Ex-P A R T E   O R D E R

PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        By this application the Complainants have claimed an amount of Rs.1,14,120/- and further interest @ 21% p.a. from the date of filing of complaint till the date of actual payment by the Opposite Parties to the Complainants.

2)        The facts of the case narrated by the Complainants are as under –

The Opposite Party No.1 is a Private Limited Company and Opposite Party No.2 & 3 are the Chairmen/Managing Director and Director of Opposite Party No.1 respectively. It is alleged that there existed a Private Limited Company named Brightlands Resorts Pvt. Ltd. having its registered office at “Jeradi”, Prof. Almeida Road, Bandra, Mumbai – 400 050.  In October, 2007, the Opposite Party No.1 of this complaint purchased 100% shares in the said Brightlands Resorts Pvt. Ltd. The Opposite Party had also taken over the assets and liabilities of the said Brightlands Resorts Pvt. Ltd. The Opposite Party No.1 in this connection published a Public Notice in the daily newspaper  “Jame Jamshed” dtd.14/10/07 and invited from the concerned members having any monitory claims of any nature on Brightlands Resorts Pvt. Ltd. as well as other claims against the said Company as per Exh.‘A-1’ and ‘B-1’. 

3)        According to the Complainants, they had deposited an amount of Rs.32,000/- each on 25/08/1996 with the said Brightlands Resorts Pvt. Ltd. as Fixed Deposit for the period of 12 years on a cumulative interest basis.  The said Fixed Deposits were due for repayment on 25/08/2008 and the maturity amount of each Fixed Deposit Receipt was Rs.52,000/-. Accordingly, Fixed Deposit Receipts No.080 and 091 dtd.25/08/1996 were issued in favour of the Complainant No.1 & 2 respectively.  The copies of which are marked as Exh.‘A-2’ and ‘B-2’ respectively.  Upon publication of Public Notice by the Opposite Party No.1 of purchasing 100 % shares in the Brightlands Resorts Pvt. Ltd., the Complainants approached Opposite Party No.1 and submitted their claims for maturity amounts of the aforesaid Fixed Deposits. On 25/10/07, the Complainants wrote letters to Opposite Party No.1 giving therein the details of their claim for Rs.52,000/- each alongwith copies of their Fixed Deposit Receipts.  Copies of the said letter duly acknowledged by the Opposite Party No.1 are marked as Exh.‘A-3’ and ‘B-3’ respectively. In June, 2008, Opposite Party No.1 wrote letter to both the Complainants informing them that all the rights for the same Brightlands Resorts Pvt. Ltd. were acquired by the Opposite Party No.1 and all the Fixed Deposits deposited with the said Company would be honoured by Opposite Party No.1.  It was also informed by Opposite Party No.1 that they would further communicate about the settlement of the matured amounts of the Fixed Deposits.  The Complainants alleged that till filing of the complaint they did not receive such communication.  Copies of the letters issued by Opposite Party No.1 in June, 2008 are at Exh.‘A-4’ and ‘B-4’.

4)        Thereafter both the Complainants wrote letter to Opposite Party No.1 on 27/08/08 to refund the amounts at the earliest date.  Acknowledged copies of the said letters by Opposite Party No.1 are at Exh.‘A-5’ and ‘B-5’.  In January, 2009, the Opposite Parties sent cheques for Rs.32,000/- to each Complainants towards the part payment of the above Fixed Deposits drawn on Zoroastrian Co-Op. Bank Ltd., Andheri West Branch, Mumbai in favour of Complainant No.1 and 2.  However, both the cheques were dishonored for the want of insufficient funds.  It is alleged that the Complainants did not take legal action against the Opposite Parties under Sec.138 of the Negotiable Instrument Act, 1881.  Though the cheques were bounce, the copies of cheques are marked as Exh.‘B-6’.  It is alleged that the C.E.O. of Opposite Party No.1 Mr. B.S. Irani explained the financial difficulties faced by Opposite Party No.1 while handing over the cheques to the Complainants.  The Opposite Party No.1 at the relevant time offered to the Complainants that for balance amounts of Rs.20,000/- each payable by Opposite Party No.1 to the Complainants.  Mr. Irani offered that they would issue vouchers which will entitle the Complainants to have “4 Nights stay in Hotel Brightlands Resorts, Matheran for 5 persons with food” for the Complainant No.1 and for 4 persons with food for Complainant No.2.  In view of the assurance of the said C.E.O., the Complainants handed over to the C.E.O. the duly discharged original Fixed Deposit Receipts on 27/10/2008.

5)        According to the Complainants, subsequently even after reminders the Opposite Party did not respond.  Then the Complainants wrote letters to the Opposite Parties stating that since the two cheques earlier issued by Opposite Parties for Rs.32,000/- each in favour of the Complainants who had dishonored, the offer made by the Opposite Parties and accepted by the Complainants regarding “Free stay with food at Brightlands Resorts, Matheran” stood withdrawn by the Complainants vide the above letter marked as Exh.‘B-7’ which is duly acknowledged by the Opposite Party No.1. The Complainants thus, claimed that as a result of their withdrawn of offer made by the Opposite Party No.1, the Opposite Parties are liable to pay Rs.52,000/-  each Complainants.

6)        Thereafter, the Opposite Party No.1 vide their letter dtd.02/07/09 enclosing the cheques bearing No.005766 & 005765 dtd.15/07/09 drawn on Union Bank of India, Home Street Branch, Mumbai, of Rs.32,000/- to the Complainant No.1 & 2 respectively towards part payments of the above Fixed Deposits.  In the said letter the Opposite Party No.1 assured the Complainants that the balance amount of Rs.20,000/- to each of the Complainant shall be paid to the Complainants in January, 2010.  The copies of the cheques and the letter dtd.02/07/09 are marked as Exh.‘A-6’ and ‘B-8’ issued in favour of Complainant No.1 & 2 respectively.  The Complainants thereafter till 30/01/2010 were hoping that the Opposite Parties would send their cheques in repayment of the full & final payment of Fixed Deposits as promised in their letter dtd.02/07/09.  However, the Opposite Parties failed, omitted and neglected to make the above payments.  The Complainant No.1 then sent e-mail dtd.21/01/2010 to the Opposite Parties demanding the amounts of balance payment and informed that failing which they were filed legal action against the Opposite Parties.  The Opposite Parties however, neither made any repayment to the Complainants nor made any communication to the Complainants. The Copy of the e-mail dtd.21/01/2010 is marked at Exh.‘A-7’.  Thereafter they made several telephone calls to the Opposite Parties and visited their office at Fort, Mumbai for several times and requested them to make the balance payments but the Opposite Parties did not respond to the Complainants.  The Complainants then sent legal notice dtd.01/03/2010 through their Advocate to all the Opposite Parties and demanded the balance amounts in respect of the above Fixed Deposits together with the interest @ 21% p.a. interest and also compensation for mental agonies caused by the Opposite Parties. The copies of demand notice are marked at Exh.‘A-8’ and Exh.‘B-9’ collectively.  It is alleged that even after the legal notices served there was no response from the Opposite Parties till filing of the complaint.

7)        It is submitted that by the non action on the part of Opposite Parties the Complainants have been put to considerable amount of harassment, inconvenience, financial loss, hardship and mental agonies by the Opposite Parties as well as there is deficiency in service on the part of Opposite Parties. 

8)        The Complainants have therefore, prayed for an amount of Rs.20,000/- for each Complainants as balance amount of the maturity, interest on reduced balance basis at 21% p.a. for each Complainant to the tune of Rs.14,560/-, Rs.2,500/- towards the expenses such as letter writing, telephone calls, e-mail, conveyance, etc. for each Complainant and Rs.20,000/- towards the mental and physical agonies for each Complainant.  The Complainants have thus, claimed total amount of Rs.1,14,120/- and further interest @ 21% p.a. from the date of filing of the complaint till its realization by the Opposite Parties to the Complainants.

9)        The Opposite Party appeared and requested for allowing them to file written statement. The said request was rejected by this Forum vide order dtd.16/01/2012, as they were already marked  ‘ex-parte’ and the Forum has no power to set aside the ex-parte order passed against Opposite Parties. 

10)      The Complainants have filed evidence on affidavit on 29/05/2012.  They also filed written argument on 23/08/2012. We heard the oral argument of Mr. M.S. Shetty, Ld.Advocate for the Complainants.  The Ld.Advocate for the Complainant drew our attention to the documents filed alongwith the complaint and submitted that each Complainant had received an amount of Rs.32,000/- on or about in July, 2009 by cheques drawn on Union Bank of India, Home Street Branch, Mumbai. It is submitted that however, as per the Fixed Deposit Receipts, the maturity amount was Rs.52,000/-.  The Opposite Party did not pay the balance amount of Rs.20,000/- as agreed to pay the balance amount of Rs.20,000/- in January, 2010.  However, thereafter, there is no compliance on the part of Opposite Parties, even after the legal notice issued to the Opposite Parties.  He made submission that there is deficiency in service on the part of Opposite Parties.  The claim made by the Complainants against the Opposite Parties is just and proper.  In support of his submission he relied the observations in the case of Mrs. Kiran Krishna Agro Tech. Ltd. V/s. Smt. P.V. Shanta Kumari, reported in 2012 (1) CCC 577 (NS). He further submitted that the amount which is claimed by the Complainants as prayed for may be allowed.

11)      Upon going through the documents filed with the complaint as well as affidavit of the Complainant and particularly the letter at Exh.‘B-8’ in which the Opposite Party have specifically mentioned that “we are paying Rs.32,000/- vide cheque No.005765 dtd.15/07/09 drawn on Union Bank of India, Home Street Branch, Mumbai, against your Fixed Deposit No.081 we thus, paid Rs.32,000/- and balance amount shall be paid in January, 2010.”  The said letter is addressed to the Complainant No.2.  The similar letter is also addressed to Complainant No.1 which is at Exh.‘A-6’.  Considering the said correspondence filed on record by the Complainant in complaint alongwith other relevant correspondence, we hold that the Complainants have proved that as per the Fixed Deposits Receipts in question, the Opposite Parties are liable to pay the balance of maturity amount of Rs.20,000/- to each Complainant. The said evidence of Complainants goes unchallenged. The Complainants have prayed an amount of Rs.14,560/- towards the interest on balance amount @ 21% p.a. for each.  We are of the view that the said interest claimed by the Complainants is exorbitant.  We hold that each Complainant would be entitled to interest on the balance amount of Rs.20,000/- remained to be paid by the Opposite Parties @ 9% p.a. from 25/08/2008 i.e. due date of maturity amount required to be paid by the Opposite Parties of the Fixed Deposit Receipts to the Complainants.  According to us, thus, each Complainant would be entitled interest @ 9% pa. on the balance amount of Rs.20,000/- from 25/08/08 till its realization of the amount of Rs.20,000/- to each Complainant.  We also hold that each Complainant would be entitled to Rs.10,000/-  towards mental agony, expenses of the present litigation from the Opposite Parties.  The argument advanced by the Complainant’s Advocate relying upon the observations in the case reported in 2012 (1) CCC 577 (NS) cited Supra, in our view is appropriately applicable to the facts of this case to grant the claim as referred above in favour of the Complainants.  In the result we pass the following order –

O R D E R

i.                    Complaint No.239/2010 is partly allowed against Opposite Party Nos. 1 to 3.

ii.                 Opposite Party Nos.1 to 3 do pay jointly and/or severally an amount of Rs.20,000/- (Rs. Twenty Thousand Only) to each Complainant towards the balance amount of Fixed Deposit Receipts with interest @ 9% p.a. from 25/08/2008 till its realization.

iii.               Opposite Party No.1 to 3 do pay jointly and/or severally an amount of Rs.10,000/- (Rs.Ten Thousand Only) to each Complainant towards mental agony and expenses of this litigation from the Opposite Parties.

iv.               The Opposite Parties are directed to comply with the above order within one month from the date of service of this order.  

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