Case Details
E. Ankama Naidu Vs Kapil Chit Fund Ltd.
Case Details
| AS | |
| 8268/2012 | |
| 161/2012 | |
| 03-12-2012 | |
| 10-12-2012 |
| 22nd February 2013 | |
| 27th October 2014 | |
| Case Disposed | |
| 1-Iii Addl. District Judge; | |
| Contested--Dismissed With Costs; |
Petitioners & Respondents
E. Ankama Naidu, Alluru Bathi Naidu, D. Padma, B. Simhachalam, ;
E. Ankama Naidu, Alluru Bathi Naidu, D. Padma, B. Simhachalam Show Less
Ch. Koteswar Rao, Ch. Koteswara Rao, Ch. Koteswara Rao, Ch. Koteswara Rao;
Ch. Koteswar Rao, Ch. Koteswara Rao, Ch. Koteswara Rao, Ch. Koteswara Rao;
Kapil Chit Fund Ltd.;
Kapil Chit Fund Ltd.;
Order Details
Order Details
Order not found.
Final Order Judgement
| 27-10-2014 | |
| IN THE COURT OF V ADDITIONAL DISTRICT JUDGE :: TIRUPATI IN THE COURT OF III ADDITIONAL DISTRICT JUDGE :: TIRUPATI. Present: Sri B. RAVEENDRA BABU, III Additional District Judge, Tirupati. Monday, the Twenty Seventh (27th) day of October, Two thousand Fourteen A.S.No. 161 of 2012 (O.S.No.246 of 2010 on the file of Additional Senior Civil Judge, Tirupati) 1. E.Ankama Naidu,(D1) 2. Alluru Bathi Naidu,(D3) 3. D.Padma,(D4) 4. B.Simhachalam,(D5) 5. E.Umarani (D6) ...Appellants/Defendants 1, 3 to 6 And : Kapil Chit Funds Pvt. Ltd., Tirupati, Rep., by its Manager/Foreman ...Respondent/Plaintiff On appeal against the Judgment and Decree passed by the Learned Additional Senior Civil Judge, Tirupati, dt. 16082012 made in O.S.No. 246 of 2010 Kapil Chit Funds Pvt. Ltd., Tirupati, Rep., by its Manager/Foreman .. Plaintiff. And : 1. E.Ankama Naidu, 2. R.Krishna Murthy, 3. Alluru Bathi Naidu, 4. D.Padma, 5. B.Simhachalam, 6. E.Umarani .. Defendants This Appeal coming on 28082014 before me for final hearing and upon perusing the grounds of appeal and other material papers on record and upon hearing the arguments of Sri Ch.Koteswara Rao, Advocate for the Appellants/Defendants 1, 3 to 6 and of Sri S.Varadarajulu, Advocate for Respondent/Plaintiff and having stood over for consideration till this day, this court, delivered the following: J U D G M E N T 1. Defendants 1, 3 to 6 in O.S.No. 246 of 2010 on the file of Additional Senior Civil Judge, Tirupati preferred this appeal against the Judgment, decree, dt.16082012, wherein decree was passed against defendants 1 to 6 for an amount of Rs.2,70,61300 with costs and interest at 12% per annum from the date of suit till the date of decree and thereafter at 6% per annum till the date of realization on principal amount of Rs.2,52,35000 jointly and severally. 2. The parties in this Judgment are referred to as they are arrayed before the trial court as plaintiff and defendants 1 to 6 for the sake of convenience. 3. The case of the plaintiff in brief as can be seen from the plaint averments is as follows: Plaintiff is a registered Company, registered under Indian Companies Act. Plaintiff is doing chit fund business having its registered office at Plot No.26, Krishnapuri colony, West Maredpalli, Secunderabad. 1st defendant joined as a member of chit scheme of plaintiff in Chit series TPT02T11 vide ticket No.11. Value of the chit is Rs.5,00,00000. Period of chit is 50 months. Monthly instalment is Rs.10,0000. 1st defendant agreed to pay subscription after deducting dividend. 1st defendant executed agreement of chit on 27102007. Chit was commenced on 142007. 1st defendant became successful bidder agreeing to forgo Rs.2,06,00000. Out of the forgoing amount of Rs.2,06,00000, plaintiff's company deducted its commission and balance was distributed to all the subscribers of Chit. As per the rules and regulations of plaintiff's company, 1st defendant has to furnish independent guarantors to the satisfaction of the company. Defendants 2 to 6 stood as guarantors to 1st defendant and executed letter of guarantee in favour of plaintiff's company, agreeing to repay future liability of 1st defendant. Plaintiff's company paid prized amount to 1st defendant on 1992008. 2 1st defendant paid 25 installments as shown in statement of account, till April, 2009. Subsequently, 1st defendant became defaulter. Inspite of demands made by plaintiff, defendants 1 to 6 did not repay outstanding amount. Plaintiff's company got issued legal notice to defendants on 15022008 asking them to repay the outstanding amount. All the defendants, except 2nd defendant were served with notices, but they did not give any reply. As per the Statement of Account of maintained by plaintiff's company, 1st defendant is liable to pay Rs.2,52,35000 with future interest at 12% per annum from 152009. Defendants 2 to 6 are also jointly and severally liable to pay outstanding amount. This suit is filed for principal amount of Rs.2,52,35000 and interest amount of Rs.28,26300, in total for a sum of Rs.2,70,61300. 4 In this suit 2nd defendant remained exparte. 5 1st Defendant filed written statement. He pleaded that he was member of chit as averred in the plaint along with several other chits. 1st defendant is regular in payment of installments. 1st defendant used to pay installments by way of cash to the collection agents of plaintiff's company and some times by way of cheques. 1st defendant met with an accident and he was bed ridden for 18 months. During that period, installments paid by 1st defendant were not properly accounted for the installments due to plaintiff's company. There is variation in the receipts issued by Collection agents of plaintiff's company. At that time 1st defendant approached plaintiff's company and expressed his protest. There was a settlement between Manager of plaintiff's company and 1st defendant. As per the said settlement amount paid by 1st defendant towards nonprized chits i.e., TPT 3 01M2 and TPT03J37 has to be adjusted towards installments to the chit TPT02T11 vide token No.11 i.e., suit chit. As per the said settlement, 1st defendant is entitled for dividend and plaintiff's company shall not claim any commission for nonprized chits, since they were allotted to third parties without prejudice to the rights of this defendant. 1st defendant always ready and willing to pay installments amount, if any, still remained after adjustment of nonprized chit amount as stated above. 1st defendant further pleaded that he is having movable and immovable properties within jurisdiction of this court. House of 1st defendant is worth Rs.50,00,00000. 1st defendant is having Ac.1500 of land and he is having account in State Bank of India, Puttur branch and he is drawing monthly salary of Rs.36,00000. Defendants 2 to 6 are the guarantors of Chit. 1st defendant further pleaded immediately after receipt of legal notice on 15022010 he got issued reply notice on 932010 and the same was received by plaintiff's counsel. 1st defendant pleased that plaintiff's company failed to comply mandatory provisions of Chit Funds Act, 1971. 1st defendant took a plea that suit is barred by Limitation. 6 Defendants 3 to 6 adopted the written statement of 1st defendant. 7. In the trial court, on the basis of pleadings, the following issues were settled : 1 Whether the defendants executed chit agreement, guarantee agreement and promissory note for the rest of installments amounts of chit? 2 Whether the defendant paid the installments amount to the collection agent of the plaintiff's company? 3 Whether the plaintiff is entitled for recovery of suit amount? and 4 4 To what relief? 8. In the trial court, on the above said issues, on behalf of the plaintiff's company, Branch Manager of Plaintiff's company was examined as PW1 and Exs.A1 to 10 are marked. PW1 deposed as per plaint averments. Ex. A1 to A10 were marked through him. In the cross examination of PW1, Exs.B1 and B2 are marked. 9. On behalf of defendants, 1st defendant himself was examined as DW1 and Exs.B3 and B4 marked through him. DW1 deposed as per written statement averments. 10. Learned Additional Senior Civil Judge, Tirupati basing on the material available on record gave finding that 1st defendant failed to establish that he paid installments to the collection agents of plaintiff's company. Learned Additional Senior Civil Judge, Tirupati also gave finding that 1st defendant is not entitled to instruct the plaintiff's company to adjust the amount paid by him in connection with chits bearing Nos. TPT01M02 and TPT03J37 to the suit chit transaction. Learned Additional Senior Civil Judge, Tirupati also gave finding that 1st defendant committed default in payment of installments from April, 2009 and therefore, defendants 1 to 6 are jointly and severally liable to pay Rs.2,70,61300 with interest. 11 Aggrieved by the said Judgment and decree passed by learned Additional Senior Civil Judge, Tirupati, this appeal has been preferred by defendants 1, 3 to 6. The main ground urged in this appeal is that the amount paid by 1st defendant under Exs.B1 and B2 chit transactions, has not been adjusted towards the amount payable by 1st defendant to the plaintiff's 5 company towards suit chit transaction inspite of requests made by 1st defendant under Ex.B3 legal notice, dated 09032010, which is duly served on plaintiff's company, as can be seen from Ex.B4 postal acknowledgment. Learned counsel appearing for appellants contended that reasoning given by trial court for not adjusting the amount of 1st defendant in the chit transactions covered by Exs.B1 and B2 to the suit chit transactions is not at all a sound reasoning and it is against principles of natural Justice. 12. On the other hand, learned counsel appearing for the respondent/plaintiff contended that 1st defendant has no right over the amount paid by him in the chits covered by Exs.B1 and B2 and 1st defendant has no right to ask the plaintiff's company to adjust the amounts covered by Exs.B1 and B2 chits to the suit chit transaction as per the provisions of A.P. Chit Fund Act, 1971. 13. Basing on the rival contentions, the following are the points that emerge for determination in this application: 1 Whether the 1st defendant is entitled to ask plaintiff's company for adjustment of amount in Exs.B1 and B2 chit transactions to the suit chit transaction? 2 Whether the plaintiff's company is entitled for the suit amount and if so, at what rate of subsequent interest? 14. POINT : PW1 in the cross examination admitted that Exs.B1 and B2 are the ledgers and they are pertaining to 1st defendant and they pertain to chit transactions bearing Nos.TPT01M02 for Rs.1,00,00000 and TPT03J37 for Rs.5,00,00000. 6 15 PW1 deposed that plaintiff's company got issued Ex.A8 legal notice. PW1 also deposed that no reply was issued by 1st defendant. But DW1 deposed that he got issued reply notice to Ex.A8 legal notice. Reply notice is marked as Ex.B3. It is dated 932010. DW1 also deposed that Ex.B3 was served on plaintiff's company. DW1 filed Ex.B4 postal acknowledgment. Therefore, from the above said evidence available on record, it is clear that 1st defendant has got two more chit transactions with the plaintiff's company. They are TPT01M02 for Rs.1,00,00000 vide Ex.B1 and TPT03J37 for Rs.5,00,00000 vide Ex.B2. Further the evidence of DW1 coupled with Exs.B3 and B4 show that 1st defendant gave reply notice to Ex.A8 legal notice, got issued by plaintiff's company. 16 It is the case of 1st defendant that in the reply notice Ex.B3 he requested the plaintiff's company to adjust the amount covered under Exs.B1 and B2 to the suit chit transaction. The said plea also has been taken by 1st defendant in the written statement. 17 Crucial question is whether 1st defendant is entitled to make such request to the plaintiff's company to adjust the amount covered under Exs.B1 and B2 to the suit chit transaction and whether plaintiff's company is entitled to do so. Chit agreement in this case is dated 27102007. As on the date of chit agreement the Act, that is applicable is A.P.Chit Funds Act,1971. Chit Funds Act, 1982, which came into force on 15092008 is not applicable to the present suit chit transaction. 18 Sec.20 of Chit Funds Act, 1971 says that a nonprized subscriber who defaults in paying his subscription in accordance with the terms of the chit agreement shall be liable to have his name removed from the list of subscribers. It is the case of 1st defendant that he is a nonprized 7 subscriber, committed default in paying installments in respect of chit transactions TPT01M02 and TPT03J37 covered under Exs.B1 and B2. There is no material on record to show that whether the name of 1st defendant has been removed from the subscribers list of chit transactions bearing Nos. TPT01M02 and TPT03J37. 19 Sec.22 of Chit Funds Act, 1971 deals with as to how the amount due to default subscriber has to be dealt with. Sec.22 of the Chit Funds Act,1971 says that amount due to default subscriber shall be paid to him before the date of next succeeding installment when subscriber draws the prize amount. In case if the defaulting subscriber fails to furnish the acknowledgment, the amount shall be kept in approved bank before the date of next succeeding installment. The amount so deposited shall not be withdrawn by the foreman for any purpose other than for payment to the defaulting sub subscriber. 20 Sec.27 of Chit Funds Act, 1971 deals with transfer of non prized subscriber rights. This section says that every transfer by a non prized subscriber of his rights in the chit shall be in writing duly attested by at least two witnesses and shall be filed with the foreman. Such transfer must be recognised by Foreman, in view of Sec.28 of Chit Funds Act, 1971. 21 In this case, it is not even the case of 1st defendant that he requested to transfer of his rights in the chits covered by Exs.B1 and B2. In this case 1st defendant did not file any document to show that he made such request in writing attested by two witnesses. Therefore, request of 1st defendant in Ex.B3 legal notice can not be treated as request of transfer of his rights in the chits covered by Exs.B1 and B2. 8 22 Sec.22 of Chit Funds Act, 1971 says that amount due to default subscriber must be paid to default subscriber and it must be deposited in approved bank and such amount shall not be used for any purpose other than for payment to the defaulting sub subscriber. Such course of action must be completed before next commencement installment after defaulting subscriber draws the prize amount. That means, till the subscriber drawn prize amount, defaulting subscriber is not entitled to recover his contribution from the Foreman, subject to deductions as may be provided for in the chit agreement. 23 Therefore, 1st defendant in order to claim the amount due to him in the chit transactions covered by Exs.B1 and B2, Subscriber must draw the prize amount in those chit transactions. There is no material on record to show that subscriber draw the prize amount in those two chits. Unless prized subscriber draws prize amount, default subscriber is not entitled for the amount from the Foreman. Therefore, the request made by 1st defendant in Ex.B3 reply notice, can not be considered, in the absence of evidence that subscriber has drawn the prize amount in the above two chit transactions. Neither Sec.22 nor Sec.27 and 28 of Chit Funds Act did not authorize Foreman to adjust the amount of 1st defendant in the chits covered under Exs.B1 and B2 to any chit transaction. On the other hand, Sec.22 of Chit Funds Act, 1971 says amount due to default subscriber must be paid to him alone. 24 Even the provisions of Sec.59, 60 and 61 of Contract Act also are not applicable to the facts of this case. 25 Therefore, in this case, 1st defendant is not entitled to ask the plaintiff to adjust the amount due to him covered under Exs.B1 and B2 9 chit transactions to the suit chit transaction. Further, plaintiff's company has no authority to adjust the amount due to 1st defendant in the chit transactions covered by Exs.B1 and B2 to suit chit transaction. It is already held that there is no material on record to show that prized subscriber has drawn the prize amount in the chit transactions covered by Exs.B1 and B2 in order to enable the default subscriber i.e., 1st defendant to collect the amount due to him from the Foreman. In view of the above discussion, Point No.1 is answered against appellants/defendants 1, 3 to 6 and in favour of respondent/plaintiff. 26 Point No.2: In the reply notice and as well as in written statement, 1st defendant admitted that he is member of suit chit transaction and he has executed chit agreement Ex.A4. There is also admission of 1st defendant in the reply notice Ex.B3 that he executed Ex.A5 promissory note and letter of guarantee executed by defendants 2 to 6 on 19092008. Perusal of Ex.A9 statement of account shows that 1st defendant is due to plaintiff's company an amount of Rs.2,52,35000. Plaintiff's company claimed interest at the rate of 12% per annum from the date of default i.e., 152009 till the date of filing of suit i.e., 742010 i.e.,Rs.28,26300. Therefore, total suit amount is Rs.2,70,61300. 27 In view of the evidence of PW1 and the admissions made by DW1 in the written statement about the execution of Exs.A4, A5 and A7, defendants 1 to 6 are jointly and severally liable to pay suit amount to the plaintiff's company. Trial court awarded interest at the rate of 12% per annum till the date of decree and thereafter at 6% per annum on the principal amount of Rs.2,52,35000. Therefore, there is no reasons to defer 10 with the findings and decree passed by learned Additional Senior Civil Judge, Tirupati in O.S.No.246/2010. In view of the above discussion, Point No.2 is answered against appellants/defendants 1, 3 to 6 and in favour of respondent/plaintiff. 28 In the result, appeal is dismissed with costs confirming the Judgment and decree, dated 16082012 passed by learned Additional Senior Civil Judge, Tirupati in O.S.No.246/2010. Dictated to the Personal Assistant, transcribed by him, corrected by me and pronounced in open court this the 27th day of October, 2014. III Additional District Judge, Tirupati. Appendix of Evidence NIL III A.D.J Tirupati Copy to: The Additional Senior Civil Judge, Tirupati. 11 Fair Judgment in A.S.No.161 of 2012 Dated: 27102014 12 |
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Frequently Asked Questions
The Petitioner in case E. Ankama Naidu vs Kapil Chit Fund Ltd. is E. Ankama Naidu and 4 more.
The Respondent in case E. Ankama Naidu vs Kapil Chit Fund Ltd. is Kapil Chit Fund Ltd..
The case against Kapil Chit Fund Ltd.was filed on 03-12-2012 by E. Ankama Naidu.
The status of case E. Ankama Naidu against Kapil Chit Fund Ltd. is Case Disposed.