BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 20^TH December 2010

PRESENT

                                                         SMT. ASHA SHETTY           :   PRESIDENT

   SMT.LAVANYA M. RAI       :   MEMBER

   SRI. ARUN KUMAR.K         :   MEMBER

COMPLAINT NO.213/2010

(Admitted on 13.8.2010)

1. Mr.Nonayya Moolya,

So Ammu Moolya,

Aged about 57 years,

2. Mr.Prakash,

S/o Nonayya Moolya,

Aged about 21 years.

3. Miss Chaitra,

D/o.Nonayya Moolya,

Aged about 18 years,

All are residing at Punchodi,

Panjikallu Village,

Bantwal Taluk.

No.2 and 3 are represented by their father

G.P.A. holder Mr.Nonayya Moolya,

Complainant No.1.                            …….. COMPLAINANTS

(Advocate for Complainants: Smt.Manjula.N.A.)

          VERSUS

Maharashtra Apex Corporation Ltd.,

(Incorporated under the Companies Act 1913

Regd. Office  Syndicate House,

Manipal 576 119.

Represented by its Chairman,

Sri.Sudhakar Pai.                                      ….. OPPOSITE PARTY

(Advocate for Opposite Party: Sri  Shashiraj Rao Kavoor) 

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain reliefs. 

The brief facts of the case are as under:

The Complainants filed the above complaint stating that, Opposite Party was running the business of M/s.Maharashtra Apex Company represented by its Chairman.  In the course of its business, the Opposite Party has contacted the Complainant and persuaded the Complainant to deposit the amount by purchasing the Premier/Triple Bond for Rs.1,000/- face value from the Opposite Party and the Opposite Party undertaken to repay the amount with interest at 13% p.a. on the date of maturity after 65 months.  The details of the Premier/Triple Bond are as under:-

It is submitted that, in the month of December 2005 when the above bond matured, the Complainants had approached the Opposite Party for withdrawal of the matured amount.  The Opposite Party stated that, it had filed application before the Hon’ble High Court of Karnataka for sanction for the scheme arrangement for repayment of their creditors.  And further educated that, the Hon’ble High Court has approved the scheme and arrangement with the depositors and bondholders filed by the Company under Section 391 of the Companies Act 1956 which was duly approved by the majority of the depositors in the meeting held of 15.02.2003.  The said scheme has come into effect from 15.12.2004.  As per the said proposal, the Opposite Party is liable to make payment in installments as per the sanction but the Opposite Party failed to make payment in accordance with the sanctioned proposal.  Hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay the sum of Rs.3,00,000/- along with interest at 13% p.a. from 01.12.2006 till the date of payment and also claimed Rs.1,00,000/- as compensation and cost of the proceedings.

2.       Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version and contended that, as per the High Court order installments have to be paid and the Opposite Party has paid substantial amount to the Complainants vide account payee cheques and the same has been realized by the Complainant.  The remaining installments have not been paid due to unavoidable circumstances and the reason for non- payment has been informed to the Hon’ble High Court of Karnataka and contended that there is no cause of action and this FORA has no jurisdiction to try the case and prayed for dismissal of the complaint.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the complaint is maintainable before this Fora?

2. Whether the Complainants prove that the Opposite Party has committed deficiency in service?

3. If so, whether the Complainants are entitled for the reliefs claimed?

4. What order?

4.         In support of the complaint, Sri Mr.Nonayya Moolya (CW1) – Complainant No.1 filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.   Ex C1 to C14 were marked for the Complainants as listed in the annexure.   One Mr.C.P.Dinesh (RW-1) Authorized Officer of the Opposite Party filed counter affidavit and answered the interrogatories served on him.  Opposite Party produced copy of the Company Petition No.37/2003 passed before the Hon’ble High Court of Karnataka.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Forum and answer the points are as follows:                                             

                                       Point No.(i): Negative.

Point No.(ii) to (iv): As per the final order.

REASONS

5.      POINT No. (i) to (iv):

Both the parties admitted that, the Opposite Party filed a Company Petition before the Hon’ble High Court of Karnataka under Section 391 of the Companies Act, 1956 and the Hon’ble High Court of Karnataka in Company Petition No.1108/2002 passed a scheme of arrangement with creditors of the Company and later revised scheme was filed in Company Petition No.37/2003 where the Company had proposed to pay the creditors in 5 years installments.  In the above said Company Petition, the Hon’ble High Court of Karnataka specifically observed in para No.21 in Company Petition No.37/2003 connected with Company Application No.1108/2002 that, “pending the sanction of the Scheme by the Court, no suit or proceeding shall be commenced or continued in connection with or touching upon any claim by any creditor against the company except with the leave of the Court”.

In view of the above said observation made by the Hon’ble High Court of Karnataka, this FORA has no jurisdiction to entertain the above complaint.  Therefore, we close the complaint with the observation that, the Complainants are at liberty to approach before the Hon’ble High Court of Karnataka for the proper remedy.  No order as to costs. 

6.       In the result, we pass the following:                                  

ORDER

The complaint is closed with observation that, the Complainants are at liberty to approach before the Hon’ble High Court of Karnataka for the proper remedy.  No order as to costs. 

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.

The F.D.R., if any, deposited by the Complainant be returned fourth with by substituting the certified.

(Page No.1 to 6 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 20^th day of December 2010.)

    PRESIDENT                  MEMBER                   MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainants:

CW1 – Sri Mr.Nonayya Moolya – Complainant No.1.

Documents produced on behalf of the Complainants:

Ex C1–1.7.2001: Premier/Triple Bond Certificate bearing No.243383.

Ex C2–1.7.2001: Premier/Triple Bond Certificate bearing No.243384.

Ex C3–1.7.2001: Premier/Triple Bond Certificate bearing No.243388.

Ex C4–1.7.2001: Premier/Triple Bond Certificate bearing No.243390.

Ex C5–1.7.2001: Premier/Triple Bond Certificate bearing No.243386.

Ex C6–1.7.2001: Premier/Triple Bond Certificate bearing No.243387.

Ex C7–1.7.2001: Premier/Triple Bond Certificate bearing No.243382.

Ex C8–1.7.2001: Premier/Triple Bond Certificate bearing No.243389.

Ex C9–1.7.2001: Premier/Triple Bond Certificate bearing No.243385.

Ex.C10–1.7.2001:Premier/Triple Bond Certificate bearing No.243381.

Ex C11 – 27.5.2005: Letter issued  by the Opposite Party to the Complainants.

Ex C12 – 3.4.2010: Letter issued by the Complainant No.1 to the Opposite Party.

Ex C13 – 3.4.2010: Postal Receipt.

Ex C14 – 2.6.2010: General Power of Attorney executed by

                  Complainant No.2 and 3 in favour of Complainant No.1.

Witnesses examined on behalf of the Opposite Party:

RW-1 : Mr.C.P.Dinesh, Authorized Officer of the Opposite Party.

Documents produced on behalf of the Opposite Party:   

Doc. No.1: Copy of the Company Petition No.37/2003.

Dated:20.12.2010                                                PRESIDENT