Order-54.

Date-19/08/2015.

In this complaint Complainant Biswanath Biswas by filing this complaint has submitted that complainant purchased Certificate Nos. C/4/023634, C/4/o23480, C/4/024712 to C/4/024715 dated 04.04.2001, 28.04.2001, 28.04.2002 of M/s. NICCO UCO Alliance Credit Ltd and subsequently all those certificates became matured and balance amount of matured value was Rs. 66,413/-.But same had not been paid though it was assured at the time of issue that the matured balance amount shall be paid and date of maturity was 14.03.2006, 07.04.2006 and 13.08.2006 and matured amount is Rs. 12,068/-, Rs. 23,105/-, Rs. 9,010/- X 4 whereas complainant received only Rs. 3,000/- on 18.08.2006 and Rs. 1,800/- on that date the balance due amount is Rs. 66,413/- as on the date of maturity that is of the year 2006 and in fact ops have not paid the same for which the present complaint was filed by the complainant for redressal and for adopting their unfair trade practice and for deficient manner of service.

The present complaint was actually filed on 02.07.2008.But thereafter op fought different battle and ultimately the case is matured.In fact after fighting a long battle by the op before different Appellate Authority, op filed written statement on 02.03.2015 and in the said written statement op has submitted that op is a company incorporated under the provision of the act and in fact the name of the company previously was Furmanite Nicco Investment Ltd. and subsequently it was changed to Nicco Uco Financial Services Ltd. w.e.f. 01.06.1989 and to Nicco Uco Alliance Credit Ltd. w.e.f. 10.05.1999 and admittedly registered office of the company is situated at Nicco House, 2, Hare Street, Kolkata – 1.

It is also submitted that company had been inviting and accepting fixed deposits from the public and shareholders of the company under the cumulative and non-cumulative scheme for past several years in terms of Section 58A of the Act read with the Companies (Acceptance of Deposit) Rules, 1975 and prior to June 2004, the company never defaulted in servicing the dues of Depositors either in re-payment of deposits on maturity or in the payment of the interest.

But due to entry of both foreign and Indian Banks in lease and hire purchase business and offering lower rate of interest to customer, and further due to the slowing down of economy during 1998 to 2003 and quite a few deals turning NPA company started incurring losses since the financial year 2003-04.

The cash losses and declining turnover of the company resulted in default in repayment of matured fixed deposits and interest thereon since June, 2004 and as such the company was constrained to file an application before CLB in June, 2004 seeking permission to repay the deposit amount in installment as required, in terms of provisions of section 58AA of the Act, the company started intimating CLB, on monthly basis, about the default in respect of small Depositors i.e. depositors having deposit not exceeding Rs. 20,000/-.

Subsequently CLB, Kolkata branch vide their order dated 22.03.2005 passed an order as regard to repayment of deposit holders in a particular manner as embodied in the said order.Subsequently the CLB modified the same vide its order dated 28.06.2007 and extended the payment of installments extended by a period of six months from the date of maturity of the deposit.But subsequently due to unavoidability of cash flow the said order of the CLB would not complied with from 01.04.2007 onward.

Thereafter with the object to discharge the liabilities of the depositors most of them are small depositors, the answering op drew up a scheme and filed a company application No. 850/2007 in the Hon’ble High Court, Calcutta in its original jurisdiction and Hon’ble Mr. Justice Biswanath Somadder disposed of vide its order dated 05.02.2015 and approved the said scheme to discharge the company liabilities to its depositors and the op has complied with the order with the order of Hon’ble High Court in the meantime and in view of the above order the instant complaint case cannot be entertained by the Ld. Forum.Therefore the answering op humbly submits that this Ld. Forum be pleased to dismiss the complaint case and op has further submitted that the allegation as made by the complainant in his complaint is false and fabricated.

                                                Decision with reasons

On proper consideration of the complaint and the written version and also considering the argument as advanced by the Ld. Lawyers of ops and complainant, it is found that it is admitted by the ops that they defaulted to pay maturity amount of the complainant and many other persons due to their financial incapacity and failure of the complainant.

It is specifically admitted by the op that they filed an application before the company law board (CLB) who directed the op to pay the same by installment, but that has not been complied by the op.Though extension was further granted by the CLB and thereafter op adopted another path to deceive the depositors and ultimately filed application u/s 391(2) and 394 of the Company Act 1956 before the Hon’ble High Court, Calcutta and Hon’ble Justice Biswanath Somadder passed an order in Company Application No. 850/2007 read connected with Company Case No. 97/2008 that company makes necessary application before the proper authority for effecting the scheme.But fact remains that in the said application those depositors were not made parties and in their absence, complainant got such order.

But peculiar factor is that op has violated the order of the Company Law Board dated 22.03.2005 and no doubt balance maturity amount was Rs. 66,413/- in the year 2006 only, but it has not been paid and in the meantime 10 years have already passed and invariably for non-payment of the same by the Company, complainant is entitled to get interest at the rate of 8 percent p.a. w.e.f. 2006 till its full payment when Company only to deceive the depositors, adopted such tactical game to dislodge their liability without paying any amount to the depositors like complainant and fact remains that depositors failed to present grievance before the Company Law Board or before the Hon’ble Justice Biswanath Somadder.

In fact op had nothing to say and no doubt op has failed to prove the name of the share as purchased or not whether the share has been handed over or not.But truth is that for the last 10 years op has adopted some unfair trade practice and that is the procedure of them to avoid payment and anyhow to dislodge their liability and by adopting such procedure this company has deceived so many depositors by only paying some amount.But actually deceived the customer like the complainant by not paying the maturity amount including the interest.

In fact in the application which was filed before the Hon’ble High Court, op did not make all the depositors as the parties, so that the depositors could not raise their grievance before Hon’ble High Court, Calcutta and no chance was given to the complainant to express their intention.

So, in view of the above fact and circumstances and considering the negligent and deficient manner of service on the part of the op for longtime, many decree had been passed where op already paid to other depositors the balance amount before this Forum, then invariably complainant is entitled to entire maturity amount of Rs. 66,413/- and also interest at the rate of 6 percent p.a. since 13.08.2006 and till its full payment.

After considering the entire materials and document, it is found that there was no consent on the part of the depositor that their deposited fixed amount shall be converted into equity shares but consent of the depositor is must in all respect and that is the legal position.But company cannot automatically convert or change the deposited amount of the depositors to some other field that is not the provision of law.

In the light of the above observation we are convinced to hold that anyhow op company is a cheat company who has been cheating more than thousands of depositors in such a manner, but it is not overlooked by Company Law Board.But even then CLB considered the entire fact and directed the op to pay the same but that was not complied with by the op.So, we are firmly convinced to hold that op has adopted unfair trade practices and only for the purpose for deceiving the complainant, ops adopted so many laches against depositors but ultimately allegations as made by the complainant is proved beyond any manner of doubt and for negligent and deficient manner of service, and deceitful manner of trade as adopted by the op.Complainant is entitled to get a decree.

In the light of the above findings, the complaint succeeds.

Hence, it is

                                               ORDERED

That the complaint be and the same is allowed on contest with cost of Rs. 5,000/- against op nos. 1 & 2 jointly and severally.

Op nos. 1 & 2 jointly and severally are directed to pay the entire balance maturity amount of Rs. 66,413/- along with bank rate of interest 8 percent p.a. w.e.f 13.08.2006 and till its full payment and same shall be paid within one month from the date of this order, failing which for non-compliance of the Forum’s order, penal damages at the rate of Rs. 100/- per day shall be assessed till full satisfaction of the decree and op shall have to pay it before this Forum within the stipulated time, if op fails to comply the order, in that case, ops shall be prosecuted u/s 25-27 of C.P. Act 1986 for which they shall be imposed further penalty and fine.