BEFORE THE ADDITIONAL BENCH OF A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
FA.No.820/2007 AGAINST C.D.No.915/2004 DISTRICT FORUM-III, HYDERABAD
Between:
Komma Josyula Surya Kumari
W/o.Pardhasarathi, -12-2-826/A/36/37,
Flat No.403,
Annapurna Residency
LIC Colony, Mehdipatnam,
Hyderabad. Appellant/
Complainant
A N D
1. M.C.S.Ltd.,
Rep. by its Managing Director,
Sri Venkatesh Bhavan, 212-A,
Shapurajt, New Delhi 110 049.
2. The Syndicate Bank,
Rep. by its Branch Manager,
Mehdipatnam Branch
Hyderabad-500 028.
3. Karvy Securities Ltd.,
Head Office 529, Road No.4,
Banjara Hills, Hyderabad-500 034.
4. ICICI Bank,
Khairatabad Branch
Hyderabad. Respondents/
Opposite parties
Counsel for the Appellant: M/s.Gopi Rajesh Associates
Counsel for the Respondents:R1 served.
R2-served.
R3-Mr.S.Prasant Kumar
R4-Mr.A.Jayaraju
QUORUM: SMT.M.SHREESHA, MEMBER
&
SRI K.SATYANAND, MEMBER
THURSDAY, THE TWENTY NINTH DAY OF OCTOBER,
TWO THOUSAND NINE
Oral Order( Per Sri K.Satyanand,Hon’ble Member)
***
Not satisfied with the relief granted in the alternative, the complainant filed this appeal.
The facts of the case as culled out from the record are as follows:
It appears that the complainant applied for 1000 shares of Maruti Udyog Limited in pursuance of a public offer and lodged application along with application money by way of a cheque drawn on opposite party No.2 bank. lodged with opposite party No.3, the share broker who in turn claimed to have forwarded the application along with the cheque to opposite party no.4, the bankers to the issue. Opposite party no.4 in its turn admitted having received the application as well as the cheque. It also revealed that the original form was sent to opposite party No.1, the registrars to the public issue after crediting the cheque proceeds to the collection account opened for the specific purpose of collection of amounts invested for the Maruti Public Issue. Opposite party No.1 however, denied having received the application. The net result of this entire transaction was that the complainant did not receive any outcome either by way of shares or by way of refund of share money. It is contended that the complainant had sent representations to the opposite parties who had occasion to handle the issue at various stages but with no avail. As such, the complainant moved the District Forum seeking the firm allotment of 1000 shares she applied for as also compensation and costs.
While opposite party No.1 remained exparte, opposite parties 2 and 3 filed a counter seeking to absolve themselves from any liability in as much s opposite party No.2 contended that it was merely a bank of the complainant herself and the cheque that was issued on it towards the application money was duly honoured and sent to opposite party No.4. Opposite party No.3 also contended that it sent the application cheque to Opposite party no.4. As a matter of fact, opposite party No.4 not initially added as a party it was only in pursuance of the revelation made by opposite party no.3 that opposite party No.4 came to be added.
Opposite party No.4 stated that on its part it transferred the application to opposite party No.1 the registrars of the issue after duly crediting the money to the special purpose account in this regard in terms of the arrangement in connection with the public issue. Thus there emerged a consumer dispute.
The District Forum proceeded to make an enquiry into the said dispute.
In support of her case, the complainant filed her own affidavit and relied upon documents marked as Exs.A1 to A8. Some of the Opposite parties also filed affidavits and opposite party no.4 particularly relied upon Ex.b1 calculated to show that it had transmitted the application to opposite party no.1 in a proper schedule format earmarked for the public issue of shares of Maruti Udyog Limited.
On a consideration of the evidence adduced on either side, the District Forum fixed the liability against opposite party no.1 and 4 while absolving opposite parties2 and 3. it granted relief not in terms of the prayer but in the alternative requiring opposite parties 1 and 4 to refund the application money and also pay compensation of Rs.1,00,000/- besides costs.
The complainant, who filed the complaint with the object of getting firm allotment 1000 shares of Maruti Udyog Limited felt aggrieved with the relief granted and preferred the present appeal contending interalia that the District Forum erred in grating an alternative relief when the case made out against the opposite parties was one of total deficiency in service.
The appellant submitted oral arguments and opposite party No.4 filed written arguments.
The only point that arises for consideration is whether the order of the district Forum suffered from any irregularity or illegality calling for interference by this Commission?
As could be seen from the tenor of the arguments besides the prayer in the complaint as also the grounds of appeal, the endeavour of the complainant appeared to be to get nothing short of a firm allotment of 1000 shares of Maruti Udyog Limited and in order to achieve it a decree against all the four opposite parties. Before proceeding to deal with her agenda, it is necessary to point out that the fact remains that Maruti Udyog Limited as such is not at all a party before us. If the prayer of the appellant has to be conceded to the party that would be directly affected would be Maruti Udyog Limited. Such a course of action by a judicial forum is absolutely barred for the simple reason that no adverse order can be passed against a person behind its back. It is pertinent to point out that the four parties shown as opposite parties are the Registrar of the Public issue in question, the Bank on which the complainant had drawn her cheque for the application money, the Broker with which the application was lodged and the bankers for the issue. Thus the company that offered shares by way of public issue is not at all a party here. Moreover, the allotment of shares can by no stretch of imagination be accorded the status of a vested right. It is a matter of common knowledge that it is merely a contingent right. It is all the more a proposition of common place that a contingent right cannot be enforced in a court of law. So the nascent prayer of the complainant of getting a firm allotment of 1000 shares is utterly untenable. No doubt, the complainant could demonstrate a good case of deficiency in service e by the various institutions that handled the issue. It is therefore in this context that the District Forum rightly analyzed and fixed the responsibility for the complainant’s aspirations in this regard getting frustrated. As a matter of fact, the course of events right from the opposite party No.3 to opposite party No.4 and from there to opposite party No.1 are not at all in dispute. At every stage these opposite parties admitted the basic facts. Amidst these admitted facts, the District Forum rightly picked up the facts that constitute or make out the deficiency and thereby returned a decision fixing up the liability against opposite parties 1 and 4. Before examining as to the correctness or otherwise of the finding of the District Forum in the fixation of liability against opposite parties 1 and 4, it is necessary to deal with the liability of opposite party no.2 and 3. Opposite party no.2 is merely the bank that issued the cheque for the application money. So by no stretch of imagination can opposite party No.2 be mulcted with any liability. Initially the complainant presented the application and the cheque for application money to opposite party No.3. Opposite party No.3 admitted havintg received the application and cheque as per Ex.A8. However, opposite party no.3 contended that it sent the application and the cheque to opposite party no.4. Opposite party No.4 in its turn also admitted in the counter as also in Ex.B1 having received them but it pleaded that the original form was sent to opposite party No.1 after duly crediting the cheque proceeds in the relevant account specially opened for the public issue. The opposite party No.1 which remained exparte did not contradict the said assertion by opposite party No.4 but as could be seen from Ex.A5, its stand was that it did not receive the application. This is the point where the things went wrong to the detriment of the interests of the complainant. This circumstance clearly precludes any liability being justly fastened to either opposite party No.2 and 3. That is the reason why the District Forum rightly absolved opposite parties 2 and 3. Now reverting to the appreciation of evidence against opposite parties 1 and 4 against whom the District Forum passed the order, the evidence adduced by opposite party No.4 not so speak of opposite party no.1 which remained exparte is highly tenuous. The slender proof of forwarding the form to opposite party no.1 by opposite party No.4 only on the basis of Ex.B1 is highly uninspiring. Then the bald denial of opposite party No.1 that too in ex.B5 while abstaining from making any contest before the District Forum makes such indirect defense of opposite party No.1 equally infirm. So there is absolutely no difficulty in appreciating the finding of the District Forum that in the whole affair, it is opposite party no.1 and 4 that stood out as having been guilty of deficiency in service. The interse liability as between opposite party no.1 and 4 turned out to be hazy. It is for that reason that the District Forum rightly fixed the liability against both jointly and severally. In other words, there is no force in the appeal to the extent it seeks to make opposite parties 2 and 3 also liable. The other aspect of the appeal is that the complainant’s claim to get the substantive relief of being allotted all the 1000 shares she sought for in the application. It is already pointed out that the company that takes initiative to go public cannot be compelled to allot shares. In this case it is all the more true for the reason that the said company is not at all a party here. So the appeal in so far as it seeks to get the allotment of the shares cannot but fail. In other respects the District Forum itself gave the proper relief to the complainant.
In these circumstances, we have no hesitation to hold that there are no merits in the appeal. Accordingly the appeal is dismissed but without costs in the circumstances of the case. The opposite parties 1 and 4/respondents are granted six weeks time from the date of receipt of this order, to comply with the order of the District Forum.
Sd/
MEMBER.
Sd/-
MEMBER.
Jm 29-10-2009
