Karnataka

Belgaum

CC/361/2014

Sharad Sardeshpande - Complainant(s)

Versus

Achal Automobile Pvt Ltd - Opp.Party(s)

R B Deshpande

18 Nov 2015

ORDER

 (Order dictated by Shri. B.V.Gudli, President)

COMMON ORDER

            I. Though the complainants are same, their grievances, allegations and the facts pleaded are same except the details of the deposits by the respective complainants. The complainants belong to one family. In all the cases the opponents are same, represented by Directors. Hence for convenience all the cases are disposed of by the common order.

          II. Since there are 4 cases and same number complainants are there having same addresses and particulars of their deposits being different, for brevity and also for clarity and to avoid confusion, names of the parties of the particular case only will be shown in the cause title and the details of the deposits will be shown separately in the annexure.

          III. The parties will be referred to as complainant/s, and Director/s instead of serial number, as in some cases their numbers are different.

          1) The relevant facts of the cases are that the respective complainants have filed the complaints u/s. 12 of the Consumer Protection Act 1986 against the O.Ps. alleging deficiency in banking service of non refund of the fixed deposits/deposit.

          2) After service of notice O.P.1 and 2 did not appeared. Hence they were placed ex-parte, and for opponent No.3 appeared through counsel. In complaint No.361/2014 for O.Ps. 1, 2 and 4 Miss B.G.A filed vakalat and application to set aside ex-parte order. The application filed to set aside ex-parte order has been rejected by this forum on 6/1/2015. In complaint No.415/2014 and 432/2014 the counsel Miss B.G.A. appeared for O.Ps. 1,2 and 3 and Sri. K.R.S. appeared for O.P.4 after O.P.No.4 came to be impleaded.

          3) In support of the claim in the complaint, complainant has filed affidavit and original F.D.Rs. is produced by the complainant. The complainant/s are claiming matured F.D.Rs. So also, the O.P.No.3 has filed objection, affidavit and produced certain documents. The O.Ps. 1,2 and 4 though appeared through counsel have not filed objections, affidavit.

          4) We have heard the arguments and perused the records.

          5) Now the point for our consideration is that whether the complainant has proved deficiency in service on the part of the O.P. and entitled to the reliefs sought?

          6) Our finding on the point is partly in affirmative, for the following reasons.

:: R E A S O N S ::

          7) From the evidence on record it has been proved that the complainant/s have deposited the amount in O.P. Company in F.D.R/s. in the respective accounts and for the respective some mentioned in the F.D.R/s. The maturity value, the amount deposited and the dates are shown in the table below;

Sl. No.	Complaint No.	FDR A/c.  No.	Date of deposit	Amount deposited	Date of maturity	Interest and months
1	2	3	4	5	6	7
1	361/2014	725	6/7/2011	5,00,000	5/7/2014	13%, for 36 months
		726	5/9/2011	6,50,000	4/9/2014	13%, for 36 months
		728	21/4/2011	4,00,000	20/4/2014	13%, for 36 months
2	415/2014	720	24/5/2011	8,00,000	23/5/2014	13%, for 36 months
		724	15/10/2011	5,00,000	14/10/2014	13%, for 36 months
		727	6/10/2011	2,00,000	5/10/2014	13%, for 36 months
3	423/2014	721	24/5/2011	5,00,000	23/5/2014	13%, for 36 months
		722	1/9/2012	10,00,000	31/8/2013	13%, for 12 months

 

          8) In complaint No. 324/2014 the complainant has claimed pre-matured F.D. amount in respect of A/c. No.822 deposited on 4/3/2013 an amount of Rs.5,00,000/- for 36 months at the rate of 13% P.A. and the due date is on 3/3/2016.  The O.P.No.1 in this complaint No.324/2014 is a Company styled as Mr. Car Source India Pvt. Ltd., but the directors representing the O.P.No.1 are also representing the O.P.No.1 in complaint No.361/2014, 415/2014 and 432/2014. The only difference is in the name of O.P.No.1 company. But in complaint No.324/2014 the O.P.No.3 has filed the objection and the contents of the objection and affidavit are all together are same, to the contents of objection and affidavit filed in other complaints Nos.361/2014, 415/2014 and 432/2014. Hence the O.P.No.1 is also shown in the cause title along with the complaint No.324/2014.

          9) The complainant requested the opponents to return the matured amount, inspite of that opponents went on postponing the same by assigning one or other reasons. Thereafter the opponent got issued legal notice through his counsel said notice was duly served on the opponents. Inspite of that the Directors No.2 mentioned in the notice did not reply to the notice but the Director No.3 as shown in the notice, had replied to the legal notice issued by the complainant.  Hence opponents committed deficiency in service as contemplated under the provision of the Consumer Protection Act 1986.

10) On perusal evidence affidavit of the complainant, after maturity of F.D.Rs. the opponent has not paid F.D.Rs. amount. inspite of the demands made to the O.P’s. Hence, the claim of the complainant that inspite of the demands made the amount remained unpaid, has to be believed and accepted. It is well settled legal position that non payment of the amount deposited, amounts to deficiency in service.

11) The Opponent Sri. Anand S. Marathe is been made party as O.P.No.3 in some of the complaint/s and the said O.P. has been party as O.P.No.4 in some complaint/s. The other O.Ps. though represented by their counsel did not filed their version nor documents are putforth. The O.P.No.3/4 has filed his objection contending that he has resigned from the post of directorship and his not liable to answer the claim of the complainant. This O.P. contends that and admits that it is a Pvt. Ltd., Company registered under the Company’s Act and that the O.P. No.2, 3 and 4 are directors of O.P.No.1 is been denied. Further this opponent contends that he has already tendered the resignation from directorship and same was accepted by O.P.No.1 on the same day after resignation. This O.P. further contents and admits that he is a Chartered Accountant as contented by complainant. But this O.P. further contents that and denies being the director to be O.P. Company. Further contends that the complainant has invested the amount on different dates and some are matured under receipts No. 725, 726 and 728 as through and correct.  The O.P.No.3/4 also contends that the receipt No.726 being pre-matured cannot be claimed and it is against the terms and conditions of the Company. This opponent further contends that the complainant has issued a legal notice and he has reply to the said legal notice and prayed to reject the complaint against him.

12) For the sake of convenience of the forum and to avoid to technical difficulties herein after we have mentioned specifically the name of O.P. Sri. Anand S. Marathe, because in some of complaint he has been shown as O.P.No.3 and in some of complaint/s is party as O.P.No.4. The complainant at the time of argument submits that the O.P. Sri. Anand S. Marathe is still working as a Director and also played a roll of Chartered Accountant to the O.P.No.1 Company. The point here is to be noted that the opponent Sri. Anand S. Marathe as contented by him in the objection that he has already resigned from the O.P.No.1 Company to show that he has produced document, which is addressed to the directors of O.P.No.1 Company and same is been received and accepted by the director for O.P.No.1 company. But the said Sri. Anand S. Marathe has not produced any document to show that his resignation has been accepted by the ROC (Registered of Companies), but on the other hand the complainant has produced the document styled as “Search Report dated 1/7/2014 which has been issued by Chartered Accountant with duly sealed and signed. After going through this document we noticed that in the column Under Section II its shows list of directors and Secretary as on 1/7/2014 wherein we can find the table shown and under the name and resignation column Sri. Anand S. Marathe’s name is appearing and his designation is shown as director and at column, “date of appointment” is shown as 9/10/1995 and the adjourning column is date of Cessation, wherein there is no date mentioned in the said column and same is left blank. Through this document we can make it out that, though the opponent Sri. Anand S. Marathe has submitted is resignation as he contents but, we can make it that his resignation has not been accepted, if at all is resignation was accepted the column of Cessation would not have been kept blank etc.,  Therefore the argument submitted by complainant/s that Sri. Anand S. Marathe is still a Director in the Company and his resignation has not been accepted has to be believed and accepted.

13) Another contention taken by O.P.No.3/4 in his objection and affidavit pre matured F.D. amount cannot be claimed and not tenable in eye of law and against the terms and conditions of the company. But we have perused the F.D. receipts wherein there is a “Note mentioned” that the company reserve the right to retire the deposit at the rate earlier than the scheduled maturity date. This note mentioned on the F.D. receipts clearly indicates that the company can at any time before maturity can discharged the F.D. amount. Hence the contention taken by O.P.No.3/4 that pre-matured complaint cannot be claimed is not acceptable.  The complainant in complaint No.324/2014 has claimed the pre-matured F.D.Rs. but in the above cases the complainant has claimed matured F.D. amount. The objection filed by the O.P.No.3/4 in all 3 cases and in complaint No.324/2014 is same and the contents therein are also one and the same. The another point to be considered is here is that the reply given by O.P.No.3/4 to the notice issued by complainant/s dated 1/5/2014, wherein this O.P. as replied as;

          “Nevertheless, I have spoken to the Managing Director to Mr. Subhas Humbarwadi and his Director brother Mr. Virendra Humbarwadi about the repayment of deposit along with interest. They have informed me that they will clear the entire deposit along with the due interest on or before 31/5/2014”.

          By reading this para we can make it out that the O.Ps. have shown their willingness to pay the F.D. amount  and the O.P.No.3/4 has conversation with other directors. Hence indirectly the O.Ps. have admitted the claim of the complainant.

          13) The complainant has produced a document styled as search report of the Opponent company wherein we can noticed that the balance sheet and Annual Returns with the ROC of 3 years is more than 7 Crores as we notice the amount under column amount secured Under Section III index of charges 01/7/2014. By this we can make it out that the O.P. company is having sufficient funds to satisfy the claim of the complainant/s.

          14) We can notice the F.D. receipts wherein the receipts have been matured one year back and the amount in each case is about Rs. 5 lakhs and more and moreover the O.Ps. have not at all denied the contents of the search report and also that the more specifically the O.P.No.3 has not at all whispered anything in regards to search report submitted by the complainant along with the other documents. The only contention of the O.P.No.3 is that he has resigned from the company and his not at all liable to answer the claim of the complainant. But as discussed supra the O.P.No.3 has utterly fail to establish that his resignation has been accepted by ROC (Registrar of Companies) and there is no document coming forth before this forum in regards to his acceptance of his resignation. Hence is contention cannot be believed and accepted. The complainant/s have clearly establish deficiency of service against the opponents representing O.P.No.1 company.

          15) The interest ordered against the O.Ps. in respect of complaint NO.324/2014 is at the rate of 10% P.A. from the date of deposit and the said rate is ordered as per the guidelines of R.B.I. wherein the Reserve Bank of India in the notification and guidelines issued in respect of pre-mature complainants, that in pre-mature complainants the Bank/institutions shall reduce the rate of interest at 3% to actual agreed rate of interest. In complaint No. 324/2014 the rate of interest is 13% P.A. Hence we have reduced the rate of interest from 13% P.A. to 10% P.A. as it is in the said complaint pre-matured claim of F.D. amount and have passed the order below;

          16) Accordingly, following order.

ORDER

          The complaints are partly allowed.

          The O.P. No.1 represented by the Directors are hereby directed to pay to the complainant/s as ordered below;

Sl. No.	Complaint No.	FDR A/c. No.	Date of deposit	Amount deposited	Date of maturity	Interest and months
1	2	3	4	5	6	7
1	361/2014	725	6/7/2011	5,00,000	5/7/2014	13%, for 36 months
		726	5/9/2011	6,50,000	4/9/2014	13%, for 36 months
		728	21/4/2011	4,00,000	20/4/2014	13%, for 36 months
2	415/2014	720	24/5/2011	8,00,000	23/5/2014	13%, for 36 months
		724	15/10/2011	5,00,000	14/10/2014	13%, for 36 months
		727	6/10/2011	2,00,000	5/10/2014	13%, for 36 months
3	423/2014	721	24/5/2011	5,00,000	23/5/2014	13%, for 36 months
		722	1/9/2012	10,00,000	31/8/2013	13%, for 12 months

 

The O.P. No.1 represented by the Directors are hereby directed to pay the F.D.R/s. deposited amount to the complainant/s as mentioned in column No.5 with interest at the rate of 13% P.A. from the dates shown in column No.4 to the dates of maturity shown in column No.6, and with future interest at the rate of 8% P.A. from the dates mentioned in column No.6 till realization of the entire amount.

So also, the O.P. No.1 represented by the Directors in complaint No.324/2014 are hereby directed to pay the pre matured F.D.R/s. deposited amount of Rs.5,00,000/- with interest at the rate of 10% from 4/3/2013 to the complainant/s till realization of entire amount.

          Further, O.P. No.1 represented by the Directors are hereby directed to pay a sum of Rs.5,000/- in each complaint/s, to the complainant/s towards costs of the proceedings.

          The order shall be complied within 30 days from the date of the order.

The original order shall be kept in complaint No.324/2014 and the true copy in other clubbed cases.

 (Order dictated, corrected and then pronounced in the open Forum on: 18^th day of November 2015)

 

 

Member                Member                            President.

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