DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the  30^th  day of  September  2016

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                                  Date of filing: 04/04/2015

               : Sri.V.P.Anantha Narayanan, Member

                                                      (C.C.No.47/2015)         

Elizabath Thomas,

W/o.Sankara Narayanan.N.S.

Suja, Hill View Nagar,

Puduppariyaram P.O

Palakkad Taluk.                                             -       Complainant

(By Adv.R.Baluraj)

V/s

1.Chief Operating Officer

   ELDER Pharmaceuticals Ltd.

   Elder House, Plot No.C-9,

   Dalia Industrial Estate,

   Off Veera Desai Road,

   Andheri (W), Mumbai – 400 053

2.The Manager

    Bajaj Capital Ltd.

    No.19, Wellington Plaza,

    Ground Floor,

    90, Anna Salai, Chennai

3.The Manager

   Bajaj Capital Ltd.,

   S.S.Complex, 1^st floor,

   College Road, Palakkad                               -         Opposite parties

(By Adv.G.Jayachandran)

O R D E R

By Smt.Shiny.P.R.  President.

Brief facts of complaint.

Complainant is an employed lady. The 1^st opposite party is a leading company having  registered office at Mumbai. The 2^nd opposite party is one of the authorized capital investing broker of the 1^st opposite party and having its office at Chennai and the 3^rd opposite party is the authorized branch office of the 2^nd opposite party having its office at Palakkad. Complainant submitted that representative of the 3^rd opposite party on behalf of the other opposite parties has frequently approached the complainant and requested to invest fixed deposit in the 1^st opposite party company and submitted that the company is providing attractive schemes for the new depositors.

Upon the promise and belief made by the representatives of the opposite parties, the complainant has deposited an amount of Rs.40,000/- through the 3^rd opposite party as per the fixed deposit receipt No.69410 dated 7/3/12 issued by 2^nd opposite party on behalf of the 1^st opposite party for a period of 36 months and the date of maturity is on 8/2/2015.

The quarterly interest was sent to the complainant till June 2014. After that they did not send interest to the complainant. The complainant has made several requests to return back the balance amount at the office of 3^rd opposite party at Palakkad and finally the complainant was asked to hand over the original fixed deposit receipt to the 3^rd opposite party and after receiving the fixed deposit receipt the 3^rd opposite party on behalf of the 2^nd opposite party issued a repayment acknowledgement receipt No.37605 dated on 4/2/2015 jointly to the complainant and his wife for getting the maturity value.

Whenever  the complainant made enquiry  regarding the above, there was no response from the 3^rd opposite party. So the complainant has finally issued a lawyer notice dated 25/2/2015 to the opposite parties. Only the 2^nd opposite party has sent a reply on behalf of the 3^rd opposite party. The contentions in the reply notice were not fully correct even though the transaction were admitted.  The intention of the opposite parties is not to execute the offer amount to the complainant as promised by them at the time of accepting the fixed deposit on 5/3/2012.   The above said act of the opposite parties amounts to deficiency of service and unfair trade practice. Complainant submitted that due to the   act of the opposite parties, he has suffered financial loss and mental agony. Hence the complaint. Complainant prays for an order directing the opposite parties to pay Rs.40,000/- as offered by the opposite parties  at the time of investing the fixed deposit alongwith its balance interest amount till maturity and subsequent interest 12% per annum till realization, Rs.25,000/- towards  the compensation for the mental pain and damage suffered by the complainant,  and also to pay the cost of the proceedings.                       

After admitting the complaint issued notice to opposite parties. After receiving the notice 1^st opposite party did not appear before the forum. Hence set exparte. 2^nd and 3^rd opposite parties entered appearance and filed their version contending the following:

2^nd and 3^rd opposite parties contented that the complaint is not maintainable. Complainant is not a consumer under section 2(d) of the Consumer Protection Act – 1986 and thus has no authority / locus-standi to file or prosecute present complaint against these opposite parties. 2^nd and 3^rd opposite parties Bajaj Capital Ltd. merely acted as an independent broker only.

It is an admitted fact that the present claim of the complainant, if any, is pertaining to a fixed deposit scheme which in fact acted as a bi-lateral contract mutually agreed and executed between the complainant and 1^st opposite party only. 2^nd and 3^rd Opposite parties as a broker and a separate legal entity is neither a party nor a privity, but a stranger to the said contract. Hence, it is not out of place to mention that the present complaint suffers from inherent defect of mis-joinder of party, wherein the name of opposite party is unnecessarily incorporated.

2^nd and 3^rd opposite part further contended that for the purpose of making said investment, the complainant himself voluntarily signed, executed, issued and deposited application form as well as account payee cheque directly in favour and / or into the account of 1^st opposite party only. Since complainant directly invested in 1^st opposite party company, hence it’s the sole liability of 1^st  opposite party   to refund or not to refund said FD amount,    with / without interest to the complainant. 2^nd and 3^rd opposite parties as broker and separate company / entity is neither liable nor responsible to perform the said task, since the same is completely outside its basic objective and / or beyond its scope of service.

The present complaint is not only based on false, frivolous and vexatious allegations but also based on baseless, defamatory and concocted story which has been created / concocted / fabricated by the complainant with a malafide intention to extract money and to further defame reputation and goodwill of 2^nd and 3^rd opposite parties. Hence present complaint is liable for dismissal in limine.

After due receipt of FD certificate, the complainant never raised any objection in regard to said investment. Moreover, it is an admitted fact that the complainant duly received quarterly interest from 1^st opposite party company. As a prudent organization and with an intent to assist the complainant   these opposite parties merely forwarded FD certificate to the 1st opposite party company.

2^nd and 3^rd opposite parties as a broker merely acted for and / or on behalf of complainant. There is no master – servant / principal – agent relationship ever existed between these opposite parties and 1^st opposite party   company, as since inception opposite parties act on principal to principal basis.

Opposite parties also issued an acknowledgement receipt dated 7/2/2012 to the complainant, thereby informing and also explaining its limited role and liability.

2^nd and 3^rd opposite parties every time provided satisfactory and complete services to the complainant. Morever, after receipt of original FD certificate, the role and responsibility of these opposite parties as a broker gets over. The complainant deliberately and intentionally impleaded name of these opposite parties for the sake of creating territorial jurisdiction of this Forum, which in other words means that the complainant has intentionally and deliberately misused benevolent provisions of Consumer Protection Act in accordance with his own convenience, hence the present complaint is liable for dismissal in limine with exemplary cost.

Both parties filed their respective chief affidavits. Ext.A1 to A6 were marked from the side of the complainant. Exts.B1 to B3 were marked from the side of the opposite party.   

The following issues are considered

1.Whether the complaint is maintainable or not?

2.Whether there is any deficiency in service on the part of opposite parties?

3.If so, what is the relief?

Issues 1

1^st issue was answered in favor of complainant as per order in                IA.203/15.    

Issues 2 and 3

We have perused the documents filed by the parties. Ext.A1 reveals that 1^st opposite party received deposit of Rs.40,000/- for three years at the rate of 12% interest per annum as per Fixed Deposit Receipt No.69410 from the complainant on 8-2-2012. Date of maturity was on 8-2-2015. Complainant admitted that opposite parties sent quarterly interest till June 2014. Allegation of the complainant is that after attaining maturity date the opposite parties did not refund the matured amount along with 12 %interest per annum to the complainant.

2^nd and 3^rd opposite parties admitted the transaction taken place between the complainant and 1^st opposite party. But their contention is that they have no liability to repay the deposited amount to the complainant as they acted only as brokers. The relationship between the 1^st opposite party with the 2^nd and 3^rd opposite parties is the principal to principal. Ext.B3 proves that complainant voluntarily and willingly deposited an amount of Rs.40,000/- directly in favour of 1^st opposite party. Complainant has not produced any evidence against the 2^nd and 3^rd  opposite parties to prove that 2^nd and 3^rd opposite parties received any consideration from her. In the above circumstances we are not in a position to attribute deficiency in service on the part of 2^nd and 3^rd opposite parties.

From the documents produced before the Forum it is obvious that complainant had deposited Rs.40,000/- before the 1^stopposite party and the same has to be refunded on 8/2/2015. Without doing so, 1^st opposite party has committed deficiency of service towards the complainant. It is the duty of the 1^st opposite party to refund the deposited amount along with interest to the complainant. Apart from this, complainant is entitled to get the compensation for mental agony caused due to the non receipt of the matured amount till this date. As the 1^st opposite party remained exparte, the evidence tendered by the complainant against 1^st opposite party stands unchallenged. Hence the complaint is partly allowed.  

  We direct the 1^st  opposite party to refund the  fixed deposit  amount of Rs.40,000/-(Rupees forty thousand  only)  with 12% interest  per annum from July 2014 till date of this order and to pay  an amount of Rs.10,000/-(Rupees Ten thousand only)  as compensation for mental agony suffered by the complainant  along with Rs.2,000/- (Rupees Two thousand only)  as cost of the proceedings.

 Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled to realize 9% interest per annum for the whole amount from  date of order  till  realization. 2^nd  and 3^rd opposite parties are exonerated from the liability towards the complainant.  

       Pronounced in the open court on this the 30^th  day of September    2016.

                                                                                               Sd/-

                      Shiny.P.R.

                      President   

                           Sd/-

                      Suma.K.P.

                      Member

                          Sd/-

    V.P.Anantha Narayanan

                 Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 –  Photocopy of FD receipt No.69410 issued by 1^st opposite party dtd.5/3/12

Ext.A2 – Repayment acknowledgement receipt No.37605 issued by 3^rd opposite party

              dtd.4/2/15

Ext.A3 – Copy of apologizing letter dated 29/1/15  issued by opposite party

Ext.A4 – True copy of lawyer notice dated 25/2/15 sent to 1^st opposite party by

              complainant  along with postal receipt and AD card

Ext.A5 – True copy of layer notice dated 25/2/15 sent to 3^rd opposite party by the

             complainant

Ext.A6– Reply to lawyer notice dated 26/3/15  from 2^nd opposite party.

Exhibits marked on the side of Opposite party

Ext.B1 –  Certified copy of Annexure R-2 & 3/A

Ext.B2   - Certified copy of Annexure R-2&3/B (Colly)

Ext.B3 -  Certified copy of View Signatory details

Cost   

2,000/- allowed as cost of the proceedings.