PER SHRI. S.S. PATIL – HON’BLE MEMBER
1) This is the Complainant regarding deficiency in service on the part of Opposite Parties as they did not return the amount of deposit invested by the Complainant with them alongwith the interest.
2) The facts of this case as stated by the Complainant are that the Opposite Party No.2 is the proprietor of Opposite Party No.1 and Complainant has invested in Port Folio Management Scheme of the Opposite Party No.1. Before investment, Opposite Party No.2 had explained the investment scheme and its terms and conditions to the Complainant. The Opposite Party advised the Complainant to invest in scheme ‘D’ wherein the minimum guaranteed Return was 30 % p.a. or 60 % of the profit which ever is higher. The time duration was minimum of 18 months and could be renewed by mutual consent. Accordingly, the Complainant invested in scheme ‘D’ for 3 years and issued a D.D. dtd.22/02/93 for 5 Lacs. Opposite Party No.1 acknowledged the receipt of the sum of Rs.5 Lacs.
3) It is stated by the Complainant that as per the terms and conditions of the scheme ‘D’, the Complainant was entitled to get entire principal amount (Rs.5 Lacs) with interest @ 30 % p.a. or 60 % of profit which is higher. After a period of 3 years the Complainant requested the Opposite Party to pay the principal amount alongwith interest and profit if any as stated above. However, Opposite Party refused to pay the said amount and stated that they were unable to pay the amount due to financial difficulties.
4) After several remarks and request, the Opposite Party made a part payment of Rs.1 Lac by D.D. dtd.13/02/95, Rs.75,000/- by D.D. dtd.22/08/95 and Rs.50,000/- by D.D. dtd.10/10/95, Rs.60,000/- by D.D. dtd.01/03/96 and Rs.25,000/- by D.D. dtd.20/08/96, Rs.50,000/- by D.D. dtd.18/02/98 and Rs.25,000/- by D.D. dtd.15/10/99. The important things is that, the last payment of Rs.25,000/- was made after filing of the Complainant in Ahmedabad Consumer Dispute Redressal Commission. The Opposite Party has paid total sum of Rs.3,85,000/- from 13/02/95 to 15/10/99.
5) It is further alleged that he had earlier filed complaint in the year 1999 in the Hon’ble Consumer Dispute Redressal Commission at Ahmedabad being Complaint No.141/99. The Hon’ble Commission at Ahmedabad by its order dtd.30/11/05 directed that the complaint be returned to the Complainant for presentation before the appropriate Forum or Court at Mumbai and hence, this complaint is filed before the South Mumbai Consumer Dispute Redressal Forum. The Hon’ble Gujarat Consumer Dispute Redressal Commission has also stated in that order that it would be open to the Complainant to present an application for exemption with regard to period of limitation U/s. 14 of Limitation Act. It is further stated that an application for condonation of delay is being filed separately.
6) Finally the Complainant has prayed that
a) Sum of Rs.10,30,000/- be paid to the Complainant by the Opposite Parties.
b) The Opposite Parties be directed to pay Rs.50,000/- to the Complainant as compensation and cost.
7) The Complainant has attached xerox copies of the following documents alongwith his complaint -
a) Receipt dtd.22/02/93 for Rs.5 Lacs, issued by Opposite Party to the Complainant.
b)Terms and conditions without signature of anybody.
c)Letter dtd.22/08/95 issued by Opposite Party No.2 to the Complainant.
d)Letter dtd.10/10/95 issued from Opposite Party No.2 to the Complainant.
e)Letter dtd.01/03/96 issued from Opposite Party No.2 to the Complainant.
f)Letter dtd.22/08/96 issued from Opposite Party No.2 to the Complainant.
g)Order of the Hon’ble Gujarat State Commission dtd.30/11/05.
h)General Power of Attorney by Rasiklal Girdharram Chandrani.
8) The Complainant has also filed an application for condonation of delay. This application was dismissed by this Forum vide its order No. ONO-869 dtd.12/04/07. The Complainant then filed an appeal before the Hon’ble Maharashtra State Consumer Dispute Redressal Commission against the said order of this Forum. The Hon’ble Maharashtra State Commission allowed the appeal and set aside the impugned order of this Forum dtd.12/04/07 (by its order dtd.30/06/08). By this order the delay was condoned in filing the complaint before this Forum. Accordingly, this complaint was admitted by this Forum on 24/07/08. Notices were served on the Opposite Parties. Opposite Parties appeared through their Ld.Advocate and filed their common written statement wherein they denied all the allegations made by the Complainant and specifically stated that the persons in whose name the complaint has been filed, has not signed the complaint. The complaint has been signed by the Constituted Attorney by subscribing his signature to the complaint. The Constituted Attorney’s name does not figure in the cause title of the complaint. Therefore, the present complaint is liable to be dismissed on this ground only.
9) Opposite Party has also stated that the complaint is barred by law of limitation.
10) It is also stated by the Opposite Parties that the dispute relates to accounts which does not fall within the purview of this Forum.
11) Further it is submitted that the original complaint was filed with the Hon’ble Gujarat State Commission vide Complaint No.144/99. The same complaint has not been continued but a fresh separate complaint has been filed before this Forum by the Complainant. Therefore, this complaint is totally time barred.
12) The Opposite Parties further admitted that they had financial and port folio schemes and customers are given a choice to invest as per the scheme. The said scheme was explained to the Complainant who opted for ‘D’ scheme. It is further stated that as per the terms and conditions, the initial investment was only for 18 months and it was renewable by the parties by mutual consent and it was not for 3 year as mentioned by the Complainant. The Complainant opted for the scheme to which the Opposite Parties concurred. However, the Opposite Parties have not admitted the exhibit (i.e. the receipt of the 5 Lacs).
13) The Opposite Parties have further denied that they ever refused the Complainant the amount due to them and that they were unable to pay the amounts due to the Complainant due to financial difficulties. The Opposite Parties stated that they have paid the moneys to the Complainant as he was entitled from time to time and there is nothing due and payable by them to the Complainant. They have also denied that they have paid the sum of Rs.25,000/- after filing of the complaint at Ahmedabad. Finally the Opposite Parties have prayed for the dismissal of the complaint with cost.
14) Thereafter the Constituted Attorney of the Complainant filed his affidavit and written argument wherein the facts stated in the complaint are reiterated.
15) We heard the Ld.Advocates for both the parties and perused the papers submitted by them. Our findings are as follows –
It is the case of the Complainant that he had invested Rs.5 Lacs in Scheme ‘D’ of the Opposite Party. In support this contention the Complainant has produced only a xerox copy of the receipt received by the Complainant allegedly issued by the Opposite Party. This is a document bearing date 22/02/93. The contents of the receipts are as follows –
“Received from Rasiklal Girdharram Chandrani (HUF) an application for Port Folio Scheme D amounting to Rs.5,00,000/- (Rs.Five Lacs only) vide D.D. No.000127 dtd.22/02/93 drawn on Union Bank of India subject to realization of cheque for Sound Port Folio Management Services.”
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Receiver’s signature
This document has not been admitted by the Opposite Party. Except this documents, the Complainant has not produced any other document to show the investment of Rs.5 Lacs with the Opposite Parties.
16) Apart from the above mentioned facts the Complainant as mentioned in the title clause of the complaint, is “Rasiklal Girdharram Chandrani HUF, through its Karta Rasiklal Girdharram Chandrani. However, the complaint has been singed by one Shri. Sanjay Chandrani, the Constituted Attorney of the Complainant. Thus, the complaint is not a proper complaint as defined under the Consumer Protection Act. In Punjab National Bank V/s. Ramakant Yadav 1(1997) CPJ 44 at 46 1997 (i) CPR 262, it is held that a person holding power of attorney has not been included in the definition of the ‘complaint’ under Consumer Protection Act. Hence, the present Complainant is not entitled to file this case as a Complainant under the Consumer Protection Act, 1986.
17) It is also observed by us that the complaint is not supported by the affidavit of the Complainant.
18) In view of the above said observations we do not see any merit in this complaint.
19) At the same time, the complaint is filed and singed by the Power of Attorney and hence, it is not maintainable, as such, we pass the order as follows –
O R D E R
i)Complaint No.127/2008 is hereby dismissed with no order as to cost.
ii)Copy of this order be furnished to both the parties.
