State Consumer Disputes Redressal Commission
M/S. Venkatatraya ... vs Medikondaanasuya,W.G.Dist. on 17 August, 2012
BEFORE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABD F.A.NO.34 OF 2012 AGAINST C.C.NO. 431 OF 2010 DISTRICT FORUM ELURU WEST GODAVARI DISTRICT. Between: M/s. venkatatraya Enterprises, Rep.,by its authorized signatory, Dr. MullapudiHarischandra Prasad, Opp: Polytechnic, R.P.Road, Tanuku, W.G., Dist. Appellant/Opposite party AND MedikondaAnasuya, W/o.M.HanumanthaRao, MedikondaVari Street, Old Town, Tanuku -534211, W.G.Dist. .Respondent/Complainant F.A.NO.35 OF 2012 AGAINST C.C.NO. 432 OF 2010 Between: M/s. venkatatraya Enterprises, Rep.,by its authorized signatory, Dr. MullapudiHarischandra Prasad, Opp: Polytechnic, R.P.Road, Tanuku, W.G., Dist. Appellant/Opposite party AND MedikondaAnasuya, W/o.M.HanumanthaRao, MedikondaVari Street, Old Town, Tanuku -534211, W.G.Dist. .Respondent/Complainant AND MedikondaAnasuya, W/o.M.HanumanthaRao, MedikondaVari Street, Old Town, Tanuku -534211, W.G.Dist. .Respondent/Complainant F.A.NO.37 OF 2012 AGAINST C.C.NO. 435 OF 2010 Between: M/s. venkatatraya Enterprises, Rep.,by its authorized signatory, Dr. MullapudiHarischandra Prasad, Opp: Polytechnic, R.P.Road, Tanuku, W.G., Dist. Appellant/Opposite party AND MedikondaAnasuya, W/o.M.HanumanthaRao, MedikondaVari Street, Old Town, Tanuku -534211, W.G.Dist. .Respondent/Complainant F.A.NO.38 OF 2012 AGAINST C.C.NO. 436 OF 2010 Between: M/s. venkatatraya Enterprises, Rep.,by its authorized signatory, Dr. MullapudiHarischandra Prasad, Opp: Polytechnic, R.P.Road, Tanuku, W.G., Dist. Appellant/Opposite party AND MedikondaAnasuya, W/o.M.HanumanthaRao, MedikondaVari Street, Old Town, Tanuku -534211, W.G.Dist. .Respondent/Complainant F.A.NO.40 OF 2012 AGAINST C.C.NO. 430 OF 2010 Between: M/s. venkatatraya Enterprises, Rep.,by its authorized signatory, Dr. MullapudiHarischandra Prasad, Opp: Polytechnic, R.P.Road, Tanuku, W.G., Dist. Appellant/Opposite party AND MedikondaAnasuya, W/o.M.HanumanthaRao, MedikondaVari Street, Old Town, Tanuku -534211, W.G.Dist. .Respondent/Complainant F.A.NO.41 OF 2012 AGAINST C.C.NO. 433 OF 2010 Between: M/s. venkatatraya Enterprises, Rep.,by its authorized signatory, Dr. MullapudiHarischandra Prasad, Opp: Polytechnic, R.P.Road, Tanuku, W.G., Dist. Appellant/Opposite party AND MedikondaAnasuya, W/o.M.HanumanthaRao, MedikondaVari Street, Old Town, Tanuku -534211, W.G.Dist. .Respondent/Complainant Counsel for the Appellant M/s. Ch. Vasantha Kumar Counsel for the Respondent M/s. R. Chakradhar F.A.NO.58 OF 2012 AGAINST C.C.NO. 249 OF 2010 Between: M/s. venkatatraya Enterprises, Rep.,by its authorized signatory, Dr. MullapudiHarischandra Prasad, Opp: Polytechnic, R.P.Road, Tanuku, W.G., Dist. Appellant/Opposite party AND PapoluAnuradha W/o. PapoluSeshadharTilak Aged 55 years, D/o. PrathiSeshayya, Peravali, W.G.Dist. .Respondent/Complainant Counsel for the Appellant M/s. Ch. Vasantha Kumar Counsel for the Respondent M/s. V.GourisankaraRao F.A.NO.59 OF 2012 AGAINST C.C.NO. 508 OF 2010 Between: M/s. venkatatraya Enterprises, Rep.,by its authorized signatory, Dr. MullapudiHarischandra Prasad, Opp: Polytechnic, R.P.Road, Tanuku, W.G., Dist. Appellant/Opposite party AND AlluriHarischandra Prasad, S/o. Surya Rao, Aged 48 years, Cultivation R/o.D.No.8-72-1, Korumamidi, NidadavoleMandal, W.G.Dist. .Respondent/Complainant Counsel for the Appellant M/s. Ch. Vasantha Kumar Counsel for the Respondent M/s Y. HemaChander F.A.NO.61 OF 2012 AGAINST C.C.NO. 399 OF 2010 Between: M/s. venkatatraya Enterprises, Rep.,by its authorized signatory, Dr. MullapudiHarischandra Prasad, Opp: Polytechnic, R.P.Road, Tanuku, W.G., Dist. Appellant/Opposite party AND PrathipatiSunbramanyam , S/o.VenkateswaraRao, Motha Village, UndrajavaramMandal, W.G.Dist. .Respondent/Complainant Counsel for the Appellant M/s. Ch. Vasantha Kumar Counsel for the Respondent M/s R. Chakradhar F.A.NO.62 OF 2012 AGAINST C.C.NO. 402 OF 2010 Between: M/s. venkatatraya Enterprises, Rep.,by its authorized signatory, Dr. MullapudiHarischandra Prasad, Opp: Polytechnic, R.P.Road, Tanuku, W.G., Dist. Appellant/Opposite party AND PrathipatiSunbramanyam , S/o.VenkateswaraRao, Motha Village, UndrajavaramMandal, W.G.Dist. .Respondent/Complainant Counsel for the Appellant M/s. Ch. Vasantha Kumar Counsel for the Respondent M/s. R. Chakradhar F.A.NO.64 OF 2012 AGAINST C.C.NO. 467 OF 2010 Between: M/s. venkatatraya Enterprises, Rep.,by its authorized signatory, Dr. MullapudiHarischandra Prasad, Opp: Polytechnic, R.P.Road, Tanuku, W.G., Dist. Appellant/Opposite party AND P.SriramPhani S/o.P. VenkateswaraRao, Near Market, Mortha, UndrajavaramMandal, W.G.Dist. .Respondent/Complainant Counsel for the Appellant M/s. Ch. Vasantha Kumar Counsel for the Respondent M/s R. Chakradhar F.A.NO.66 OF 2012 AGAINST C.C.NO. 421 OF 2010 Between: M/s. venkatatraya Enterprises, Rep.,by its authorized signatory, Dr. MullapudiHarischandra Prasad, Opp: Polytechnic, R.P.Road, Tanuku, W.G., Dist. Appellant/Opposite party AND PedamalluVenkata Krishna Kumar, S/o. Jagan Mohan Rao, 48 Years, D.No.2-1-11, GangalakurthyAgraharam, Amalapuram, East Godavari Dist. .Respondent/Complainant Counsel for the Appellant M/s. Ch. Vasantha Kumar Counsel for the Respondent M/s V.GourishankaraRao F.A.NO.69 OF 2012 AGAINST C.C.NO. 359 OF 2010 Between: M/s. venkatatraya Enterprises, Rep.,by its authorized signatory, Dr. MullapudiHarischandra Prasad, Opp: Polytechnic, R.P.Road, Tanuku, W.G., Dist. Appellant/Opposite party AND Smt. GotetiJanakiKumari, W/o. Subrahmanyam, aged 55 yrs, R/o.D.No.3-6-41, Sundaramvari Street, 6th Ward, Narasapuram, W.G.Dist. .Respondent/Complainant Counsel for the Appellant M/s. Ch. Vasantha Kumar Counsel for the Respondent M/s V.GourishankaraRao QUORUM: SRI LAKSHMINARASIMHA RAO, MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER FRIDAY THE SEVENTEENTH DAY OF AUGUST TWO THOUSAND TWELVE Oral Order (As per Sri R.LakshminarasimhaRao, HonbleMember) * * *
1. These appeals F.A.No.34, 35,37, 38, 40, 41, 58, 59, 61,62, 64, 66 and 69 of 2012 are filed by M/s Venkataraya Enterprises. The appeals arise from the orders passed by the District Forum in complaints wherein the opposite party to the case and the question decided has been the same and as such they are being disposed of by a common order. The parties are referred to as they arrayed in the complaint. F.A.No. 34 of 2012 is taken as the lead case.
2. The brief facts of the case as seen from the complaint are that on 20.10.2004, the complainant deposited an amount of Rs.50,000/- with the opposite party under bond No. 5251/10-2004/2313/4/Y(S.C) for a period of four years. The maturity value is Rs.85,939/- the maturity date of 20.10.2008 and the rate of interest is 14.50% p.a. After periodmaturity,the complainant submitted the original bond to the opposite party issued receipt dt 20-10-2008 in token of receiving the original bond. Despite the demand made by the complainant for repayment the opposite party on one pretext or the other postponed the repayment of the amount.
The action of the opposite party in not making payment amounts to deficiency in service.
3. The opposite party resisted the case contending that the opposite party M/s. Venkataraya Enterprises is represented by its proprietor Sri MullapudiHarischandra Prasad, but in the complaint it is wrongly described as M/s. VenkatarayaEnterpises, represented by its Managing Director. The opposite party is a proprietary concern and it was neither registered as company nor as firm. Knowing well the complainant wrongly described the opposite party and that the opposite party has no concern with VenkatarayaChitfunds. It is trading concern represented by its propritorMullapudiHarischandra Prasad. The opposite party denied the deposits made by complainant and about the promise to pay the maturity amounts with interest to the complainant. The complaint is not maintainable under law and the District Forum has no jurisdiction to entertain the complaint and that the complaint is barred by limitation.
4. The complainant has filed his affidavit and the documents Exs.A1 and A2. On behalf of the opposite party, its proprietor has filed his affidavit but no documents.
5. The District Forum allowed the complaint directing the opposite party to pay the maturity amount with contract rate of interest @ 14.50% p.a. from the date of maturity of the bond till date of complaint and thereafter @9% p.a. till realization together with compensation ofRs.1,000/- and costs f Rs.500/-.
6. Aggrieved by the order of the District Forum, the opposite party has filed appeal contending that the complaint is not filed within the period of limitation and the District Forum has no jurisdiction to adjudicate the matter and that the complainant deposited the amount with the opposite party in order to gain more interest that the banks offered and as such commercial transaction cannot be made a dispute before the consumer Forum and that the complainant has not pleaded that he deposited the amount to earn his livelihood under self-employment.
7. The Points for consideration are:
1. Whether the complaint is filed within the period of limitation?
2. Whether the complaint deposited the mount for commercial purpose?
3. to what relief?
8. POINT No.1 The complainant deposited Rs.50,000/- on 20.10.2004 under Bond No. 5251/10-2004/231314/Y for a period of four years with its maturity on 20.10.2008.
The complainant has stated that after the date of maturity she demanding the opposite party for payment of maturity amount and the opposite party postponed to pay the amount. The complainant deposited the amount on 20.10.2004 and the cause of action for filing the complaint would accrue from the date of refusal after the demand. The opposite party had not denied that the complainant demanded for payment of the maturity amount.
9. Limitation in regard to the amount deposited would begin to run from the date of demand by the depositor and refusal thereto by the financier. Article 70 of the Limitation Act provided for three years limitation for recovery of deposited amount from the date of refusal after demand. However, Section 24-A of the Consumer Protection Act restricted the period to two years to initiate action. A combined reading both the said provisions would make it clear that limitation in the present case would run from the date of refusal after demand.Though the complainant had not specifically mentioned the actual date of demand in the complaint, the receipt Ex.A2 reveals that the complainant had surrendered the original bond on or after the date of maturity and thereafter the opposite party had not chosen to refuse to pay the amount and in the circumstances, the cause of action for filing the complaint is continuous.
10. The cause of action is a bundle of facts for the complainants to prove in order succeed his claim. Therefore, a fact which does not have a material binding on the result of the case by itself cannot be considered as the cause of action for the complainant to prove his claim. The date of demand as was made by the complainant presenting the bond and refusal of the opposite party to repay the amount constitutes cause of action for filing complaint. As such we are inclined to hold the contention of the complainant that the compliant was filed within the period of limitation as prescribed by Section 24 (A) of the Consumer Protection Act.
11. POINT NO.2: The learned counsel for the opposite party has contended the complainant deposited the amount for higher rate of interest than the rate of interest the commercial banks charge. He has relied upon the following decisions:
1. BhaiJaspal Singh and another Vs. the assistant commissioner of Commercial Taxes and others, 2010 TPL (WEB), 867 SC.
2. J.K.Agarwal and another Vs M/s Three C Universal Developers Pvt Ltd., CDJ, 2011 9 Consumer
3. Rakesh Kumar VsPrasavanath Developers Limited and another 1 (2011) CPJ 224.
4. F.A.No.566 if 2008 dated 14.09.2011 of this Commission.
5. F.A.No.1082 of 2009 dated 13.09.2011 of this Commission .
6. F.A.No.959 of 2008 dated 20.09.2011
7. CCSR 4684 of 2011 dated 25.10.2011
8. CC 248 of 2011 dated 13.11.2011
9. IV 2007 (CPJ) 199 NC
10.
CDJ 1995 SC 975, Laxmi Engineering WorksVs PSG Industrial Institute.
11. CDJ 1999 SC 626 Kalpavruksha Charitable Trust VsToshniwal Bros.
12. CDJ 1996 SV 1055 Cheema Engineering Services VsRajan Singh
13. CDJ 2010 SC birla Technologies Vs Neutral Gas and Allied Industries Ltd.,
14. RP No.3811 of 2007 dated 9.7.2010 between Rajasthan State Development and Industrial Vs M/s Deekshi Enterprises.
12. In BhaiJaspal Singhs decision the Honble Supreme Court had Considered the meaning of expression investment for the purpose of notification issued by the State of West Bengal under West Bengal Sales Tax Act and the corresponding rules, the construction and interpretation of an exemption notification etc., The ratio laid in the context has no application to the facts of the case on hand.
13. In J.K.Agarwals case the National Commission dealt with the matter where the dispute was between builder and purchaser of the flat which was in regard to commercial space.
14. Rakesh Kumars is a case where shops were purchased in Mall by a practicing Advocate and his wife. It was held that the shops were not booked for earning livelihood of the complainant.
15. In F.A.No.556 of 2008 this Commission has considered where a tractor purchased for the purpose of hiring and not for eking our livelihood by means of self-employment and held that in the absence of any averment as to the livelihood under self-employment, the tractor cannot be said to have been purchased for personal use of the complainant.
16. In F.A.No.1082 of 2009 this Commission held that purchasing of lorry for hiring to third parties is not a consumer disputes.
17. In F.A.No.959 of 2008 the matter involved was bank guarantee offered by an educational institute and in that context it was held that educational institute had taken bank guarantee on payment of charges and there was settlement before the banking ombudsman consequently to which the institute received amount and thereafter filed the complaint seeking for balance amount.
18. IN CCSR 464 of 2011 it was held that availing of services or purchasing of goods should be exclusively for the purpose of personal use or for the purpose of earning livelihood by means of self-employment.
19. Any of the aforementioned decisions would not lay proposition that the investment made by a depositor on interest for the purpose of his personal use a consumer dispute. The rest of the divisions have no application as they had been rendered in different context other than FDs. The complainant at the time of hearing has submitted that the investment was made not for any commercial purpose and he is not a business man to invest the amount exclusively to earn profit for the purpose of his business.
20. The learned counsel for the complainant has relied upon the following decisions:
1. Kiran Krishna Agro Tech. Ltd., Vs. P.V.ShanthaKumari reported in II (2012) CPJ 531 (NC).
2. State Bank of India VsN.K.Sharma, 2012 (1) CPR NC 11.
21. In kiran Krishna Agros case the Honble Commission held that the person who deposits the amount for fixed period of time with bank is consumer within the meaning of Sec.2(1)(d) of the C.P.Act. Upholding the decision of the commission, the National Commission held that the petitioner having issued fixed deposit for the maturity amount failed to pay the maturity value to the FDRs which amounts to deficiency in service on their part.
22. In SBIs case (supra) the bank sanctioned housing loan to its account holder at higher rate of interest. It was held that the bank was liable to refund the amount which was wrongly debited along with compensation. The National Commission held that every month the bank charged fixed rate of interest instead of floating rate of interest contrary to the agreement giving fresh cause of action every month.
23. The decisions of the National Commission that the depositor for a fixed period of time having been issued fixed deposit receipt with a promise to pay amount on maturity is a consumer is applicable to the facts of the present case as in the case on hand the complainant deposited that amount on promise and issuance of fixed deposit made on higher rate of interest would be a consumer dispute.
24. Mere deposit of amount for a higher rate of interest than the rate of interest charged by the commercial back would not by itself make a platform for the opposite party to contend that the complainant deposited the amount for commercial purpose. The same bank would offer different rates of interest to the customers depending upon the nature, period and categories of the depositors. In an S.B.Account the rate of interest offered is less compared to the deposit made for fixed period. Likewise, the amount deposited by a senior citizen would carry higher rate of interest that of the others. As such, the plea of the opposite party that the complainant has deposited the amount on higher rate of interest for commercial purpose is not tenable or sustainable.
25. The complainant has deposited the amount of Rs.50,000/- with the opposite party. The opposite party had issued the fixed deposit bond promising attractive rate of interest in favour of the complainant, on the date of maturity mentioned therein.
26. The opposite party had invited the deposits form the complainant promising them that it would pay attractive amount on maturity. With the offer extended by the opposite party the complainant had deposited the respective amounts with the opposite party which has issued the fixed deposit receipt assuring her that the amount as promised would be paid to her on the date of maturity mentioned therein.
27. The opposite party at the first instance denied any investment from the complainant and later the opposite party has chosen to dispute the complainant surrendering the original bond and the opposite party had put forth with contradictory version that the investment made by the complainant is for commercial purpose. By raising mutually destructive pleas, the opposite party has attempted to evade its liability to pay the amount covered under the deposit receipt. An offer to pay the deposit amount with attractive rate of interest and failure to pay the same by the opposite party to the complainant constitutes deficiency in service and unfair trade practice. Hence, the opposite party is liable to pay the amount on maturity. The District Forum awarded interest on maturity amount at 14.5% per annum from the date of maturity till the date of the complaint and the same is liable to be scaled down to 9%. The compensation awarded by the District Forum is set aside as the interest awarded on the maturity amount. Rest of the order for payment of costs is upheld. Accordingly the order of the District Forum is modified.
28. In the result the appeals F.A.No.34, 35, 37, 38, 40, 41, 58, 59 61, 62, 64, 66, 69 of 2012 are allowed modifying the order of the District Forum. The opposite party is directed to pay the maturity amount with interest @ 9% per annum from the date of maturity till payment and the costs awarded by the District Forum. There shall be no order as to costs in the appeal. Time for compliance four weeks.
MEMBER MEMBER DATED:17-08-2012