BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 394/2005 Filed on 28.11.2005

Dated : 15.05.2009

Complainant:

T.S. Geetha (minor), T.C 42/1440(15), Ganesh Nivas, Sreevarahan Nagar, Vallakkadavu P.O, Thiruvananthapuram represented by her father T.V. Lekshmi Kanthan.

Opposite parties:

1. The Director, Duncans Industries Ltd., Fixed Deposit Department, Regd. Office, 31, Netaji Subhash Road, Kolatta-700 001.

    

(By adv. Konchira G. Neelakantan Nair)

 

2. Bajaj Capital, Branch Office, Attukal Complex Building, East Fort, Thiruvananthapuram.

(By adv. R.S. Mohanan Nair)

This O.P having been heard on 04.04.2009, the Forum on 15.05.2009 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant opened a cumulative deposit account with 1^st opposite party Duncans Industries Ltd., which was canvassed by and routed through the 2^nd opposite party Bajaj Capital, that the amount deposited was Rs. 15,000/-, deposit Receipt No. was 181554, the date of deposit was 30.11.2000, the maturity date of the deposit was 29.11.2003 and the maturity value of the deposit was Rs. 22,826/-. The complainant surrendered the deposit receipt duly discharged for the payment of the maturity amount, but there was no response from any of the opposite parties. At last complainant sent an advocate notice on 12.09.2005, but there was no response even though the said notice was accepted by the opposite parties. Hence this complaint to direct opposite parties to pay an amount of Rs. 22,826/- with interest at 18% from 29.11.2003 along with an amount of Rs. 5,000/- towards compensation and costs to the complainant.

1^st opposite party filed version contending that 1^st opposite party faced liquidity crunch due to the withdrawal of fertilizer subsidy from the Central Government retrospectively and filed a scheme before the Company Law Board for further extension or modification of the repayment schedule praying for reduction of interest rate on all deposits in conformity with the interest rate being offered to the public by various banks/financial institutions, that company has become sick industrial company within the meaning of Sick Industrial Companies(special provision) Act 1985(SICA) and a reference has been made to the Board for Industrial and Financial Reconstruction (BIFR) in terms of provisions of SICA which was duly registered as case No. 70/2006, that there is no contract between parties for any fixed rate of interest for post maturity period and that there is no deficiency in service on the part of the opposite party as opposite party is complying with the order of the Hon'ble High Court of Calcutta. Hence 1^st opposite party prayed for dismissal of the complaint. 2^nd opposite party filed version contending that there is no privity of contract between complainant and 2^nd opposite party guaranteeing the repayment of F.D. Receipt, that 2^nd opposite party acted as a broker only to transmit the application of the complainant to the 1^st opposite party who accepted the said deposit and issued F.D receipt to the complainant. That the claim of the complainant arises only against the 1^st opposite party and not against 2^nd opposite party and 2^nd opposite party has nothing to do with it. Hence 2^nd opposite party prayed for dismissal of the complaint.

The points that arise for consideration are:-

1. Whether the complaint is barred by limitation?

2. Whether the complaint is maintainable under the Consumer Protection Act?

3. Whether the complainant is entitled to get the maturity value of fixed deposit?

4. Whether the complainant is entitled to fixed rate of interest for post maturity period?

5. Whether there has been deficiency in service on the part of opposite parties?

6. Other reliefs and costs?

In support of the complaint, complainant's father has filed an affidavit of himself as PW1 in lieu of examination in chief and Exts. P1 to P3 were marked. Complainant's father has been cross examined by opposite parties. In rebuttal, opposite parties did not file affidavit, but furnished four documents which were marked as Exts. D1 to D4.

Points (i) to (vi):- It has been the case of the complainant that complainant opened a cumulative deposit account with the 1^st opposite party Duncans Industries Ltd, which was canvassed by and routed through the 2^nd opposite party. The cumulative deposit No. is 181554. Ext. P1 is the copy of the deposit receipt dated 30.11.2000, which is seen issued by 1^st opposite party in the name of the complainant. As per Ext P1 deposit receipt, Account No. is F.D 181554, term of deposit is 36 months, amount of deposit is Rs. 15,000/-, rate of interest is 14.5%, amount payable on maturity is Rs. 22,826/- and the date of maturity is 29.11.2003. It has also been the case of the complainant that though she had surrendered the said deposit receipt duly discharged, for the payment of the maturity amount, there was no response from the opposite parties. Ext. P2 is the copy of the advocate notice dated 09.09.2005 addressed to opposite parties which is seen issued on 12.09.2005 and received the same by opposite parties by Ext. P3 series postal receipts and acknowledgement cards. Submission by the complainant is that even after the receipt of Ext. P2 advocate notice, there was no response from the opposite parties. In the version filed by the 1^st opposite party, it is stated that the complaint is barred by limitation. The first point requiring consideration is whether the complaint is barred by limitation. On a perusal of Ext. P1 deposit receipt, it is seen that the date of maturity of deposit was on 29.11.2003. Complainant surrendered the deposit receipt duly discharged, for payment of maturity amount, but no response from the 1^st opposite party inspite of repeated reminders, which caused to issue advocate notice on 12.09.2005 to opposite parties. It is pertinent to note that even after the receipt of the said notice, opposite parties did not respond positively nor did 1^st opposite party issue any reply to the complainant. Thereby there is continuing cause of action. This complaint was filed on 28.11.2005 which is within the period of limitation. Submission by 1^st opposite party is that opposite faced liquidity crunch due to withdrawal of fertilizer subsidy by the Central Government, and the company has become a sick industrial company within the meaning of Sick Industrial Companies(special provision) Act 1985(SICA) and a reference has been made to the Board for Industrial and Financial Reconstruction(BIFR) in terms of provisions of SICA which was duly registered as case No. 70/2006 and company has been declared sick by BIFR on 21.02.2007. In this context it is to be highlighted the decision of the Hon'ble National Commission in the case of Sneha Dyachem Ltd. Vs. Jyothi Rathore, reported in 11(2006) CPJ 195 (NC), that Sec. 22 of Sick Industrial Companies Act is no bar on hearing the complaint under the Consumer Protection Act. Further submission by the 1^st opposite party is that the repayment of deposit to the holders is under judicial process and therefore there is no deficiency in service on the part of the 1^st opposite party. Submission by the 2^nd opposite party is such that there is no privity of contract between the complainant and the 2^nd opposite party guaranteeing the repayment of FDR, that 2^nd opposite party acted as a broker only to transmit the application of the complainant to 1^st opposite party, who accepted the said deposit and issued FD receipt to the complainant, that the claim of the complainant arises only against the 1^st opposite party and not against the 2^nd opposite party and the 2^nd opposite party has nothing to do with it. There is no material on record showing that the said deposit was canvassed by and routed through the 2^nd opposite party and 2^nd opposite party had guaranteed the repayment of FD to the complainant. In the absence of any cogent and clinching evidence against 2^nd opposite party, complainant cannot say that there was deficiency in service on the part of 2^nd opposite party. Applying the law as is obtained and found in the above decision of the Hon'ble National Commission in the case of Sneha Dyachem Ltd. Vs. Jyothi Rathore, reported in 11(2006) CPJ 195 (NC), we find complaint is maintainable under the Consumer Protection Act. Non-payment of maturity amount as per Ext. P1 would definitely amount to deficiency in service on the part of the 1^st opposite party. Deficiency in service proved. In view of the foregoing discussions, we are of the view that complainant is entitled to get the maturity amount of Rs. 22,826/-. Complainant is also entitled to get post maturity interest at the rate of 12% till realisation.

In the result complaint is allowed. 1^st opposite party shall pay the complainant a sum of Rs. 22,826/- with interest at 12% per annum from 30.11.2003 till realisation. 1^st opposite party shall pay the said amounts within two months from the date of receipt of this order, failing which 1^st opposite party shall pay the complainant an amount of Rs. 5,000/- towards compensation and cost.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 15^th May 2009.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

O.P. No. 394/2005

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Lekshmi Kanthan

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of Deposit Receipt No. FD 181554 dated 30.11.2000 for Rs. 15,000/-.

P2 - Copy of advocate notice dated 09.09.2005 addressed to opposite parties.

P3

series - Copy of postal receipts and acknowledgement cards.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of judgement dated 11.01.2005 of Hon'ble High Court of Calcutta.

D2 - Copy of registered letter dated 25.08.2006 by Government of India, Ministry of Finance, New Delhi.

D3 - Copy of judgement dated 11.09.2006 of Hon'ble High Court of Calcutta in C.P. No. 253/05.

D4 - Copy of order dated 22.05.2003 of Hon'ble High Court of Calcutta in A.C.O No. 135/2002.

PRESIDENT