Per Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member

These appeals are decided by this common order since they involve identical facts and common question of law.

All the consumer complaints in which the impugned orders are passed stood dismissed holding that the dispute presented is not a consumer dispute. Feeling aggrieved thereby, original complainants preferred these appeals. It is alleged by the complainants that they have made certain deposits in a form of a loan.  Interest was payable @ 21% p.a.  Complainants tried to submit that all are deposits and not loan transaction as submitted on behalf of respondents/opponents. 

According to respondents/opponents amounts were not deposits at all, but they were unsecured loan advance made to respondent/opponent no.1 company.  Forum below accepting the contention of the respondents/ opponents dismissed the consumer complaints.

Heard Heard Mr.U.B.Wavikar-Advocate for the appellants and Mr.S.B. Prabhawalkar-Advocate for the respondents. Perused the record.

In the instant case, what is disputed is the nature of transactions, whether it is a deposit or unsecured loan advanced to respondent/opponent no.1 company. We made specific enquiry from the Ld.counsel appearing for the appellants/org.complainants as to what sort of evidence is led on their behalf to establish the nature of transactions. He could not point out any evidence which is tendered as per provisions of section 13(4) of Consumer Protection Act, 1986.  He relied upon confirmation letter for income tax purpose (Exhibit A), which clearly described the transactions in question as a loan transaction and wherein TDS shown to have been deducted against the interest paid. Same is the case in respect of certificate of deduction of tax at source (Exhibit B).  Admittedly, transaction is not witnessed by any document i.e. deposit receipt or any writing.

Our attention is also invited to letter dated 29/6/2001 issued by one Mr.R.G.Desai i.e. appellant/complainant in First Appeal no.398/10 (Exhibit C). The appellant wherein clearly in an unambiguous term, describe the transaction as a loan when he asserted that “I have advanced a loan of 3 lakhs”.  Thereafter, it appears that for the first time these appellants while sending advocate’s notice dated 03/04/2002 entered into jugglery of words making statement that the amounts were parted with as deposit in form of a loan.  Such diversion is not permissible.  Furthermore, income tax document particularly regarding TDS, supra, also make it clear that the transactions are that of loan and which corroborates the case of respondent/opponent company that complainants have given these amounts to it by way of unsecured loan.

Appellants/complainants also had taken up the dispute regarding these amounts with Company Law Board and by its order dated 15/10/2004 (Exhibit E), the Company Law Board which is a statutory body competent to deal with the issue, reached to the conclusion that amounts in question are not deposits for the purpose of section 58-A of the Companies Act.  This finding is relevant since coming from the statutory authority having proper jurisdiction over the matter and since both the parties elected and submitted to its jurisdiction.

Thus, we find that appellants/complainants miserably failed to establish their case that the amounts in question are deposits lying with respondent/ opponent no.1 company.  We find no reason to take a different view than what has been taken by the forum below holding that considering the nature of transaction as a loan transaction, the complaints would not lie since they do not pertain to any consumer dispute.

In the instant case Ld.counsel appearing for the appellants in all the appeals invited our attention to the impugned order dismissing the complaint with cost.  However, amount of cost being not specified that part of the order remains unexecutable.  Unlike suit there is no rule where the cost could be asserted and calculated. Therefore, that part of the impugned order needs to be modified.  Mr.Prabhawalkar Ld.counsel appearing for the respondent fairly conceded to this situation.

          Ld.counsel appearing for the appellant relied upon plethora of judgements and more particulary decision of Hon’ble National Commission in the matter of Neela Vasant Raje v/s.Amogh Industries and another. However, all these cases pertains to deposits and, thus, on the factual matrix these rulings are not applicable to the cases before us.

Thus, for the reasons stated above but for the little modification regarding cost impugned order needs to be confirmed. We hold accordingly and pass the following order:-

                                      ORDER

Appeals nos. 398/2010 to 406/2010 are partly allowed.

Impugned orders are maintained except the one for costs.

From the operative part of impugned order, in the first line, the words at the end “with cost” stands deleted.  Except this modification impugned orders stand confirmed.

In the given circumstances, both the parties to bear their own costs.

Copies of the order be furnished to the parties.