Shri Debasish Bandyopadhyay, Hon’ble President.
Brief fact of this case:- This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainants stating that the complainants are investors of ESBI Industries Ltd. and being attracted by the advertisement and being convinced by the agent of the opposite parties the complainants decided to invest in the concern of opposite party no. 3.and the opposite party no. 1 & 2 agreed to the return back schedule mentioned amount to the complainants after maturity at the initial stage and after the lapse of said maturity period when again the complainants time and again requested the opposite parties to provide said amount then opposite parties have paid no heed thereof. Maturity period of each and every transaction which are mentioned in the schedule have not been paid and the complainants finding no other alternative to talk with the opposite parties to return back their invested amount but no fruitful result come out.
The complainants also states that there is deficiency of service on the part of the opposite parties and there is unfair trade practice on the part of the opposite parties and the opposite parties should respect their customers and from the conduct of the opposite parties right of the complainants as consumer has been deprived and/ or infringed.
Complainants filed the complaint petition praying direction upon the opposite parties to pay a sum of Rs. 20,000/- (Rupees twenty thousand only) to the complainants for their harassment, mental agony and to pay Rs. 10,000/- (Rupees ten thousand only) to the complainants as litigation cost.
Defense Case:- The opposite party No. 5 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that he (Opposite party no. 5) has never been associated with the OP no. 3, ESBI Industries Ltd. in any executive capacity and has never participated in the affairs of the opposite party no. 3 and the Opposite party no. 1, his brother Subrata Paul and the Opposite party no. 5 were childhood friends and at the request of the two brother, the Opposite party no. 5 had signed certain papers which were inter converted into documents showing the opposite party no. 5 as a director in the said ESBI Industries Ltd.
The opposite party no. 5 had thereafter confronted the two brothers, Biswajit and Subrata Paul with acts and illegalities committed by them who later agreed to accept the resignation of the Opposite Party no. 5 from the ESBI Industries Ltd. from May 2, 2012, and the form 32, showing the resignation of the Opposite Party no. 5 from the said ESBI Industries Ltd was duly filed with the Registrar of the Companies, wherein it was, inter alia, stated that the Opposite Party no. 5 herein was not associated with the company with effect from May 2, 2012 due to his resignation from the said company, the said Form 32 was digitally signed by Mr. Subrata Paul as the managing Director of the said ESBI Industries Ltd. and Mr. Atul Kumar Labh as the Company Secretary.
It is stated that the Opposite Party No. 5 has not been associated with the said ESBI Industries Ltd. in any manner, further the Form 32, filed with the Registrar of the Companies, shows his resignation from the said ESBI Industries Ltd. from May 2, 2012 and that the Opposite Party No. 5 has never participated in the affairs of the said ESBI Industries Ltd. and moreover, there is no allegation against the Opposite Party No. 5 in the said petition and as such it is fit and proper that the Opposite party no. 5 been expunged from the array of the parties to the said petition and without prejudice to the aforesaid and relying thereon, the Opposite Party No. 5 has hereunder dealt with the allegations in the said petition.
It is stated that the other papers annexed to the said petition, purportedly issued by the said ESBI Industries Ltd., are all dated after the Form 32 of the resignation of the Opposite [party No. 5 from the said ESBI Industries Ltd., May 2, 2012 and so the complainants are called to strict proof of the contents of the said annexure and in any case, all such are dated much later than the Form 32 of the resignation of the opposite party no. 5 from the said ESBI Industries Ltd. The opposite party no. 5 craves leave to make further submissions upon the contents of the said petition and rely upon further documents and / or records at the time of hearing, if necessary and it is submitted that the said petition is misconceived, harrassive and is not maintainable, it is submitted that the said petition should be rejected and dismissed in limine and with exemplary costs and the name of the Opposite Party No. 5 should be directed to be expunged from the array of parties.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.
Argument highlighted by the ld. Lawyers of the parties
Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.
Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.
DECISIONS WITH REASONS
All the above noted points of consideration are clubbed together and taken up for consideration for the interest of convenience of discussion. In this connection it is very important to make scrutiny of the evidence on record as well as documents filed by the parties of this case. On close examination of the evidence given by the parties of this case as well as documents filed by the complainant and opposite parties it appears that E.S.B.I. is an investment company having its branch office at Mallick Kasem Hat, under P.S. Chinsurah, Dist. Hooghly and the petitioner no. 1 is an agent under the said company E.S.B.I. It is also important to note that the status of opposite party no. 5 has not been disclosed by the complainant in his complaint petition. On this background this District Commission after going through the written version filed by the opposite party no. 5 and evidence on affidavit filed by the opposite party no. 5 finds that opposite party no. 5 has filed Form no. 32 stating that opposite party no. 5 is not associated with the company E.S.B.I. with effect from 2.5.2012 and said Form no. 32 which has been filed for resignation of opposite party no. 5 has also been accepted but surprisingly as per complaint case the cause of action arose on 18.6.2015 which is far after the date of submission of Form no. 32 by opposite party no. 5.
This matter is clearly depicting that the complainant has suppressed the vital matter in his complaint petition and so it is crystal clear that the complainant has not come in clean hand and so he is not entitled to get any equitable relief in this case. Moreover, as the opposite party no. 5 has submitted the Form no. 32 with effect from 2.5.2012, this opposite party no. 5 has no liability in this case and so this case is required to be dismissed against opposite party no. 5.
Moreover, the petitioner no. 1 being agent of the opposite party no. 3 has no right to join his hand with the other investors but in this instant case the complainant has committed this mischief and this matter is clearly indicating that this complaint case is not maintainable as a whole.
It is also important to note that inspite of having knowledge that opposite party no. 5 was no longer attached with E.S.B.I., the complainant has intentionally incorporated opposite party no. 5 as a party of this complaint case and this matter is clearly indicating that this case is defective for mis-joinder of parties and so this case is liable to be dismissed on the ground defect of parties.
It is further revealed from the case record that a criminal case has been initiated as special economic offence case no. 1 of 2018 has been filed against the op no. 3, company for committing offence under Economic Offence Act and this case is pending before the Banksal Court, Kolkata. But the complainant has intentionally suppressed this matter. This matter is also clearly indicating that the complainant has also not come before this Forum in clean hand and so he is not entitled to get any equitable relief in this case.
A cumulative consideration of the above noted discussion goes to show that this complaint case is not maintainable and as the subject matter of this case is coming under the purview of Economic Offence Act, this District Forum/ Commission has no jurisdiction to try this case. So this District Commission has no other way but to dismiss this case.
In the result it is accordingly
ordered
that the complaint case being no. 185 of 2015 be and the same is dismissed on contest against op no. 5 and it is dismissed ex parte against other opposite parties.
No order is passed as to costs.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
Dictated and corrected by me.
