BEFORE THE ADDITIONAL BENCH OF A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
FA.No.1250/2006 AGAINST C.D.No.256/2001 DISTRICT FORUM-II, HYDERABAD,
Between:
Col.TGN Reddy (Retd.)
Flat No.4, Sector A, A.W.H.O.Colony
Secunderabad-500 009. Appellant/
complainant
A N D
1. M/s.Elite Global Finance Ltd., and Elite
Finance and Leasing, rep. by its Managing
Director, Major (Retd.) C.B.Srivastava
S/o.Sri DL Srivastava, aged about 56 years,
Office at 59-1-2(D), Kharkana, Secunderabad-9.
A.P.
2. Major CB Srivastava (Retd.)
S/o.Sri DL Srivastava, aged about 56 years,
Occ:Business.
3. Smt.Nimmi Srivastav,
W/o.Major CB Srivastava (Retd.)
Aged 50 yers, Occ:Business.
4. Sri Mohit Srivastav,
S/o.Major CB Srivastav (Retd.)
Aged 29 years, Occ:Business
5 Sri Anurag Srivastav,
S/o.Major CB Srivastav (Retd.)
Aged 27 years, Occ:Business.
Respondents 2 to 5 are residing
At Begumpet, Secunderabad. Respondents/
Opp.parties.
For the Appellant: Mr.Col.TGN Reddy (Retd.)
For the Respondents:-CB.Srivastav and others (publication filed)
QUORUM: SMT.M.SHREESHA, MEMBER
&
SRI K.SATYANAND, MEMBER
WEDNESDAY, THE SIXTEENTH DAY OF DECEMBER,
TWO THOUSAND NINE
(Typed to the dictation of Sri K.Satyanand,Hon’ble Member)
***
This is an appeal filed by the unsuccessful complainant assailing the order of the District Forum that went against him.
The facts that led to filing this appeal are briefly as follows:
The complainant alleged that opposite parties 2 to 5, who are the Directors of Opposite party No.1 company registered under the Companies Act, 1956 closed the Opposite party No.1 company on 8-3-1998. Opposite parties 2 to 5 are personally liable to pay the deposit amounts to the complainant to a tune of Rs.1,44,500/- and disappeared from the night of 8-3-1998. On 12-3-1998, the complainant lodged a complaint before the Station House Officer, Kharkhana and also submitted his claim for Rs.1,44,500/- to Reserve Bank of India, Hyderabad on 18-3-1998. Inspite of several reminders, the opposite parties failed to pay the deposited amount to the complainant and therefore the complainant approached the Forum for various reliefs as prayed in the complaint.
Opposite party No.1 filed counter denying the allegations made by the complainant and submitted that it invested substantial amounts in real estate and other business and that some unsocial elements broke open the lock of opposite party No.1 company on 9-3-1998 and took away all the records, computers, furniture’s etc. worth crores of rupees. The investors formed themselves into a Forum called Elite Investors Grievances Forum to represent all the investors and a paper publication was given to that effect inviting all the depositors. An arbitrator was appointed and he passed award on 30-12-1998 in the above case and against the said award, O.P.No.90/99 was filed which is pending on the file of I Addl.Chief Judge, City Civil Court, Secunderabad. The Hon’ble I Addl.Chief Judge was pleased to order that it shall be open to the opposite parties to arrive at any settlement with the willing parties and 450 claims have been settled out of court. The said award is binding on all the investors and the individual investors have no right to file any petition and therefore prayed for dismissal of the complaint.
Opposite party No.2 also filed counter affidavit narrating the same facts as stated by opposite party No.1.
In support of his case, the complainant filed his own affidavit and relied upon documents marked as Exs.A1 to A27. The opposite parties on the other hand filed counter by way of affidavit and relied upon documents marked as Exs.B1 and B9.
On a consideration of the evidence adduced by both sides, the District Forum came to the conclusion that the complainant failed to prove any deficiency in service on the part of opposite parties 1 to 5 and hence dismissed the complaint.
Aggrieved by the said order, the complainant/appellant filed the present appeal contending that the District Forum grossly erred in coming to the conclusion that he failed to establish any deficiency in service on the part of the respondents. He submitted that it failed to observe that Exs.B1 to B9 had neither relevancy nor applicability to the case of the appellant and also failed to appreciate Exs.A1 to A30 and omitted to mention even Exs.A28 to A30 before passing the impugned order. He submitted that he was neither a member of the Elite Investors’ Grievance Forum nor a claimant before the Hon’ble sole Arbitrator and that Ex.B2 claim form was not submitted to Hon’ble Sole Arbitrator by the complainant. He further submitted that the District Forum ought to have ordered opposite party No.2 to file award copy along with the annexure containing 559 claimants with their deposit amounts shown against each, in order to know whether the name of the complainant was also included as one of the 559 claimants. The finding of the District Forum is erroneous. Since the name of the complainant was not included in the said annexure, which indicated that the complainant was not a party to the award dated 3012-1998. He finally urged that non payment of the deposited amount to the investor even after the date of maturity would constitute not only deficiency of service but also unfair trade practice and therefore the opposite parties were liable to refund the deposit amount.
The point for consideration is whether there are any good grounds to interfere with the order of the District Forum? To what result?
Obviously the complainant was one of the investors and he wanted to retrieve his money from the stranglehold of the opposite party No.1 with whom he invested money by way of fixed deposits. As a matter of fact, the District Forum dismissed the complaint solely on the ground that the complainant was shut out from maintaining this complaint as he was a party to the proceedings before the sole arbitrator which became subject matter of the subsequent litigation before the 1st Additional Chief Judge in O.P.No.90/99 from out of which the interlocutory proceedings had gone up to the High Court in CMA No. 1723/2003 and therefore ought to have more aptly worked out his remedies before the civil court. The District Forum while dismissing the complaint, however, observed that the complainant was not entitled to approach the District Forum as he was nevertheless entitled to agitate before the Hon’ble High Court where CMA No.1723/2003 was pending. Even while saying so the District Forum erroneously observed that there was no deficiency in service as the finding as to deficiency in service and the finding as to the jurisdiction and maintainability are two distinct concepts which are hardly interrelated.
Strictly speaking the very finding that the complainant was a party to the arbitration proceedings and the further litigation that ensued in the wake of the arbitral award were incorrect. Thus the verdict was given by the District Forum on a wrong appreciation of fact and law as is presently shown hereunder:
‘In view of our clear finding on point No.i) that there is no deficiency in service on the part of opposite parties 1 to 5 towards the complainant, the complainant is not entitled for any of the reliefs prayed for in the complaint.
In the result, the complainant has failed to prove deficiency in service on the part of opposite parties 1 to 5 and hence, the complaint filed by the complainant is dismissed. Under the circumstances of the case each party shall bear his/her own cost’.
Fundamentally, the complainant was not one of the members of Elite Investors Grievance Forum which was the only claimant before the arbitrator as against O.Ps 1 and 2 as also their director. This fact is amply proved by the complainant who relied upon Ex.A20 which was issued by no other than the said Elite Investors Grievance Forum itself saying that he was not at all a member of the said Forum which in turn conclusively establishes that he was not a party before the arbitrator. It is abundantly clear from the arbitration award marked as Ex.B6 that the findings of the said arbitration award addressed the claims of only the claimants whose details were shown in the annexure to the award. For reasons best known to it, the opposite party especially No.2 failed to file the said schedule which could have easily disclosed if really the complainant was one of the parties before the arbitrator. Thus the opposite parties failed to prove to annexure to arbitration award showing the complainant as a claimant before the investors forum. There is absolutely no material to disbelieve Ex.A20 which made it categorically clear that the complainant was not a party to the award. The text of Ex.A20 reads as follows:
1. It is certified that Colonel (Retd.) TGN Reddy is not a Member of the Elite Investors’ Grievances Forum and thereby he (Colonel (Retd.) TGN Reddy) is not a party to the Award, passed by the Honourable Sole Arbitrator MAJ GEN (Retd.) AB GORTHI, AVSM, VSM, on 30-12-1998. His name has also not been included in the list of claimants annexed to the said Award, since he is not a Member of the said Forum.
2. This certificate is issued without any prejudice.’.
Thus Ex.A20 and the suppression of schedule to the arbitration award marked as Ex.B6 which though referred to the schedule did not contain any schedule as such, together set at naught the fact finding of the District Forum that the complainant was bound by the arbitration award and therefore liable to be non suited in this complaint.
A feeble attempt is made on behalf of the opposite parties/respondents to show that the complainant himself filed Ex.A23 his own claim before the Arbitrator, the copy of which is filed by respondent No.2 as Ex.B2 and this establishes that the complainant was also a party before the arbitrator. But that by itself cannot be a piece of conclusive evidence as after all the best evidence is available in the hands of respondents who could have readily produced the schedule appended to the arbitration and silenced the complainant in prosecuting this complaint. Thus the peripheral evidence as notices having been issued even to the complainant by the arbitrator as found in Exs.B3, B4 and B5 are of no avail so long as the respondent/opposite parties deliberately withheld the best evidence that is the annexure appended to the arbitration award. In fact the counter filed by the opposite parties restricted itself only to this question and the District Forum readily accepted such line of thinking in the counter overlooking the fact borne out from Ex.A20 to the contrary. Thus the order of the District Forum suffers from a basic infirmity and on that ground it is necessary to overturn its order paving a way for remand.
Accordingly the appeal is allowed setting aside the order of the District Forum and remanding the matter to the District Forum to make a denovo enquiry into all the merits including the question of jurisdiction as it more importantly turns on the schedule to the arbitration award but at the same time taking care that an authenticated copy of the arbitration award with the schedule comes to be filed before it in deciding that question, after affording opportunity to both sides. The District Forum shall dispose of the matter within three months after the receipt of this order. There shall be no order as to costs.
Sd/-
MEMBER.
Sd/-
MEMBER.
Jm Dt.16-12-2009
