Typed to dictation of Smt.M.Shreesha, Honble Member)
Â Aggrieved by the order in C.C.No.72/2007 on the file of District Forum, Karimnagar, the opposite party preferred this appeal.
The brief facts as set out in the complaint are that the complainant is a businessman and he joined in the chit group bearing reference no.JS 12 F-03 with the opposite party on 20.3.2005 for the chit value of Rs.1 lakh and the monthly subscription payable is Rs.4,000/- in 25 months duration and the opp.party issued a pass book to the complainant. The opposite party made endorsements on the pass book from time to time with respect to receipt of monthly instalments. The complainant participated in an auction held on 25.12.2006 and became highest bidder for an amount of Rs.95,000/-. The complainant obtained necessary sureties and approached the opp.party to submit the same so as to receive the prize money. But the opp.party did not accept the sureties submitted by the complainant and failed to show any reason for the same. Opp.party addressed a letter to the complainant to furnish the relevant sureties as if the complainant has not approached them. On enquiry the complainant came to know that the opp.party did not release the prize amount only on the ground that the complainant is a guarantor to one K.Ashok Kumar who became a defaulter. The opp.party deducted an amount of Rs.83,006/- from the account of the complainant and adjusted it to the account of K.Ashok Kumar. The complainant submits that there is a gap of more than one year in commission of default in making payment of chit instalments by K.Ashok Kumar and participation of complainant in auction held in December,2006. The complainant further submits that the opposite party has no authority to deduct the chit amount and adjust it to the account of K.Ashok Kumar. The complainant many times requested the opp. party to recredit the proceeds to his account but the opp.party did not comply with his request. Hence the complaint seeking direction to the opp.party to release the chit amount by deducting the instalments due by complainant, to pay interest @ 15% p.a. from the date of participation of complainant in the chit auction i.e. 25.12.2006 until realization and to pay costs of the complaint.
Opp.party filed counter admitting that the complainant joined in chit group JS12F-03 for Rs.1 lakh and participated in an auction held on 25.12.2006 and became a successful bidder having agreed to forego Rs.5000/- out of Rs.1 lakh. The complainant did not furnish any surety for future liability to withdraw the prize amount even after the notice issued to him but he asked opp.party to deduct the future remaining three months instalments amount out of the prize amount. The opp.party submits that on verification of records it was found that the complainant stood as guarantor to one K.Ashok Kumar in Chit Group JM1H-8 for Rs.3 lakhs while withdrawing the prize amount. The said K.Ashok Kumar committed default in paying the subscription amount in the said Chit JM1H-8 and fell due an amount of Rs.1,02,066/-. Hence the opp.party issued a legal notice dt.8.6.2006 to the said K.Ashok Kumar and all his guarantors including the complainant but they have failed to pay the same. The complainant who guaranteed the payment of due instalments of K.Ashok Kumar is also liable to pay the said due amount jointly and severally along with other guarantors U/Sec. 128 of Indian Contract Act. The liability of surety is co-extensive with that of the principal debtor and his liability is immediate. The complainant suppressed the fact that he stood as surety to pay the due amount of K.Ashok Kumar. Out of the prize amount of Rs.95,000/- an amount of Rs.11,994/- was adjusted in the complainants own chit on 23.2.2006 towards due instalments and the balance prize amount of Rs.83,006/- is adjusted in chit group JM1H-8 of K.Ashok Kumar and the said fact was informed by letter dt.23.2.2007 to the complainant. The complainant submits that there is no deficiency in service on their behalf and prayed for dismissal of the complaint.
The District Forum based on the evidence adduced i.e. Exs.A1 to A5 and pleadings put forward allowed the complaint directing the opp.party to pay Rs.83,006/- to the complainant with 9% interest from the date of filing the petition i.e. 6.6.2007 and costs of Rs.1000/- within one month from the date of receipt of the order.
Aggrieved by the said order the opposite party preferred this appeal.
Appellant/opp.party filed Exs.B1 to B4 as additional documents.
The learned counsel for the appellant/opp.party contended that the complainant stood as a guarantor to one prized subscriber by name K.Ashok Kumar in chit no.JMIH 08 and that the terms of the Chit Agreement Ex.B1 specifies that if the prized subscriber to whom the complainant stood as guarantor becomes a defaulter as per Clause 17(b) lien over amounts, and 17(d), the amount paid by the guarantor will be foreclosed by the foreman and the amount would be adjusted towards defaulted subscriptions of such prized subscriber, as this subscriber is jointly and severally liable for such debts. The learned counsel contended that there is no deficiency in service on their behalf and that Exs.B2 to B4 have been marked as FAIA no.2066 and 2065/2010 were allowed which were filed seeking permission to file the Xerox copies as the originals are with the said Ashok Kumar. It is also the case of the appellant/opp.party that Ex.A5 has not been filed by the complainant in its totality. Infact the list of witnesses in which the name of the respondent/complainant will appear as one of the guarantors has not been enclosed.
It is not in dispute that the complainant has joined chit no.JS12F-03 with the opposite party on 20.3.05 for a chit value of Rs.1 lakh, the monthly subscriptions being Rs.4000/- per month for 25 months. It is also not in dispute that on 25.12.06 he was declared as highest bidder and the auction was in his favour for Rs.95,000/-. Ex.A1 is the Pass Book and Ex.A2 is the Credit Advice issued by the opposite party towards bid payable amount of Rs.11,994/-. Ex.A3 is the Credit Advice issued by opposite party in the name of K.Ashok Kumar bid payable for Rs.83,006/-. Ex.A4 is the copy of the representation made by the complainant to the Registrar of Chits, Karimnagar on 6.5.07 stating that the opposite party has illegally adjusted his amounts to one K.Ashok Kumar. It is the case of the appellant/opp.party that the complainant stood as guarantor to K.Ashok Kumar and opp.party filed Exs.B2 to B4 in support of their case that the complainant is a guarantor of the said K.Ashok Kumar. It is pertinent to note that the appellant did not file any notice issued to the complainant herein that the said K.Ashok Kumar has defaulted the payment of instalments and that the complainant is a guarantor and that the opposite party is liable to deduct an amount of Rs.83,006/- which is payable to the complainant under the prized chit. We observe from the record that the Ex.A5 is the true copy of the complaint filed in the Court of Judicial First Class Magistrate , Jagitial in which the complainant is the said K.Ashok Kumar and opp.party is Kapil Chit Funds and this complaint is dt.1.9.05 and has been filed on the ground that the opp.party did not discharge their liability to pay Rs.75,000/- and damages of Rs.25,000/-. This document does not state anywhere the name of the complainant as one of the guarantors. The respondent denies that he stand as guarantor to said Ashok Kumar and also denies receipt of any letter dt.23.2.2007 from the opposite party regarding adjustment of Rs.83,006/-. It is pertinent to note that the appellant/opp.party did not choose to file this letter either before the District Forum or before this Commission. For the first time Exs.B2 to B4 have been filed to show that the complainant stood as surety together with the Guarantee Agreement and DP note said to have been executed by the complainant along with the others. But the complainant denies having executed these documents. The appellant/opp.party being a registered company doing finance business ought to have filed unimpeachable evidence to prove that:
a) complainant stood as surety to the said Ashok Kumar, which the complainant denies .
b) that the opposite party issued notices to the complainant that the principal defaulted the amounts and that these amounts were being deducted from the complainants account. Evidently the opp.party did not issue any such notice to the complainant though they pleaded so in their counter. There are no substantial grounds as to why the said notice was not filed either before the Forum or before this Commission.
c) the appellant/opp.party has also failed to prove that the complainants name has been listed as one of the sureties in Ex.A5 complaint. When it has been pleaded by them that the complainant has not filed the list of witnesses in which his name figures, there are no substantial grounds as to why the appellant/opp.party did not choose to file that list which includes the name of the respondent/complainant as one of the sureties in Ex.A5.
For all the afore mentioned reasons we are of the considered view that there are no substantial reasons to interfere with the well considered order of the District Forum. This appeal fails and is accordingly dismissed. No costs.