Order-43.
Date-16/06/2015.
Complainant Shiba Prasad Sarkar by filing this complaint has submitted that he purchased three fixed deposit certificates of Nicco UCO Alliance Credit Ltd. the op on 19.01.2002, 22.01.2002 and 28.09.2002 and deposit amount were Rs. 15,000/- + Rs. 15,000/- + Rs. 20,000/- and maturity dates were 18.01.2007, 02.01.2007 and 27.09.2007 but the op did not keep his promise though original FDRs were duly deposited to the company on 04.01.2007 and 27.08.2007.
Subsequently op sent a letter to the complainant that he will repay the matured amount to the complainant according to the order of the Company Law Board, Eastern Region Bench, Kolkata and the mode of repayment of matured amount will be – 1st year 30 percent of the matured amount, 2nd year – 30 percent of the matured amount, 3rd year – 405 with full interest upto the date of maturity and the interest of the rest maturity period shall be at the rate 06 percent p.a. and payable within 6 months from payment of last installment of repayment of the principal amount and in the event of failure by the company to make repayment of deposits as per the scheme approved by the Bench Overdue interest shall be payable at contracted fate. In the said letter op gave so many promise but he did not pay the same.
Subsequently op paid Rs. 7,500/- on 10.02.2007 and sent a covering letter mentioned that op would repay the rest amount according to the order of Company Law Board. But unfortunately op did not keep his word. But total outstanding was of Rs. 90,101/- upto date of filing of this case. But op did not pay the same and such sort of negligent and deficient manner of service complainant has filed this complaint praying for redressal.
Fact remains after playing some tactical games by the op, op ultimately submitted written version on 02.03.2015 stating that op is a company incorporated as a public company limited by shares on 18.06.1984 under the provisions of the Act having its registered office at Nicco House, 2, Hare Street, Kolkata – 700001 a company was initially carrying out the business of hire purchase and equipment leasing and at present the company is engaged in separate business activities and company invited and accepted fixed deposit from the public and shareholders of the company under the cumulative and non-cumulative scheme for past several years in terms of Section 58A of the Act read with the Companies rules.
Due to entry of both foreign and Indian Banks in lease and hire purchase business and offering lower rate of interest to customer and due to the slowing down of economy during 1998 to 2003 and quite a few deals turning NPA the company started incurring losses since the financial year 2003-2004 and at present, the debit balance in Profit & Loss Account of the company stands at Rs. 2,56,20,09,191/-. So, ultimately op failed to repay the matured fixed deposit since 2004 and as such the Company submitted an application before CLB in June, 2004 seeking permission to repay the deposit amount in installment as required and Company Law Board passed such order on 22.03.2005. But subsequently due to unavoidability of cash flow the said order of CLB would not complied with from 01.04.2007.
Thereafter with the object to discharge the liabilities of the depositors most of them are small depositors and the answering op drew up a scheme and filed a company application being No. 850/2007 in the Hon’ble High Court of Calcutta, in its original jurisdiction Hon’ble Justice Biswanath Somadder disposed of the same and approved the said scheme to discharge the company liabilities to its depositors and answering op has complied with the order of the Hon’ble High Court in the meantime and in view of the above order instant complaint cannot be entertained by this Ld. Forum and so the present complaint should be dismissed.
Decision with reasons
On proper consideration of the complaint and written version and further considering the materials as produced by the complainant and op, it is found that the complainant’s allegation is not denied by the ops. Admitted position is that op failed to pay the maturity amount to the complainant that is Rs. 90,101/- since 27.09.2007. It is also admitted by the op that he filed an application before Company Law Board and CLB also directed the op to pay the same by installment but that has not been complied by the op. Thereafter op adopted another path to cheat the depositors and ultimately he filed an application u/s 391(2) and 394 of the Company Act 1956 before Hon’ble High Court, Calcutta and Hon’ble Justice Biswanath Somadder passed an order in Company application No. 850/2007 read connected with Company 97/2008 that Company makes necessary application before the proper authority for effecting the scheme. But fact remains that in the said application those depositors were not made parties and in their absence, complainant got such order.
But most interesting factor is that op has violated the order of the Company Law Board dated 22.03.2005. Fact remains that the amount is very meager in nature of Rs. 90,101/- only and it has not been paid within last 8 years. But any other cases this op paid up the small amount in all the cases and it is also a small amount of Rs. 82,601/- with some interest and fact remains that this company only to deceive the depositors adopted such tactical game only for the purpose to discharge their liability without adding the depositors in the said proceedings and depositors failed to present grievance before the Hon’ble High Court, Calcutta or Company Law Board or before the present Hon’ble Justice Biswanath Somadder.
Op did nothing but till now op has failed to prove that in the name of the complainant any share has been purchased and that has been handed over. But truth is that for the last 8 years, op has been harassing the complainant by adopting some tactical games and that is the procedure of such sort of op company to avoid payment of maturity amount and anyhow to discharge the liability and by adopting such procedure this company has deceived so many depositors by only paying the actual amount which was deposited by the customers.
Now this factor was not brought to the notice of the Hon’ble High Court at the time of hearing the application as made by op and op did not make all the depositors so that depositors may not raise their grievance before the Hon’ble High Court, Calcutta and was not given. So, in view of the above fact and circumstances and considering the negligent and deficient manner of service on the part of the op for long time we are convinced to hold that this op has already paid the amount to other depositors before this Forum, then invariably op shall have to refund the entire maturity amount of Rs. 82,601/- along with 6 percent interest p.a. since 27.09.2007 and there is no consent on the part of the depositor that their deposited fixed amount shall be converted into equity shares, consent of the depositor is must in all respect and that is the legal portion. Company cannot automatically convert the deposited amount of the depositors into equity shares and that is not the provision of law.
In the light of the above observation we are convinced to hold that no doubt this op is a cheat company who has cheated 1000 depositors. But it is overlooked but Company Law Board considered it and directed the op to pay the same but that was also not completed by the op. So, in view of the above fact and circumstances, we are convinced to hold that the op has adopted unfair trade practices and only for the purpose of deceiving the complainant many tactical games had been played and this case has been delayed by the op and for which allegations against the ops is proved.
So, in the result this complaint succeeds.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest with cost of Rs. 5,000/- against the op.
Op is hereby directed to refund the entire maturity amount of Rs. 82,601/- along with bank rate interest at the rate 6 percent p.a. w.e.f. 27.09.2007 and to pay the same within one month from the date of this order failing which for non-compliance of the Forum’s order bank interest shall be assessed till full satisfaction of decree and op shall have to pay it and if op fails to comply the order, in that case, ops shall be prosecuted u/s 27 of C.P. Act 1986 for which they shall be further imposed penalty and fine.
