The instant complaint has been filed by Sri. Avijit Bhattacherjee and his wife Smt. Aparna Das Bhattacherjee  U/S.12 of the Consumer Protection Act.1986  with a prayer  to pay  a sum of Rs.8,59,000/-(Eight Lakhs fifty nine thousand) only in respect  of return  back of  13 Nos. of  Polices and a sum of Rs.25,000/- each as compensation for mental pain, agony and  unnecessary harassment and a sum of Rs.25,000/- each  for  unfair trade practice and deficiency in service of O.Ps and also a sum  of Rs.5000/- each towards cost of the proceeding.                   

                 The fact of the case , in a nutshell, as per the complaint is that the O.Ps  have established a financial business organization and carried their business at Falakata  Branch Office under the jurisdiction  of this Forum in the name and style ”SWAPNADEEP DEALTRADE LIMITED”  The complainants have purchased 13 Numbers of (M.R.P) Polices amounting to Rs.8,59,000/- at the rate of 8% interest per month from the O.Ps i.e.  SWAPNADEEP DEALTRADE LIMITED through their Chief Director (i.e O.P.No.1 Sri Amalesh Roy Dakua ). Accordingly, the O.P. No. 4 and 5 who were the Branch Observers issued certificate to that effect and the statement of M.R.P against the said 13 numbers of policies which have been mentioned in complaint. Annexure ‘A’ series are the certificate and statement of M.R.P of said 13 numbers of policies.      

                The complainants have also alleged that they invested their hard earned money with O.Ps to maintain their livelihood. The complainants have got monthly interest of the said policies from O.P.No.3 who is the Managing Director namely Sri Mohit Kumar Roy upto March, 2013 but since Apri, 2013 the complainants did not receive any monthly interest in respect of the above said policies. The complainants informed the matter to the Chief Managing Director, Registered Office at Mainaguri. The O.Ps told the complainants that there is no cause to worry about the matter. They will pay-off the said interest within the Month of May, 2013. Thereafter. The complainants attended the Office of SWAPNADEEP DEALTRADE LIMITED at Falakata Branch on several occasions to get the interest of the said amount, but in vain. The complainants have filed a complaint thereafter at Falakata Police Station on 23.5.14 against the O.Ps (Annexure ‘B’ is the Xerox copy of complaint dated 23.5.14).

                The O.Ps. with their ill motive did not pay any amount of interest to the complainants. They intentionally dragged the matter. The complainants are suffering irreparable loss and injury due to negligence on the part of the O.Ps. The complainants are facing great financial trouble and as such the cause of action of this case arose since April, 2013. The complainants are suffering mental pain and agony and unnecessary harassment. The O.Ps.  have adopted unfair trade practice and deficiency in service in the event of non-payment of said amount to the complainant.                                                                                                                                                                                              

The O.P No.1,2 and 3 viz.Amalesh Roy Dakua (Chief Managing Director of Swapna deep  Dealtrade     Lt.of Falakata Branch) and Sri Biren Ch.Roy (Managing Director of Swapnadeep  Dealtrade Ltd,Falakata Branch) and Sri Mohit Kumar Roy (Managing Director,Swapnadeep Dealtrade Ltd.Falakata Branch) appeared and contested the case by filing separate Written Versions  on their behalf. But O.P No.4 and 5  viz. Swapan Kumar Roy (Branch Observer),Swapnadeep Dealtrade  Ltd, Falakata Branch  and  Keshasr Ch.Barman (Branch Observer),Swapnadeep Deal Trade Lt.Falakata Branch did not turn up to contest the case inspite of receiving notice.

The O.P.No.1 by filing Written Version alleged that he worked as Branch Manager in ‘Bandhan Financial Service Pvt. Ltd. since 2004. In the first part of 2012 O.P. No. 2 & 3 offered him to join at ‘Swapnadeep Deal Trade Ltd. In the post of Manager in the Registered Office at Mainaguri where he could get more remuneration than ‘Bandhan Financial Service Pvt Ltd’. Accordingly,he joined at ‘Swapnadeep Deal Trade Ltd.’ as Branch Manager,Mainaguri Office and he used to look after  the micro finance department and Development business  in the company  of Swapnadeep Deal Trade Limited. He actually does not aware of the intention of O.P No. 2 & 3 who were the persons responsible for the affairs of the company and used to deal with the deposited amounts and payment of the company. He was only involved in the development of business of Micro Finance for their Mainaguri Office only and he never at a single instance dealt with receipts and payments as well as investments made by ‘Swapna deep Deal trade ltd.” He never posted as “Chief Managing Director” or “Managing Director” of the Company. The O.P No.2 & 3 who were solely responsible for the affairs of “Swapnadeep Deal trade Ltd.” The O.P.No.2 & 3 took Trade Registration certificate from Mainaguri Gram Panchayet showing them as Directors of the company. The account statement of the company prepared by the Charter Accountant which bears the signature of O.P.No.2 & 3 as Directors of “Swapnadeep Deal trade Ltd.” The Office of the Company at Falakata was started its function on 21.6.2012 by entering an agreement with one Paresh Chandra Saha who was the  owner  of the two storied building at Mill Road, Falakata  where the company started business . The company was properly registered under the  Registrar,West Bengal which  formed  on 30.6.2010 by Soumitra  Mallick of Dhaniakali  Routhpur ,Hooghly  and Smt Jharna Paul of  Janai, Benepara,Hooghly as Directors having Rs.5000/-equal shares in each of their names which would show  from article of as the Memorandum of Association. Subsequently those Board of Directors resigned on 7.3.2011 and O.P.No.2 & 3 stepped into the shoes of the previous directors and got their name enlisted as Additional Directors on 01.03.2011 and 07.03.2011 and subsequently they became the Directors of the Company. The  O.P.No.2 & 3 offered  O.P.No.1  to join  as one of the Director of the Company and took signature  upon some  forms in the middle part of  2013 and submitted the same before  the Registrar  of Companies, West Bengal and thus in the middle part of 2013 this O.P became one of the Director of the Company but this O.P was never allowed  to take decision regarding cash transaction and policy making of the company. The salary of the O.P was never increased and eventually he became a “sign board” and lastly on 28.10.2013 this O.P compelled to resign from the service and submitted his resignation to the Registrar of the Companies, West Bengal. The O.P.No.2 subsequently brought his wife Jhunu Roy who became one of the Directors of the Company, so that he may acquire the full control amongst the Directors.

It is further alleged that the complainants did not come before this Forum in clean hand. According to O.P No.1, the complaint is fully of anomalies, vague and bad due to suppression of materials facts. It has been alleged further that the complaint is false and fabricated. This case was created by the complainants in crocked brain represented themselves as investors/customers but actually they were members of the Company. The complainant Avijit  Bhatterjee was the senior advisor of the Falakata Branch of the Company. He used to collect amount from the investors as receiver of the Company of Falakata Branch. By doing such act, he had an access to the company and prepared false and fabricated receipts in his own name as well as the name of his wife. False investment  were shown on company documents where  the name of investor, code Nos. under  which  investments were made as well as the receivers signatures  were performed solely  by the complainant Avijit Bhattacherjee. He on taking advantage of those forged documents   tried to catch fish in the muddy water. Most of the receipts submitted by the complainants were prepared by complainant No.1 showing “adjustment” of his commission. The complainants cannot be treated as consumer as per C.P. Act. This O.P. came to learn from one Chandan Barman, Branch Manager of Falakata Branch of the company that the amount alleged to be deposited by the complainant, was never actually deposited with the Branch. This O.P never worked as in-charge of Chief Managing Director of Falakata Branch or he never took any part in the transaction made by the complainants as alleged. He has no personal knowledge regarding the same. The complainant’s case is nothing but false acquisition. The complainant would not be able   to disclose their source of money of the alleged amount which have been claimed in this case or to show the capacity of the investment of such huge amount. The complainants in lodging F.I.R before Falakata P.S allegedly made grievances against O.P.No.4 (Swapan Kr. Roy) where the entire amount was deposited through him.

According to O.P No.1, he neither made any unfair trade practices nor any deficiency in service. He never took any part of the transaction as alleged by the complainants and as such he has no responsibility for repaying any amount of money. The complainants are not entitled to get any award as sought for against this O.P and consequently the complaint should be dismissed with heavy costs. He has filed some photo copy of documents i.e. Redeemable share application – Annexure-I, F.I.R – Annexure-II, Appointment & Promotional letter of Bandhan – Annexure-III, Appointment letter of Company- Annexure(IV), Trade Register,Mainaguri Gram Panchayet – Annexure (V),Profit & loss Accounts Statement – Annexure (VI) (VI/A)(VI/B), Rent Agreement in between Paresh Ch.Saha and O.P No.3,Mohit Kr.Roy – Annexure (VII), Article of Association – Annexure (VIII),Investment Receipt-Annexure (IX),S.B.I.Bank Receipt of OP No.2 Biren Ch.Roy (Annexure-X), Incentive Chart of Co. Annexure (XI), Monthly Incentive statement- Annexure (XII).

The O.P No.2 by filing Written Version contested the case and denied the allegations   contending, inter alia, that the case is not maintainable either in law or fact. Though the complainants described themselves as investors/customers but actually complainant No.1 was one of the members of  “Swapnadeep Deal Trade Ltd.”. He used to collect the amount from the investors as receiver of Swapnadeep Deal Trade Ltd. Falakata Branch. The complainant No.1 had an access to the company and he used to prepare those fake receipts in his own name as well as in the name of his wife (Complt.No.2). According to O.P, fake investment has been shown on company’s documents where the name of the investors, code Nos. under which investments were made as well as receipts. Signatures were performed solely by the complainantNo.1. Practically the amount which alleged to be deposited by the complainants is not at all made. The complainants never purchased any policy of “Swapnadeep Deal Trade Ltd.” The complainants are not the bonafide consumers as per definition of Sec. 2 (d) of C.P. Act and the instant case cannot be adjudicated by this Forum. It would be covered in different aspects of the case according to Provision of Sec. 2(o) dealing with service. The complainants fail to make party to the company though it is a non-banking financial institution. The complainants having share of the company, was entrusted to supervise the company. The complainants used to collect the funds  from several investors and showed it as it is their own investment. This O.P resigned from the company on 28.10.2013(Annexure Form-32). Actually the complainants have no specific allegation against this O.P.It has been further alleged by O.P.No.2 that this Consumer Forum has no jurisdiction to entertain the instant dispute which alleged to occur in-between the company and its members/share holders.  As such, the O.P prays for dismissal of the instant complaint with costs.

The O.P No.3 by filing written version contested the case denying all the allegations of this case. It has been contended, inter alia, that the case is not maintainable. He does not aware of any transaction as alleged by the complainants. He on 8.10.12 resigned from the company by tendering his resignation letter to the Board of Directors of the company in Form No.32 which was sent by Speed Post on 11.10.12 (Annexure the photo copy of letter, postal receipt and Form 32 of Companies Act).He came to aware that the complainants have lodged a criminal case before Falakata P.S against him and others. According to O.P, the complainants are not the consumers within the meaning of Sec.2 (d) of the C.P. Act. The complainants are part and parcel of the company by virtue of their membership. There is no consumer dispute in the present case and there cannot be any deficiency of service or unfair trade practice and as such this consumer Forum has no jurisdiction to entertain the dispute between company and its member/shareholders and the complainants are not entitled to get any reliefs as claimed.

In the light of the contention of the parties, the following points necessarily come up for consideration to reach a just decision.

                                                    POINTS FOR CONSIDERATION

Has the Forum jurisdiction to entertain the instant complaint?

Has the O.Ps any deficiency in service as alleged by the complainant and are they liable in any way?

Are the complainants consumers as per Sec.2 (1) (d) (ii) of Consumer Protection Act, 1986?

Are the complainants entitled to get relief/reliefs as prayed for?

                                                       DECISION WITH REASONS

We have gone through the record very carefully and also perused the entire documents (Photo copies) which are lying on record. Heard   the arguments from the complainants and the O.Ps as advanced by them at length through their Ld. Agent.  Perused also the evidence i.e affidavits which have been filed by parties and also the written argument filed by the parties. .

POINT NO.1 –

The cause of action arose in this case within the territorial jurisdiction of this Forum at Falakata where the Office of the O.Ps was situated. In the instant case the complainants have claimed to return back the monies amounting to Rs.8, 59,000/-in 13 Nos. of Polices and a sum of Rs.25, 000/- each as compensation for mental pain, agony and unnecessary harassment as well as a sum of Rs.25, 000/- each for their unfair trade practice and deficiency in service and also a sum of Rs.5000/- each against the O.Ps towards costs of the proceedings. It appears that the above said claim is less than the pecuniary limit of this Forum. So, this Forum has pecuniary and territorial jurisdiction to try this case.

 POINTS NO.2, 3 & 4:-

These points are taken up conjointly for the sake of convenience of discussion.

In the instant case the complainants(complt.No.1 & 2) have claimed to refund the money of     13 Nos. of Polices and  some compensation for mental pain and agony as well as unfair trade practices and deficiency in service and also a sum towards costs of proceeding from the O.Ps.

                We have meticulously gone through the receipts as well as the certificates under the scheme (M.R.P) in the name of complt. No.1 Avijit Bhattacherjee and also the receipt and certificate issued by the Company (Swapnadeep Deal  Trade Limited hereinafter in short called Company) in the name of complt. No.2 Aparna Das Bhattacherjee which have been mentioned  in Annexure ‘A’. On minute scanning of the receipts and certificates issued in the name of complt.No.1 Avijit Bhattacherjee , it goes  to shows that the said complainant himself received the money of the certificates which were  purchased in his name i.e. in  7 Polices amounting to Rs.3,84,000/-. Actually it is not understandable to us that how complainant.  Avijit Bhattacherjee claims the money which alleged to be invested by himself and received the money by him. It has been mentioned in the complaint that all the policies which alleged to be purchased by the complainants were in the scheme of ‘M.R.P’, but on scrutiny, it appears to us that the two policies have been mentioned in the scheme of ‘R.D’. It further appears from the complaint that customer I.D are the same in the name of both husband and wife i.e. complainant No.1 and 2. It is also not understandable to us how the customer ‘I.D’ became same though the certificate has allegedly been allotted in the name of two separate persons. All the polices which alleged to have been purchased in the name of complt.No.1 Avijit Bhattacherjee bear the signature of him i.e complainant No.1 as the receiver of money. On going through the certificate of ‘R.D’ in Annexure it appears that  two R.D scheme in the name of complainant No.1 have been made on 30.3.13,but in one out of said two(2) receipts,  it shows  that the money amounting to Rs.4500/- was received on 19.4.13. Necessarily a point comes to our mind that how and in which way  it is justified that on the date 30.3.13 the ‘R.D’ certificate was issued on receiving the money afterwards i.e. on 19.4.13. In the said scheme date, account number and I.D number are same and identical. In the receipt of money in which certificate was purchased by complt.No.2 Aparna Das Bhattacherjee, it is obscure to us who received the said money on 24.9.12 amounting to Rs.10, 000/-, but in the depositor’s signature complt No.1 signed on that date. In a certificate amounting to Rs.3, 00,000/- it appears in the receipt which alleged to have been   purchased in the name of complt. No.2 Aparna Das Bhattacherjee that depositor’s column and the receiver’s column go to show the signature of complt. No.1. It is obscure to us how a person who deposited the money but at the same time, he himself received the money in same transaction.

The complainants have alleged in this case that they invested Rs.8,59,000/- with the Company who gave  an assurance that the complainant would get interest @ 8% per month and the Company has paid the interest upto March,2013 which was amounting to Rs.80,000/- but no document has been filed by the complainants to that effect. If the complainants invested Rs. 10 Lakhs then they would be able to get Rs.80, 000/- interest. But, fact remains that in accordance with the version of the complainants, they invested Rs.8, 59,000/-. So we find no similarity in between the investment made by the complainants and interest got by them.

It has been contended in the complaint that complainant No.1 Avijit Bhattacherjee has filed a criminal case before O/C, Falakata P.S (the then District Jalpaiguri,now District Alipurduar) on 23.5.14 with regard to this matter which mentioned in Photocopy Annexure ‘B’. It appears there from that the said criminal case was lodged prior to the filing of the instant case and it has been mentioned therein that they got bonus up to February, 2013.It is curious enough that once the complainant averred in this case that they got interest up to March, 2013, but in the F.I.R i.e. in criminal case  they averred that they got bonus up to February,2013. Practically the statements of complainant are not in similar with other. It apparels in the Photo Copy of F.I.R that Falakata P.S case No.386/14 was lodged on by complinante Avijit Bhattacharjee on 23.5.14 u/s.406/420/34 I.P.C but, fate of it is unknown to us.

On the other hand, the O.Ps alleged that the complainant’s money receipt and the certificates have been prepared by complainant falsely as the complainant had an access with the Company being member of it which  being Code No.10100002186. The complainant himself prepared those documents being part and parcel of the company. Actually, the complainants are not the consumers according to the definition of Consumer under C.P. Act. The complainant’s documents itself go to show that the complainant himself had issued money receipts and the certificates. Besides the merits of the case the O.P i.e. O.P.No.1 alleged that he resigned from the Company on 28.10.2013 and O.P.No.2 & 3 have also alleged that they resigned from the Company before the incident of this case on 28.10.2013 and 9.10.2012 respectively.

Ld. Agent for the O.Ps argued that such nature of the case can be tried before Civil Court as it relates the complicated questions on facts and law. According to Ld. Agent of O.P that the case before this forum would not be summery procedure. In our estimation this type of case cannot be decided on the basis of affidavit only. The examination of witnesses and their cross-examination is required but it is   not permissible under the C.P. Act. The allegation must be proved in accordance with law. The matters are complicated and it relates to intricate questions of law. It cannot be decided by summary procedure.

Actually, the contesting O.P’s contention is that they are not liable to pay any compensations they are not aware about the transactions of the complainants. The O.P’s have chorously stated that the complainant Avijit Bhattacherjee worked in the company being a share-holder and he was a member of the company. That’s why he prepared those documents i.e. receipts and certificates.

Having heard both sides and on perusing the materials on record as well as the facts and circumstances of this case, we are in view that t he complainant’s case is doubtful and unworthy to believe. These type of receipts and certificates do not create any confident to rely upon and to pass an award as sought for.

At the time of hearing of argument, Ld. Agent for the complainants has cited some rulings of Hon’ble N.C & S.C and also a final order of a case   C.C.48/15 passed by the D.C.D.R.F, Cooch Behar on 9.10.15 against these O.Ps exparte.  Teenmurti  Chits (P) Ltd.Vs. V.K.Shdedva (N.C) Decided on 21. 5.2009 , Kwality Colonisers Pvt.Ltd. Vs. Sunit Bali & Ors (N.C) Decided on 16.10.2014,  The Chairman (ManagingTrustee) Vs. Abdul Rashid Molla .(W.B.State Commission)Decidedon 7.3.12 and  Sijairul Haque Vs. Sri Amalesh Roy Dakua (Chief Managing Director) & Ors,Cooch Behar D.C.D.R.F.Decided on 9.10.2015

On proper scrutiny of the aforesaid cases, it appears that the facts and circumstances of this case are not fitted with the above said case laws. In complaint case No.48/15, the District Consumer Disputes Redressal  Forum, Cooch Behar has been pleased to pass an order in exparte against the O.P of this company, but in our view the facts of the present case in hand is otherwise than the said case law as mentioned herein.

In the light of the foregoing discussion and on considering the materials on record, we are constrained to hold that the complainants failed to prove their case against the O.Ps. In this situation it cannot be said that the complainants are the consumers as per definition of C.P. Act and the O.Ps have any deficiency in service and as such they are liable in any way. We are unable to give the complainants any relief. Thus the points are decided against the complainants.

                 Hence,

it is  ORDERED

                that CC/38/14 be and the same is dismissed on contest against the O.P No. 1,2 & 3 and exparte against O.P No.4 & 5 without costs.

                Let a plain copy of this Final Order be supplied free of cost to the concerned parties/Agents by hand/be sent under Registered Post with A/A forthwith for information & necessary action.

Dictated & Corrected by me-