BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 335/2005 Filed on 05.10.2005

Dated : 16.04.2010

Complainant:

T.S. Geetha, D/o R. Srimathi, T.C No. 12/1440(15), Ganesh Bhavan, Sreevaraha Nagar, Vallakkadavu P.O. Thiruvananthapuram-8 represented by her mother/Guardian R. Srimathi, T.C No. 12/1440(15), Ganesh Bhavan, Sreevaraha Nagar, Vallakkadavu P.O. Thiruvananthapuram-8.

(By adv. M. Nizamudeen)

Opposite parties:

1. M/s MOREPEN Laboratories Ltd., F.D. Department, 416-418, Antriksh Bhavan, 22, Kasturba Gandhi Marg, New Delhi-110 001 represented by its Chairman/Managing Director.

    

2. Chairman/Managing Director, M/s MOREPEN Laboratories Ltd., F.D. Department, 416-418, Antriksh Bhavan, 22, Kasturba Gandhi Marg, New Delhi-110 001.

    

3. The Branch Manager, M/s Bajaj Capital Ltd., Attukal Shopping Complex, East Fort, Thiruvananthapuram.

(By adv. R.S. Mohanan Nair)

This O.P having been heard on 30.01.2010, the Forum on 16.04.2010 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

The complainant in this case is a minor. Hence the complainant is represented by her mother. The facts leading to the filing of the complaint are that the complainant opened a cumulative deposit account with the 1^st opposite party Morepen Laboratories Ltd. which was canvassed by and routed through the 3^rd opposite party Bajaj Capital, that the amount deposited was Rs. 25,000/-, date of deposit was 11.04.2002, the maturity date of deposit was 11.04.2005 and the maturity value of the deposit was Rs. 35,128/-. The complainant surrendered the deposit receipt duly discharged for the payment of the maturity amount, but there was no response from any of the opposite parties. At last the complainant had sent a notice on 19.03.2005 but there was no response even though the said notice was accepted by the opposite parties. Hence this complaint to direct the opposite parties to pay an amount of Rs. 36,900/- with interest at 11.5% per annum from 20.09.2005 along with an amount of Rs. 50,000/- towards compensation.

The 1^st and 2^nd opposite parties, M/s Morepen Laboratories Ltd and its Chairman filed their version. They stated that they have filed a petition under Sec. 391 of Companies Act 1956 before the Hon'ble Shimla High Court for re-schedulement and revision of all our dues to various creditors including fixed deposit holders. The Hon'ble Court by its order dated 28^th June 2004 had granted an interim stay on all the legal proceedings pending in various courts and Forums across the country against the company. The Hon'ble High Court by its order dated 2^nd August 2005 has directed the company to hold its meetings of all its creditors for seeking consensus of all the proposed restructuring scheme and further continued the stay till 26.10.2005. They have produced the copies of order before this Forum. Hence the 1^st and 2^nd opposite parties prayed to stay the proceedings till the disposal of the petition before the Hon'ble High Court.

The 3^rd opposite party M/s Bajaj Capital Ltd. filed version contending that there is no privity of contract between complainant and 3^rd opposite party guaranteeing the repayment of F.D Receipt, that 3^rd opposite party acted as a broker only to transmit the application of the complainant to the 1^st opposite party who accepted the said deposit and issued F.D receipt to the complainant. That the claim of the complainant arises only against 1^st and 2^nd opposite parties and not against the 3^rd opposite party and the 3^rd opposite party has nothing to do with it. Hence 3^rd opposite party prayed for the dismissal of the complaint.

The points that arise for consideration are:-

1. Whether there has been any deficiency in service on the part of opposite parties?

2. Whether the complainant is entitled to get the reliefs and costs?

    

In support of the complaint, the mother of the complainant has filed an affidavit in lieu of examination in chief and Exts. P1 to P4 were marked. Complainant has not been cross examined by the opposite parties. Hence the affidavit filed by the complainant stands unchallenged. Along with the version the 1^st and 2^nd opposite parties filed the stay orders dated 28.06.2004 and 02.08.2005 of Shimla High Court.

Points (i) & (ii):- It has been the case of the complainant that complainant opened a cumulative deposit account with the 1^st opposite party M/s Morepen Laboratories Ltd., which was canvassed by and routed through the 3^rd opposite party. The cumulative deposit No. is DL2DX38099. Ext. P1 is the copy of the deposit receipt dated 23.04.2002 which is seen issued by the 1^st opposite party in the name of the complainant. As per Ext. P1, receipt No. is DL2DX38099 term of deposit is 36 months, amount of deposit is Rs. 25,000/-, rate of interest is 11.5%, amount payable on maturity is Rs. 35,128/- and the date of maturity is 11.04.2005. It has also been the case of the complainant that though she had surrendered the said deposit receipt duly discharged for the payment of the maturity amount, there was no response from the opposite parties. Ext. P2 is the copy of notice dated 19.03.2005 addressed to the 1^st opposite party and received the same by the opposite party by Ext. P3 postal receipt and Ext. P4 acknowledgement card. Submission by the complainant is that even after the receipt of Ext. P2 notice, there was no response from the opposite parties. The submission made by the 1^st and 2^nd opposite parties are that the repayment of deposit to the deposit holders is under judicial process and the allegation that there is deficiency in service on the part of the 1^st and 2^nd opposite parties is not sustainable. The fact that the 1^st opposite party was declared sick by BIFER is not at all binding this complaint. That is not at all a bar for proceeding this case. In this context it is to be highlighted the decision of the Hon'ble National Commission in the case of Sneha Dyechen Ltd. Vs. Jyothi Rathore reported in 11(2006) CPJ 195 (NC) that Sec. 22 of Sick Industrial Companies Act is no bar on hearing the complaint under the Consumer Protection Act. Submission by the 3^rd opposite party is such that there is no privity of contract between the complainant and the 3^rd opposite party guaranteeing the repayment of F.D Receipt, that the 3^rd opposite party acted as a broker only to transmit the application of the complainant to the 1^st opposite party who accepted the said deposit and issued F.D Receipt to the complainant, that the claim of the complainant arises only against the 1^st and 2^nd opposite parties and not against the 3^rd opposite party and the 3^rd opposite party has nothing to do with it. There is no material on record showing that the said deposit was canvassed by and routed through 3^rd opposite party and 3^rd opposite party had guaranteed the repayment of F.D to the complainant. In the absence of any cogent and clinching evidence against 3^rd opposite party complainant cannot say that there was deficiency in service on the part of 3^rd opposite party. Applying the law as is observed and found in the above decision of the Hon'ble National Commission in the case of Sneha Dyechen Ltd. Vs. Jyothi Rathore reported in 11(2006) CPJ 195 (NC), we find complaint is maintainable under the Consumer Protection Act. Non-payment of maturity amount as per Ext. P1 would definitely amount to deficiency in service on the part of the 1^st opposite party. Deficiency in service proved. In view of the foregoing discussions, we are of the view that the complainant is entitled to get the maturity amount of Rs. 36,900/-. Complainant is also entitled to get post maturity interest at the rate of 11.5% per annum till realisation.

In the result, complaint is allowed. 1^st opposite party shall pay the complainant a sum of Rs. 36,900/- with interest at 11.5% per annum from 20.09.2005 till realization. 1^st opposite party shall pay the said amount within two months from the date of receipt of this order, failing which 1^st opposite party shall also pay the complainant an amount of Rs. 5,000/- towards compensation and cost.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 16^th day of April 2010.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

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O.P. No. 335/2005

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of deposit receipt dated 23.04.2002

P2 - Photocopy of the notice dated 19.03.2005 addressed to 1^st

opposite party.

P3 - Photocopy of postal receipt

P4 - Photocopy of acknowledgement card

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT