PRIYA MENONA vs SAHAI FINANCIERS AND KURIES

THE above appeal is preferred from the order dated 27th August, 2001 passed by CDRF, Thrissur in OP 638/2000. The complaint in the said OP was filed by the appellant herein as complainant against the respondent as opposite party claiming the Kuri amount due to the complainants. The opposite party disputed the aforesaid claim on the ground that civil suit is pending against the guardian of the minor complainant. Thereby, the lower Forum dismissed the complaint in OP 638/2000. Aggrieved by the said order the present appeal is preferred by the complainant in the said OP 638/2000.

WHEN this appeal was taken up for final hearing, there was no representation for the respondent/opposite party. The Counsel for the appellant was present. It is also to be noted that registered notice was issued to the respondent intimating the date of posting of this appeal. But even after acceptance of the said notice there was no representation from the side of the respondent/opposite party. So, this Commissioner heard the appellant. The learned Counsel for the appellant argued this appeal on the basis of the grounds urged in the memorandum of the present appeal. He has relied on the decision rendered by the Hon''ble National Commission reported in 1997 (2) CPR 245. It is submitted that the lower Forum has gone wrong in dismissing the complaint in OP 638/2000 in the light of the pendency of a civil suit as O. S. 84/2000 on the file of the Munsif Court, Chavakkad. It is further submitted that the facts of the complaint in OP 638/2000 are different from the facts in OS 84/2000. Thus, the learned Counsel for the appellant/complainant requested for demanding the matter to the lower Forum for consideration of the complaint in OP 638/2000 on merits. The points that arise for consideration are: 1. Whether the lower Forum can be justified in dismissing OP 638/2000 on the ground that a civil suit OS 84/2000 is pending against the complainant''s guardian Mr. Viswanatha Menon? 2. Is there any sustainable ground to interfere with the impugned order dated 27. 8. 2001 passed by the Forum below in OP 638/2000? points 1 and 2:

There is no dispute that the minor appellant/complainant was a subscriber to the Kuri conducted by the respondent/opposite party and that the complainant as the subscriber remitted that Kuri instalments up to the 40th instalment and the said Kuri was auctioned in the name of the appellant/complainant on the 41st instalment. It is also an admitted fact that the respondent/opposite party as foreman of the said Kuri refused to pay the auctioned Kuri amount on the ground that Civil Suit as OS. 84/2000 is pending before the Munsif Court, Chavakkad against the complainant''s father Mr. Viswanatha Menon. It is to be noted that the subscriber to the Kuri is not the father of the complainant; but the subscriber is the complainant minor Priya Menon. So, the fact that a suit is pending against the father of the complainant cannot be taken as a ground to dismiss the complaint preferred by the complainant on the ground that the matter is subjudice and not maintainable. The learned Counsel for the appellant has rightly relied on the decision rendered by the National Commission in Jai Dev Agarwal v. Haryana State Electricity Board and Another reported in 1997 (2) CPR 245 (NC) and submitted that the pendency of Civil Suit cannot be taken as a ground to dismiss the complaint filed before the Consumer Forum when the matter in issue is entirely different from the matter in issue pending for consideration of the Civil Court. Thus, the Forum below has gone wrong in dismissing the complaint in OP 638/2000 without going into the merits of the case. So, this is a fit case to be remitted back to the Forum below for fresh consideration of the matter in accordance with law. These points are answered accordingly. In the result, the appeal is allowed to the extent that the matter is remitted to the Forum below for fresh consideration and disposal in accordance with Law. The impugned order dated 27. 8. 2001 passed by CDRF, Thrissur in OP 638/2000 is set aside. The parties to this appeal are directed to suffer their respective costs. Appeal allowed.