National Consumer Disputes Redressal
Vijayan P. vs Managing Director, Sree Gokulam Chits & ... on 17 January, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1659 OF 2013 (Against the Order dated 18/12/2012 in Appeal No. 257/2012 of the State Commission Kerala) 1. VIJAYAN P. NAVAMI (MANAZHIYILL), AZHOOR, PATHNAMTHITTA, P.O PATHNAMTHITTA KERALA ...........Petitioner(s) Versus 1. MANAGING DIRECTOR, SREE GOKULAM CHITS & FINANCE COMPANY (P) LTD. & ANR. SREE GOKULAM TOWER, CHENNAI - 600024 TAMIL NADU 2. BRANCH MANAGER, SREE GOLULAM CHITS & FIANANCE CP(P) LTD.. PATHANAMTHITTA BRANCH, AZAD COMPLEX, KSRTC ROAD, PATHANAMTHITTA KERALA ...........Respondent(s)
BEFORE: HON'BLE AVM J. RAJENDRA, AVSM VSM (Retd.),PRESIDING MEMBER
FOR THE PETITIONER : FOR THE PETITIONER : MR. DAVESH KUMAR SHARMA, ADVOCATE FOR THE RESPONDENT : FOR RESPONDENTS : MR. RAKESH GARG, ADVOCATE
MR. MANCHAND A/R
Dated : 17 January 2024 ORDER
1. The present Revision Petition has been filed by the Petitioner under Section 21(b) of the Consumer Protection Act, 1986 (the "Act") against impugned order dated 18.12.2012, passed by the learned State Consumer Disputes Redressal Commission, Kerala ('State Commission') in FA No. 257 of 2012, whereby the Appeal filed by the Complainant was partly allowed and setting aside the Order dated 16.09.2011, passed by the District Consumer Disputes Redressal Forum, Pathanamthitta ("District Forum") in Consumer Complaint No. 148/2009 & No. 149/2009 of 2009.
2. For convenience, the parties are referred to as stated in the original Complaint filed before the District Forum. Shri Vijayan P. is referred to as the Complainant (Petitioner). Sree Gokulam Chits & Finance Company(P)Ltd. through its Manager & Branch Manager are referred to as the OP. Nos. 1 & 2 (Respondent No. 1 & 2) respectively.
3. The brief facts of the case, as per the Complainant, as that the Complainant was engaged with OP-1, a registered private limited company specialized in chitty business, subscribing to two chitties of Rs.50,000/- each through 25 installments of Rs. 2,000/- per chitty. The OP-2 facilitated this subscription. The Complainant received two chitty tickets for each subscription: Ticket No. 5 (active from 19.10.2007 to 19.10.2009) and Ticket No. 12 (active from 23.01.2007 to 23.01.2009). For Ticket No. 5, he paid Rs. 25,705/- and for Ticket No. 12, he paid Rs. 42,000/-. The remaining amounts for both chitties were due upon their respective termination dates. After the maturity of the chitties, the Complainant approached OP-2. However, the OPs avoided payment. This withheld chitty amounts caused financial loss and mental distress to him, constituting a deficiency in service by the OPs. Aggrieved by the same, he filed two Consumer Complaints (CC No.148/09 and CC No. 149/09) seeking the realization of Rs.25,705/- and Rs.42,000/-, along with 12% annual interest and compensation of Rs. 10,000/- for each chitty and costs incurred in pursuing this case.
4. In their reply, before the District Forum the OPs admitted the transaction with the Complainant and contended that he, along with the wife of his brother Shri Manoharan, acted as a co-surety in a separate chitty with OPs, for Rs.5,00,000/- for 20 installments under chitty No. J2h-1065/JMM/18, initiated on 04.01.2008. Both chitties held by the Complainant were pledged as security for Manoharan's chitty. Later, on 20.05.2008, Shri Manoharan had auctioned his chitty and received Rs.3,71,910/-. Thereafter, both the Complainant as well as Shri Manoharan defaulted on their respective chitty installments. When the Complainant demanded the repayment of his chitty amount upon maturity, the OPs refused payment citing defaults in both the Complainant's and Manoharan's payments. The OPs contended that his chitty amount could only be disbursed after settling Shri Manoharan's chitty arrears, as both the Complainant's chitties were pledged as security for Manoharan's chitty. The OPs further contended that there was no deficiency in service towards the Complainant and urged for the dismissal of both complaints based on these arguments.
5. The learned District Forum vide Order dated 16.09.2011, partly allowed the complaint with the following order:
12. in the result, the above complaints are allowed, thereby the opposite parties are directed to return the amounts due in favour of the complainant as per Ext.A1 in C.C. No. 148/09 and as per Ext.A1 in C.C. No. 149/09 with interest at the rate of 9% per annum from the date of filing of these complaints till this date along with cost of Rs. 3,000 (Rupees Three thousand only) in total within 30 days from the date of receipt of this order failing which the complainant is allowed to realize the whole amount with interest at the rate of 12% from today till the realisation of the whole amount. Since interest is allowed, no separate compensation allowed.
6. Aggrieved by the Order of the District forum, the Appellants filed an Appeal No. 257/2012 before the learned State Commission. The State Commission vide order dated 18.12.2012 allowed the Appeal and set aside the Order of the District Forum, as follows: -
"....6. On the above conclusion the appellants had right to retain the chitty instalments remitted by the complainant/respondent as security for the chitty amount due under the chitty subscribed by Manoharan. No deficiency of service can be found in favour of the complainant under the circumstances mentioned above. It follows that the appeal is liable to be allowed. The complaints are without merit and are liable to be dismissed.
In the result the appeal is allowed. The common order pronounced by the CDRF, Pathanamthitta in CC. 148/09 and 149/09 on 16.09.2011 is set aside. Both the complaints are dismissed and considering the facts and circumstances of the case without costs."
7. Dissatisfied by the Impugned Order dated 18.12.2012, the Petitioner filed this Revision Petition mainly raising the following: -
(a) The State Commission failed to appreciate that the Appeal was time barred. Regrettably, at the admission stage, the State Commission passed the impugned order, without serving notice or allowing him to raise objections denied opportunity to be heard.
(b) The District Forum finding that certain documents are forged is true. Further, it is unjust for State Commission to insinuate him as altered signature, post initiating the case to refute certain records. If such were the case, expert assistance could have been taken.
(c) Under Section 111 of the Evidence Act, the onus to prove his signatures in certain records lies with the Respondents. However, they presented no evidence to substantiate the execution of certain documents, and this lacked witness attestation as well. The State Commission failed to acknowledge the same.
(d) The District Forum's finding that it was implausible for him to stand as the co-surety for Shri Manoharan's chitty, considering the petitioner's chitty was for Rs.1,00,000/- against Shri Mohan for Rs.5,00,000/- is correct. The contrary conclusion was unfounded.
8. Upon receiving notice of the instant revision petition, the Respondents have submitted a reply, raising objections against the maintainability of the said petition. The Respondents contended that the petition is time-barred and ought to be dismissed without delving into merits. Additionally, the Respondent contended that the petition lacks a cause of action in favour of the Petitioner against the Respondents and fails to highlight any service deficiency on the part of the Respondents towards the Petitioner. The nature of the petition and preceding complaints are in the nature of a recovery suit, which falls beyond the jurisdiction of this Commission and seems to have been filed solely to circumvent court fees. The allegations in the complaint necessitate the presentation of evidence, a procedure better suited in a civil court. The State Commission duly considered various facets, including the possibility of the Petitioner altering signatures on legal documents and the Petitioner's failure to produce certain specific documents to demonstrate signature variations. Hence, the impugned order passed by the State Commission is just and proper. Moreover, the petition is not maintainable due to the Petitioner's alleged intent to illegitimately obtain the entire chitties amount, while intending to default on remaining monthly instalments. The Petitioner deliberately concealed the fact that they subscribed to two chitties with the respondents but refrained from auctioning them.
9. The learned Counsel for the Petitioner /Complainant reiterated the grounds stated in the Complaint and the revision petition and stressed the contention that certain records were allegedly fabricated and forged documents, hence inadmissible. He argued that certain records held as a non-binding and unfair Standard Form Contract, was never signed by the Petitioner. Any clause authorizing a chit company to hold a lien over the chit amount due to a subscriber, based on their status as a guarantor for another defaulter, constitutes an unfair trade practice under Section 2(r) of the Act, 1986. It was also asserted that the Respondents' decision to proceed against the principal debtor is unjustifiable, as it implies withholding the amounts due to Petitioner, as civil suit provisions prohibit recovery from guarantors until proceedings against the principal debtor are concluded. He highlighted absence of notices issued to the petitioners, acting as guarantors.
10. The learned Counsel for the Respondents argued that as per chit rules, the release of the auctioned chit amount necessitates at least two sureties from the subscriber. Thus, the chit would not have been released to Shri Manoharan, without the surety of the complainant and Shri Manoharan's wife. While the Complainant alleged forgery of the surety documents and highlighted as crucial issue, he filed no police complaint. No documents from the time of execution of documents of surety were produced by the Complainant for signature comparison. He asserted that the Complainant's reliance on his signature over the complaint before the District Forum and the Vakalatnama could potentially indicate an attempt to defeat the Respondent's claim. The onus to prove that the signature on the surety bond lay upon the complainant himself, given that the mismatching of the signature was raised by him. The argument stressed that the Respondent solely relied on the signature made by the Complainant on the surety bond, lacking any additional signature for comparison. The learned Counsel requested for dismissal of the revision petition with costs.
11. I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned Counsels for both the parties.
12. The issue central to this case involves the State Commission's decision justifying the withholding of the petitioner's personal chitty fund amount by the respondents. This withholding is based on the security provision for the chitty fund of the petitioner's brother, who defaulted on payments, and the Petitioner is the surety for the same. The petitioner challenged this decision, citing lack of opportunity to present arguments, lack of notification before judgment, and reliance on allegedly forged and invalid documents. Further, State Commission accepted the time-barred case.
13. The State Commission in its Order dated 18.12.2012, made the following observations: -
"5. Admittedly the complainant had subscribed to 2 chitties conducted by the opposite parties each having a prize money of Rs. 50,000/- with 25 Instalment of Rs. 2000/- each. Even as per the allegations In the complaint the complainant has paid Rs. 25,705/- and Rs. 42000/- only towards the chitty Instalments respectively In the above 2 chitties. On maturity of the chitties he approached the opposite patties for release of the chitty Instalments remitted by him. They refused to oblige saying that the complainant had offered as security, the 2 chitties subscribed by him. at the time when Manoharan his brother auctioned his chlity for Rs. 5 lakhs on 20.5.2008 and received Rs. 3,71,910/-. Apart from the complainant the wife of Manoharan was also a surety at that time. The appellants produced Exts.B1 to B4 as the security documents executed by Manoharan, his wife and the complainant at the time when the auctioned chitty amount was received by Manoharan. Ext. B1 Is a deed of agreement executed by Manoharan, his wife and the complainant on 20.5.2008 whereby the complainant on his part agreed that any unrealized sum form the chitty of Manoharan may be realized from his own chitties relating to which the complaints are filed. Ext.B2 Is the particulars of the chltty pledged by the complainant. Ext.BB Is a debt acknowledgment letter executed by Manoharan, his wife and the complainant. Ext.B4 appears to be the guarantee letter executed by them. In all these 4 documents, the purported signatures of the complainant are seen. At the time of examination the complainant categorically denied that he has singed on 23 Ext.B1 to B4. It was relying on the above version of the complainant that the Forum arrived at the conclusion that Exts. B1 to B4 were forged by the opposite parties and hence the complaint was allowed. In arriving at the conclusion the Forum mainly relied on 'some difference' between the signatures of the complainant seen on Exts. B1 to B4 with the signatures seen on his vakalth and complaints. The Forum observed that the 2 sets of signatures are not identical and have some differences. It may be mentioned that it is not at all fair to compare these 2 sets of signatures as the signatures put on the vakalath and complaint originated at a subsequent point of time and there was every chance of the complainant changing his signatures to suit his denial of he signatures in Exts. B1 to B4. If the complainant was honest he could have produced some documents which have their origin during or around the time of execution of Exts. B1 to B4 to show the difference in his signature, if any. That was not done. The further question is whether documents having comparable signatures are with the opposite parties. In this context the circumstance that the complainant did not auction his chitties becomes relevant. If such an event had happened his signatures would have been available with the opposite parties. There is nothing to indicate that the signature of the complainant was made available with the opposite parties earlier to the execution of Exts. B1 to B4. Under Such circumstances the Forum went wrong in comparing the 2 sets of signatures referred to earlier in arriving at the conclusion that Exts. B1 to B4 were forged.
6. This Is not the only circumstances to be taken into account It Is pertinent to notice that the complainant Is the brother of Manoharan. Till money was released by the opposite parties to Manoharan they were In a position to dictate Items. In other words ordinary human conduct Is that money would be released only on furnishing sufficient security. So, Ext. B1 to B4 In all probability need not be forged. Then the reality appears to be that the complainant was one of the sureties. Apart form the relationship between Manoharan and the complainant, It Is pertinent to notice that In Exts. B1 to B4 the complainant has signed fluently and In a strikingly similar way. This could happen In genuine signatures. The Forum seems to have been carried away by the fact that the auctioned chitty amount was nearly Rs. 3,72,000/- whereas the chitty Installments due to the complainant was only Rs. 67,705/- So, these chitties did not sufficiently secure payment of the chitty cashed by Manoharan. But these chitties are not the only security provided at the time of chasing the chitty of Manoharan. The Forum also observed that Ext.B1 does not satisfy the minimum requirements of an agreement expected for a chitty having sala of Rs. 5 lakhs. Obviously the Forum did not read Ext.B4. In any case It Is for the parties to decide the stipulations of a mutual agreement and a conclusion that the document was forged cannot be cased on such flimsy grounds. The circumstances above referred to as a whole lead to the Inevitable conclusion that Exts. B1 to B4 were executed by the complainant/respondent at the time when his brother auctioned the chitty In his name and received the amount. On the above conclusion the appellants had right to retain the chitty instalments remitted by the complainant/ respondent as security for the chitty amount due under the chitty subscribed by Manoharan. No deficiency of service can be found in favour of the complainant under the circumstances mentioned above. It follows that the appeal is liable to be allowed. The complaints are without merit and are liable to be dismissed."
14. As regards the liability of the Complainant's brother Shri Manoharan, it is noticeable that Shri Manoharan initially purchased a chit valued at Rs. 5 lakhs from the OPs and subsequently auctioned it on 20.05.2008 for a sum of Rs. 3,71,910/-. To obtain this amount, Manoharan's wife and the Complainant jointly acted as co-securities, which is corroborated the documents on record. However, Manoharan defaulted the payments to OPs and had not settled the entire amount owed to the OPs as evidenced from records. Additionally, the Complainant allegedly pledged two chitties, each valued at Rs. 50,000, as collateral to facilitate the release of the auctioned amount to his brother Shri Manoharan. Subsequent to this arrangement, the auctioned funds were in fact disbursed to Manoharan, as supported by records. Shri Manoharan's chitty valued at Rs. 5 lakhs has outstanding liability of Rs. 3,72,000 at the time of releasing the amount. This clearly denotes their liability in the entire transaction.
15. It is clear that the Complainant's auctioned chitty amount was not disbursed as he was the co-security for his brother who collected Rs.3,71,910/- from OPs and defaulted the payments. While the Complainant claimed mismatch of signatures on the vakaltnama filed in the complaint and the other records filed, his claim was considered weak due to the crucial relationship between the Complainant and Manoharan and that the Complainant was closely associated with the transactions, as a sequel to which the money was disbursed to his brother Manoharan. Thereafter, the payments were defaulted. While the learned State Commission considered the claim of signatures mismatch, it observed that the relevant records bear the Complainant's signatures in a consistently similar manner, indicating a fluent and strikingly similar execution, thus strongly suggesting their genuineness. If the Complainant had grievances in respect of documents being projected with his signatures, which he stated to be not genuine, he ought to have taken appropriate legal recourse.
16. Based on the deliberations above, no deficiency in service is revealed in the actions of the OPs towards the Petitioner/ Complainant. Therefore, I am of the considered view that the Order of the learned State Commission in Appeal No. 257 of 2012 dated 18.12.2012 does not require any interference. Consequently, the Revision Petition No. 1659 of 2013 is Dismissed.
17. There shall be no order as to costs.
18. All pending Applications, if any, stand disposed of accordingly.
................................................................................... AVM J. RAJENDRA, AVSM VSM (Retd.) PRESIDING MEMBER