Telangana

Mahbubnagar

CC/08/21

Kotha Golla Amrutamma W/o K. Sayulu O/c Coolie - Complainant(s)

Versus

The Manager, Vijetha Agro Farms (I) Ltd., Mahabubnagar - Opp.Party(s)

Sri N. Ravi Kumar

26 Sep 2008

ORDER

BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

                                     Friday the 26^h day of September, 2008                                  

                                                                         Present:-  Sri M.Rama Rao, B.A.,LL.B., President

  Sri P.Venkateshwara Rao, B.com., LL.B., Member

     Smt.B.Vijaya Kumari, M.Sc. B.Ed., C.C.P., Member

                                                                                 C.C.No.21 Of  2008

Between:-

Kotha Golla Amrutamma, W/o K. Sayulu, age: 29 years,                                 Occ: Coolie, R/o Kothapet (Post and Village), Hanwada Mandal,  Mahabubnagar Dist.

 

… Complainant

 

And

1. The Manager, Vijetha Agro Farms (I) Ltd., Near Venkateshwara Nursing Home, opp: Harahara Function Hall, Mahabubnagar.

 

2. The Managing Director, Vijetha Agro Farms (I) Ltd., H.No.12-12-84,  IInd  Floor, Old Club Road, Kothapet, Guntur-522 001.

 

3. D.K.M.Gupta, S/o Sri Narayana Gupta, Age 50 years, Occ: Director and Ex-Chairman and Managing Director, Vijetha Agro Farms (I) Ltd.,C/o Vijetha Telugu Daily Press Building, Microwave Tower,   Cocani Road, Guntur.

 

4. C.H.Ramu @ C.H.Ramulu, S/o Not known, Age 40 years, Occ: Chairman and Managing Director, Vijetha Agro Farms (I) Ltd., R/o H.No.12-25-12, Vijetha Complex, Shivalayam Road, Kothapet, Guntur.

 

                                                                                … Opposite parties

 

 This C.C. coming on before us for final hearing on 25-9-2008 in the presence of Sri N. Ravi Kumar, Advocate, Mahabubnagar for the complainant and the OP.No.4 in person and the OP.Nos.1, 2 and 3 having been set exparte and having stoodover for consideration till this day, this Forum delivered the following:

O R D E R

(Sri M. Rama Rao, President)

 

      This is a complaint filed on behalf of the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite parties jointly and severally to pay maturity amount of Rs.30,000/- with interest @ 24% from the date of maturity till realization and to pay maturity amount of Rs.20,000/- with interest @ 24% from the date of maturity till realization in favour of the complainant and to pay Rs.10,000/- towards mental agony and also pay costs of the complaint.

     The complaint averments are as follows:-   The opposite party Nos.3 and 4 are the directors of Vijetha Agro Farms (I) Ltd., Guntur.  The opposite party No.1 is the manager of Mahabubnagar branch and the opposite party No.2 is the chief executive officer of the firm.  The opposite parties have floated different deposit schemes offering to pay interest.   OP.2 received the deposit amount through OP.1 and issued the bonds and also issued post dated cheques to the members and also responsible to refund the maturity amount to the members.  The complainant deposited Rs.2,000/- under plan No.6 on 5.1.1998 with OPs for a period of 10 years.  OPs issued deposit bond on 8.1.1998 for maturity value of Rs.20,000/- and along with the bond OPs also issued a post dated cheque bearing No.120821 dated 30.12.2007 of Oriental Bank of Commerce, Guntur branch on 10.8.2000.  Under plan No.6 the complainant also deposited another amount of Rs.10,000/- and OPs received the same and issued another bond on 28.8.2000 for maturity value of Rs.30,000/- and the maturity date on 7.8.2006.  After completion of the maturity period of second bond i.e. on 7.8.2006 the complainant visited the office of OP.1 branch and found the office was closed.    The complainant came to know that OPs are not paying the maturity amounts to the depositors and that they stopped their business and closed their firm abruptly.   The complainant also came to know that the cheques which are issued by OPs to its depositors are also dishonoured by the banks due to the insufficient funds in the firm account.   The opposite parties rendered defective service and adopted unfair trade practice by avoiding the payment of matured amount.   Hence the complaint.    

The opposite party Nos.1, 2 and 3 are set exparte.

    The opposite party No.4 filed his counter with the following averments:-   That the opposite parties  firm is a registered one under Companies Act, 1956.   Due to loss caused by one of the directors of the opposite parties  company, the official liquidator was appointed to wind up the said company by the Hon’ble A.P. High Court to settle the accounts of the depositors.  Meanwhile, the CBCID Police seized the entire properties pertaining to the company as well as the properties of the directors of the company.   Hence now the properties are under safe custody of court of law.   OP.4 was not the director of the company, but he worked as a paid employee of the company.    It is further stated that already the winding up proceedings are pending before the Hon’ble A.P. High Court and the official liquidator was also appointed.   Therefore it is proper to direct the complainant to approach the official liquidator to realise the amount.   Therefore the complaint is not maintainable and liable to be dismissed.  

5.  The complainant filed his affidavit and got marked Ex.A-1 to A-3.  The Ex.A-1 is Original Bond, dt.5.1.1998, Ex.A-2 is Post Dated Cheque, dt.30.12.2007, and Ex.A-3 is Original Bond, dt.10.8.2000.

       6.    The opposite party No.4 has not filed affidavit but filed document on his    behalf and got marked Ex.B-1.

       7.    Heard for both parties.

 8.      The point that falls for consideration is whether the complainant is entitled for any reliefs as prayed for when the official liquidator was appointed and the proceedings for winding up the opposite parties  company are pending before the Hon’ble A.P. High Court? 

9.       It is evident from Ex.A-1 and A-3 that the complainant has deposited Rs.2,000/- on 5.1.1998  and Rs.10,000/- on 10.8.2000 respectively with the OP firm and it is also evident from the said documents that the OPs promised to pay the matured amounts of Rs.20,000/- under Ex.A-1 and  Rs.30,000/-  under Ex.A-3 respectively.  There is no dispute with regard to the fact that the OPs firm is a registered firm under Companies Act, 1956 and the OPs have not paid the maturity amount to the complainant.   Not refunding the deposit amount after maturity date amounts to deficiency of service.   

         However, according to OP.4 the Hon’ble A.P. High Court appointed “official liquidator” to wind up the opposite parties firm under due process of provisions of the Companies Act and the proceedings are pending.     The Ex.B-1 proves this contention.    At this juncture, we feel it is proper to refer Section 446 (1) of the Companies Act which is relevant for deciding the above question.   Section 446 of the Companies Act reads as under:

(1) Suits stayed on winding up order:-

 “When a winding up order has been made or the official liquidator has been appointed as provisional liquidator, no suit or other legal proceedings shall be commenced or if pending at the date of winding up order, shall be proceeded with, against the company, except by leave of the court and subject to such terms as the court may impose”. 

     In this regard the Forum is of opinion that it is also appropriate to place reliance upon the decision of the Hon’ble State Commission, New Delhi, passed in M/s Asia Pacific Investment Trust Ltd. Vs.  Amod Juneja and others case reported in CPR 2000 part (3) page No.484 wherein the Hon’ble State Commission held that “Since winding up order has already been passed by the Hon’ble A.P. High Court on 19.8.1988 in respect of the appellant company, the above proceedings against the appellant company cannot continue without the leave of the court in terms of provisions contained in Section 446 (1) of the Companies Act, 1956”.   Here in this case on hand it is relevant to mention that there is no record before us to the effect that the complainant has obtained the leave to proceed in this case. 

10.      In view of the aforesaid reasons and principles of the case laws cited supra, we are of the opinion that the grant of leave from the Hon’ble A.P. High Court is mandatory to proceed further in this case by this Forum or otherwise, the complainant may submit his claim before the official liquidator for getting his amount under Ex.A-1 and A-3. 

11.   In the result, the complaint is adjourned sine-die with the direction that the complainant may seek the leave of the Hon’ble A.P. High Court in terms of the provisions contained in Section 446 (1) of the Companies Act, 1956, and after obtaining the leave by the Hon’ble A.P. High Court, the complainant may approach this Forum for the revival of the proceedings or otherwise the complainant is also at liberty to submit her claim before the official liquidator for realizing her amount.   With this direction the complaint is closed.   But for the circumstances of the case, no order as to costs.      

Typed to dictation, corrected and pronounced by us in the open Forum, on this the 26^th day of September, 2008.

 

 

 MEMBER                               MEMBER                                 PRESIDENT

 

Appendix of evidence

Witness examined

 

For complainant: Nil                                                 For opposite parties:  Nil

 

Exhibits marked for Complainant:-

Ex.A-1:       Original Bond, dt.5.1.1998.

Ex.A-2:       Post Dated Cheque, dt.30.12.2007.

Ex.A-3:       Original Bond, dt.10.8.2000.

Exhibits marked for OP.No.4:-

 

Ex.B-1:    Xerox copy of letter, dt.7.11.2007.

 

By the Forum:

   

     - Nil -

 

PRESIDENT

 

Copy to:-

1. Sri N. Ravi Kumar, Advocate, Mahabubnagar for the complainant.
2. The Manager, Vijetha Agro Farms (I) Ltd., Near Venkateshwara Nursing Home, opp: Harahara Function Hall, Mahabubnagar.
3. The Managing Director, Vijetha Agro Farms (I) Ltd., H.No.12-12-84,  II nd  Floor, Old Club Road, Kothapet, Guntur-522 001.
4. D.K.M.Gupta, S/o Sri Narayana Gupta, Age 50 years, Occ: Director and   Ex-Chairman and Managing Director, Vijetha Agro Farms (I) Ltd., C/o Vijetha Telugu Daily Press Building, Microwave Tower, Cocani Road, Guntur.
5. C.H.Ramu @ C.H.Ramulu, S/o Not known, Age 40 years, Occ: Chairman and Managing Director, Vijetha Agro Farms (I) Ltd.,  R/o H.No.12-25-12, Vijetha Complex, Shivalayam Road, Kothapet, Guntur.