This Complaint coming up before us for hearing on 16-03-12 in the presence of Sri L. Ramalingeswara Rao, advocate for the complainants and of Sri K. Sreenivasa Rao, advocate for 2^nd opposite party and opposite parties 1 & 3 were remained absent and set exparte, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao,  President:-   The complainant filed this complaint under section 12 of the Consumer Protection Act seeking payment of Rs.1,06,287/- being the maturity value of security bonds plus interest; Rs.10,000/- as damages for harassment and inconvenience caused by the opposite parties and for costs.

2.  In brief the averments of the complaint are hereunder:

        The complainants 2 to 4 are the legal representatives of the deceased 1^st complainant.  During her lifetime the 1^st complainant on 04-07-01 deposited Rs.1,00,000/-  with the 1^st opposite party  for a period of twelve months.   The 1^st opposite party issued deposit certificate bearing No.29619.   The said deposit carries interest at 12% p.a.  The 1^st complainant is a subscriber of the 3^rd opposite party in Model Chit Corporation Limited (MCCL) in Chit No.ST6VGT-4 to be completed by October, 2002 and in Chit No.7VGT-22 to be completed by March, 2003.   The 1^st complainant became a successful bidder of both the chits.   The 1^st complainant pledged certificate No.29619 with this 3^rd opposite party towards the said chits.  An amount of Rs.50,000/- was deducted from the 1^st complainant’s deposit by the 3^rd opposite party with the approval of the 1^st opposite party.  Subsequently, the 1^st complainant paid all installments of the above chits and the lien on the said certificate was cancelled on                22-10-02.    The opposite parties 1 and 2 failed to pay the remaining balance amount of Rs.50,000/- together with interest @14% p.a. from 01-04-03.    Inspite of repeated demands the opposite parties 1 and 2 failed to pay the remaining amount of the certificate bearing No.29619.    The notices sent by the complainant returned unclaimed.   The complaint therefore be allowed.

3.    The opposite parties 1 and 3 remained exparte.

4.    The contention of the 2nd opposite party in brief is hereunder:

           The complainant is not a consumer.   The complaint is barred by limitation.  For the past few years the 1^st opposite party sustained huge losses in the business due to default in repayment by its debtors and the said debtor companies are at the stage of winding up or its applications are pending before BIFR.    The 1^st opposite party informed to its bond holders including the complainant by the Chair person appointed by the High Court regarding it.   Therefore the opposite party did not commit any deficiency of service.   The 1^st opposite party sent notices to each bond holder under certificate of posting and gave publicity in dailies the New Indian Express and Andhra Prabha.   The High Court of AP on 11-07-02 in Company Petition No.83 of 2002  stayed all further proceedings against the 1^st opposite party initially for eight weeks and subsequently until further orders.   A. P. State Consumer Disputes Redressal Commission passed in several 1^st appeals against the orders of various District Consumer Forums by staying proceedings before the concerned Forums observing that all payments made by the 1^st opposite party is subject to result of CP.No.83 of 2002 on the file of the Hon’ble High Court.   Under those circumstances, the complaint is liable to be dismissed.

5.   Exs.A-1 to A-10 and Exs.B-1 to B-3 on behalf of the complainant and opposite party No.2 were marked respectively.

6.   Now the points that arose for consideration in this complaint are:

1. Whether the complaint is barred by time?
2. Whether the complainant is a consumer?
3. Whether the opposite parties committed deficiency of service?
4. Whether the complainant is entitled to compensation?
5. To what relief?

7.    POINT No.1:-     The 1^st complainant filed IA 1950 of 2007 to condone the delay of 1226 days in filing complaint.   On contest this Forum on 16-04-11 allowed IA 1950 of 2007 condoning the delay.   The opposite parties made the said order in IA 1950 of 2007 to become final.   Under those circumstances, the contention of the contesting opposite parties on the aspect of limitation is devoid of merit.   We therefore answer this point in favour of the complainant.

8.    POINT No.2:-    The complainant depositing Rs.1,00,000/- with the 1^st opposite party as a deposit payable with interest is not disputed. 

In Probir R. Ghosh and others vs. Yule Financing and Leasing Company Limited 2004 (1) CPR 52 (NC) it was held

“Bare reading of the impugned order (copy at pp.1) would show that appeals were allowed taking note of the decision rendered by this Commission in Allianz Capital and Management Services Limited V. NP Grover and Others.  In Lloyds Finance Limited V.Senior Wire Products and another, this Commission examined the question of jurisdiction of Consumer Forum vis-à-vis the Company Law Board, latter exercising jurisdiction under section 45QA of the Reserve Bank of India, 1934 though constituted under section 10E of the Companies Act, 1956.  It was held that a depositor can file a complaint for the amount due either under, the Act before the appropriate Forum or approach the Company Law Board under section 45QA but once he files an application under section 45QA he cannot file  compliant in a Consumer Forum.   M/s. Allianz Capital and Management Services Limited’s case (supra) was held to be decided with reference to the facts of that case and thus that could have application in other cases.  It is not in dispute that the petitioners before filing complaints in District Forum has not approached the Company Law Board under said section 45QA for repayment of the deposits with interest by the respondent company.  In view of said ratio in Lloyds Finance Limited’s case (supra), the impugned order deserves to be set aside and matter sent back to the State Commission for appeals being decided afresh on merits”.

9.  It is not the case of the contesting opposite parties that the complainant approached Company Law Board. Under those circumstances, the complainant is a consumer under the purview of Consumer Protection Act.   We therefore answer this point in favour of the complainant.

10.    POINT No.3:-     The opposite parties 1 and 2 herein are the appellants in First Appeal Nos.1067 of 2008 to 1078 of 2008 and in some prosecution petitions before A.P. State Consumer Disputes Redressal Commission wherein it was held

        “Since this C.P. No.83 of 2002 is still pending on the file of the Single judge of A.P. High Court, we dispose of these appeals with a direction that

                   All payments made by opposite party No.1 i.e., Model Finance Corporation is subject to the result in C.P. 83 of 2002 on the file of Company Judge, High Court of Andhra Pradesh as disposed of by the Division bench in O.S.A.Nos.69 and 71 of 2003.   No costs”.

11.   The 2^nd opposite party and three others filed Criminal Petition No.4991 of 2005 u/s 482 Cr.P.C., before the High Court of Andhra Pradesh to quash the FIR No.197 of 2005 on the file of 1-town PS, Ananthapur, wherein it was held

         “In the above circumstances, I am of the view that the continuance of criminal proceedings against the petitions pursuant to FIR No.197 of 2005 of Town Police Station, Ananthapur, would amount to abuse of process of court in view of the fact that the company court is seized of the matter.   Hence, the said criminal proceedings are quashed.    It is needless to observe that the third respondent can approach the company court and work cut his remedies as are open to him in law”.

12.   CP.No.83 of 2002 on the file of High Court is pending as on                    24-01-12 as per Ex.B-3.  Nowhere the High Court of A.P. or A.P. State Consumer Disputes Redressal Commission stayed depositors of the 1^st opposite party from approaching either Civil Court or Consumer Forum for recovery of their amount due.    Therefore the contention of the    2^nd opposite party that the High Court stayed all proceedings is devoid of merit. 

13.   During the course of arguments the learned counsel for the contesting opposite party contested the quantum of claim of the complainants.   The contesting opposite party neither in his version nor affidavit disputed the quantum of claim of the complainants to receive Rs.1,06,287/-.     Therefore the contention of the 2^nd opposite party regarding correctness or otherwise of the claim amount by the complainants is only an after thought.   Under those circumstances Exs.B-1 and B-2 no way help the 2^nd opposite party.   The lien created on Ex.A-1 bond was cancelled on 22-10-02 as per endorsement made on it. The complainant claimed interest on Rs.50,000/- only from the date of cancellation of lien i.e., 01-04-03.   Ex.A-1 bears interest @14% p.a.  Therefore the opposite parties are liable to pay interest on Rs.50,000/- in the least from 22-10-02.    On calculation the amount claimed by the complainants is less when interest is added to the principal amount of Rs.50,000/-.   We therefore opine that the amount claimed by the complainant is justified and its non payment amounted to deficiency of service.   Hence, we answer this point against the opposite parties.

14.  POINT No.4:-   The complainant claimed Rs.10,000/- for the harassment and mental agony.   The opposite parties failed to return the deposit even after maturity for over a period of eight years.   Considering the period involved awarding the amount of Rs.10,000/- claimed by the complainants in our considered opinion is just and reasonable.   We therefore answer this point against the opposite parties.

15.  POINT No.5:-    In view of above findings, in the result the complaint is allowed partly as indicated below:

1. The opposite parties are directed to pay Rs.1,06,287/- together with interest @9% pa., from 16-04-11 till realisation.
2. The opposite parties are directed to pay Rs.10,000/- as damages and Rs.2,000/- towards costs.
3. Any payments made by the opposite parties are subject to the result in C.P. No.83 of 2002 on the file of Company Judge, High Court of Andhra Pradesh as disposed of by the Division bench in OSA.Nos.69 and 71 of 2003. 

          Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 27th day of March, 2012.

MEMBER                                             MEMBER                                             PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite party No.2: 

                                                                                                                        PRESIDENT