Chandigarh

StateCommission

A/213/2019

Small Industries Development Bank of India (SIDBI) - Complainant(s)

Versus

Bihari Lal - Opp.Party(s)

Karan S. Gill, Navan Bir Gill & Nidhi Adv.

23 Nov 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

 

Appeal No.	:	213 of 2019
Date of Institution	:	25.09.2019
Date of Decision	:	23.11.2021

 

Small Industries Development Bank of India (SIDBI) Chandigarh Branch, SCO 145-146, Sector 17-C, Chandigarh (now shifted to SCO 119-120, Sector 17-B, Chandigarh-160017) through its Manager.

…..Appellant/Opposite Party No.1.

Versus

1. Bihari Lal son of Mr. Ram Dass resident of House No.2207-B, Sector 63, Block No.15, Chandigarh (UT).

…Respondent/Complainant.

2. Small Industries Development Bank of India (SIDBI), Vikas Deep, 22 Station Road, Lucknow – 226019 through its Manager.
3. Small Industries Development Bank of India (SIDBI), Plot No.    C-11, G-Block, MSME Development Centre, Bandra East, Mumbai, Maharashtra – 400051.

…Respondents/Opposite Parties No.2 & 3.

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE:   JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                MRS. PADMA PANDEY, MEMBER.

                MR. RAJESH K. ARYA, MEMBER.

 

Argued by:

 

Sh. Karan S. Gill, Advocate for the appellant.

Sh. Gautam Pathania, Advocate for respondent No.1/complainant.

Already appeal dismissed against respondents No.2 & 3 vide order dated 29.01.2020 for want of prosecution.   

 

PER  RAJESH  K.  ARYA, MEMBER

                This appeal has been filed by opposite party No.1 (appellant herein) against order dated 09.08.2019 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (now District Consumer Disputes Redressal Commission-I, U.T., Chandigarh) (in short ‘the District Commission’), vide which, consumer complaint bearing No.236 of 2018 filed by the complainant (respondent No.1 herein) was partly allowed  in the following manner:-

“10.    In view of the above discussion, the present consumer complaint deserves to succeed and the same is accordingly partly allowed. The OPs are directed as under:-

i]      To immediately pay a sum of Rs.91,124/- (Rs.1,00,000/- minus Rs.8,876/-) to the Complainant, along with interest @9% p.a. from the date of maturity of the Bond till realization.

ii]     To pay Rs.10,000/- to the complainant as compensation for deficiency in service and mental agony and harassment caused to him;

iii]    To pay to the complainants Rs.7,000/- as costs of litigation.

11.        This order be complied with by the Opposite Parties within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.”

2.             Briefly stated the facts are that the complainant purchased one Deep Discount Bond (Series-I)  vide Application No.E5217803 with Regd. Folio No. SI01144300-0, Certificate No.00392932 and Distinctive No.0000392932 in his name in the year 1993 at Rs.2500/- and the Opposite Party had promised to pay Rs.1,00,000/- at the end of 25 years i.e. 01.02.2018 as printed on the Bond Certificate. Upon maturity after 25 years, the Bond was submitted to the Opposite Parties for encashment, however, the Opposite Parties on 05.03.2018 paid only Rs.8,876/- out of Rs.1,00,000/- to the complainant, who immediately wrote to the Opposite Parties on 16.03.2018 to pay the balance amount of Rs.91,124/- but of no avail. On the other hand, Opposite Party No.3 admitted issuance of Deep Discount Bond on 01.02.1993 with a maturity period of 25 years from the date of allotment. However, as regards option to encash/redeem the Bond at any early date, it pleaded that SIDBI exercised the call option in the 9^th year as per terms and conditions and accordingly, published public notice in all leading national and regional dailies informing the unit holders as well as the general public about the call option. Individual letters were also sent at the addresses mentioned in the Bond along with Form 15H/15AA under UPC on 24.7.2001 to all the Investors requesting them to surrender the duly discharged Bond Certificate for redemption, followed by reminders. It was further pleaded that all efforts to reach out to the Bond Holders and to inform them about closure of the Bond and to redeem the same was made. It was further stated that as indicated in the bonds itself, the amount payable at the end of 9^th year was Rs.9600/- and as such, no interest was payable by SIDBI after due date of call option i.e. 01.02.2002. It was further stated that the amount payable per bond as on 01.02.2002 aggregates to Rs.8876/- after deduction of tax of Rs.724/- which was already deposited with the Income Tax Department in Feb. 2002 and SIDBI was not liable to pay balance payment of Rs.91,124/- as claimed by the complainant.

3.             Opposite Parties No.1 & 2 were proceeded against exparte by the District Commission vide order dated 19.07.2018 as despite their service, nobody appeared on their behalf on the said date.

4.             The parties led evidence in support of their case.

5.             The District Commission after hearing the Counsel for the parties and going through the evidence on record partly allowed the complaint as stated above.

6.             Counsel for the appellant appeared before us physically to argue the matter and argued that respondent No.1/complainant was free to opt for redemption of the Deep discount Bonds at any early date as per the options mentioned on the said bond, which he did not opt. It was further argued that the appellant in consonance with the redemption clause, while exercising call option in 9^th year, published public notice in all leading newspapers about the call option and individual letters were also sent along with Form 15H/15AA under UPC on 24.7.2001 to respondent No.1 and other investors asking them to capitulate the Bond Certificate for redemption. He further argued that the amount payable at the end of 9^th year was paid to respondent No.1 accordingly. He next argued that the address of respondent No.1 mentioned in his complaint is different from that the one available in the records of the appellant. It was argued that respondent No.1 never intimated the change in his address to the appellant and as such, notice dated 24.07.2001 was duly served upon him on the said address. He further argued that under Section 27 of the General Clauses Act, the service affected under Postal Certificate is legally binding and enforceable and the appellant was only required to send notice at the available address in its official records. The appellant cited the judgment of High Court of Calcutta in case Hemangine Dasse Vs. Sarnala Tikka Dassee, AIR 1940 Cal 227 and that of High Court of Patna in case Dineshwar Prasad Singh Vs. Manorama Devi, AIR 1978 Patna 256 in support of his contention that where a certificate of post is put in evidence, the presumption is that the letter was posted and that it reached its destination unless something is shown to the contrary. Lastly, he prayed that the impugned order be set aside and the complaint be dismissed.

7.             On the other hand, Counsel for respondent No.1/complainant argued that respondent No.1/complainant did not receive any notice, letter or UPC from the appellant regarding call option of deep discount bonds. It was argued that onus of proof is on the appellant to prove the averments by showing postal receipts and acknowledgement. He placed reliance on the judgment of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case of IDBI Bank Ltd. & Anr. Vs. T. K. Nagarathna, 2009 (I) CLT 108 (NC), wherein, the contention of the petitioner (IDBI) that call option was communicated through UPC, was rejected in the absence of any acknowledgement and it was held that the petitioner was not liable to escape its liability merely by publishing an advertisement in the newspaper about its intention to exercise its option. Reliance was further placed on the judgment of this very Commission rendered in the case of ‘M/s IDBI Bank Ltd. & Anr. Versus Mrs. Prit Pal Kaur & Anr.’, Appeal No.130 of 2018 decided on 17.12.2018, wherein, this Commission while placing reliance on the earlier judgment dated 07.01.2010 passed in Appeal No.291 of 2009 titled ‘Small Industries Development Bank of India Ltd. Vs. Dr. Saraswati Gupta’ and IDBI Bank Ltd. & Anr. Vs. T. K. Nagarathna (supra), dismissed the said appeal bearing No.130 of 2018 filed by M/s IDBI Bank Ltd. Lastly, it was prayed by respondent No.1/complainant that the appeal be dismissed being not sustainable in the eyes of law.

8.             We have given our thoughtful consideration to the contentions raised by the Counsel for the parties and have also gone through the record of the case and written arguments of the parties. We are of the considered view that the appeal filed by the appellant is liable to be dismissed for the reasons to be recorded hereinafter.

9.             As regards the argument raised by the Counsel for the appellant that option for redemption of the Deep Discount Bonds at any early date as per the options mentioned on the said bond was not exercised by respondent No.1, it may be stated here that no doubt, respondent No.1/complainant was having the option to encash/redeem the bond only at the end of 5^th/9^th/12^th/15^th and  20^th year from  01.02.1993 i.e. the date of issuance of the said Deep Discount Bond (Series I), yet, as rightly observed by the District Commission in its order, the said option, as a matter of common sense, could not be exercised one sided as the holder of bond was entitled to know the result of the said option. As such, this contention of the appellant stands rejected being devoid of substance.

10.           Qua the next argument raised by the Counsel for the appellant to the effect that call option was exercised by the appellant in 9^th year by publishing public notice in all leading newspapers and by sending individual letters under UPC on 24.7.2001 to respondent No.1 at his last known address available in its records and other investors asking them to submit the Bond Certificate for redemption and that under Section 27 of the General Clauses Act, the service affected under Postal Certificate is legally binding and enforceable, it may be stated here that it was the specific case of respondent No.1/complainant that he did not receive the said notice/UPC. There is nothing on record of the District Commission to establish that the letter sent to respondent No.1 under UPC on 24.07.2001 reached him or he received the said letter, which corroborates the averment of respondent No.1 that he never received the said notice. It has not been explained why it was not sent through registered post so as to have authentic information qua its delivery to respondent No.1. Furthermore, no evidence was placed on record by the appellant before the District Commission, whether the newspaper, in which the public notice was published, was circulated in the locality where respondent No.1/complainant  was residing. Similar view was earlier expressed by this Commission in the case of M/s IDBI Bank Ltd. & Anr. Versus Mrs. Prit Pal Kaur & Anr. (supra) and ‘Small Industries Development Bank of India Ltd. Vs. Dr. Saraswati Gupta (supra). Even the Hon’ble National Commission in the case of IDBI Bank Ltd. & Anr. Vs. T. K. Nagarathna (supra), rejected the  contention of the petitioner (IDBI) that call option was communicated through UPC in the absence of any acknowledgement and it was held that the petitioner was not liable to escape its liability merely by publishing an advertisement in the newspaper about its intention to exercise its option. Therefore, we are bound by the ratio of the judgment of Hon’ble National Commission in the case of IDBI Bank Ltd. & Anr. Vs. T. K. Nagarathna (supra). In our considered opinion, the appellant could not usurp the hard earned money of respondent No.1/complainant after more than 25 years and the opposite parties were liable to pay the amount of Rs.1 Lakhs (minus the amount of Rs.8,876 already paid to the complainant), which the District Forum rightly ordered vide the impugned order along with interest @9% p.a. besides awarding of compensation and costs of litigation. In this view of the matter, the appellant has failed to make out any case to interfere with the well-reasoned order of the District Commission and the present appeal deserves to be dismissed on merits.

11.           For the reasons recorded above, the appeal filed by the appellant/opposite party No.1 is dismissed with no order as to costs. The impugned order dated 09.08.2019 passed by District Commission-I, U.T., Chandigarh in Consumer Complaint bearing No.236 of 2018 is upheld.

12.           Certified copies of this order, be sent to the parties, free of charge.

13.           The file be consigned to Record Room, after completion.

Pronounced.

23.11.2021.

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

(PADMA PANDEY)

        MEMBER

 

 

(RAJESH  K. ARYA)

MEMBER

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