PER SHRI. S.S. PATIL - HON’BLE MEMBER :

1)        This is the complaint regarding the deficiency in service on the part of Opposite Party No.1 & 2 as they did not return the pledged shares kept by the Complainant with Opposite Party No.2 after the loan was paid by the debtor i.e. M/s. Kunal Overseas Ltd.

2) The facts of the complaint as stated by the Complainant are that M/s. Kunal Overseas Ltd. Company availed the post shipment facility from Opposite Party No.1.  The Complainant had put the shares under lien with Opposite Party No.1 for availing the aforesaid post shipment credit facility.  All the export bills were paid and the Bank (Opposite Party No.1) removed its lien and returned some shares to him.  However, few shares were not returned. Complainant tried to transfer the shares in his name till 05/08/2011. The Complainant repeatedly requested the bank to return these shares. The description of these shares which were not returned to the Complainant are as follows –

 1) Value Industries Ltd.                                  500 shares

 2) Sunflag Iron & Steel Co. Ltd.                         4100 shares     

 3) Torrent Tower Ltd.                                          2867 shares

3)        The Opposite Party No.1 issued letters to the concerned companies informing them that it has no objection for applying by the Complainant for duplicate shares, as bank had removed the lien.  However, in the same letter the bank Opposite Party has made a misrepresentation that they had returned the shares and the Complainant misplaced it.

4)        The Complainant’s lawyer sent a letter to Opposite Party on 30/01/2010 about not handing over the shares to the Complainant or to pay the equivalent price of the shares as per current market value of these shares.  Alongwith dividend, bonus, rights and delayed interest.

5)        The Complainant has stated in para 13 of the complaint that the dispute arose between the Opposite Party No.1 and M/s. Kunal Overseas Ltd. as Opposite Party No.1 misplaced some shares pledged by the Complainant with the Opposite Party No.1 though the bills were paid by the Complainant. 

6)        The Complainant has further stated in his complaint that, the Opposite Party was carrying out the process of transferring the shares to Complainant as referred in letter dtd.05/08/2009.

7)        It is also stated that Opposite Party No.1 is transferring the dividend in the name of the Complainant till 2006.  There is no time limit for applying for duplicate share certificate. Therefore, there is no delay in filing the complaint. The Complainant has stated that the market value of the missing shares as Rs.11,54518.

8)        The Complainant has prayed for the following reliefs –

            a)  The Opposite Party No.1 be directed to hand over the missing shares

                 alongwith dividend, bonus, rights and delayed interest.                 

b)     If the shares are misplaced then the Opposite Party No.1 be directed to pay

      the current price of the misplaced shares alongwith dividend, bonus, rights

      & delayed interest

c)   Compensation of Rs.1 Lac for mental harassment.

 The Complainant has also averred that, the delay if any be condoned.

9)        The Complainant has attached the xerox copies of the following documents alongwith his complaint –

            a)  Complainant’s letter dtd.05/08/09.

            b)  Complainant’s letter dtd.13/06/05.

            c)  Complainant’s letter dtd.28/06/05.

            d)  Complainant’s letter dtd.04/01/06.

            e)  Share transfer form.

            f)  Certificate dtd.17/04/1998.

            g)  Advocate’s Notice dtd.30/01/2010.

            h)  Opposite Party’s reply to notice of the Complainant dtd.10/02/2010.

            i)   Complainant’s letter dtd.25/02/2010.

            j)  Complainant’s Advocate’s notice dtd.08/06/2010.

10)      The complaint was admitted and notices were served on the Opposite Parties.  Opposite Party No.1& 2 appeared through their Ld.Advocate but Opposite Party No.6 submitted its reply by post.  Opposite Party No.3 to 5 remained absent inspite of due service of notice.  Hence, ex-parte order was passed against Opposite Party No.3 to 5.  The Opposite Party No.1 & 2 submitted their written statement, wherein they have denied the allegations leveled by the Complainant in his complaint.  However, the Opposite Party No.1 & 2 have admitted that the Complainant had kept the shares with Opposite Party No.1 under lien for using post shipment facility for his company.

11)      The Opposite Party No.1& 2 has further stated that, they sent letters to the concerned companies whose shares were misplaced by the Complainant for issue of duplicate shares stating reason that the shares were lost/misplaced by the Complainant and the Opposite Party has no lien on those shares.  These letters were issued by the Opposite Parties in 2007.  The Opposite Parties have specifically stated that they had returned all the shares to the Complainant after removing the lien on these shares.   

12)      The Opposite Parties have denied that they have not cooperated in the transfer of shares.  The Complainant had not made any complaint with the Opposite Party No.1 in this respect.  The Opposite Party No.1 & 2 have also denied that they are liable to pay dividend, bonus, delay, interest as alleged by the Complainant.

13)      The Opposite Party No.1 & 2 have vehemently submitted that the alleged misplaced shares were handed over to the Complainant. It is also alleged by the Opposite Parties that there is considerable delay in filing this complaint.  Finally it is prayed that the complaint be dismissed with cost.

14)      Opposite Party No.6 has submitted its written statement by post.  Perused this written statement wherein it has been denied any deficiency in service by the Opposite Party No.6 towards the Complainant and specifically stated that Opposite Party No.6 is not even the necessary party and hence the complaint be dismissed against Opposite Party No.6.

15)      The Opposite Party No.6 has pointed out that, neither in the complaint nor in any of the documents the Complainant has described the details of disputed 4100 shares of Opposite Party No.6 allegedly missing.  However, Opposite Party No.6 has clarified that as on date of writing the written statement, 3800 shares of Opposite Party No.6 are in the name of Vysya Bank Ltd. as per its record.

16)      The Opposite Party No.6 has also stated that Opposite Party No.1 vide its letter dtd.18/04/07 had informed Opposite Party No.6 that it had a lien on 3830 shares of Opposite Party No.6 but the Complainant had cleared all the bills and hence, Opposite Party No.1 had removed the lien on the shares and returned all the original shares certificates to the Complainant and the Complainant had lost the original share certificates pertaining to 3800 shares.  The Opposite Party No.1 has further requested the Opposite Party No.6 to issue duplicate share certificates to the Complainant.  Finally the Opposite Party No.6 has finally prayed that its name be deleted from the complaint as there is no prayer against it and there is no deficiency in service on its part.

17)      The Complainant then filed his rejoinder and written argument wherein he reiterated the facts mentioned in his complaint.  The Opposite Party No.1 & 2 also submitted their affidavit of evidence and written argument wherein they reiterated the facts mentioned in their written statement.  We perused all the documents filed by all the parties and heard Shri. Jayesh Sapra, Ld.Advocate for the Complainant and Ld. Advocate Shri. Uttamchand for the Opposite Party No.1 & 2.  In view of the rival contentions raised by the parties our findings are as follows –

18)      One Company known as M/s. Kunal Overseas Ltd.  Company has availed the post shipment facility service of the Opposite Party No.1.  For this service the shares of different companies were pledged with Opposite Party No.1 bank.  In the complaint the Complainant has averred that “he was running a company M/s.Kunal Overseas Ltd.”  He has not mentioned in what capacity he was “running” this company.  M/s. Kunal Overseas Ltd. pledged the shares with Opposite Party No.1 availing the said facility. The said Company is not the Complainant in this complaint. Hence, the present Complainant Mr. Paresh H. Parekh has no locus standi to file this complaint.

19)      As per letter dtd.17/08/1998, the said company i.e. M/s. Kunal Overseas Ltd. stopped availing the facility and paid all the bills and the Opposite Party No.1 & 2 stopped providing the services.  Therefore, at this point of time the Opposite Party No.1 was to return shares pledged with it to M/s. Kunal Overseas Ltd. The Complainant has himself averred that the Opposite Party No.1 returned the shares but did not return some of them and this is the dispute of this complaint. But interestingly, M/s. Kunal Overseas Ltd. is not a Complainant. One Mr. Paresh H. Parekh is the Complainant.  He has not mentioned anything about his locus standi for filing this complaint.  When the said company M/s. Kunal Overseas Ltd. had availed the services of Opposite Party No.1.  Only pleading that he was ‘running’ a company M/s. Kunal Overseas Ltd. does not describe his status with the said Company or the authority for the said Company. He has also mentioned that he has pledged his shares with Opposite Party No.1. The Opposite Party No.1 & 2 has vehemently stated in the written statement that pledged shares were returned to the Complainant after removing the lien. This has been communicated to Opposite Party No.6. The fact is also corroborated by Opposite Party No.6.

20)      The main allegation of the Complainant is that some of the shares in dispute were not returned to the Complainant when the bills were paid.  Opposite Party No.1 vehemently averred that the shares were returned to the Complainant and they were misplaced by the Complainant himself. These are only allegations and counter allegations in terms of words without any proof. Under such circumstances it would not be proper to hold that the shares were lost by the Opposite Parties and not by the Complainant. Even though it is assumed that the shares were not returned by the Opposite Party No.1 to the Complainant, the Opposite Party No.1 was supposed to return the shares to the Complainant when the Complainant M/s. Kunal Overseas Ltd. paid all the bills and Opposite Party No.1 removed the lien and stopped rendering services to M/s. Kunal Overseas Ltd.  This period is August, 1998.  Therefore the cause of action has arisen certainly on 17/08/1998 when the M/s. Kunal Overseas Ltd. stopped availing the services of Opposite Party No.1, when Opposite Party No.1 removed the lien on shares and did not return the shares as alleged by the Complainant.  But the Complainant remained silent till 14/07/2010 i.e. till the filing of this complaint.  The Complainant did not take any legal action against the Opposite Parties nearly for about 12 years. We therefore, hold that the Complainant was certainly not diligent in filing this complaint. The Complainant has not filed any delay condonation application stating any reasonable ground to condone the delay. Therefore, in our candid view the complaint is hopelessly time barred and hence, we pass the order as follows –

O R D E R

i.                    Complaint No.209/2010 is hereby dismissed as it is hopelessly time barred as well as the same is not filed by M/s. Kunal Overseas Ltd.

ii.                 There is no order as to cost.

ii         Certified copies of this order be furnished to the parties.