District Forum is vitiated for misappreciation of fact or law?
We agree with the finding of the District Forum that the complainants have not followed the procedure contemplated under Rule 32 of Civil Rules of Practice. The present complaint was filed by 17 complainants represented by their Special Power of Attorney Holder, Mocherla Subba Rao. The SPA given by the complainants to the said Subba Rao was to recover the amounts due under cash certificates. The complainants have also not filed affidavits showing that the said SPA was existing as on the date of the complaint and the same was not cancelled. Admittedly the complainant no.8 is a minor. Therefore, she is not competent to enter into any contract, much less sign in the said SPA, along with other complainants. That apart, the complainant nos. 10 and 12 did not sign the said SPA authorizing the above said Subba Rao to appear and represent them in the District Forum. As seen from the grounds of appeal, the appellant/complainants did not touch the issue of maintainability of the complaint, for the afore said defects.
Now coming to the point of limitation, as per provisions of Section 24A of C.P.Act, the complaint is to be filed within two years, from the date of cause of action, that has arisen in a particular case. Admittedly the scheme in question is for a period of 5 years and after completion of 5 years, the promoters undertake to pay Rs.1000/- + 2 teak trees or Rs.1000/- + Bonus of Rs.1000/- or Rs.1000/- + Special bonds for two teak trees with an understanding to grow and maintain the teak trees, for further period of 10 years. It is also an admitted fact that the date of issue of cash certificates is 1.6.1996 and the date of maturity as mentioned on the cash certificate is 1.6.2001. Therefore the limitation began to run from 1.6.2001 and the complaint has to be filed on or before 1.6.2003. The present complaint is filed on 13.5.2008. Admittedly, the complainants have not filed any petition to condone the delay of 5 years in filing the complaint as provided under Section 24A of C.P.Act.
In view of the above facts and circumstances, we are of the firm view that the complaint filed by the complainants is barred by limitation so far as the cash certificates are concerned.
Further, as per condition no.5, printed on the other side of the cash certificate contained in Ex.A1 bunch, four years after obtaining membership, the members have to exercise their option, either to receive Rs.1000/-
+ 2 teak trees or Rs.1000/- + Bonus of Rs.1000/- or Rs.1000/- + Special bonds for two teak trees, after expiry of the scheme period i.e. 5 years.
In the present case, admittedly the complainants have not exercised their option after expiry of four years, nor received special bonds for teak trees. As rightly observed by the District Forum, the complainants have not surrendered the cash certificates for receiving the maturity value, nor did they received the special bonds for the teak trees, which gives right to them to claim teak trees after 15 years and that if they exercise the option and receive the special bonds for teak trees after expiry of 5 years, then only the limitation for teak trees would be saved.
The contention of the appellants/complainants is that the same complaints were filed against the respondents herein by some other parties in C.C.No.165/2002, C.C.No.267/2003, C.C.No.26/2005, C.C.No.104/2004,C.C.No.261/2004,C.C.No.158/2005,C.C.No.217/2005,C.C.No.420/2005 and C.C.No.97/2006 and in the said cases, the opposite parties herein have not taken any plea regarding the limitation. The above contention of the appellants/complainants is very strange for the reason, simply because the opposite parties herein did not take any limitation plea in the earlier complaints filed against them under C.P.Act, they are not prevented from taking limitation plea in the subsequent complaints filed against them by some other persons. Therefore the contention of the appellants/complainants is not tenable under law and is liable to be rejected. Hence rejected.
The appellants/complainants filed photo copies of the plaint and written statement in O.S.No.20/2005 on the file of Prl. Junior Civil Judge at Parchur, Gentleman Settlement dt. 10.9.2001 and O.S.No.22/2008 in P.O.P No.33/2005 on the file of Sr.Civil Judge Parchur, as additional evidence, in this appeal and the said documents were received subject to proof and relevancy and were marked as Exs.A8, A9 and A10 respectively. Ex.A8 shows that opposite party no.1 herein filed the suit against some third parties, who said to have obtained orders against the opposite party no.1 herein under the provisions of Consumer Protection Act, for setting aside the said orders on the ground that they are obtained by playing fraud. Ex.A10 shows that the opposite party no.1 filed a suit for same relief against the parties who obtained orders and filed execution petitions for similar relief. Ex.A9 is the Gentlemen Settlement among the partners of opposite partyno.1 herein on 10.9.2001 regarding the changes of management and transfer of shares as per the earlier settlement made. In our considered view these documents are not relevant for the purpose of this case. It appears that the appellants/complainants filed these documents only to show that the opposite party no.1 admitted in the earlier proceedings that the scheme survived upto 2011 and thereafter, as per the scheme they have to give two teak trees. It is true that they admitted that the scheme is existing till 2011.
But these documents do not disclose whether the option, as per condition no.5 printed on the other side of the cash certificates was exercised after four years of joining as members in the scheme. This admission made by the opposite party no.1 in the earlier proceedings is helpful to the appellants/complainants herein, if the option as mentioned above was exercised by them. Admittedly in this case they have not exercised any of three options. In the absence of exercising option as per Condition no.5, the appellants/complainants cannot be permitted to contend that they have to claim teak trees after 15 years of the scheme.
In view of the above facts and circumstances, we have no hesitation to hold that the claim for teak trees made by the appellants/complainants is also barred by limitation . In any view of the matter the complaint is not maintainable under law and is liable to be dismissed and the District Forum had rightly dismissed the complaint by passing valid order. Therefore, we do not find any irregularity or illegality to interfere with the impugned order of the District Forum.
In the result, the appeal is dismissed confirming the order of the District Forum, but in the circumstances of the case there shall be no order as to costs.
INCHARGE PRESIDENT MEMBER Pm* Dt. 11.3.2013