PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
In the year 1974 the Complainant had applied for was allotted 50 shares of Opposite Party No.1 @ Rs.10 each totaling to Rs.500/-, bearing Share Certificate No.5836. Then in the year 1980 Opposite Party No.1 had declared rights issue in the ratio 1:2. The Complainant had applied for said rights issue and was allotted 25 Equity Shares vide Share Certificate No.8896, in view of 50 Equity Shares already held by the Complainant. The Opposite Party No.1 had issued 25 shares to the Complainant on specific payment of application money of Rs.5 per shares, which were subsequently endorsed as “Fully Paid Shares”.
2) It is the case of the Complainant in the month of Feb., 1982 he had requested Opposite Party No.1 to De-materialise the Share Certificate bearing No.5836 & 8896 pertaining to the Equity Share Holding of the Complainant of 75 shares. Opposite Party by their letter dtd.04/02/82 informed the Complainant that they had wrongly issued duplicate Share Certificate for 50 shares with the same numbers. The Opposite Party admitted in the said letter dtd.04/02/82 that they had subsequently issued 25 Rights Shares in favour of the Complainant.
3) It is submitted that to rectify the mistake committed by the Opposite Party, Opposite Party had offered two alternative to the Complainant viz; i) to sell off shares to the Opposite Parties or alternatively ii) The exchange the 75 shares held by the Complainant with shares bearing new numbers. The Complainant chose the second alternative and as such he sent the Share Certificates bearing Nos.5836 & 8896 to the Opposite Party with a view to facilitates the Opposite Parties to exchange/replace the same with the shares bearing new numbers.
4) It is submitted that Opposite Parties vide a letter dtd.19/06/82, returned the Share Certificate bearing No.8896 pertaining to the 25 Right Shares, informing the Complainant aforesaid Share Certificate is returned to the Complainant as the same was not required by the Opposite Parties. The Complainant reasonably presumed that Share Certificate No.8896 of 25 Rights Shares was returned to him as the same had no relevance to the duplicate shares issued to him.
5) Alongwith letter dtd.22/01/83 the Complainant received from the Opposite Parties two Share Certificates bearing No.3145 & 2869 for 50 Equity Shares of the Opposite Parties. Subsequently he sold off said 50 shares in the market bearing Share Certificates No.3145 & 2869.
6) It is submitted that in the month of November, 2003, the Complainant intended to De-materialise the remaining 25 shares bearing Share Certificate No.8896 and in this regard he applied through M/s.Kisan Ratilal Choksey Shares & Securities Pvt. Ltd. vide CDS No.9922 dtd.17/11/2003. However, Opposite Party vide their letter dtd.15/12/03 addressed to M/s.Kisan Ratilal Choksey Shares and Securities Pvt. Ltd. rejected request of the Complainant to De-materialise the 25 shares. The Opposite Party has rejected request of the Complainant by giving reason “Certificate details do no match with our records”. Thereafter the Complainant sent various letters and e-mail to Opposite Party to verify the record but to know avail. After rigorous follow- up, Opposite Party by letter dtd.06/07/07 informed the Complainant that “Right issue was made on 05/09/1980 and your transfer was affected on 20/01/1983 it means, transfer is not eligible for right issue”.
7) According to the Complainant, the Opposite Parties have rejected their request for De-materialise of 25 shares bearing Share Certificate No.8896 illegally and its amount to deficiency in service and unfair trade practice on the part of Opposite Party therefore, Complainant has filed this complaint.
8) The Complainant has prayed to declare that Opposite Parties are guilty of deficiency in service and unfair trade practice. The Complainant has requested to direct Opposite Parties to rectify their record and De-materialise the 25 shares held by the Complainant vide Share Certificate No.8896. The Complainant has prayed to direct Opposite Parties to allot bonus shares and dividend as declared subsequent filing of this complaint. The Complainant has prayed Rs.50,000/- as compensation towards mental and physical harassment and Rs.25,000/- as legal and incidental expenses.
9) Alongwith complaint, the Complainant has produced documents as per list of document.
10) Opposite Parties Nos.1,2 & 3 have filed their common written statement and thereby resisted claim of the complainant contending that complaint is barred by law of limitation and therefore, deserves to be dismissed with cost.
11) Opposite Parties have admitted that the Complainant was shares holder of their company from the year 1974-1980. In November, 2003, Complainant submitted Share Certificate purportedly bearing Share Certificate No.8896 for 25 shares by De-materialise to his Depository Participant (DP). As per the standard practice, the DP of the Complainant sent the papers to the Opposite Party for scrutinize the same. After perusal of the papers of the Opposite Party Company noticed that share numbers mentioned in the shares certificate had been issued to one Mrs. Lila Motiram Vaswani. The DP hence intimated Complainant regarding the same. Thereafter, a communication was sent by the Complainant to the Opposite Party in April, 04 stating his grievance regarding the rejection.
12) According to the Opposite Party, the certificate as exhibited is a fake and fictitious document. The Company has filed a police complaint and notified the Stock Exchange and Depository service regarding the same.
13) The Opposite Party has denied allegations made in the complaint contending that the Share Certificate No.8896 with distinctive nos.798132 to 798156 was originally issued to Mrs. Lila Motiram Vaswani as right shares in the year 1980 and they held the said shares up to 29th June, 1993. On 30th June, 1993 they have transferred above said share of M/s. Savoy Properties by way of transfer. The said certificate regarding the aforesaid shares held by the Complainant is fake certificate.
14) According to the Opposite Parties, dispute arose on 15/12/03, when the Company wrote to the Complainant through the DP of the Complainant that shares were non-existence. The Complainant has himself acknowledged receipt of the same in his letter annexed to the complaint at page no.17. For this complaint the cause of action arose on or about 15/12/03. Prescribed period of limitation of two years cannot be extended by mere correspondence or request made by the Complainant. Complaint filed on 04th August, 08 is clearly barred by law of limitation. The Opposite Parties have denied each and every allegation made in the complaint and requested to dismiss the complaint as it is barred by law of limitation. The Opposite Parties have also filed separate application to dismiss the complaint as barred by law of limitation.
15) The Complainant as well as Opposite Parties has filed their respective affidavits of evidence. Both the parties have filed written argument. From 03/05/2010 Opposite Parties have not appeared before this Forum. As Opposite Parties have filed written argument, on 17/06/2011 we heard oral argument of Ld.Advocate Ms.Rashmi Manne for the Complainant and the matter closed for judgement.
16) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant is barred by law of limitation ?
Findings : Yes.
Point No.2 : Whether the Complainant has proved deficiency in service on thepart of Opposite Party ?
Findings : Does not survive.
Point No.3 : Whether the Complainant is entitle to relief as prayed for ?
Findings : No
Reasons :-
Point No.1 :-It is case of the Complainant that in the year 1974 he had purchased 50 shares of Opposite Party No.1 at Rs.10 each totaling to Rs.500/-, bearing Share Certificate No.5836. In the year 1980 Opposite Party No.1 had declared rights issue in the ratio 1:2. According to the Complainant he had applied for said rights issue and was allotted 25 Equity Shares of Opposite Party No.1 vide Share Certificate No.8896.
It is submitted that in the month of Feb.,1982 the Complainant had requested Opposite Party No.2 to De-materialise Share Certificate No.5836 & 8896 pertaining to the Equity Share Holding of Complainant of 75 shares. The Opposite Party by their letter dtd.04/02/82 informed the Complainant that they had wrongly issued duplicate Share Certificates for 50 shares with the same numbers and subsequently on 04/02/82 they had issued 25 Rights Shares in favour of Complainant. The Complainant has produced letter of Opposite Party dtd.04/02/82 alongwith complaint at annexure ‘C-2’. It appears from the contents of the aforesaid letter dtd.04/02/82 that Opposite Party informed Complainant that “they had issued 50 Shares Certificate No.5836 to the Complainant on 11/06/1974 by way of transfer. Subsequently they had issued 25 Rights Shares against the said holding of 50 Equity Shares. It is further informed that, through an error of the Manager to the Issue, M/s. Computech Corporation who were also looking after the transfer of share till 1976, duplicate share certificates with the same number were issued. The First of the duplicate Share Certificate was issued to the Complainant and the second one was issued to Mr.Ashok K. Dhingra. Mr.Dhingra has already sold his holding in 1980.” In the said letter Opposite Party suggested that they are ready to buy back one set of duplicate shares from the Complainant. Alternatively they are prepared to exchange 75 shares with different numbers from its other share holders.
Ld.Advocate Ms.Manne has submitted that Complainant opted for second suggestion and he had sent certificate bearing no.5836 & 8896 to the Opposite Party to facilitate exchange/replace the same with the shares bearing numbers. Alongwith letter dtd.19/06/82, the Opposite Party returned Share Certificate No.8896 pertaining to 25 shares informing that the same was not required by the Opposite Party. Thereafter the Complainant on 22/01/83 received Transfer of Shares from the Opposite Party. Share Certificate bearing no.3145 & 2869 of 50 Equity Shares. The Complainant ha sold off aforesaid 50 Equity Shares in open market.
Now dispute is regarding 25 shares which according to the Complainant, they were given by the Opposite Party Company as Rights Shares to the Complainant. In the month of November, 2003 the Complainant intended to De-materialise remaining 25 shares bearing Certificate No.8896 and applied for De-materialise through M/s. Kisan Ratilal Choksey Shares & Securities Pvt. Ltd. The Complainant has produced De-materialise request form dtd.17/11/2003 alongwith complaint at annexure ‘C-5’. It is admitted fact that by letter dtd.15/12/03 Opposite Party rejected Complainants prayers for De-materialise of 25 shares. The Complainant has produced Opposite Party’s aforesaid letter dtd.15/12/03 at annexure ‘C-6’ to the complaint. The reason given by rejection of De-materialise of 25 shares is that “Certificate details do no match with our records”.
According to Ld.Advocate Ms.Manne, the Opposite Party wrongly rejected De-materialise share, so Complainant made correspondence with the Opposite Party and lastly by letter dtd.06/07/2007 Opposite Party finally rejected the Complainant’s request for De-materialise for 25 shares. The Complainant has produced photo copy of the letter dtd.06/07/07 of Opposite Party alongwith annexure ‘C-8’. In the said letter, Opposite Party has stated “In this regard also we would like to confirm you that Right issue was made on 05/09/80 and your transfer was effected on 20/01/83 it means transferee is not eligible for right issue”. It is further stated that “So once again we hereby confirm that the certificate no.8896 (claims by you as rights shares) does not match with our records.” According to the Ld.Advocate Ms.Manne, cause of action to this complaint took place on 06/07/07 when Opposite Party finally rejected the Complainant request for De-materialise of 25 shares and therefore, present complaint which is filed on 04/08/08 with the limitation as prescribed u/s. 24(A) of the Consumer Protection Act, 1986.
On the contrary, it appears from the documents produced by the Complainant that request for De-materialise of 25 shares made by the Complainant on 17/11/03 rejected by the Opposite Party vide their letter dtd.15/12/03 stating that “Certificate details do not match with our records.” It is true that further correspondence was made by the Complainant with the Opposite Party and Opposite Party wide their letter dtd.06/07/07 confirmed its earlier decision of rejection of De-materialise of 25 shares of the Complainant. Again stating that “So once again we hereby confirm you that Certificate No.8896 (claim by you as right shares) does not match with our records.” We do not find substance in the submissions advanced on behalf of Complainant that 06/07/07 the Complainant’s request was rejected on different ground. Cause of action to this complaint arose on 15/12/03 when Complainant’s prayer for De-materialise of 25 shares was rejected by the Opposite Party. Mere correspondence between the parties wills not extent to the period of limitation prescribed under the provision of law. The present complaint is filed 5 years after the date of cause of action. The Complainant has not filed an application for condonation of delay therefore, we hold that complaint is barred by law of limitation. Hence, we answer point no.1 in the affirmative.
Point No.2 & 3 :- The complaint is barred by law of limitation therefore, the Complainant is not entitle to any relief from the Opposite Party. Therefore, point no.2 does not survive. So we answer point no.2 & 3 accordingly.
For the reasons discussed above, the complaint deserves to be dismissed. Therefore, we pass following order -
O R D E R
i.Complaint No.135/2008 is hereby dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
