O R D E R<br /> M.R. DEVAPPA, PRESIDENT. <br /> <br /> The case of the complainant briefly stated is as follows;<br /> <br /> 1. That the complainants are running a recreation club at Madikeri having its registered club at Man’s Compound, Madikeri, Kodagu.<br /> <br /> 2. That the 1st opposite party is a registered Private Limited Company having its registered office at Komals Building, Main Road, Madikeri. The opposite parties are carrying on the business of financing money and were collecting deposits from the members of the public in the name of the company. The opposite party no.2 to 7 are the directors of the 1st opposite party company.<br /> <br /> 3. That the 2nd opposite party was the Managing Director and the 3rd opposite party was the Chairman of the 1st opposite party company. The opposite party no.4 to 7 are the Directors of the company and wholly incharge of the day today affairs of the 1st opposite party company. <br /> <br /> 4. That the opposite parties approached the complainant and requested them to deposit money in the opposite parties company and offered attractive interest. Thereby complainant in the year 2001 deposited Rs.1,11,600/- and after one year the said money being matured at Rs.1,25,029/-. Thereafter once again the complainant deposited the said amount for further one more year and opposite parties company issued deposit certificate vide. No. 605 dated 9-12-2001 and maturity date being fixed on 10-12-2002.<br /> <br /> 5. That it is submitted that on the date of maturity of the said deposit the opposite party fails to pay the said deposit amount to the complainant. Hence the complainants regularly did correspond the same with the opposite parties and they prolonged to pay the said amount. Thereafter on 11-2-2005 the complainant issued a registered legal notice through his advocate demanding the said deposited amount from the opposite parties. But the opposite parties in their reply notice admitted the said transaction and requested the complainant that large amount is outstanding and yet to be recovered and the opposite parties are facing financial crisis resulting in delay in payment of deposits and they are making every effort to recover the dues and pass it on the depositors in a pleased manner and they will inform the complainant the duration and mode of payment by the end of June 2005. Even on the basis of such admission and promises the opposite parties never informed the complainant the mode of payment. Therefore once again on 18-6-2007 the complainant demanded the money back with interest through registered legal notice. The said notice received by the opposite party on 19-6-2007 and for that notice they have not sent any reply. <br /> <br /> 6. That the complainant submits that the opposite parties no.1 to 7 are being beneficiaries are jointly and severally liable to pay the amount deposited by the complainant together with interest @ 18% per annum from the date of deposit till the payment of the same and further complainant seeks a sum of Rs.5,000/-towards cost of proceedings.<br /> <br /> 7. That the complainant submits for not paying the said amount the opposite parties have committed deficiency in service.<br /> <br /> 8. That the complainant prays for the following relief that the opposite party no.1 to 7;<br /> <br /> a. To repay a sum of Rs.1,25,029/-<br /> b. Pay interest @ 18% p.a. on Rs.1,25,029/- from 9-12-2001 to till date and further interest also up to date.<br /> c. To pay a sum of Rs.10,000/- towards damages and cost of this proceedings.<br /> <br /> 9. The opposite party No.2 has taken following contention.<br /> <br /> 1. That the opposite party no.1 does not exist. This O.P had resigned the said company when it was in existence. The endorsement that this O.P has refused the Forum’s notice to O.P No.1 is incorrect as he is not its representative or authorized to receive the same. The address itself is wrong. Hence the complainant may be directed to delete his name from the address of the O.P. No.1.<br /> <br /> 2. That the complainant is not a legal entity. It can not file any complaint. The complainant is put to strict proof of its legal status and also the right to lodge this complaint and the representative capacity of its alleged President and Secretary.<br /> <br /> 3. That the complainant is an unregistered commercial venture and is not a consumer in the eye of the Consumers’ Protection Act. Hence it cannot maintain the complaint.<br /> <br /> 4. That the complaint is bad for misjoinder of this O.P. In any event, any grievance against a defunct or liquidated Company has to be made before the Authority concerned under the Companies Act, 1956. Consequently this Forum has no jurisdiction to try the complaint.<br /> <br /> 5. That without prejudice to the above, he submits that he has not requested the complainant to make any deposit. It is a matter between the then President of the complainant Club namely, the O.P. No.3 and the O.P.No.1. This O.P is not aware of the investment and appropriation of the said funds. In any event, the O.P.No.1 being a company with limited liability, the same does not extend to the other O.P’s even if they were directors or held office in the O.P.No.1.<br /> <br /> 6. That it is true that a notice dated 11-2-2005 was issued by the complainant and the same was replied. However, the said reply was given on misconception and mistake of facts without considering the legal consequences. However, he has since been advised that there is no estoppel against law and that he is entitled to plead personal non-liability. In any event, the complaint is time-barred even after the demand notice.<br /> <br /> 7. That it is false that this O.P received any notice dated 18-6-2007. In any event, the claim being time-barred, the notice is of no consequence and does not extend the limitation.<br /> <br /> 8. That it is false that this O.P is a beneficiary of the alleged deposit.<br /> <br /> 9. That in any event, the subject matter of the complaint is based on a contract and the effect of limitation and liquidation of the O.Pno.1 that requires detailed trial. Hence also the complaint is not maintainable in this Forum.<br /> <br /> 10. That all other complaint averments that are not traversed herein are denied. The complaint is put to strict proof of the same.<br /> <br /> 10. The opposite party No.4,5 and 7 have taken following contention and pray for dismissal of the complaint;<br /> <br /> 1. That the opposite parties deny the various allegations in the complaint, except those that are specifically hereby admitted to be true and correct.<br /> <br /> 2. That the opposite parties deny that the complainants have any authority to file this complaint. They further deny that the complainants number 1 and 2 have been authorized to sign and verify the complaint.<br /> <br /> 3. That the complainants are not running the Club as stated in the complaint.<br /> <br /> 4. That the opposite party No.4,5 and 7 do not represent the first opposite party company and that they were not in charge of the day to day affairs of the 1st opposite party company. The complainant has not averred the role of each of the opposite parties in the affairs of the company.<br /> <br /> 5. That the opposite parties submit that they never approached the complainant Club and requested the complainants to deposit money in the first respondent club as alleged by the complainants. The opposite party never offered attractive rates of interests as alleged by the complainants. These opposite parties further submit that the third opposite party was the President of the club for several years including the year the said deposits were made, and at the instance of the 3rd opposite party the deliberately suppressed these facts from this Hon’ble Forum. The deposits were not signed by any of these opposite parties.<br /> <br /> 6. That the complainants are not consumers as defined under the consumer Protection Act, as such the complainant cannot seek any remedy before this Forum.<br /> <br /> 7. That the first respondent company is a Pvt. Ltd Company and not a firm and the opposite party no.4,5 and 7 being its Directors cannot represent the company. The complaint against the Directors is not maintainable either in Law or on facts. If at all the complainants have any claim, they should proceed against the first opposite party company and its assets. There is no personal liability on the Directors of the company.<br /> <br /> 8. That these opposite parties further submit that the complaint is barred by the Law of Limitation as also under the Provisions of the Consumer Protection Act. That the complainant is alleged to have issued a notice to the opposite parties on 11-2-2005. A proper demand is made in the said notice, considering the date of the demand made on 11-2-2005, the complaint is barred by the Law of Limitation. The period of limitation prescribed under the status cannot be extended by act of parties. These opposite parties have not at any time sought time to repay the amounts as alleged by the complainant. That the complainants being aware that their claim is barred by the Law of Limitation and also under the Consumer Protection Act issued a second notice on 16-6-2007 to create a cause of action to file this complaint.<br /> <br /> 9. That these opposite parties are not liable to pay any interests at the rate of 18% per annum as claimed in the complaint. They are also not liable to pay Rs.5,000/- towards costs and a further sum of Rs.5,000/- towards damages.<br /> <br /> 10. That these opposite parties have not committed any deficiency of service as alleged in the complaint, there is no cause of action to file this complaint and the one claimed in the complainant is in correct.<br /> <br /> 11. The opposite party No.6 has taken following contention and prays for dismissal of the complaint;<br /> <br /> 1. That the opposite party is not aware about the averments made in para 1 of the complaint. Therefore, the same is denied.<br /> <br /> 2. That it is denied that the opposite parties are carrying on the business of financing or money or were collecting deposits from the members of the public in the name of the company. It is denied that the opposite party numbers 4 to 7 are the Directors of the company or wholly in charge of the day today affairs of the first opposite party company.<br /> <br /> 3. That the opposite party never approached the complainant. This respondent is not aware that whether other opposite parties have approached the complainant or requested them to deposit money in the respondent’s company or offered attractive interest. Therefore, this opposite party is not aware that in the year 2001 the complainant deposited Rs.1,11,600/- or once again after one year the said money being matured at Rs.1,25,029/-. This respondent is not aware whether the complainant deposited the said amount for further one more year or respondent company issued deposit certificate vide number 605 dated 9-12-2001 or maturity date being fixed on 10-12-2002.<br /> <br /> 4. That as this opposite party is not aware about the deposit of the aforesaid amount the question of failing to pay the said amount by this opposite party to the complainant will not come for consideration at all. Therefore, this opposite party is not aware about the regular correspondence of the complainant with other opposite parties. Therefore, he is not aware about the “prolonging” to pay the said amount. This opposite party is n ot aware that on 11-2-2005 the complainant issued a registered legal notice demanding the deposited amount from the opposite parties. That this opposite party did not receive any such notice. Therefore, the sending of said notice is denied.<br /> <br /> 5. That this opposite party is not aware that the other opposite parties issued reply notice admitting the said transaction or requested the complainant that large amount is outstanding or yet to be recovered or they are facing financial crisis, which has resulted in recovering the dues or pass it on the depositors in pleased manner or they will inform the complainant the duration or mode of payment by the end of June 2005. Therefore, the same are denied, as the aforesaid averments are denied, the rest of the averments made at para 5 of the complaint will not come for consideration at all. Therefore, it is further denied that on 18-6-2007 the complainant demanded the money back with interest through their registered notice. This opposite party never received such notice. Therefore the sending of said notice to this respondent is denied. Therefore, the question of replying the same by this opposite party will not come for consideration at all.<br /> <br /> 6. That it is denied that this opposite party being beneficiaries along with other opposite parties is jointly or severally liable to pay the amount deposited by the complainant with interest at 18% per annum from the date of deposit till the payment of the same. This opposite party is not liable to pay Rs.5,000/- to the complainant towards damages for non payment or further sum of Rs.5,000/- towards cost of this proceedings.<br /> <br /> 7. That this O.P has not committed any deficiency in service and therefore complaint is liable to be dismissed.<br /> <br /> 12. Having regard to the above pleadings of respective parties the following issues arise for determination.<br /> <br /> 1. Whether the complainants are consumers and the case brought by them come under the purview of Consumer Protection Act 1986?<br /> <br /> 2. Whether the complaint is barred by law of limitation ?<br /> <br /> 3. Whether the opposite parties have committed deficiency in service ?<br /> <br /> 4. To what order ?<br /> <br /> <br /> R E A S O N S<br /> <br /> 13. Answer to point No.1 :- It is contended by the opposite parties that the County Club is a business concern hence it cannot b considered as a consumer and the case brought by the representative of the County Club cannot be entertained by this Forum. But the advocate for the complainants has not satisfactorily convinced the Forum that the complainants are consumers and the dispute brought by them can be entertained by this Forum. Further the complainants, have not produced any materials to show that the complainants are consumers. <br /> <br /> 14. The complainants have also not produced any document to show the nature and the details of the functions of the County Club. In absence of it when the opposite parties have taken a definite stand that the Mercara County Club is not a consumer and it is a business concern we have no other go except to say that the complainants are not consumers and the dispute brought by them cannot be brought under the purview of Consumer Protection Act 1986. Hence point no.1 is answered negatively, holding that the complainants are not consumers and the complaint cannot be entertained by this Forum.<br /> <br /> 15. Answer to point no.2 :- Whether the complaint is barred by law of limitation ?:- It is argued by the learned advocate for the complainant that the complainants have issued notice on 11-1-2005 to the opposite parties and the opposite party namely M/s JEDI Investment and Finance Pvt. Ltd., representing it, the Managing Director Sri M.S. Karumbaiah has replied to the said notice stating that they admit the deposit and as a large amount is outstanding and is yet to be recovered as such they have been facing the financial crisis resulting in delay in repayment of deposits and they are making every efforts to recover the dues and pass it on to the depositors in a phased manner and they would inform the complainants duration and mode of payment by the end of June and the complainants were also requested to bear with the JEDI Investment and Finance Pvt. Ltd. and therefore the complainants were forced to keep quite for some time and when they did not receive any reply from the opposite party Finance Pvt. Ltd. and again the complainants demanded the repayment of deposited money by way of issuing a registered notice dated 18-6-2007 and for that notice the complainants did not receive any reply and as such from 18-6-2007 i.e., from the last demand of payment of money i.e., from 18-6-2007 two years limitation is there, as such according to the advocate for the complainant the complaint brought by the complainants do not bar by law of limitation. As against this submission, the advocate for opposite party no.2,4,5, 6 and 7 the complaint is barred by law of limitation for the following reasons;<br /> <br /> (i)That the complainants got issued a notice to the 1st opposite party company on 11-2-2005, making a proper demand for return of the money under deposit and a reply was sent by the 2nd opposite party on 19-2-2005, therefore, the starting point of limitation as per section 24(A) of the Consumer Protection Act is two years from the date of demand and the complaint is filed on 20-8-2008 and as such the complaint is barred by law of limitation. <br /> <br /> (ii)It is further contended by the advocate for the opposite parties that the legal notice issued by the complainant on 18-6-2007 is not received by them and even for argument sake it is received by the opposite party and such legal notice is with ulterior motive of gaining time and to create fresh cause of action. <br /> <br /> (iii) It is further argued that the period of limitation prescribed under the statute cannot be extended by the act of parties and the opposite parties have not sought time to repay the amount as alleged by the complainant. <br /> <br /> 16. The learned advocate for O.P.4,5 & 7 has relied on case laws to convince the Forum that the complaint is barred by limitation. The following decisions in support of the case of the opposite parties in respect of limitation is gone through; <br /> <br /> 1) ILR 1993 Karnataka page 1276<br /> 2) ILR 2006 SC page 1874<br /> 3) ILR 1990 Karnataka page 1697<br /> <br /> 17. The learned advocate for OP.2 has also relied on another decision reported in AIR 1999 SC 3243 wherein it is held that in respect of cases coming under Consumer Protection Act 1986, there is limitation of two years and the limitation runs from the date of demand.<br /> <br /> 18. In the instant case the complainants have kept quite nearly for two years from the date of receipt of the reply from the opposite party company i.e., 19-2-2005 and have caused another legal notice dated 18-6-2007 to be more specific that the complainants have waited nearly two years three months from the date of receipt of the reply admitting the liability to the date of issuing another notice i.e., 18-6-2007. Looking from any angle the complaint is barred by law of limitation. The complainants, surprisingly have not filed any affidavit explaining the reasons for filing the complaint after lapse of prescribed time of limitation, as contended by the opposite parties. Hence point no.2 is answered positively holding that the complaint is barred by law of limitation as per 24(A) of Consumer Protection Act 1986.<br /> <br /> 19. Having answered point no.1 and 2 as above the other issues need not be determined by this Forum. It is made clear that the above issues have been answered, keeping in view of the provisions of Consumer Protection Act 1986. Therefore the complainants are at liberty to approach any other authority by invoking other provisions of law.<br /> <br /> 20. With above observation we proceed to pass the following order.<br /> <br /> O R D E R<br /> <br /> Complaint is dismissed. Parties to bear their own cost.<br /> Communicate the order to the parties.<br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the open Forum on this 06th day of January 2009.<br /> <br /> <br /> (M.R. DEVAPPA), (K.S. PRASAD), (A.S. HEMALATHA),<br /> PRESIDENT MEMBER MEMBER<br /> <br />