Present         (1)     Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                               President

                    (2)     Sri Sheo Shankar Prasad Singh,

                              Member

Date of Order :

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-
2. To pay maturity amount of investment of Rs. 5,000/- under Scheme RUP – II ( Raj Laxmi ).
3. To pay Rs. 25,000/- ( Rs. Twenty Five Thousand only ) as compensation.
4. To pay Rs. 15,000/- ( Rs. Fifteen Thousand only ) as litigation cost.
5. Brief facts of the case which led to the filing of complaint are as follows:-

1. The complainant has filed the complaint petition with a prayer directing the opposite parties to make payment of maturity amount of investment made under Scheme RUP – II ( Raj Laxmi ).
2. It is an admitted fact that complainant being the mother of the then minor daughter namely Shruti Vatsayan under RUP – II ( Raj Laxmi ) Scheme vide Form No. 2445217 on 05.10.1994 through the authorized agent namely Sri S. Banerjee bearing his Code No. 750619 invested a sum of Rs. 5,000/- which was duly received by the opposite parties on 05.10.1994. There is no denial of receiving of the amount by the opposite parties.
3. The complainant tried to receive the maturity amount at the time of marriage of her daughter in the year 2008 but since then the opposite parties involved themselves in sending the letters on this pretext or other wise but the grievance of the complainant did not redressed thereafter in compelling circumstances the complainant has filed this complaint.
4. The opposite parties has denied on the preliminary objection that the case is time barred which does not applicable in this case as the daughter of complainant has attained the age of 21 years on 09.11.2009 and within a year this complaint case has been filed therefore, there is no time barred at all in this case and the order cited by the opposite parties is absolutely not applicable in this case.
5. There is no material placed by the opposite parties that there is refund of the amount which could have been shown the bonafide of the them for the last 18 ( eighteen ) years and the sae has neither refunded nor paid to the complainant at any occasion.
6. It is the practice of the Unit trust of India and they used to switch over the amount of the creditor to any other Scheme without having request of the investor and that is why the complainant had bonafide impression that the amount invested by the complainant has been invested at the right place but since the certificate was not issued therefore they are not redressing the grievance of the complainant where as the complainant has times without number asked the opposite parties to send the certificate of the invested amount but nothing was done.
7. The complainant is the bonafide customer within the Consumer Protection Act and she is entitled to the relief sought in the complaint petition with heavy compensation as the opposite parties have not placed the matter before this court with clean hands rather tried to mislead this court on technical ground where as it is an admitted facts that the opposite parties had received the amount and the said amount has not been refunded to the complainant.
8. In the facts and circumstances the complaint is fit to be allowed with heavy cost and compensation in favour of the complainant.

2. Written notes of argument filed on behalf of the opposite parties :-

1. The complaint has been filed by the complainant alleging deficiency in service on the part of the opposite parties for non payment of maturity amount of investment of Rs. 5,000/- under Scheme RUP –II ( Raj Laxmi ) and compensation of Rs. 25,000/- for mental agony and harassment along with litigation cost Rs. 15,000/- to the complainant.
2. The brief cats of the complaint is that the complainant had invested a sum of Rs. 5,000/-in the name of her minor daughter namely Shruti Vatsayan under RUP – II ( Raj Laxmi ) Scheme vide form No. 2445217 on 05.10.1994 authorised by the agent namely S. Banerjee and the said amount of Rs. 5,000/- has already been received on 05.10.1994 by the opposite parties but after maturity of the Scheme opposite party did not pay of maturity amount as per clause 2 of the said agreement but of Para – 1.
3. The opposite parties appeared in the case and contesting the case by filling Affidavited reply along with Annexure contending enteralia that the present complaint case is not at all maintainable and fit to be dismissed.
4. The complaint case is not maintainable as the same is hopelessly barred by limitation. As per Section 24 (A) of the Consumer Protection Act 1986. The complaint should be filed within two years from the date of cause of action. In this case the cause of action admittedly arose on 05.10.1994 i.e. dated of investment. Where as the complaint has been filed in the year 2010 i.e. after whopping gap of 16 years. A copy of order dated 02.02.2010 passed by National Commission is enclosed as Annexure 7 of this written notes of Argument. Hence the complaint is liable to be dismissed.
5. The complainant is not a Consumer as defined under Section 2 (d) of the Consumer Protection Act 1986 as the complainant has not become the registered holder of units. The complainant has therefore, remained as only a prospective consumer. It is a well established law that the complaint by prospective consumer is not maintainable before the agencies established under Consumer Protection Act 1986, as held by Hon’ble Supreme Court in the case of Morgan Stanley Mutual Fund Vrs. Karthikdas 1994 2 CTJ 385 ( Supreme Court). It was held that an investor can not be treated as consumer until the units are allotted to her. In this case also the complainant falls beyond the definition of ‘Consumer’ as the units have not been allotted. The complaint filed by person, who does not come under ambit of Section 2(d) of the Consumer Protection Act 1986 is not maintainable before the consumer forum. Hence, the complaint is liable to be dismissed.
6. It is to be noted that as per the plan provisions, the investment is allowed in favour of female child who is less than 5 years of age. In this case, since the child was more than 5 years of age, i.e. date of birth of child is 10.11.1998 and the complainant made the investment on 05.10.1994, therefore the opposite parties must have placed the investment under objection and refunded to the complainant in the year 1994 as minor was around five and half years at the time investment. It is therefore there is no delay or deficiency on the part of the opposite parties. Hence it is prayed that the complaint may be dismissed. Gazette notification of offer document is enclosed as Annexure – II of the written notes of Argument.
7. Opposite parties have verified the records taken over from the trust and it is observed that the application number under RUP – II Scheme is not appearing as per present records of opposite parties. Generally on receipt of valid application the opposite parties used to issue unit certificate to the unit holder within a month or if the application submitted by the investor is beyond the Scheme provision, if any, the refund cheques were used to be issued within a month from the date of receipt of payment from the investor. As per the guideline in case the investment has not received refund cheque, than he / she can apply for a duplicate cheque by submitting letter of undertaking, like in this case, the complainant must have received and encashed its refund cheque as this original refund cheque is not appearing as per records of the opposite parties, not the complainant nor compliance of Bank details of order dated 25.06.2012 passed by learned forum in this complaint case.
8. The opposite parties are handicapped in providing details of the refund cheque issued in year 1994 as the records were destroyed in accordance with SEBI instruction. The opposite parties and its registrars are governed by the Rules and regulations issued by Securities exchange Board of India ( SEBI ). The Trust and its registrars have to adhere to the Rules and regulation laid down by SEBI. As per Regulation 14 and 15 issued by SEBI vide SEBI regulation, 1993, the Registrar have to maintain and preserve records and documents for a minimum period of 3 years, since SEBI is being a statutory Body. It is mandatory on the part of the Registrars who come under the purview of SEBI to follow the obligations and responsibilities framed and issued by SEBI. Guideline issued by SEBI, is enclosed as Annexure – III of this written note of Argument.
9. In this case the complainant has neither asked for the service before 2008 nor did she send any communication for the alleged service if any. It may be appreciated that since the complainant made the investment. It is the primary duty of the complainant to keep track of her investment. The complainant had obliviously not bothered to check for the refund/ allotment for more than 16 years. Thus he was negligent and for her negligence he cannot claim maturity/ refund amount or interest or cost from the opposite parties after laps of so may years.
10. The complainant has failed to establish any deficiency in service on the part of the opposite parties.
11. The opposite parties being a Financial Institution has no withheld the refund cheque pertaining to the complainant and there is nothing due to be paid to the complainant.
12. The complainant is not a Consumer as defined under Section 2 (d) of the Consumer Protection Act 1986 and the complaint case is also hopelessly barred by limitation and therefore same is liable to be dismissed.

It is the case of the complainant that she deposited Rs. 5,000/- in the name of her minor daughter Shruti Vatsayan under “Raj Laxmi Scheme” ( Vide Annexire – 1 ). On maturity of the said amount complainant made an application to opposite parties for payment of the aforesaid amount in the year 2008 ( Vide Annexure – 2 ). When she did not received the aforesaid amount from the opposite parties then she gave legal notice to them ( Vide annexure – 3 ). The complainant has asserted that despite her best effort she could not get the said amount. It has been asserted that the complainant has deposited all the relevant documents but no action had been taken by the opposite parties for redressal of her grievance. On behalf of the opposite parties an affidavit cum reply has been filed raising the preliminary objection on the ground that this complaint is barred by limitation and the complainant is not a consumer because she has not being issued unit.

It has been asserted that at time of depositing / investing of Rs. 5,000/- on 05.10.1994 the daughter of the complainant more than 5 years hence “ opposite parties must have returned the application money under objection to the complainant in the year 1994 ”.

It has been further asserted that the Scheme was valid for a girl less than 5 years and due to this reason the unit was not issued to the complainant.

It has been asserted that no record of return cheque/ allotment pertain to said application for year 1994 are available because the same has been destroyed under SEBI direction.

It is admitted case that the complainant had invested the amount in year 1994 i.e. 05.10.1994. the complainant has not asserted that she was issued an unit with respect to her investment. It goes without saying that when units – necessary certificate were not issued by opposite parties in time i.e. within a month or so then it was duty of the complainant to take necessary follow up action in 1994 but she continued to file application. It is needless to say that in this case cause of action has arisen in 1994 itself but this case has been filed before us on 13.05.2010 i.e. after delay of about 15 to 16 years.

The careful reading of Annexure – 7, 8 and 9 which is on page – 19, 20 and 21 of complaint petition. It is crystal clear that no units were issued. The complainant has not annexed any units / certificate hence it is crystal clear that complainant was not received any unit / certificates and hence she cannot be Consumer of the opposite party under Section 2(d) of Consumer protection Act.

The argument of the complainant that her daughter has attained the age of 21 years on 09.11.2009 is not going to wipe out the statutory limitation of the years. The Hon’ble Apex Court in this regard we think it proper to place on record the citation of the Hon’ble Apex Court of India pursuit in (2009) 5 Supreme Court cases 121 before D.K.Jain and R.M. Lodha, JJ.

State Bank of India Vrs. B.S. Agriculture Industries. In Para – 12 of this judgment the Hon’ble Apex Court has been pleased to observe as follows :

As a matter of law, the consumer forum must deal with the complaint on merit if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24 A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaints on merits, the forum would be committing an illegality and, therefore the aggrieved party would be entitled to have such order set aside.

Thus, it is crystal clear that this complaint is barred by limitation and hence it is not maintainable before this forum as per section 24 A of Consumer Protection Act.

However, before parting with this case we must state that in Para – 7 clause III of the reply filed on behalf of the opposite parties, the opposite parties had made following statements. ‘ as per guideline, in case the investor has not received refund cheque, then he / she can apply for a duplicate cheque by submitting letter of undertaking.

In view of the aforesaid statement of the opposite parties the complainant has liberty to take steps for realisation of her aforesaid amount after submitting documents etc. as per requirement of opposite parties.

From the discussion made above we find and hold that this complaint petition is hopelessly barred by limitation hence it is not maintainable before this forum. In the result this complaint stands dismissed for being barred by limitation.

                                        Member                                                         President