BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 31st August 2013
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.17/2013
(Admitted on 19.1.2013)
P.Gopal Shastry,
Post Borimar,
(VIA) Mani,
Bantwal Taluk,
South Kanara 574 253. …….. COMPLAINANT
(Complainant: In person)
VERSUS
Manipal Finance Corporation Limited,
Manipal House,
Manipal 576 119. ……. OPPOSITE PARTY
(Advocate for Opposite Party: Smt. Manjula N.A)
***************
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
The Complainant stated that, he is a General Power of Attorney holder of Mr.Prithvinarayana. Mr.Prithvinarayana’s mother Mrs. Vishalakshi has deposited a sum of Rs.10,000/- on 23.11.2011 in the Opposite Party Finance and Opposite Party finance agreed to pay interest at 10.5% after the date of maturity. On 23.4.2005 Printhvinarayana approached the Opposite Party, but Opposite party failed to refund the amount inspite of several requests. Therefore, the complainant filed the above complaint 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 Rs.10,000/- with interest to the complainant along with compensation and cost of the proceedings.
II. 1. Version notice served to the Opposite Party by R.P.A.D. Opposite Party appeared in person and filed version stated that the complaint is not maintainable as the General Power of Attorney holder unauthorizedly claiming himself as General Power of Attorney holder and he is not obtain the represent Prithvi Narayana in the above complaint. It is further submitted by Opposite Party that annexure H which does not bear any round seal of the Opposite party company appear to have been self drafted by the complainant himself or manipulated one. Hence the same does not have any evidentiary value. Annexure H attached to the complaint refers to subordinated debt alleged to have been borrowed by the Opposite Party company.
It is hereby submitted by Opposite Party that annexure C attached to the complaint is only a notice dated 16.3.2005 issued by the chairman appointed by the High Court of Karnataka convening a meeting of share holders/Debenture holders/subordinated Debt holders. The said Annexure-C does not contain any undertaking by the Opposite Party Company to refund the shares/Debentures/Subordinated debts to the investors. The meeting was convened by the Chairman clearly stating that any compromise/arrangement if approved in the meeting will be subject to the subsequent approval of the court. It is hereby submitted by Opposite Party that High Court of Karnataka has not approved the compromise/arrangement and the company application/company petition were withdrawn on 28th October 2009. The notice dated 16.3.2005 (annexure C) itself indicates in the last sentence that Quote the compromise/Arrangement if approved by the meeting will be subject to the subsequent approval of the court unquote. Thus no reliance can be placed by the complainant on Annexure C attached to the complaint.
Opposite Party submits that as rightly admitted by the complainant the maturity date of the investment is 23.11.2006 and in terms of the specific provisions of Section 24 A of C.P. Act 1986 the complaint, if any claimant wishes to avail the benefit of said act is under legal obligation to file the same before 23.11.2008. The complaint has got time barred. The National Commission and Supreme Court of India in citation No.II 2012 CPJ 295 has now laid down that cause of action cannot be extended by entering into correspondence or personal visits. National Commission has concurred with the observation of Supreme Court that “Cause of action” means the cause for action which gives an occasion for filing a suit and forms the foundation of suit. In the case of deposits/investments repayable at Maturity on a specific date occasion to file suit is complete on the very date of maturity if a person wishes to avail the benefit of the provisions of Consumer Protection Act 1986 and hence prayed that opposite party has no deficiency in service and prayed for dismissal of the complaint.
III. 1. In support of the complaint, Mr.P.Gapal Shastry (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and got marked Ex C1 to C6. On behalf of Opposite Party one Mr.M.Narendra Pai, (RW-1) Recovery Assistant and GPA Holder of the opposite party filed counter affidavit and answered the interrogatories served on him.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Negative.
Point No.(ii) & (iii): As per the final order.
REASONS
IV. 1. POINTS NO. (i) TO (iii):
In the present case, the opposite party raised a first contention that, the complainant is not obtained power of attorney to present the complaint because he is not power of attorney holder and he is not authorize to present the complaint. However, on perusal of the entire records, we noticed that, the complaint was not presented by the original Complainant i.e. the deposit holder i.e. Prithvi Narayana before this District Forum. The Complainant has no authority to sign the complaint on behalf of the original Complainant. When that being so, the complaint is not properly presented and suffers from irregularities. Therefore, the complaint deserves to be closed with a liberty to file a fresh complaint. No order as to cost.
In the result, we pass the following:
ORDER
The complaint is closed with a liberty to file fresh complaint. No order as to costs.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Page No.1 to 6 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 31st day of August 2013)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr.P.Gapal Shastry – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – Copy of Power of Attorney of Sri Prithvinarayana.
Ex C2 – Fixed Deposit Receipt.
Ex C3 – 16.3.2005: Notice convening meeting in original.
Ex C4 – 8.3.2011: Consent letter.
Ex C5 – Form of proxy – Subordinated Debt holders meeting.
Ex C6 – Copy of the pamphlet.
Witnesses examined on behalf of the Opposite Party:
RW-1: Mr.M.Narendra Pai, Recovery Assistant and GPA Holder of the opposite party.
Documents produced on behalf of the Opposite Party:
Dated:31-08-2013 PRESIDENT
