Per Mr S M Shembole, Hon’ble Presiding Judicial Member

This appeal is directed against the judgement & order dtd.14.11.2006 of District Consumer Forum, Nagpur, dismissing the complaint bearing No.CC/06/99.

Brief facts giving rise to the appeal are that:-

1.      Appellant / complainant is a legal heir of Late Vidyavati Wahal who was a partner of M/s Wahal & Co.  In the year 1965 M/s Wahal & Co. had approached the respondent / o.p. Bank for an overdraft facility and it was accordingly sanctioned.  The said company had deposited 1000 ordinary shares of Thakur Paper Mills Ltd with o.p. Bank as security of loan.  Thereafter, in the year 1969 the o.p. / respondent bank got transferred those shares with it for sale and appropriation of sale proceeds with the loan amount.  However, the o.p. – bank did not sell these shares and thereby failed to appropriate the sale proceeds with loan amount.

2.      Thereafter in the year 1975 o.p. – bank filed Civil suit bearing No.115/74 against the said Wahal Co. and same suit came to be dismissed by Civil Copurt (S.D.), Nagpur as the claim was barred by limitation.  The same judgement was finally confirmed by Hon’ble High Court.  After final decision of Civil suit, complainant / appellant who is legal heir of one of the partners of the Wahal Co. came to know that the respondent / o.p. – bank committed default and deficiency in service in selling and appropriating sale-proceed of the shares and those shares are with the o.p. / respondent – bank.  Therefore, by letter dtd.23.02.2005 appellant / complainant demanded sale-proceeds and those 1000 shares.  According to the complainant, the value of each share was at `106/-.  By letter dtd.24.05.2005, respondent – bank denied that it has committed default and deficiency in service by not selling those shares, etc.  According to the respondent – bank the shares, in dispute, could not be sold due to liquidation of the said company and Thakur Paper Mill was closed.  Therefore, on 20.02.2006 appellant filed the complaint before the District Consumer Forum, Nagpur.

3.      In response to the summons the respondent / o.p. – bank appeared and resisted the complaint by filing written version, denying that it has committed any default and deficiency in service.  It is not denied that it has sanctioned credit facility to M/s Wahal & Co. by accepting 1000 shares of Thakur Paper Mills towards the security of loan.  However it is denied that at the relevant time each share’s value was of `106/-.  It is denied that the respondent bank could not sell the shares due to closer of Thakur Paper Mill.  Mill was closed and value of shares had become nil.  It is not disputed that the shares are still lying with the respondent bank and the payment of sale-proceeds could not be made as share could not be sold due to liquidation of the Company, etc.

4.      On hearing both the sides, District Consumer Forum dismissed the complaint, holding that the complainant has no locu standi to claim the shares as complainant is not the consumer of the respondent – bank.  Further it is held that the complaint is barred by limitation.  It is also held that the respondent / o.p. has not committed any default or deficiency in service, etc.

5.      Feeling aggrieved by the judgement and order, the complainant has

preferred this appeal.

6.      We heard Ld. Counsel Mr S G Shukla for appellant and Adv. Mr N K Fuladi for the respondent at length and perused the copies of impugned judgement & order and judgement in Civil suit. 

7.      The undisputed facts are that in the year 1965 M/s Wahal & Co had applied for bank loan and the o.p. / respondent – bank had granted overdraft facility of `3,000/-.  1000 shares of Thakur Paper Mills Ltd., were deposited with the bank toward as security of loan.  It is not in dispute that in the year some shares were transferred to o.p. – bank to sell and appropriate the sale proceeds with the loan amount which was outstanding against the loan account of the said Wahal & Co.  However, the respondent – bank could not sell and appropriate the sale proceeds with the loan amount due to liquidation of the said Thakur Paper Mill.  It is also not disputed that the o.p. bank had filed Civil suit against the Wahal & Co for recovering the dues and the same suit was finally dismissed.  Pending the suit, one of the partners of the said Wahal Co died and this appellant / complainant Mr Tribhuvan was brought on record as a legal heir.  No claim was made by any of the legal heirs of the partners of the Co. till the final decisions of the Civil suit and appeal by the Hon’ble High Court. 

8.      The crux in the matter is as to whether the complainant has locus standito claim shares and if yes, whether his claim is within limitation and whether the respondent – o.p. bank committed any default and deficiency in service.

9.      Let us proceed to consider first as to whether the appellant / complainant has locus standi to claim shares in the capacity of legal heir of one of the partners of M/s Wahal & Co.

10.    On perusal of the complaint it reflects that the appellant / complainant has not at all disclosed the name of the partners of the company.  He has merely mentioned in Para 5 of the complaint that in the month of Feb. 2005 after when he came to know about dismissal of appeal by the Hon’ble High Court, he issued letter dtd.23.02.2005 to the bank requesting to pay sale-proceeds of the shares to him.  Further he has mentioned that he has supplied copy of letter dtd.23.02.2005 issued by Mr Shrinath Wahal to the Bank intimating therein that he has sold rights of proceeds of 1000 shares in his favour. But he has not disclosed how Mr Shrinath Wahal was entitled to sell the sale-proceeds.  Therefore, the District Consumer Forum has rightly held that the respondent / complainant has no locus standi to claim the sale proceeds of the shares. However, relying on the copies of judgement in the Civil suit and appeals, the Ld. Counsel for the appellant submitted that the LRs of one of the partners of M/s Wahal & Co were brought on record and it was pointed out to the District Consumer Forum but Forum did not consider the same.  On perusal of copy of the judgement in the regular Civil suit No.115/74 it reflects that one Prakashnath Wahal is the legal heir of Shrinath Wahal who was one of the partners of Wahal & Co. Further the copy of judgement of second appeal, which was filed in Hon’ble High Court reflects that appellant Tribhuvannath is the legal heir Smt Vidyavati Bawal.  But since the appellant has not specifically disclosed all these facts in the complaint and no evidence to that effect has been led, it is difficult to consider that the appellant alone is entitled to receive the shares or its sale proceeds.  Therefore, the submission of the appellant that he has locus standi to claim shares cannot be accepted.

          Moreover, when the shares in question were already transferred to the respondent – bank that too in the year 1969 for the purpose of sale and appropriation of its sale – proceeds with the loan amount, no legal heir of the partners of M/s Wahal & Co can claim the same, even though the respondent bank failed to sell it and appropriate the sale – proceed with the dues outstanding against the loan account.  Thus, on any count it is obvious that the appellant / complainant has no locus standi to claim the share.

11.    As far as complainant’s averment about the deficiency in service by the bank is concerned, since shares were already transferred to the bank that too for appropriation of sale proceeds with the outstanding dues & the bank could not recover the dues as its claim for recovery of dues is rejected by the Civil Court, the question of deficiency in service on the part respondent – bank does not survive.  Even otherwise it is obvious from the evidence on record that the respondent bank could not sell the shares due to liquidation of M/s Wahal & Co and further the Thakur Paper Mill was closed, the value of the shares had become nil.

12.    The fact that the Wahal & Co. was under liquidation, is not disputed by the appellant / complainant.  So also the Thakur Paper Mill was closed and therefore, the respondent bank could not sell and appropriate the sale – proceeds with the bank dues. Hence, the question of deficiency in service on the part of Bank does not arise.  Accordingly, the District Consumer Forum has rightly held.

13.    Now let us consider whether the appellant’s claim is barred by limitation.  Undisputedly, the shares were transferred to the Bank in the year 1969.  Though the civil litigation was pending till the year 2003, there could be no reason for the appellant / complainant to remain silent without claiming shares till the year 2005.  According to the appellant / complainant himself, in Civil suit – one Ashok Kumar who is an employee of the respondent bank, had given evidence and deposed that the shares are lying with the respondent bank.  Appellant has also produced all depositions of said Ashok Kumar, which reflects that his evidence was recorded on 09.07.1981.  Though the appellant / complainant was not the party in the Civil Suit when he was brought on record as legal heir of one of the partners, pending second appeal before the Hon’ble High Court, the appellant ought to have verified the record and would have ascertained the facts about the shares.  In the compliant, he has not disclosed as to how he came to know about the shares lying with the respondent bank after the decision of second appeal.  Therefore, on any count, it is obvious that the claim of the appellant / complainant is hopelessly barred by limitation.  Ld. Counsel for the appellant relying on the authority of Delhi State Consumer Disputes Redressal Commission in the case of Mohd A M Abdel Karil  Vs. University of Delhi & Ors. -  IV(2007) CPJ 300 – contended that once the complaint is admitted, it should not have been dismissed on the point of limitation only. But this contention of Ld. Counsel is being contrary to the impugned judgement it cannot be accepted because complaint is not dismissed only on the ground of limitation but it is dismissed on merit, considering all the points, as discussed above.

14.    Thus we have given anxious thought and found that the District Consumer Forum has rightly dismissed the complaint, considering the evidence on record.  We do not find any error or any infirmity in the impugned judgment & order. Hence, no interference is warranted.

15.    In the result the appeal is being devoid of any merit deserves to be dismissed.

          Hence, the following order:-

ORDER

1.      Appeal is dismissed.

2.      No order as to cost.

3.      Copy of the order be supplied to the parties.

          Pronounced on  08.08.2011.

sj