Samaresh Kumar Mitra, Hon’ble Member:

The simple version of the complainants as enumerated in the complaint is that the complainants invested pecuniary consideration for obtaining two debenture certificates being No.PI000007824 & PI000007854 from the office of the opposite party. The opposite party being satisfied issued two debenture certificates in favour of the complainants with an assurance that after maturity of the said two certificates the complainants are entitled to get benefits from the certificates. After the maturity of the said two certificates the complainants wanted their legitimate claims from the opposite party but the opposite party deliberately and willfully harassed the complainants by not providing their legitimate claims for the said two debenture certificates and as such the complainants came forward before this Forum seeking reliefs as stated in the complaint petition.

 The complainants prior to filing the case sent two notices through India post and the opposite party did not show good gesture in respect of providing the legitimate claim. The opposite party challenged the maintainability of the case but this Forum vide its order dated 04.09.2018 affirmed the maintainability of the complaint petition.

 The opposite party in his written version denied the allegations leveled against him and assailed that investment case is not fall within the periphery of the Consumer Protection Act and consumer Forum is not proper Forum for investor. So investor has no right to seek any relief U/s 12 of the Consumer Protection Act. Moreover said case is bad because there is not specific date of cause of action so this Forum has no locus standii to adjudicate the case as such the case is deserved to be rejected with cost.

 The complainants filed evidence on affidavit in which he assailed that the opposite party issued two debenture certificates being certificate No.PI000007824 dated 27.2.2013 investment amount Rs.20,000/- only and  certificate  No.PI000007854 dated 28.02.2013 investment amount of Rs.50000/- in respect to their investment. The opposite party admitted their investment and issued two cheques drawn on 18.04.2013, one in favour of complainant no.1 being cheque no.532409 of UBI Chowringhee branch amounting to Rs.3150/- only and the second cheque in favour of complainant No.2 being no.532415 of UBI Chowringhee branch amounting to Rs.2000/- but  both the cheques were dishonoured. That after the maturity of the said two debentures certificates the complainants informed the opposite party through India Post for disbursement of their legitimate claims by way of depositing the claim amounts in their respective bank accounts but the opposite party willfully and intentionally avoided the course of refund. Getting no alternative the complainants filed the instant complaint before this Forum praying directions upon the opposite party. Heard the Ld. Advocates on behalf of the complainants as well as the opposite party and perused the case record and documents.  

 From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainant herein being the customer of Opposite Party by investing money in different schemes, is entitled to get service from the OPs.

 Both the complainant and opposite party are residents/carrying on business within the district of Hooghly and cause of action took place at Mogra, Hooghly. The complaint valued at Rs.1,04,680/- redemption value along with interest  ad valorem which is within Rs.20,00,000/-limit of this Forum. So, this Forum has territorial / pecuniary jurisdiction to entertain and try the case.

  After perusing the Complaint Petition, Evidence on Affidavit and also the documents as filed by this complainants and hearing the arguments as advanced by the agent of the complainant it appears that the complainant invested sums for purchasing debenture certificates and invested a sum of Rs.20,000/- & Rs.50,000/- the redemption date has been fixed on 27.05.2014 & 28.05.2014 and the redemption amount has been fixed Min Rs.23,000/- & Max.Rs.40,000/- and Min. Rs.57,500/- & Max.Rs.100,000/-. Complainants filed Xerox copy of cheque dated 18.04.2013 of UBI Chowringhee Br. in the name of Lalita Dhali amounting to Rs.2000/- another cheque dated 18.04.2013 of UBI Chowringhee Br. in the name of Biswarup Dhali amounting to Rs.3150/-. Complainants Biswarup Dhali & Lalita Dhali also filed letter dated 27.10.2013 praying to get the matured amounts from the opposite party but the opposite party took no measure to solve the problem of the complainants. So the complainants getting no alternative filed the instant complaint before this Forum praying directions upon the opposite party as incorporated in the prayer portion of the complaint petition. The opposite party in his written version as well as evidence on affidavit never discarded the allegations leveled against him. Nowhere had he denied the receipt of money which the complainants invested. But the complainant by producing the documents in respect of investment proved that they are entitled to get the matured amount but the opposite party failed to provide the same which tantamount to deficiency of service on the part of the opposite party.

   The documents of investment are produced in Xerox copies. The receipts/certificates are signed by the Director/ Authorised Signatory of the opposite party. So we may presume that the opposite party accepted those invested amounts of the complainants.  The complainants by filing  evidence on affidavit demanded that they did not receive the matured amount till date and as the opposite party did not meet the demand of the complainant so this complainant getting no alternative filed the instant complaint for getting matured amounts including interest, compensation & cost. This complainant after the expiry of the period as fixed earlier approached the opposite party for getting the matured sum but the opposite party did not show good gesture upon the complainants by paying the matured amounts. As such the opposite party is deficient in providing service to this complainants and he is also in the charge of unfair trade practice. So the demand of the complainants are valid, cogent and at per but not excessive or exorbitant.

Opposite party preferred the decision of Hon’ble State Commission, WB in Ananda Dutta Vs. Poilan Park Development Authority Ltd., FA No. A/508/2015 vide order dated 24.7.2018 and assailed that the case relates to debenture so the case is not maintainable before this Forum under Consumer Protection Act,1986.

Debentures having regard to the definition of 'actionable claim' as defined in Section 3 of the Transfer of Property Act would constitute actionable claims except where they are secured by mortgage of immovable property or hypothecation or pledge of immovable property.

It is true that when there exists a statutory definition in respect of an expression, the dictionary meaning thereof cannot be applied. It is also true that when a statutory definition uses the word 'includes', it provides an extended meaning thereto but it is equally well-settled that the words are required to be construed in terms of the legislative intent.

A debenture is an instrument of debt executed by the company acknowledging its receipt to repay the same at a specified rate and also carrying an interest. It is in sum and substance a certificate of loan or a bond evidencing the fact that the company is liable to pay a specified amount with interest and although the money raised by the debentures becomes a part of the company's capital structure yet it does not become a share capital. In any event, a debenture would not come within the purview of definition of goods, in as much as, although the shares and stocks are included in the definition of goods but debentures are not".

In Director General of Investigation & Registration vs. Deepak F and P. Corporation Ltd. 81 Comp. Cas. 342., it has been held thus, "a "debenture" is simply an acknowledgment of debt by the company whereby it undertakes to repay the amount covered by it and till then it undertakes further to pay interest thereon to the debenture holder. Except where debentures are secured by mortgage of immovable property or hypothecation or pledge of movable property, they constitute actionable claims. It was further held that a debenture is thus like a certificate of loan or a loan bond evidencing the fact that the company is liable to pay a specified amount with interest and although the money raised by the debentures becomes a part of the company's capital structure, it does not become share capital. Therefore, debentures are not goods within the meaning of s. 2(e) of the Monopolies and Restrictive Trade Practices Act".

 Hon’ble State Commission, WB also dealt with this issue in Rose Valley Group of Companies v. Santanu Mandal & Ors., FA/42/2008, &  Ananda Dutta Vs. Poilan Park Development Authority Ltd., FA No. A/508/2015 where it has been held that Redeemable Non-convertible Debentures do not come under the purview of Consumer Protection Act as goods so defined therein. In this regard, the decision cited on behalf of the Appellant is also very much relevant, wherein the Hon’ble Court has held that debentures are not goods as defined under the Consumer Protection Act".

 The complainant referred the case decisions of Hon’ble National Commission in RP no.363 of 2013 & RP Case no.364 of 2013 in V. Nagmani Vs. the Manager Sriram City Union Finance Ltd vide order dated 16.9.2013 held that “We have perused the acknowledgement slip and debenture certificate issued by the opposite parties. The Debenture Certificate which is a computerized print out mentions as Debenture of Rs.1000/- each. The Redemption value as Rs.1,00,000/- and number of Debentures 100 would further clarify the facts. …………………. Therefore we allow these revision petitions set aside the orders of the state Commission and restore the orders of the district Forum.”

 Upon perusing the case the decision and hearing the Ld. Advocates this Forum is in the opinion that the complainant case is rightly filed before this Forum under the section of Consumer Protection Act,1986 as the section 3 of the act clearly mentioned that the provisions of this act shall be in addition to and not in derogation of the provisions of any other Law for the time being in force. So the complaint petition is deserved to be allowed with cost and compensation. The complainant proved his case by adducing evidence and the opposite parties are deficient in providing service to these complainants and the opposite parties are in the charge of unfair trade practice. So the complainants are entitled to get maturity benefits, including interest @ 10% per annum since the date of maturity till the realization with a litigation cost of Rs.5,000/- from the opposite party within a period of 45 days from the date of passing this order.

The discussion made herein before, we have no hesitation to come in a conclusion that the Complainants have abled to prove their case. As such the Opposite Party is liable to pay compensation to these Complainants as we deem fit and proper.

As it is already proved in the discussion, the deficiency in service and unfair trade practice adopted by the Opposite Party cannot be ousted and as such the Complainants are entitled to get relief(s).

    Hence it is ordered that the complaint case being no. CC 111/2017 be and the same is allowed on contest against the Opposite Party with a litigation cost of Rs.5,000/- to these complainants.

 The Opposite party is hereby directed to pay the matured amount plus maturity benefit to these complainants as per their investments, including interest @ 10% since the date of maturity till date of realization and compensation of Rs.40,000/- for mental pain & agony to these complainants within 45 days from the date of passing this  final order.

 No other relief (s) is awarded to the complainants.

 The Opposite Party is further directed to deposit a sum of Rs.20,000/- in the Consumer Legal Aid Account for unfair trade practice within 45 days from the date of passing this  final order.

  At the event of failure to comply with the order the Opposite Party shall pay fine @Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.

   Let a plain copy of this order be made available and be supplied, free of cost, to the parties on contest inperson, Ld. Advocate/Agent on record, by hand under proper acknowledgement/ be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.