Quorum: Sh. Dharam Singh President.<br /> Smt. D.K.Khosa Member.<br /> Dr. H.L.Mittal Member.<br /> <br /> Present: Sh. P.Betab counsel for the complainant.<br /> Sh. J.S.Brar counsel for opposite party No.3.<br /> None for opposite party No. 1 and 2. <br /> ORDER<br /> DHARAM SINGH PRESIDENT<br /> Saroj Aggarwal complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 requiring the opposite parties to convert the FCDs into shares, pay accrued dividend, bonus etc. and issue extra shares promised to the previous share holders and to pay Rs.3,00,000/- as compensation and costs of the complaint. <br /> 2. The complainant averred in her complaint that on an advertisement of a public issue by the opposite party No. 1 the complainant had applied for allotment of fully convertible debentures (FCDs) vide application dated 29/1/1993 and 50 FCDs were allotted for Rs.18,000/- at the rate of 360 each . As per the terms and conditions of the public issue these FCDs were to be converted into 100 shares of Rs.10 each after expiry of one and half year from the date of allotment. Out of this amount Rs.9000/- were sent to the opposite parties by the complainant alongwith the application. The remaining amount of Rs.9000/- was to be paid in two installments of Rs.4500/- each termed as call money. The complainant sent the first call money of Rs.4500/- vide DD No. 586864 dated 15/3/1994 for which acknowledgment was issued by the opposite parties. The second and last installment was sent by the complainant vide DD No. 064794 dated 27/4/1994 by registered post through opposite party No. 3. The complainant received a letter dated 3/7/1995 from opposite party No. 1 and 2 asking the complainant to pay second call money of Rs.4500/-. As the complainant had already paid the second call money so the complainant informed the opposite parties vide letter dated 4/7/1995 referring the number and date of the draft vide which the second call money was paid. After this reply the opposite parties did not demand the second call money which meant that the draft of Rs.4500/- was received by the opposite parties. In 1997 the complainant decided to sell the FCDs as the rate of the same was very high. As fully paid sticker issued by the opposite parties was required for selling the FCDs, so the complainant wrote a letter dated 2/5/1997 to the opposite parties requesting to send fully paid sticker as well as bonus and dividend accrued on the FCDs till that date but the opposite parties did not replied this letter. Again in 2000 the complainant faxed two reminders dated 14/2/2000 and 14/3/2000 and also a reminder through registered letter dated 8/2/2000. Ultimately she received a letter dated 22/5/2000 from the opposite parties asking the complainant to send bank clearance certificate indicating the payment of second call money of Rs.4500/- as according to them this amount appeared to be outstanding. In response the complainant sent a letter dated June 19, 2000 alongwith photocopy of the draft and the postal receipt vide which the draft was sent. She also wrote a letter to bank seeking confirmation whether DD No. 064794 dated 27/4/1994 was cashed or not. The complainant received a letter dated 2/9/2000 from Mumbai Branch of State Bank of India that the said draft has not been cashed. The opposite parties vide letter dated November 9,2000 asked the complainant to submit duplicate draft which was sent to the opposite parties to the opposite parties after getting the same issued from the State Bank of India and the opposite party No. 1 acknowledged its receipt vide letter March 7, 2001 to resubmit the duplicate draft after removing the words Canara Bank. The complainant again submitted the duplicate draft after effecting the desired amendment. Then the opposite parties sent the fully paid sticker vide letter dated 29/6/2001. The dividend cheques for the period 1996 to 2001 were also sent vide letters dated 15/9/2001, 27/9/2001 and 10/10/2001 and the opposite parties also promised to issue share of Sterlite Optical Technologies. After issuance of fully paid sticker she opened D-mat account No. 18038808 with Bathinda branch of Stock Holding Corporation of India on October 22, 2003. The complainant wrote a registered letter dated 20/2/2004 to the opposite parties regarding not getting dividend for the last 3 years and also not getting fresh share certificates which were issued to other share holders. The complainant did not get any response to this registered letter but instead received Debenture Redemption-cum-Interest Warrant for Rs.5439.73 paisa. The complainant returned this warrant through registered post alongwith a letter dated March 3, 2004 requesting the opposite parties to ensure payment of dividend and certificate of shares. The complainant received a letter dated 29/6/2004 in which it has been stated that the company had extinguished the above mentioned shares of the complainant as the complainant had not opted to continue as shareholder. The complainant was surprised, as the opposite parties had never asked the complainant for the above referred option. The complainant continued to write to the opposite parties to convert the FCDs into shares, pay the dividend accrued upon the shares and issue 100 extra shares as promised but the opposite parties did nothing in this regard rather sent a draft of Rs.5439.73 paise in lieu of redemption warrant which the complainant did not cashed. The complainant served a legal notice dated 11/8/2006 to the opposite party No. 1 through her counsel with the request to convert the FCDs into shares, pay accrued dividend, bonus etc. and issue extra shares but instead of replying this notice the opposite parties sent dividend warrant dated August 28, 2006 which the complainant did not accept. It is deficiency in service and trade mal practice on the part of the opposite party No. 1 and 2 not to issue fully paid stickers in time, to purchase the above referred shares of the complainant without her consent or offer and not to issue extra share promises to previous share holders. The opposite party No. 3 also deficient in service in not delivering the envelope containing draft of second call money to the opposite party No. 1 and 2 which was sent through registered post. She suffer financial loss, mental agony and harassment due to deficiency in service for which the opposite parties are liable to compensate the complainant to the tune of Rs.3,00,000/- with costs of the complaint. Hence the present complaint. <br /> 3. The counsel for complainant was heard with regard to admission of the complaint and vide order dated 11-12-2006 complaint was admitted and notice was ordered to be issued to the opposite parties. <br /> 4. On receipt of notice the opposite party No. 3 appeared through Sh. J.S.Brar Advocate and filed written reply and affidavit. The opposite party No. 1 and 2 not appeared but sent the affidavit in reply by post alongwith the order of Hon'ble High Court of Judicature At Bombay and schedule. The opposite party No. 1 and 2 submitted in their affidavit that the present complaint is misconceived and not maintainable. The present complaint does not disclose any cause of action against the opposite parties sos the complaint is liable to be dismissed. The present complaint is hopelessly barred by the law of limitation. The present complaint is bad for non joinder of necessary party. The subject matter pertains to the year 1993 and at relevant time M/s PCS Industries Ltd. were the registrar and transfer agents and since in the month of May 2000 the opposite party No. 2 are the newly appointed registrar and transfer agents so M/s PCS Industries Ltd is the proper and necessary party and without joining them as opposite party the complainant is not entitle to proceed with the present complaint. The present complaint in infructous in vide of the implementation of Buy Back Scheme. There is no deficiency in services on the part of the opposite party which will given cause to the complainant to file the present frivolous and vexatious complaint. The complainant is guilty of gross negligence and lacuna and by filing the present complaint she has abused the process of law and she is using the same as a lever against the opposite party to extort money ignoring her own negligence and by misleading the Hon'ble Forum. The complainant had applied for 50 fully convertible debentures as far as back in the year 1993. The complainant while making an application for 50 FCD had remitted the sum of Rs.9000/- and she was allotted 50 FCDs and on allotment the complainant was required to pay the first call money to Rs.4500/- and said first call money was duly paid by the complainant and the same was also duly recorded in the records. After that the complainant was required to pay the second and final call money to Rs.4500/- but the said amount though called for was not paid by the complainant hence the FCDs were showing as partly paid. In the month of May 2000 the opposite party No. 1 duly appointed the opposite party No. 2 as the new Registrar and transfer agent. They found that the second call money has not been paid by the complainant hence the complainant was called upon to produce the bank certificate and ultimately in the year 2001 after lapse of 5 to 6 years the complainant paid the second call money and on receipt of the same her FCDs which were already converted into 100 shares were made fully paid up and accordingly the fully paid sticker with the outstanding dividends were duly dispatched to the complainant and there was no dispute regarding the same. During the year 2000 the opposite party No. 1 demerged into two separate legal entity namely M/s Sterlite Industries India Ltd. and M/s. Sterlite Optical Technologies Ltd. and on demerger the original share of Rs.10/- was dividend into two shares of Rs.5/- each. At relevant time the shareholding of the complainant was partly paid though the new share of SOTL were issued and allotted but same were not dispatched to the complainant. After she paid the second call money 100 shares of SOTL were duly dispatched to the complainant. As per our record the complainant is holding SOTL shares of Rs.5/- each and she can apply for duplicate shares after complying with the necessary duplicate formalities. In the year 2002 the opposite party No. 1 had filed a petition u/s 391 of the Companies Act, 1956 in the Hon'ble Bombay High Court which was admitted and said scheme of arrangement has been duly approved and sanctioned. The opposite party no. 2 duly dispatched the option form alongwith repurchase consideration warrant to all the shareholders and as per the scheme the shareholders who wised to retain the share certificates were required to return the duly signed, filled and executed option form to the opposite party on or before 21/6/2002 as per order dated 19/4/2002. An appeal was filed by SEBI before the Division Bench of Bombay High Court and Hon'ble Court upheld the order passed in the original petition, but allowed further period of four month i.e upto 20/10/2002 to enable the shareholders to exercise the option. The option form was dispatched to the complainant at her address registered with us at relevant time but the complainant failed and neglected to comply with the order and direction given by the Hon'ble High Court and after lapse of more than four years complainant filed the present complaint while taking undue advantage of her own wrongful acts and omissions. There is no deficiency in service and negligence on the part of the opposite parties. It is wrong that the complainant dispatch second call money vide DD No. 064794 dated 27/4/1994. The shares of Sterlite Optical Technologies were issued and dispatched to the complainant but she did not receive the same so the complainant can apply for issuance of duplicate share certificate. In view of the implementation of scheme of arrangement in the year 2002 and due to buy back of the share holding of the complainant the holding became nil hence the question of accrued benefits does not arise. Therefore the claim for dividend, bonus and right shares are not maintainable. As part of implementation of Buy Back scheme the complainant was entitled for NCDs which were duly redeemed and issued and dispatched to the complainant. It is denied that the complainant returned the said warrants as alleged. It is denied that the opposite parties had never asked the complainant for Buy Back Option. The FCDs which were allotted to the complainant in the year 1993 were already converted into 100 shares in the year 1994-95 hence the request for conversion was infructous. It is also denied that complainant did not cash the redemption warrant of Rs. 5439.73 and as per our record the said redemption warrant is paid. The dividend declared by SOTL of Rs.50/- was issued to the complainant. There is no deficiency in service and trade mal practice on the part of the opposite parties. The complainant has not suffered any loss, mental agony and harassment due to the deficiency in service so she is not entitled for any compensation of Rs.3,00,000/-. Hence the present complaint deserves to be dismissed with compensatory costs. <br /> 5. The opposite party No. 3 in reply taking preliminary objections that the complaint in question filed by the complainant is not maintainable as no cause of action arose in favor of the complainant. The complainant unnecessary stakes the claim against the opposite party No. 3. On merits the opposite party No. 3 submitted that no intimation was submitted by the complainant to the opposite party No. 3. There is no deficiency in service on the part of the opposite party No. 3. If any registered letter had not delivered to the addressee the sendor should file a complaint in this regard within 6 months from the date of booking of registered letter. The complainant is not entitled for any compensation. So the complaint be dismissed with costs. <br /> 6. All the parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence her affidavit Ex.C-1, copy of letter dated 20 May 2005 Ex.C-2, copy of DD for Rs.5439.73 Ex.C-3, copy of allotment certificate dated 16/10/2000 Ex.C-4, copy of certificate No. 076954 Ex.C-5, carbon copy of legal notice Ex.C-6, postal receipt Ex.C-7, acknowledgment Ex.C-8, copy of letter dated 29/6/2004 Ex.C-9, copy of dematerialisation request Ex.C-10, copy of letter dated August 9 2004 Ex.C-11, copy of first call notice Ex.C-12 dated Feb. 22, 1994, copy of statement of transaction of account No. 18038808 Ex.C-13, copy of letter dated August 9, 2004 Ex.C-14 and closed her evidence. <br /> 7. In order to rebut the evidence of the complainant the opposite party No. 1 and 2 sent copy of order of Hon'ble Bombay High Court dated 19/4/2002 Ex.1 Counsel for opposite party No. 3 tendered affidavit of Sher Singh Superintendent of Post Offices Faridkot Division, Faridkot Ex.R-1 and closed their evidence. <br /> 8. We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file. Our observations and findings are as under.<br /> 9. Learned counsel for the complainant submitted that the opposite party No. 1 and 2 are liable to convert the FCDs into shares and to pay accrued dividend, bonus etc. They are liable to issue extra shares promised to the previous shareholders immediately. The complainant is entitled for compensation to the tune of Rs.3,00,000/- for harassment etc. <br /> 10. Learned counsel for the opposite party No. 3 submitted that the claim of the complainant against the opposite party No. 3 is time barred. <br /> 11. No per is representing the opposite party No. 1 and 2 who have sent their written reply in the shape of affidavit by post to this Forum which is going to be taken into consideration on the basis of the arguments of the complainant sos that no person condemn unheard. It is voilotion of the opposite party No. 1 and 2 not to come present to argue the case. <br /> 12. From the perusal of the file it is made out that it is made out that no relief is claimed by the complainant against the opposite party No. 3 through whom the complainant had been corresponding with the opposite party No. 1 and 2. There was missing of dispatch of DD No. 064794 dated 27/4/1994 worth Rs.4500/- sent by the complainant to the opposite party No. 1 and 2 through opposite party No. 3 by registered post. The opposite party No. 1 and 2 vide letter dated 3/7/1995 have made demand for second call of Rs.4500/- which the complainant already has sent to them through registered post as mentioned above but the same was not received by the opposite party No. 1 and 2. Thus the complaint having been filed on 8/12/2006 against the opposite party No. 3 is time barred so the complaint against the opposite party No. 3 stands dismissed. There is no order as to costs.<br /> 13. The opposite party No. 1 and 2 have placed reliance on Ex.1 the judgment dated 19 April 2002 delivered by the Hon'ble High Court of Judicature at Bombay in Ordinary Original Civil Jurisdiction Company Petition No. 203 of 2002 connected with Company Application No. 18 of 2002 in the matter of Section 391 of the Companies Act, 1956 and in the matter of Scheme of Arrangement between Sterlite Industries (India) Limited and the Equity Shareholders of Sterlite Industries (India) Limited. <br /> 14. As per this judgment on or after record date the petitioner company shall send to every shareholder an option form to enable him to select where<br /> he desires to continue as shareholder of the petitioner company and accordingly does not desire to offer his equity shares to the petitioner company for purchase and that shareholders shall be entitled to exercise their option to continue to hold their equity shares by sending the option form to the petitioner company within the period stipulated in the option form. The petitioner company could purchase equity share on pro-rata basis from non-resident shareholders under the scheme shall be subject to necessary approval being obtained from Reserve Bank of India under the provisions of Foreign Exchange Management Act, 1999 . <br /> 15. The opposite parties have not placed on the file any record if above noted option form had been sent to the complainant. So the opposite party No. 1 and 2 having reported in letter Ex.C-11 dated 9/8/2004 purchasing shares of the complainant without getting option from the complainant is illegal. As per letter Ex.C-9 dated 29/6/2004 of the opposite party No. 1 and 2 the cover containing the papers related to above scheme which was posted under certificate of posting at the address of the complainant did not return undelivered by the postal authorities they have presumed that cover was correctly delivered at the address of the complainant. The complainant has not given option from or after 21/6/2002 as mentioned in the option form. The opposite parties have not placed on the file copy of the postal certificate or certificate of posting or any other mode of dispatch of the form to the complainant so the presumption of the opposite party No. 1 and 2 to the effect that they have sent the option from to the complainant is illegal so it is held that the opposite parties have not taken option from the complainant for purchase of the shares of the complainant. The complainant has opened his account as beneficiary balance as per the letter Ex.C-13 which is showing transaction period from April 1, 2004 to April 9, 2007 for account holder 18038808 in the name of CAIRN India Ltd. There is a account opening form Ex.C-10 dated 19/12/2003 with regard to client I.D. No. 18038808 pertaining to Saroj Aggarwal. The opposite parties have received entire amount of Rs.18,000/- from the complainant. <br /> 16. The opposite parties have not placed on the file any data of value of the share, payable debentures etc. to the shareholders they have withheld the amount illegally, so the complaint filed by the complainant is accepted. Accordingly the opposite party No. 1 and 2 are directed to refund the amount of Rs.18,000/- to the complainant. Complainant is also entitled to compensation in all to the tune of Rs.12,000/-. So the opposite party No. 1 and 2 directed to pay the amount of Rs.30,000/- to the complainant within a period of one month from the date of the receipt of the copy of this order failing which the opposite party No. 1 and 2 directed to pay interest on the amount of Rs.30,000/- at the rate of 12% per annum from the date of the decision of the complaint till realization of the amount. Copies of the order be sent to the parties free of costs. File be consigned to the record room. <br /> Announced in open Forum:<br /> Dated: 1/8/2007<br /> <br /> <br />