Date of filing:  24.3.2014                                                                        Date of disposal: 15.02.2017

Complainant:              1. Samiran Mondal, S/o. Late Sisir Kr. Mondal.

2. Namita Mondal, W/o. Late Sisir Kr. Mondal, both are resident of Village: Gopal Math, Mohanpur Plot, Durgapur, District: Burdwan, PIN – 713 217, WB.  

-VERSUS-

Opposite Party:    1.    MPS Greenery Developers Limited, incorporated under Companies Act, 1956, having its office at “MPS ENCLAVE”, P-112, Block “B”, Lake Town, Kolkata, PIN – 700

2.    MPS Greenery Developers Limited, Durgapur Branch, MS-11/17, Ambuja Housing Complex, Durgapur – 16, service through its Officer-in-Charge.

Present:   Hon’ble Member:  Smt. Silpi Majumder.

                  Hon’ble Member:  Sri Pankaj Kumar Sinha.

Appeared for the Complainant:     Ld. Advocate, Subrata Ghosh.

Appeared for the Opposite Party:  None.

J U D G M E N T

This complaint was dismissed earlier by this ld. Forum vide final order/judgment dated 28.11.2014 on contest and it was appealed before the Hon’ble SCDRC, WB by the complainant vide first appeal No. A/1457/2014. The Hon’ble SCDRC, WB has sent back the complaint for fresh adjudication of the complaint.

This is a complaint u/S. 12 of the C.P. Act, 1986 alleging deficiency in service and unfair trade practiced as the Ops did not refund the maturity amount of the bonds till filing of this complaint.

The complainant’s case, in brief, is that Sisir Kumar Mondal, the father of the complainant no. 1 and husband of complainant No. 2 during his lifetime purchased Orchard bonds (DR0020/11/11/016579), date of acceptance 28.11.2011 and (DR0020/11/11/019101, date of acceptance 30.11.2011) for 72 months by depositing Rs. 10,00,000=00  vide cheque Nos. 962789 & 962790, dated 28.11.2011 in favour of the OP-1 with stipulation that the Ops would pay Rs. 4,750=00 per month for 72 months and would finally pay Rs. 5,00,000=00 on 28.11.2017  and another sum of Rs. 5,00,000=00 on 30.11.2017. The said bond holder also purchased another Orchard bond for 75 months at a consideration of Rs. 1,000=00 on 26.4.2011 with the assurance that he would receive Rs. 2,000=00 on 26.7.2017. The deceased Sirir Kumar Mondal also purchased another bond for 60 months at a consideration of Rs. 10,000=00 per month on 08.7.2011 with the stipulation that he wou7ld on 28.7.2017 would receive a sum of Rs. 8, 05,873=00. A total sum of Rs. 2, 70,000=00 in respect of the bond has been paid against 27 installments. The bond holder having died on 14.8.2013, the complainant being second applicant/nominee in respect of the Bonds purchased by the deceased Sisir Kumar Mondal, deposited the original Bonds on 21.10.2013 at the office of the OP-2 and receipt were issued acknowledging the deposit of original bonds and mentioning the date of final payment subject to scrutiny and verification of the documents. The Ops did not make any payment in accordance with Clause 10 of the terms and conditions of the Bonds, thereafter, the complainants requested the Ops to pay the entire amount on or within 15.01.2014. the Ops insptie of receiving the letter dated 05.01.2014 made no payment; alleging deficiency in service and unfair trade practice on the part of the Ops, the complainants filed a complaint seeking direction upon the Ops to pay Rs. 10,00,000=00 along with interest @12% per annum from 21.10.2013 till the date of making payment of the entire amount in respect of the Orchard Bonds, Rs. 2,000=00 along with interest @12% per annum from 21.10.2013 and Rs. 2,70,000=00 along with interest @12% per annum from 21.10l.2013 till the date of payment against the Orchard Bond. It was also claimed that compensation of Rs. 3,00, 000=00 be ordered to be paid for mental pain  and agony and harassment and litigation cost of Rs. 50,000=00 to both the complainants.

            Earlier the complaint has been contested by the Ops by filing written version, wherein it has   been stated that   by an order dated 31.12.2012, the Asst. Commissioner of Income Tax, Circle II, Midnapur has already attached the   Bank Account of the Ops and also by an order dated 05.5.2013 of the Addl. Secretary and Inspector General of Registration and Commissioner of Stamp and Revenue, Govt. of   West Bengal, all relevant   papers and documents are now under the custody of the Income Tax Department. Unless and until the Income   Tax Department is   made   a party to the complaint proceedings, they would   not be able to make scrutiny of the documents filed by the complainants. The Ops prayed for dismissal of the complaint on that ground.

                        After sending back in remand by the Hon’ble SCDRC, WB for adjudication afresh of the matter it was directed that both parties may adduce their respective evidence in support of their averment/contention and also direction given by the Hon’ble SCDRC, WB to the parties to appear before this ld. Forum 28.6.2016. On that date the complainant appeared through his ld. Advocate to contest the case but none appeared on behalf of the Ops. Even paper publication was made for appearance of the Ops but none appeared. So the case was heard ex parte against the Ops.  The complainant did not adduce any further evidence. Hence we have to go through the papers already submitted by the complainant and the Ops.

            We have perused the record and several documents and papers filed by the parties in support of their respective contentions. Admittedly, the father of the complainant No. 1 and husband of the complainant No. 2 has purchased several Orchard Bonds from the Ops from time to time. It is also an admitted fact that as per the terms and the conditions of the said Bonds the purchaser is entitled to get the principle amount along with interest as mentioned therein. The grievance of the complainant is that the Ops have miserably failed to refund the maturity amount of the said bonds to him being the second applicant/nominee of the said bonds. It is also admitted fact that the actual purchaser, i.e. the first applicant has expired. Being the second applicant and the nominee of the said Bonds he has approached before the Ops for making payment of the principal amount along with interest. The ld. Counsel for the Ops have taken up pleas in their written version that as the Income Tax Department has not been made a necessary party in this proceeding, hence this complaint is liable to be dismissed due to non-joinder of necessary party. But with regard to the case of Mrs. Sabita Garg Vs. Director, National Heart Institute it has been held “so far as the law with regard to the non-joinder of necessary party under CPC Order 1, Rule 9 and Order 1, Rule 10 of the CPC, there also even no suit shall fail because of mis-joinder and non-joinder of parties. It can proceed against the persons who are parties before the court…..”

            Perused the Bonds. The said Bonds as mentioned in Schedule A, B & C of the complaint and the concerned/related documents of the said Bonds from where it is seen that Bonds in Schedule A has mentioned quantum of final return as Rs. 5,00,000=00 each for the two Bonds DR002/0/11/11/016579 & DR002/0/11/11/019101 which are fixed/specific amount and the mode of return is also Rs. 4,750=00 per month for each of the two Bonds which are also fixed/specific amount and Bonds DR002/0/07/11/003080 as mentioned in schedule C from where it is evident that quantum of final return is Rs. 8,05,873=00 which is also a fixed/specific amount i.e. the amounts of final return, as well as, mode of return per month is not dependent on the matured or any external factors and do not incur any profit or loss during the tenure of keeping of those investments. The OP in his earlier written version had contested the case arguing that the complainant is not at all a consumer and it is not at all a consumer dispute as the complainant was engaged in trading of shares i.e. engaged in speculative transactions and the Ops depended or relied on the case in Unit Trust of India Vs. Sabitri Devi Agarwal (II)/2000/CPJ/NC where it is stated that the C.P. Act is not for entertaining or compensating speculative transactions or losses. So the complaint is not maintainable.

            But on perusal of the said Bonds as earlier mentioned and argument made herein it is evident that the purchaser of the Bonds i.e. the complainant in question being the first applicant was not engaged in any share trading activity which is a speculative with no certainty or guarantee about return.  But in the instant case the bond holder paid a specific amount of money for specific final return. No element of speculative transactions was there in his purchase of Bonds. There being no damage or depreciation caused by natural disaster, God’s act, government policies and such other matters beyond the control of the Company (Clause VI of Terms and conditions), the OP company may be held liable to release all the benefits of the Bonds to the second applicant/the nominee in terms of Clause 9 & 10 of the terms and conditions. Accordingly, the complainant wins the case. Hence, it is

O r d e r e d

that the complaint is allowed  ex parte and the Ops are directed to pay either jointly or severally Rs. 12,71,000=00 (Rs. 10,00,000=00 + Rs. 1,000=00 + Rs. 2,70,000=00) only  along with interest @8% per annum on and from 21.10.2013 within 45 days from the date of passing of this award, in default, it will carry penal interest @10% per annum for the default period till its realization and the Ops are further directed to pay Rs. 20,000=00 as compensation for mental pain, agony and harassment and Rs. 2,000=00 as litigation cost to the complainant within 45 days from the date of passing of this award, failing which, the complainant is at liberty to put the entire award in execution as per provisions of law.

            Let plain copies of this order be supplied to the parties free of cost as per provisions of law.

    Dictated and corrected by me.                                                               

                       (Pankaj Kumar Sinha)

                                  Member

                         DCDRF, Burdwan

                                                              (Silpi Majumder)                     (Pankaj Kumar Sinha)

                                                                   Member                                            Member   

                                                             DCDRF, Burdwan                        DCDRF, Burdwan