Common oral order in A/09/184 + A/09/185 + A/09/186 + A/09/187

Per – Hon’ble Mr. S. R. Khanzode, Presiding Judicial Member

          These four appeals are disposed of by this common judgment and order since they involve identical questions of facts and law.

[2]     Respondents/Complainants (hereinafter referred to as ‘the Complainants’ for the sake of brevity) from Consumer Complaint No.36 of 2005 to Consumer Complaint No.39 of 2005, as particularly referred in the clause-title, had each invested an amount of `1,25,000/-  in ‘Suman Holiday Bond’ launched by the Appellant/Opponent M/s. Suman Resorts India Ltd. (hereinafter referred to as ‘the Company’ for the sake of brevity).  Consumer complaints were filed alleging deficiency in service on the part of the Company by not refunding the amount on maturity of those bonds after a period of five years.  On maturity, each one of the Complainant was promised by the Company to pay an amount of `1,87,000/- against an investment of `1,25,000/-.

[3]     Initially, the Company’s then Managing Director and Company Secretary were impleaded as the parties to these complaints as the Co-Opponents.  However, subsequently all these complaint stood dismissed as against these two Opponents.  As against the Company it was found that it remained absent inspite of due service of notice of appearance issued by the Forum and, therefore, these complaints proceeded ex-parte as against the Company.  Thereafter, upon taking into consideration the material available on the record, the Central Mumbai District Consumer Disputes Redressal Forum (hereinafter referred to as ‘the Forum’ for the sake of brevity), by a common order dated 16/5/2006, was pleased to direct the Company to pay to each one of the Complainants an amount of `1,87,000/- together with interest thereon @ 6% p.a. with effect from 3/1/2004 besides an amount of `10,000/- by way of compensation and costs of `500/-.  Feeling aggrieved by the impugned order, the Company preferred this appeal.

[4]     We heard Adv. Anand V. Patwardhan on behalf of the Appellant Company.  At the time of hearing of these appeals Respondents as well as advocate for the Respondents preferred to remain absent and, therefore, these appeal were heard in their absence.  We have also perused the record.

[5]     We have carefully gone through the impugned order.  Only reasoning given by the Forum is that since the Company failed to pay the amount on maturity to each one of the Complainants, there is deficiency in service on the part of the Company and the impugned order was passed accordingly.  Forum did not discuss or assessed the material placed before it as to whether each Complainant is a ‘consumer’ within the meaning of Section-2(1)(d)(ii) of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’ for the sake of brevity) or not.  In all these complaints there is a statement to the effect that they were investors and each one of them had invested with the Company an amount of `1,25,000/-.  At the second instance, as now revealed from the material placed on the record and as alleged by the Appellant Company, at the relevant time office of the Company was closed and, therefore, alleged service of notice on the Company is defective and thus, the impugned order cannot be supported in the eyes of law.  The Forum relied upon the postal endorsement ‘Refused’ on the envelope of the notice and perhaps prima-facie rightly so as per the provisions under the Act.  However, since it now emerges that the Managing Director and the Company Secretary of the Company, who were the Co-Opponents, could not be served with notice and, therefore, the Complainants deleted their names from the array of the Opponents. Upon perusal of the papers from the file of the Forum it could be seen that one Mr. Surendra Khandhar was tried to be served on behalf of the Company in an execution petition filed by the Respondents/Complainants and the report of the police authorities record the fact about closure of the office of the Company and only a watchman was there and said Mr. Surendra Khandar was not residing at the address mentioned.  This further confirms the fact about closure of the office of the Company and in the Company’s office there was no authorized person to receive any notice.

[6]     Coming to the event at the time of consumer complaint since it is alleged that a liquidator was appointed under Maharashtra Protection of Investors and Depositors Act, 1999 by the High Court, the activities of the Company were totally closed.  Obviously, therefore, on the basis of this material on the record the grievance made by the Appellant Company that they were not properly served deserves some attention and we find some merit in it.

[7]     Another aspect which needs to be considered is as to whether the dispute between the Appellant Company and the Respondents/Complainants is a ‘consumer dispute’ since admittedly the Complainants are the investors.  Further, another aspect which needs to be considered is as to whether once a liquidator has been appointed, whether the Complainants need to approach the liquidator for payment on pro-rata basis alongwith other creditors of the Company.  These two issues are required to be settled properly.  Therefore, we find that it would be in the interest of justice to set aside the impugned order and remand back the matter to the Forum where the Appellant/Company would get a proper opportunity to plead their case and thereafter the disputed issues can be settled in a just and proper manner upon giving an opportunity to the parties to lead their respective evidence as per Section-13(4) of the Act and upon hearing them.  We hold accordingly and pass the following order:-

ORDER

Appeals bearing No.184 of 2009 + 185 of 2009 + 186 of 2009 + 187 of 2009 are hereby allowed.

Impugned orders dated 16^th May, 2006 passed by the Central Mumbai District Consumer Disputes Redressal Forum in Consumer Complaints bearing Nos.36 of 2005 + 37 of 2005 + 38 of 2005 and 39 of 2005 are hereby set aside.

For the reasons mentioned in the body of this order each complaint is remitted back to the Forum.  Both the parties shall appear before the Forum on 01^st August, 2013.  On the date of appearance if the Appellant/original Opponent Company files any written version in each one of these complaints, it may be accepted and thereafter upon giving an opportunity to parties to lead their respective evidence and hearing them, the dispute shall be settled according to law.  Hearing of these consumer complaints be expedited.

In the given circumstances, the parties to bear their own costs.

Pronounced and dictated on 28^th June, 2013