SMT. SAHANA AHMED BASU, MEMBER.
This is an application u/s.12 of the C.P. Act, 1986.
The complainants case, in brief, is that the complainants invested Rs. 1,10,000/-, Rs. 30,000/- and Rs. 50,000/- respectively with the OP-1 for a period of two years. OP-1 issued certificates bearing Nos. 1210049, 1216513 and 1218642 dated 18.02.2013, 29.04.2013, 16.05.2013 respectively against such investment. The date of maturity of those certificates were 18.02.2015, 29.04.2015 and 16.06.2015. The original FD certificates were deposited to the OP-1 on 13.01.2015, 13.04.2015 and 13.04.2015. in spite of maturity the O.Ps. failed and neglected to refund the principal amount along with interest thereon. Finding no other alternative, complainants wrote letters dated 17/06/2015, 12/03/2016, 22/05/2016, 15/03/2017 and 23/02/2017 to the O.Ps. requesting them to refund the invested amount. Such letters were unattended. Hence, the complainants approached to this Forum to direct the OPs to refund maturity amount including other reliefs.
Despite of receiving notices OP-1 and 4 did not turn up to contest the case and OP-5 refused to accept the notice. Therefore, the case has proceeded ex parte against OP 1, 4 & 5.
OPs 2 and 3 have contested the case by filing W.V. The specific case of the OP-2 is that the complainants never invested the amount with them. The complainants invested money in the FD scheme floated by OP-1 and matured amount along with accrued interest has not been refund by the OP-1company. OP-2 is me as an agent of the OP-1 and under Section 230 of ICA 1872, the OP-2 cannot be held guilty for deficiency in service, if any, done by OP-1. Being an agent the OP-2 has no control over the business affairs of O.P.-1. The complainants are not consumers under the answering O.P. and they never paid any consideration to OP-2. The complainants never availed any service from the OP-2 within the definition of service as given U/s 2 (1) (o) of CP Act, 1986. The answering OP is not a necessary party to the present complaint and has been impleaded to territorial jurisdiction. The complainants have not issued any notice to the answering O.P. before filing the complaint. The OP-2 is not liable for renewal or payment of matured FDR amount. Therefore, the complaint against OP-2 is not maintainable. Thus, the answering O.P. prayed for dismissal of instant complaint.
The specific case of the OP-3 is that OP-3 they are registered under the Companies Act, 1956 and is engaged in the business of stock broking service and Manager of fixed deposit scheme of various issuing companies and a registered broker, member of the NSEIL, BSE and registered with the SEBI. The OP-3 acted as a broker only. The complainants have taken the FDR in question from the OP-1 through OP-3. The role of OP-3 in the process FD scheme was only to forward application form to the concerned Registrar and Transfer Agent or issuing company. The services of the OP-3 are limited to receipt of cheques/DD including documents from the clients and deposit the same with the Registrar of the Finance Company indicated to it. The OP-3 neither kept the deposit nor the beneficiary of the deposit made by the complainant. Therefore, there is no deficiency in services on the part of the O.P.-3. The OP-3 have discharged their duties and explained about the terms of the plan. Thus, the O.P.-3 never induced or mislead the complainants the complainants themselves choose the plan according to their free will and satisfaction. The complainants have implicated the O.P.-3 in to the present complaint just to make out territorial jurisdiction of this Forum. Complainants never made any allegations against the O.P.-3 and the complainants have not disclosed / mentioned any material transaction with the OP-3. Thus, the complainants are not entitled to get any relief against the O.P.-3. OP-3 further alleged that the complaint is barred under Section 24A of the CP Act, 1986. Accordingly, the OP-3 has prayed for deletion of their name from the instant case.
In the light of the above pleadings the following points necessarily came up for determination :-
- Is the complaint maintainable in its present form and in law?
- Are the OPs deficient in rendering service and indulged in unfair trade practice?
- Are the complainants entitled to get any relief/reliefs as prayed for?
Decision with Reasons
Points No. 1 to 3.
All the points are taken up together for the sake of convenience and brevity in discussion.
The complainants and OP-2 have filed the E/chief through affidavit. OP-3 failed to file E/chief in support of their case. The complainants replied to the questionnaires set forth by the OP-2 and they did not put any question to OP-2. We have examined the entire material on record and also given a thoughtful consideration to the argument advanced before us.
Undisputedly complainants invested Rs.1,10,000/-, Rs.30,000/- and Rs.50,000/- in three Fixed Deposit Receipts for a period of for 2 years to the O.P.-1 and such amount was invested through O.Ps.-2 to 5 on on 18.02.2013, 29.04.2013 and 16.05.2013. OP-1 issued certificates bearing Nos. 1210049, 1216513 and 1218642 to the complainants. Fact remains that the maturity dates of the certificates were 18.02.2015, 29.04.2015 and 16.05.2015. Thus, complainants are the consumer under the C.P. Act, 1986 under the OP-1. As such, the consumer complaint is maintainable in law. The complainants deposited original FDR certificates to the OP-1 on 13.01.2015, 13.04.2015 and 13.04.2015 for refund of matured amount. The maturity was Rs. 1,39,671/- against FDR No. 1210049 in favour of complainant-1, Rs.38,092/- against FDR No. 1216513 in favour of complainant-2 and Rs.68,348/- against FDR No. 1218642 in favour of complainant-3. The O.P.-1 is liable to pay Rs. 2,41,250/- tot he complainants. Complainant-1 wrote a letter dated 21.02.2015 to Mr. Ajay Chandra, Managing Director of the UNITECH LTD. Admitting the fact of receiving interest of Rs.29,671/- against the FDR No.1210049 with a request to refund the principal amount of Rs.1,10,000/-. Such letter was unattended. The O.P.-1 did not pay the matured amount against the FDR No. 121651 and 1218642 in due time.
Complainants invested their hard earned money to get higher interest attracted by the offer of the OP-1. They had fulfilled all the procedure and waited for two years in the hope of getting high return from one time investment. But the reality is totally different. Complainants are not prepared for such situation. The complainant knocked the doors of O.P.-1 several times by sending letters dated 17.06.2015, 12.02.2016, 22.05.2016 and 23.02.2017. Complainants appealed to D. Bandopadhyay (ROC-Delhi) on 15.03.2017. But no response is received. The OP-1 did not bother to reply or negotiate with the complainants. The O.P.-1 is fully aware that they are liable to pay the matured amount of the FDRs to the complainants on its maturity. The O.P.-1 is deliberate to make illegal gains and to deprive the complainants from their lawful right. Thus, the O.P.-1 has adopted unfair trade practice and in fact withhold the maturity amount which no doubt adopt deceitful manner of trade. There is no evidence on the part of the O.P.-1 to rebut the evidence of the complainants. Thus, the complainants are entitled to get relief / reliefs as prayed for.
The arguments advanced by the Ld. Advocates of OP-2 and OP-3 are that they acted as an agent and broker/ Manager whose services are limited only to help the investor to invest and receipt of cheques/DD and documents from the customers. They had neither kept the deposit and not the beneficiary of the deposit made by the complainants. The OP-1 is solely responsible for whole transaction. Ld. Advocates for the Ops.-2 and 3 argued that they had impleaded in the instant complaint just to make out the territorial jurisdiction and the complainants are not entitled to get relief/reliefs against them. We find logic in their submission.
OPs 4 and 5 are also the financial agent / broker. Therefore, they have also no financial responsibility towards the complainants. Thus, all the points answered in the affirmative.
Thus, the complaint case succeeds in part.
Hence,
ORDERED
That the complaint case be and the same is allowed ex parte against the OP-1 with litigation costs of Rs. 10,000/- (Rupees Ten thousand) only and dismissed on contest against OPs.-2 & 3 and also dismissed ex-parte against O.Ps.-4 & 5 without any cost.
OP-1 is directed to pay the amount of Rs.2,11,579/- (Rs.1,10,000/- + Rs.38,092/- + Rs.63,487/-) only to the complainant within 30 days from the date of this order along with litigation cost.
OP-1 is further directed to pay Rs. 50,000/- (Rupees Fifty thousand) only compensation for mental agony, financial loss and harassment to the complainants within the statutory period.
OP-1 is also directed to deposit Rs. 5,000/- (Rupees Five thousand) only to this Forum as Punitive Damage for practicing unfair trade practice within the stipulated period.
Liberty be given to the complainant to put the order in execution, if the OP-1 transgresses to comply the order.
