BEFORE THE DISTRICT CONSUMER WARANGAL
Present: Sri Sri
AND
Thursday the 08th July, 2008.
CONSUMER DISPUTE NO.
50/2003
Between:
01.
S/
R/o.H.No.1-7-192, Revenue Colony,
02. S/ … Complainants
AND
01. The General Manager,
M/
1-1075/1/1-6, First Floor,
Saptagiri Towers,
Hyderabad.
02. The Branch
6-2-170, First Floor,
… Opposite Parties
Counsel for the Complainant :: Sri.
Counsel for the Opposite Party :: Sri.
This complaint coming for final hearing before this Forum, the Forum pronounced the following Order.
: ORDER ::
Sri This is a complaint filed by the complainants i.e. against
the Opposite parties under section 12 of Consumer Protection Act, 1986 for a direction to (a) The total F.D.R. amount of Rs.2,43,550/- with interest @ 24% P.A. till the date of realization, (b) Award Rs.25,000/- towards damages, (c) Costs of this proceedings and any other relief or relieves.
The brief averments contained in the complaint filed by the complainants are as follows:
01. The complainant No.1 is the father of the complainant No.2. The complainant No.1 is a Government Retired Teacher, after his retirement funds in a Secured and Safety Schemes in order to make the funds as his life time bread earner. The opposite party No.1 was engaged in Securities and Deposit Investment Business. In the year 1997, the complainant No.1 offered private placement of Rs.5th month there forth. The bonds are named as “11-10-1997 & closed on 10-11-1997. The complainant No.1 invested a sum of Rs.50 12-11-1997 vide Receipt No.44967 from the Opposite Party No.3 also the complainant No.1 invested Rs.5,000/- on the same day vide Receipt No.43732. The complainant No.1 also invested in the above scheme a sum of Rs.42,000/- on the name of his minor son i.e., complainant No.2, who attain majority by now, vide Receipt No.221926, dated 27-08-1997 for a scheme for the duration of 18 months there from to get double the amount. The opposite party No.1 issued Share Bond Certificates vide Nos.3317 to 3322 and allotted total shares of 550 on the face value of Rs.100/- each share for a total amount of Rs.55,000/- with a maturity value of Rs.69,310/- the complainant No.1 also allotted FDR for which he invested on the name of his minor son i.e. complainant No.2. In the year 1999-2000 the opposite party No.1 issued a paper publication dated 20-08-2000 in The complainant shall submitted all his share bond certificates/FDR Certificates to them for immediate encashment of the same and obtained acknowledgement endorsement on the originals of the share bond certificate, which are clearly shown on the copies of the bonds appended herewith. After receiving of the share/FDR bonds issued to the complainant an repayment schedule by which the complainant No.1 should get 50% of the share/FDR amounts in first installment on or before 23-11-2001 and full and final amount along with interest on or before 02-08-2002 as second and final installment. The complainant No.1 who is at old age, made several visits to the opposite parties 1 & 2, for demanded for the release of FDR/Share amount, for which the opposite parties 1 & 2 showed lame excuses and dodged the matter on all the occasions. Finally the complainant No.1 as a last resort approached the Hon’ble Forum and filed the complaint before this Forum.
Opposite parties 1 & 2 are filed their Written Version contending in brief as follows:
02. The opposite party No.1 company was established in the year 1988, the operations are centered around Hire Purchasing and leasing and Bill discounting. The company launched its fixed deposit scheme for the public in the year 1991-1992. The company has developed a very strong infrastructure through out the country. The board of the directors of the company have decided to collect the public deposits and utilize the same for the business lease, hire purchase and Bill discounting etc., the opposite party gave loans H.P/lease Agreement have been referred to the Hon’ble BIFR and no action could be taken for collection of the dues. The Hon’ble High Court of Andhra Pradesh, Hyderabad Vide its orders dated 24-11-1999 in a Company Application No.753/1999 in Company Petition No.131/1999 has appointed the Office Liquidator as Provisional Liquidator U/s.450 of the Companies Act, 1956 and directed the Official Liquidator to take steps to recover the amounts due to the Opposite Party company from various companies to which respondent company lent the money land not “DISTRI-BUTE THE SAME TO ANY OF THE CREDITORS”. If pending at the date of winding up order, shall be proceeded with against the company, as laid down under section 446(1) of the Companies Act, 1956. The opposite party has no branch at Warangal. Therefore this Hon’ble Forum has no territorial jurisdiction to try this dispute. The opposite party No.1 requested the Hon’ble Forum may be pleased to dismiss the complaint.
03. The opposite party No.2 has submitted that one of the The said proceedings are pending before the Hon’ble High Court of Andhra Pradesh and Section 336 of the act reads that actionable claims against the cannot be proceeded without the leave of the winding up court. The opposite party ( In obedience of the provision of SICA, 1985, the Directors referred the matter to the Hon’ble BIFR, New Delhi U/ It is submitted that the reference made by the company to the BIFR under Section (1) of Section 15 of SICA has been registered as Case No.87/2003, which is also pending, in this kind of circumstances section 22(1) of SICA assumes importance. It is submitted that the complaint filed by the complainants is not at all maintainable under following circumstances: a) The Company Law Board has got every power to supervise and conduct the smooth transactions of a particular company. b) The Company Law Board is a statutory authority constituted U/s.10 of the Companies Act which is deemed to be a court for the purpose of Sec.195 of CPC 1973 and every proceeding before the The Company Law Board shall have the powers, which are vested in the court under CPC while trying a suit. c) Specific provision U/s.3 of C.P.Act shall not be in derogation of the provisions of any other law. The provisions contained Section 10 of the Companies Act, is not in any way abrogate even partially. Therefore this Honorable Forum cannot interfere in this complaint, since the Hon’ble Company law Board had already fully gone into the matter and passed detailed order for the compliance of the opposite party company. Finally the opposite party No.2 prays the Hon’ble Forum may be pleased to dismiss with exemplary costs.
04. The complainants in support of there claim in the form of chief examination and also marked Exs.A-01 to A-13.
05. Now the point for consideration is whether the complainant is entitled to the total F.D.R. amount of Rs.2,43,550/- with interest @ 24% per annum till the realization, to award damages of Rs.25,000/- and costs of the complaint.
06. After arguments of the both side counsels, our reasons are like this. As per the letter received from the Official Liquidator and also Memo submitted by the Opposite Party No.1 we come to the conclusion that not to dispose of this matter on merits, because the subject matter of the CD 50/2003 is pending before the Hon’ble High Court of Hyderabad and after the Memo submitted by the Official Liquidator stated that in pursuance of orders of the Hon’ble High Court of Andhra Pradesh, Hyderabad order dated 24-11-1999 made in C.P.No.131/1999 the High Court of Andhra Pradesh was pleased to appoint the Official Liquidator attached to the Hon’ble High Court of Andhra Pradesh as Provisional Liquidator of M/s.Pennar Paterson Securities Limited.
07. The Official Liquidator has taken possession of the assets and records of the company as required Under Section 456(1) & (2) of the Companies Act, 1956 which inter-alia provides as under:
456(1) “Where a winding up order has been made or where a Provisional Liquidator has been appointed, the Liquidator or the Provisional Liquidator shall take into his custody or under his control, all the property, effects and actionable claims to which the Company is or appears to be entitled”.
(ii) “All the property and effects of the Company shall be deemed to
the custody of the Court as from the date of the order of
So the Official Liquidator further stated that U/Sec.446 (1) of the Companies Act, 1956, which inter-alia provides as under:
“When a winding up order has been made or the Official Liquidator has been appointed as Provisional Liquidator, no suit or other legal proceedings shall be commenced, or if pending at the date of winding up order, shall be proceeded with, against the Company, except by leave of the Court and subject to such terms as the court may impose”. So when the subject matter of the CD 50/2003 is pending before the Hon’ble High Court of Andhra Pradesh as Section 446(1) of the Companies Act, this Forum cannot be proceed legally in this matter, as per Section 446(1) of the Companies Act, 1956 it is clear “When a winding up order has been made or the Official Liquidator has been appointed as Provisional Liquidator, no suit or other legal proceedings shall be commenced, or if pending at the date of winding up order, shall be proceeded with, against the Company, except by leave of the Court and subject to such terms as the Court may impose”. So as per this Forum has no right to proceed this matter in further as per the letter received by the Forum dated 14-10-2003 it is clear that the subject matter of CD 50/2003 is pending before the Hon’ble High Court of Andhra Pradesh. Since the subject matter of the CD 50/2003 is pending before the Hon’ble High Court of Andhra Pradesh, we are of the opinion that not to dispose of this case on merits and we direct the complainant after disposal of the subject matter of CD 50/2003 and the C.P.No.131/99 by the Hon’ble High Court of Andhra Pradesh he has to file a fresh complaint before this Forum. On the above directions we dispose of this petition.
(Dictated to the Stenographer transcribed by him corrected and pronounced by us in the open Forum today i.e. July, 2008).
Member President,
District Consumer Forum, Warangal.
APPENDIX OF EVIDNECE
WITNESSES EXAMINED
ON BEHALF OF O.Ps.
Affidavit of Complainants Affidavit of Opposite Parties
EXHIBITS MARKED
ON BEHALFOF COMPLAINANTS
01. Ex.A-1 is the Original Terms and Conditions Governing Acceptance of
02. Ex.A-2 is the Opens: 11-10-1997- Offer 10-11-1997.
03. Ex.A-3 is the Opens: 11-10-1997- Offer 10-11-1997.
04. Ex.A-4 is the Xerox copy of
05. Ex.A-5 is the Xerox copy of
06. Ex.A-6 is the Xerox copy of
07. Ex.A-7 is the Xerox copy of
08. Ex.A-8 is the Xerox copy of
09. Ex.A-9 is the Xerox copy of
10. Ex.A-10 is the Original
(Not Transferable), Receipt No.14028, an amount of Rs.33
11. Ex.A-11 is the Xerox copy of Schedule of Repayment.
12. Ex.A-12 is the
15-09-2000.
13. Ex.A-13 is the Xerox copy of before the Company Law Board,
Southern Region Branch, Chennai.
ON BEHALF OF Opposite parties
-- NIL --
