BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 9th July 2013
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMMON ORDER IN
COMPLAINT NOs. 373/2012 and
18 & 19/2013
CC:No.373/2012
(Admitted on 22.12.2012)
Shivaprasd @ Shivaprasad Gaonkar,
S/o Nirmala Gaonkar,
Aged about 27 years,
R/at C-2, Vidusha Nagar,
Dharmastala-574 216,
Belthangady Taluk,
D.K. District.
CC:Nos.18/2013
(Admitted on 19.1.2013)
1) Nirmala Gaonkar & Nayak,
W/o Mr.Gaonkar,
Aged about 49 years,
2) Shivaprasd @ Shivaprasad Gaonkar,
S/o Nirmala Gaonkar,
Aged about 27 years,
Both are R/at C-2,
Vidusha Nagar,
Dharmastala-574 216,
Belthangady Taluk,
D.K. District.
CC:No.19/2013
(Admitted on 19.1.2013)
Nirmala Gaonkar & Nayak,
W/o Mr.Gaonkar,
Aged about 49 years,
R/at C-2, Vidusha Nagar,
Dharmastala-574 216,
Belthangady Taluk,
D.K. District. …… COMPLAINANTS
(Advocate for the Complainants: Sri.SurajLal Shetty)
VERSUS
The Managing Director,
The Manipal Finance Corporation Limited,
Regd Office, Manipal House,
Manipal-576 119. ….OPPOSITE PARTY
(Advocate for the Opposite Party: Smt.Manjula N.A.)
* * * *
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY:
I. 1. The above complaints are filed by the Complainants under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Party i.e Manipal Finance Corporation Ltd., Represented by its Managing Director claiming certain reliefs. In order to save the time and for the sake of convenience the common order passed hereunder:-
The brief facts of the complaints are as under:
The Complainants stated that, the Opposite Party had branch office at Belthangady and the Complainants deposited certain sum of money under the Fixed Deposits as mentioned in detail herein below with the Opposite Party.
CC. No.373.2012 Complainant deposited the money as under:
Sl.No. | Date | Certificate No. and name | Deposited amount |
1. | 1.2.1999 | F.No.500021, C.No.006335 Debenture Certificate (10) | Each Rs.1,000 |
2. | 16.6.2000 | F.No.001667, C.No.016340 Debenture Certificate (10) | Each Rs.1,000 |
3. | 16.11.1999 | F.No.001561, C.No.006144 Debenture Certificate (12) | Each Rs.1,000 |
4. | 16.12.2001 | F.No.002232, C.No.024236 Debenture Certificate (10) | Each Rs.1,000 |
5. | 30.3.2001 | F.No.001628, C.No.009331 Debenture Certificate (10) | Each Rs.1,000 |
6 | 30.3.2001 | F.No.001628, C.No.009332 Debenture Certificate (1) | Each Rs.1,000 |
CC.No.18.2013 Complainant deposited the money as under:
Sl.No. | Date | Certificate No. and name | Deposited amount |
1. | 23.3.2001 | F.No.009928 C.No.058205 Share Certificate (100) | Each Rs.10.00 |
2. | 23.3.2001 | F.No.009928 C.No.058206 Share Certificate (100) | Each Rs.10.00 |
3. | 23.3.2001 | F.No.009928 C.No.058207 Share Certificate (100) | Each Rs.10.00 |
4. | 23.3.2001 | F.No.009928 C.No.058208 Share Certificate (100) | Each Rs.10.00 |
5. | 23.3.2001 | F.No.009928 C.No.058209 Share Certificate (100) | Each Rs.10.00 |
6 | 23.3.2001 | F.No.009928 C.No.058210 Share Certificate (100) | Each Rs.10.00 |
7 | 23.3.2001 | F.No.009928 C.No.058211 Share Certificate (100) | Each Rs.10.00 |
8 | 23.3.2001 | F.No.009928 C.No.058212 Share Certificate (100) | Each Rs.10.00 |
9 | 23.3.2001 | F.No.009928 C.No.058213 Share Certificate (100) | Each Rs.10.00 |
10 | 23.3.2001 | F.No.009928 C.No.058214 Share Certificate (100) | Each Rs.10.00 |
CC/No.19.2013The Complainant deposited the money as under:
Sl.No. | Date | Certificate No. and name | Deposited amount |
1. | 8.3.2002 | F.No.002292, C.No.036915 Shreyus Certificate (10) | Each Rs.1,000 |
2. | 8.3.2002 | F.No.002292, C.No.036916 Shreyus Certificate (5) | Each Rs.1,000 |
3. | 23.11.2001 | F.No.000317, C.No.017975 Shreyus Certificate (10) | Each Rs.1,000 |
4. | 16.6.2000 | F.No.000304, C.No.016339 Debenture Certificate (10) | Each Rs.1,000 |
5. | 16.11.1999 | F.No.001560, C.No.006143 Debenture Certificate (13) | Each Rs.1,000 |
It is stated that, the Opposite Party assured the Complainants that the amount will be paid on the date of maturity, but now almost several years have elapsed from the date of maturity of all the Fixed Deposits but the Opposite Party postponed the payment on one pretext or other assuring that the amount due will be paid with up-to date interest. But till this date the Opposite Party never bothered to fulfill the legitimate demand made by the Complainants hence the above complaints are filed along with application for condoning the delay, wherein the Complainants stated they have deposited hard earned money before the Opposite Party branch at Ujire, Belthangady, by believing the Opposite Parties representation that they are refunding the amount after maturity with interest. But the Opposite Party postpone the assurance of repayment of amount till this date. It is stated that, 1st week of December 2012 again the Complainants approached the Opposite Party branch office situated at Mangalore, but the Opposite Party postponed and assured of repayment. It is contended that, the non-refund of the above said amount till this date amounts to deficiency in service and filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay the amounts mentioned in the certificates with interest stated in it and also claimed compensation and cost of the proceedings.
II. 1. Version notice served to the Opposite Party by RPAD. Opposite Party in CC.No.373/2012 stated that, the complaints are barred by limitation and the complaint is not maintainable. It is further stated that the amount deposited / accepted by the Opposite Party under debenture bonds /shreyus certificates issued outside the territorial jurisdiction and thus this FORA has no jurisdiction to entertain the complaint. It is further stated that, the deposits repayable at maturity on a specific date, occasion to file suit is complete on the very date of maturity if payment is not made and denied the deficiency.
In CC.No.18/2013 it is contended that, the Complainants invested the amount under the Shares in the Opposite Party company in order gain profit and dividend hence the said transaction was commercial transaction and the complaint filed by the Complainant for recovery of share certificate do not fall within the purview of Consumer Protection Act 1986 and denied the deficiency and prayed for dismissal of the complaint.
In CC.NO.19/2013 it is stated that the complaint is barred by time and has no jurisdiction. It is further stated that the investments have matured seven years back and hence the complaint is barred by limitation and denied the deficiency prayed for dismissal of the complaint.
III. 1. In support of the above complaints, all the respective Complainants are examined as CW-1 and answered the interrogatories served on them and produced documents got marked under the ‘Ex.C’ series detailed in the annexure here below. Opposite Parties also examined and filed their counter affidavits and answered the interrogatories served on them and produced documents got marked under the ‘Ex R’ series detailed in the annexure herebelow.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether this Forum has territorial jurisdiction to entertain the complaint and the complaint filed by the Complainants are barred by limitation under Section 24A of the Consumer Protection Act?
- Whether the Complainants prove that the Opposite Party committed deficiency in service?
- If so, whether the complainants are entitled for the reliefs claimed?
- What order?
We have heard and perused the pleadings, documents and evidence placed on record by the respective parties and answer the points are as follows:
Point No.(i) : Affirmative.
Point No.(ii): Affirmative.
Points No.(iii) & (iv): As per the final order.
REASONS
IV. 1. POINT NO. (i):
As far as jurisdiction point is concerned we are of the opinion that though the head office of the Opposite Party finance is situated in Manipal which is outside the jurisdiction of this FORA but earlier the above said Opposite Party had branch offices in various places including a place called Belthangady. Since the Complainant deposited the amount before the branch office at Belthangady which within the jurisdiction of this FORA and hence the question of territorial jurisdiction does not arise and the point No.(i) held in favour of the complainants.
POINTS NO. (ii) to (iv):
The complainant in C.C.No.373/2012 and 19/2013 invested certain sum of money under the Shreyus Certificates and Debenture Certificates with the opposite party and the opposite party inturn issued the above said certificates mentioned in the respective complaints with the seal and signature of the Opposite Party finance. Those are mentioned in detail on annexure in Ex. ‘C’ Series. Under above said certificates the opposite party received certain sum of money mentioned in respective complaints and agreed to redeem along with interest at the rate of 10%, 10.5% and 12% on the date mentioned in the respective certificates. It is also admitted fact that, the complainant invested their amount under the above certificates and the opposite party in turn agreed to refund the above said amount along with the interest on the date of redemption. Further it is admitted fact that on the date of redemption the opposite party not refunded the amount to the complainants in both the bases.
Now the points are in dispute between the parties before this FORA is that, the complainants contended that, they have invested their hard earned money with the opposite party and the opposite Party in turn agreed to refund the amount along with interest on the date of maturity/redemption but failed to return/refund the amount on the date of maturity by giving one or the other reasons and also assured that they are going to repay the aforesaid amount within reasonable time. The complainants believed the opposite party that they are going to refund the amount and avoided all these years but there is no chance of refunding the amount so that both the complainants along with another complainant in C.C.No.18/2013 filed the above complaint under Section 12 of the Consumer Protection Act.
The Opposite party on the other hand contended that, the complaints are barred by time and this FORA has no territorial jurisdiction to entertain the complaint except the above points no other defence were taken by the opposite party in the above cases.
On perusal of the entire records, we are of the considered opinion that, in a case of like this nature reciprocal promises were enriched in the contract/certificate entered/issued between the parties, both the parties were obliged to perform in that ‘order’. No doubt the complainants invested certain sum of money as mentioned in the Debenture/Shreyus certificates with the opposite party and the opposite party in turn received the invested amount from the complainants and agreed to refund the aforesaid amount along with the interest on the date of maturity/redemption. When that being so, it is the obligation on the part of the opposite party finance Company to refund the amount on the date of maturity or within reasonable time because the complainants invested the money with the opposite party, inturn made use of the money in their financial trasaction for a particular period and agreed to refund the amount with interest. When that is so, it cannot be considered as a debt to be paid by the complainants. On the other hand, it is a debt to be paid by the opposite party to the complainants. Both the parties (under Section 52 of the Indian Contract) were bound by the terms of the agreement/certificate entered into/issued and signed by the parties. A unilateral decision to whittle down or modify the promises shall make the defaulting party accountable for rendering deficient service to the other party to the contract/promises. Similarly in the instant cases, the opposite party obliged to refund the amount on the date of maturity but it is not the case of the opposite party that they have offered the payment and the same has been refused by the complainants. On the other hand, it is seen on record that, the opposite party financial institution had financial problems and they could not honour the cash certificates issued to the consumers herein the Customers herein the Complainants but in fact in 2002, the Opposite Party moved for company petition and the scheme was framed etc etc. Naturally the opposite party financial institution persuaded the creditors in one way or the other that they are going to repay the amount and the creditors/certificate holders under good faith waited all these years appears to be convincing and credible. The opposite party financial institution should have atleaset offered to pay 60% of the original principal amount to the complainants as the same was observed in Revision Petitions by the Hon’ble National Commission. But in the instant case, no amount was offered or deposited before this authority as a gesture of goodwill and to establish it bona-fide. As we know, the investment of the money by the certificate holders are not a loan/debt availed by them. On the other hand we observed that, if a loan/ debt availed by the debtors from the Opposite Party company’s not paid or defaulted, these innocent cash certificate holders cannot be allowed to punished as there is no mistake on their part. Since the opposite party not paid the amount under the certificates till this date naturally the cause of action will continue till opposite party makes payment and hence the question of limitation does not arise in the above cases. When there is a continuous cause of action, the complaints filed by the consumers are maintainable under Consumer Protection Act 1986. Therefore, we are of the considered opinion that, the complaints filed by the complainants are not barred by time and citations relied by the opposite party the facts and circumstances of the case on hand is entirely different from the citations relied by the Opposite Party counsels and hence we have not considered in the above cases.
We further observed that, the complainants invested certain sum of money under the Shreyus and Debenture certificates and the opposite parties agreed to pay interest at the rate mentioned herein above but the opposite party inspite of issuance certificate and promised to refund the amount on the date of redemption mentioned in the above certificates are failed to perform their obligations amounts to deficiency in service as well as unfair trade practice.
By considering the above discussions, we hold that, on failure to pay the aforesaid amounts on the date of redemption/maturity till this date amounts to deficiency in service as well as unfair trade practice as stated supra. Therefore, the opposite party in both the cases directed to refund the entire amount along with contractual rate of interest from the date of deposit till the date of redemption/maturity and thereafter we considering the interest at 8% per annum from the date of redemption/maturity till the date or payment by considering the financial problem faced by the Opposite Party and further we directed the Opposite Party to pay Rs.2,000/- each towards cost of the litigation expenses.
In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.
As far as CC.No.18/2013 is concerned, we are of the considered opinion that, the complainant in the above case invested their money under Share certificates i.e. Ex.C1 to C10 produced before this authority clearly reveals that, the complainant had purchased shares having face value of Rs.10 each from Manipal Finance Corporation Private Limited under Share Certificates as mentioned supra. On perusal of the above said certificates, it is to be noted that, the complainant invested under Share certificates in order to gain profit so that the above transaction is a commercial transactions and for recovery of the share amount under the above said certificates do not fall within the purview of the Consumer Protection Act and the complainant is at liberty to approach redress his grievances before the appropriate authority. In view of the above reasons, the complaint filed by the complainant in CC.No.18/2013 is hereby dismissed. No order as to costs.
In the result, we pass the following:
ORDER
The complaints in C.C.No.373/2012 and 19/2013 are allowed. The Opposite party i.e. Manipal Finance Corporation Limited represented by its Managing Director in both the cases shall pay the entire amount mentioned in the Shreyus/Debenture Certificates along with contractual rate of interest from the date of deposit till the date of redemption/maturity to the complainant and thereafter shall pay interest at the rate of 8% per annum from the date of respective date of redemption till the date of payment. And also pay Rs.2,000/- (Rupees two thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
Further complaint in CC.No.18/2013 is hereby dismissed. No order as to cost.
The F.D.R., if any, deposited by the Complainant be returned fourth with by substituting the certified.
Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.
(Page No.1 to 13 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 9th July 2013.)
PRESIDENT MEMBER MEMBER
ANNEXURE
In CC:No. 373/2012
Witnesses examined on behalf of the Complainants:
CW1 – Sri.Shivaprasad & Shivaprasad Gaonkar.
Documents produced on behalf of the Complainants:
Ex C1 to C6: Fixed Deposit Receipts 6 in No’s
Witnesses examined on behalf of the Opposite Party:
RW-1: Mr.M.Narendra Pai
Documents produced on behalf of the Opposite Party:
- Nil -
In CC:No. 18/2013
Witnesses examined on behalf of the Complainants:
CW1 – Nirmala Gaonkar & Nayak.
Documents produced on behalf of the Complainant:
Ex C1 to C10: Share Certificates 10 in No’s
Witnesses examined on behalf of the Opposite Party:
RW-1: Mr.M.Narendra Pai
Documents produced on behalf of the Opposite Party:
Ex R1: General Power of Attorney.
In CC:No. 19/2013
Witnesses examined on behalf of the Complainant:
CW1 – Nirmala Gaonkar & Nayak.
Documents produced on behalf of the Complainant:
Ex C1 to C10: Fixed Deposit Receipts 10 in No’s
Witnesses examined on behalf of the Opposite Party:
RW-1: Mr.M.Narendra Pai
Documents produced on behalf of the Opposite Party:
- Nil -
Dated:09.07.2013 PRESIDENT
