1) In brief consumer disputes is as under – that the Complainant is retired senior citizen. The Complainant’s wife Smt.Sushila Ramesh Desai expired intestate on 13/11/2003 at Mumbai. The Complainant has filed this compliant as a legal representative of late Smt.Sushila Ramesh Desai. The Opposite Party No.1 is a company registered under Company’s Act, 1956. The Opposite Party No.2 is a Managing Director of Opposite Party No.1 who is claiming to be de-facto owner of Opposite Party No.1. The Complainant’s daughter Manisha R.Shah is one of the Director of Opposite Party No.1 and for last few years there is dispute between the directors of the Opposite Party No.1.
 

2) The Complainant deposited with Opposite Party No.1 aggregate sum of Rs.3,00,000/- in the form of loan by Account Payee cheque for the interest @ 21 % p.a. from time to time as detailed below :-
 

          Date      Amount
 

1994- 1995 Rs.1,00,000/-
 

22/04/1995 Rs.   50,000/-
 

24/04/1995 Rs.   50,000/-
 

12/10/1995 Rs.   50,000/-
 

29/03/1996 Rs.   50,000/-  

                      ----------------  

          Total Rs.3,00,000/-

                     ----------------
 

3) It is submitted by the Complainant that Opposite Party have not issued deposit receipt which they were required to issue under Company’s Act, 1956 and as such, they are guilty of unfair trade practice. However, by T.D.S. Certificate for income tax purpose dated 30/04/2002 and 30/04/2003 the Opposite Party has confirmed, acknowledged and admitted the receipt of aforesaid amount and admitted the payment of interest.
 

4) It is submitted that the Opposite Party deducted income tax at source from the amount of interest paid on the deposit and issued Form No.16-A i.e. T.D.S. Certificate. The Complainant had submitted original T.D.S. Certificate alongwith its income tax return but retained xerox copies on some of such T.D.S. Certificate which are produced alongwith complaint.
 

5) It is submitted that Opposite Party No.1 being Private Ltd. company is governed by The Companies (Acceptance of Deposit) Rules 1975 and cannot retain the deposit for more than 3 years in absence of contract and required to refund the same. Without prejudice, it is submitted that in the absence of contract as to period of deposit, the deposit is repayable on demand but it cannot be perpetual. The Opposite Parties have continued to pay interest on deposit but they have reduced the rate of interest from time to time. The Complainant has given particulars rate of interest from 21 % p.a. to 12 % p.a. paid by the Opposite Party during the period from 1994 till 30/09/2003 in complaint para no.6.
 

6) It is submitted by the Complainant that the Complainant by letter to the Managing Directors of the Opposite Party No.1 and thereby requested to refund the said deposit alongwith interest. However, Opposite Party have failed and neglected to refund the said deposit but continued to pay interest as stated above. The Complainant ultimately by her Advocate’s notice dated 03/04/2002 called upon Opposite Party to repay the said deposit amount with interest within 21 days from the date of receipt of said notice. The Opposite Parties through advocate sent reply dated 15/05/2002 and thereby admitted and acknowledged the receipt of deposit amount of Rs.3,00,000/- for the interest in the year 1995 and also admitted initial rate of interest @ 21 % p.a. which they ultimately reduced as per alleged market condition. However, Opposite Parties made false allegations that the Complainant has agreed for reduced rate of interest by accepting the interest cheques. In the said letter, it is further alleged that the Complainant was making demand at the instance of Manisha R.Shah who has filed petition u/s397 and 398 under Company’s Act against Opposite Parties before Company Law Board, New Delhi. In the letter dated 15/05/2002 the Opposite Parties have further dishonestly denied that the deposit has not matured without pointing out the date of maturity.
 

        It is submitted due to the deficiency in service and unfair trade practice on the part of Opposite Parties late Smt.Sushila Desai suffered heavy mental tension which resulted into her untimely death.
 

7) The Complainant by letter dated 20/07/2002 made complaint to the Opposite Party as regards their deficiency in service by not repaying the deposited amount even after date of maturity. The Complainant pointed out to the Opposite Party that due to the failure to send TDS Certificate, the Complainant is not able to file income tax return in time. It is alleged that Opposite Party has failed and neglected to render proper and efficient service in repayment of matured deposit despite the demand notice. Therefore, the Complainant by her advocates notice dated 14/09/2002 called upon Opposite Party to repay deposit within 21 days. Opposite Party through their advocates letter dated 23/10/2002 once again confirmed and acknowledged the liability to repay the said deposit of Rs.3,00,000/-.
 

8) The Complainant had made an application u/s.58A(9) of the Company’s Act, 1956 to the Company Law Board at Western Region Branch, Mumbai on 23/01/2003. In the said proceeding Opposite Parties have challenged the jurisdiction of Company Law Board i.e. CLB as well as maintainability of the said complaint and ultimately C.L.B. dismissed the said complaint by order dated 21/12/2004. The Complainant had also filed Petition No.283/04 u/s.434 and 439 of the Company’s Act, 1956 against Opposite Party No.1 before Hon’ble Hight Court, Bombay and the said petition was disposed off by an order dated 11/03/2005 observing that winding up decision cannot be entertained.
 

9) It is the case of the Complainant that Opposite Party have not paid interest to the Complainant from 01/10/2003 onward till date. There has been serious dispute amongst the directors of Opposite Party No.1 which is likely to be affect the existence of Opposite Party No.1 and the Complainant has also reliably learnt that Opposite Party No.2 is making preferential payment to the depositors/creditors who are directly connected to his group and refusing to make payment to the Complainant and others. In such circumstances, the Complainant apprehend that her money are not safe in the hands of Opposite Party and there is possibility of transfer of assets by the Opposite Party with a view to deprive its depositors/creditors. Therefore, the Complainant has filed this complaint and has prayed to declare that Opposite Parties to be guilty of deficient in service and of unfair trade practice. The Complainant has requested to direct Opposite Party to pay jointly and severely to the Complainant the deposit amount of Rs.3,00,000/- together with interest @ 21 % p.a. from 01/10/2003 till realization of entire amount. The Complainant has also prayed for Rs.16,86,987/- as a compensation and cost of this proceeding.
 

10) The Opposite Party No.1 & 2 have filed their common written statement and thereby resisted claim of the Complainant contending interalia that Complaint does not disclose cause of action and this Forum does have jurisdiction to entertain and try this complaint. It is contended that Complainant is not a consumer as defined u/s.2(d) of Consumer Protection Act, 1986. The amount of Rs.3,00,000/- advanced by the Complainant is not by way fix deposit but is a unsecured loan advance to the Opposite Party No.1. The Opposite Party No.1 has not at any time invited or caused to be invited deposit from public or from the Complainant. Opposite Party No.1 is a Private Ltd. Company carrying on business and manufacturing and exporting dies and pigments. The Opposite Party No.1 is a small scale unit whose share are closely held by the family members of Dharod Shah and Dey families only. The Complainant is a relative/friend of Manisha R.Shah who is 28 % Shareholder in Opposite Party No.1 and is also promoter director. Manisha R.Shah has started baseless dispute with other directors of Opposite Party No.1 since the year 2001. The Complainant filed before this Forum is one more attempt to withdraw the working finances of the Opposite Party No.1 so that Opposite Party is unable to function effectively.
 

11) It is contention of the Opposite Parties that by letter dated 25/11/94 the Maharashtra State Financial Corporation as a pre-condition to the disbursement of loan to Opposite Party No.1 stipulated interalia that all the directors shall undertake to arrange for such additional funds, byway of unsecured loan to cover any shortfall that may arise in financial project and for working capital. The Opposite Party brought grants from time to time from the Maharashtra Financial Corporation as per the understanding between the parties. However, as a result of dispute that have arisen between Manisha R.Shah and Opposite Party No.1 and its directors said Manisha R.Shah herself and her relatives and friends are attempting to withdraw the said finance.
 

12) It is the case of the Opposite Party that the Complainant has given to the Opposite Party an unsecured loan as per the understanding as stated hereinabove. The Complainant had filed a complaint against Opposite Party No.1 for return of unsecured loan to the Company Law Board and after hearing the parties the Company Law Board by its order dated 21/12/09 dismissed the complaint against Opposite Party No.1 as not maintainable having found that money is accepted by Opposite Party No.1 from the Complainant were not deposit.
 

13) The Complainant in the letter dated 15/12/2001 addressed to Opposite Party No.2 alleged that the loan has matured for repayment on 30/09/2001 pursuant to alleged oral representation made by Opposite Party No.2. In the letter dated 03/04/2002 Complainants advocate has not mentioned the date of repayment. As per Opposite Party, the Complainant is well aware that the unsecured loan is not due for payment. The said amount of Rs.3,00,000/- is not a deposit as contemplated u/s.58A of Company’s Act. The Complainant has filed this complaint only with the intention of pressurize the Opposite Party and its an abuse of process of law.
 

14) On 08/03/2004 the Complainant had filed Winding up Petition No.283/2004 against Opposite Party Company before Hon’ble Bombay High Court in respect of the said unsecured note. By order dated 11/03/2005 the Hon’ble Bombay High Court dismissed above said Winding up petition. In the said proceeding Petitioner’s Advocate had candidly admitted that “through Mrs.Manish Shah that the amount of loan was lent and advanced by the Petitioner to the company”.
 

15) In order to harass the Opposite Party, Manisha Shah and her friends wrote several letters to various authorities against the Opposite Party. In written statement paragraph no.3 and 4 Opposite Parties have given details of the aforesaid letters written to the various authorities. It is submitted that Manisha Shah and her relative had filed complaint against son of Opposite Party No.2 who is Director of Opposite Party No.1. In the said complaint additional CMM has observed that there was no substance in the submission of the I.O in remand application. Revision Application filed by the said against the said order dated 03/12/2002 was dismissed by the Additional Session Judge. The Complainant has now filed this complaint before this Forum which is vague and devoid of merits. Opposite Parties have denied allegations made in the complaint and submitted that the Complaint is bared by law of limitation and deserved to be dismissed with cost.
 

16) Alongwith complainant, Complainant has filed documents as per list of document. The Opposite Party has also produced copies of documents at Exhibit-‘A-P’ alongwith written statement. The Complainant has also produced proof of documents alongwith list dated 02/06/05. The Complainant has filed affidavit alongwith complaint. The Complainant has filed application for interim relief dated 30/03/2005 and another application for interim relief dated 24/11/2005. The Opposite Party filed affidavit-in-reply to the aforesaid application for interim relief. On 19/12/2006 this Forum ha passed order that interim relief application is to be heard alongwith main complaint. The Complainant has filed written argument as well as Opposite Parties have filed their common written argument. Other 8 Complainants have filed similar complaints against the Opposite Parties.
 

Opposite Party has produced copies of order of C.L.B. dated 24/01/2005 passed in the matter of Companies Act, U/s.397/398 and in CP No.2 of 2002 and CP No.137 of 2004 Order of C.L.B. dated 15/10/2004 in the matter of Company’s Act, 1956 section 58-A(9) in company’s application no.1041, 2472, 2474 And 2476/2003 filed by Complainant and others against the Opposite Party No.1. Order of Hon’ble Justice S.U.Kamdar dated 11/03/2005 passed in Companies Petition No.283/2004. Decision of Hon’ble N.C.D.R.C., New Delhi I (2006) CPJ 163 (NC), etc.
 

17) Heard oral submissions made by the Ld. Advocate, Mr.U.B.Wavikar for the Complainant and Ld.Advocate, Mr.S.B.Prabhavalkar i/b Mulla Craigie Blunt & Caroe for the Opposite Parties.
 

18) It is the case of the Complainant that the Complainant has deposited amount mentioned in the complaint with Opposite Party No.1 but Opposite Party No.1 has not issued deposit receipt for the same. However, the Opposite Parties have acknowledged and admitted the amount deposited by the Complainant by paying interest on the deposit amount and Opposite Party have also issued for TDS Certificate for the Tax Deducted on the interest on deposit. Ld. Advocate Mr.U.B.Wavikar for the Complainant has submitted that the Opposite Party No.1 is the Private Ltd. Co. governed by the Companies (Acceptance of Deposit) Rules, 1975 cannot retain deposit for more than 3 years in the absence of the contract and Opposite Parties are under legal obligation to refund deposit to the Complainant on demand. However, in the instance case inspite of repeated demand made by the Complainant the Opposite Party have failed and neglected to refund the deposit of the Complainant. There is dispute amongst the Directors of Opposite Party No.1 and Opposite Party No.2 is making repayment of the deposits of the depositors of his group and he has deliberately avoided to refund the deposit amount of the Complainants. It is submitted on behalf of Complainant that initially the Opposite Party has agreed to pay interest at higher rate i.e. upto 21 % in some case and at 15 % in some cases. However, subsequently the Opposite Parties have unilaterally and arbitrarily reduced the rate of interest. The Opposite Parties have not paid interest from 01/10/2003.
 

19) It is submitted that the Complainant had made an application under section 58A(9) of the Companies Act, 1956 to the Company Law Board at Western Regional Bench, Mumbai, on the ground of non payment on deposits, however, C.L.B. by its order dated 21/12/2002 dismissed the application holding that the applicants have failed to prove that money was accepted by the Opposite Parties as deposit for the purpose of section 58A(9). Therefore, Complainants have filed this complaint before this Consumer Forum. Ld. Advocate for the Complainant has relied upon the following decisions reported in -
 

1) 2007 CTJ 821 (CP) (NCDRC),  

2) 2006 NCJ 714 (NC),  

3) I (2001) CPJ 230,  

4) 2006 NCJ 714 (NC),  

5) I (2006) CPJ 163 (NC),  

6) III (1999) CPJ 33 (SC) etc.
 

20) Ld. Advocate for the Opposite Parties as submitted that amount mentioned in the complaint is received by the Opposite Party No.1 but the said amount is brought to Opposite Party No.1 by one of the Directors Smt.Manisha Shah and the amount is not deposit but it is a unsecured loan. Complainant claim is for recovery of unsecured loan amount and therefore, present the Complaint is not maintainable under the provision of Consumer Protection Act, 1986. The Ld. Advocate Mr.Prabhavalkar has submitted that the Complainant had already approached Company Law Board for refund of amount by filing complaint against the Opposite Party. The said complaint applications were heard by C.L.B. and C.L.B. has dismissed the complaint applications by order dated 21/12/2002 holding that the amount in-question is not deposit but it is unsecured loan. It is submitted that as the Complainants have already availed remedy available to them by filing application before C.L.B., present complaint is not maintainable. In support of his contention Ld.Advocate for the Opposite Party has replied upon decision of Hon’ble National Commission in the matter of Lloyds Finance Ltd. V/s. Ms.Napeena Singh, I (2006) C.P.J. 163 (NC). Point of maintainability of the complaint raised by the Opposite Party goes to the root of the matter and therefore, following points arises for our consideration and our findings thereon are as under - 

Finding of Point No.1 :-  

       It is admitted fact that Opposite Party No.1- M/s.Vardhaman Dyestuff Industries Pvt.Ltd., is a Private Ltd. Company and it is registered under the Companies Act, 1956. The Opposite Party No.2 is a Managing Director of Opposite Party No.1. As per the Complainant, Complainant has deposited an amount of Rs.1,00,000/- by Account Payee Cheque in the month of January, 1998 for the interest @ 18 % with Opposite Party No.1. It is submitted on behalf of Complainant that Opposite Party No.1 has not issued deposit receipt for the same and thereby Opposite Parties have committed unfair trade practice. However, the Opposite Parties have paid interest on the deposit deducted income tax on the interest accrued at the deposit and have issued T.D.S. Certificate to the Complainant. In support of his contention Ld.Advocate has referred copies of T.D.S. Certificate produced alongwith complaint. It is submitted that as per provisions of the Companies (Acceptance of Deposit) Rules, 1975 Opposite Parties are not entitled to retain deposits for more than 3 years in the absence of contract to the contrary. By referring to the decision reported in the 2007 CPJ 821 CP (NCDRC), it is submitted that a person depositing money with the company or a firm for carrying attractive rate of interest on that deposit is a consumer of the service of paying interest to him by the company. It is submitted that in this case, initially the Opposite Party agreed and paid interest at higher rate and subsequently arbitrarily reduced rate of interest. From time to time the Complainant had requested to the Opposite Party to refund deposited amount. Opposite Party was bound to refund the amount on demand. However, Opposite Party have neither refunded the deposit amount nor paid interest to the Complainant from 01/10/2003. Inspite of repeated demands and advocate’s notice the Opposite Parties have failed to refund the deposit amount. Therefore the Complainant filed application under section 58-A(9) of the Companies Act, 1956 before Company Law Board, Western Rezone Branch at Mumbai. Complainant’s aforesaid application was dismissed by Ld. Member of C.L.B. by his order dated 15/10/2004. It is submitted that aforesaid application was dismissed by the C.L.B. holding that “the amount accepted by the company in the present case cannot amount to deposit for the purpose of section 58-A(9).” It is further held that the “C.L.B. can exercise powers of vested in section 58-A(9), only when a company fails to repay any deposit.”
 

         According to the Ld.Advocate of the Complainant, remedy under section 3 of Consumer Protection Act provided to the consumer is alternate remedy and the Complainant as a consumer has filed this complaint and the present complaint is maintainable.
 

         Ld. Advocate, Mr.Wavikar for the Complainant has referred to the Companies (Acceptance of Deposits) Rules 1975 and pointed out definition of deposit given in Rule 2(b) which is as under –
 

“Deposit” means any deposit of money which includes any amount barrowed by company. Further he has referred to sub clause (XI) of Rule 2 and submitted that an amount brought in by the promoter byway of unsecured loans in pursuance of stipulations of financial institutions is a deposit subject to certain conditions. It is submitted that the amount mentioned in the complaint is deposit and the deposit is repayable on demand and it cannot be perpetual. Ld. Advocate has relied upon the decision of Hon’ble National Commission as held in the of Neela Raje V/s. Amogh Industries & Another and Mrs.Anita Ahuja V/s. Banwarilalr Arora and Otheres.
 

To support of his contention that inspite of filing complaint before C.L.B. present complaint is maintainable Ld. Advocate for the Complainant has relied upon the decision of Hon’ble Andhra Pradesh High Court, reported in I (2001) CPJ 230. In the aforesaid decision Hon’ble High Court has considered point as to whether provision of Company’s Act and R.B.I. Act impliedly oust jurisdiction of Consumer Forum to entertain an application by the depositor for refund of the deposit. After examining provisions of the Companies Act and Section 45-Q and 45-QA of the R.B.I.Act, the Hon’ble High Court has held that “A plain reading of the above provisions shows that there is no explicit exclusion of jurisdiction of Consumer Forum for entertaining consumer disputes at the behest of a depositor seeking repayment of his deposit from an NBFC.”
 

Ld. Advocate Mr.Prabhavalkar for Opposite Party has submitted that the amount mentioned in the compliant is not a deposit but it is unsecured loan. Opposite Party No.1 never invited deposits from general public or from Complainant. Opposite Party No.1 had applied financial assistance to Maharashtra Financial Corporation and as a precondition to the disbursement of a loan to Opposite Party No.1 MSFC stipulated that all the Directors shall undertake to arrange for such an additional funds byway of unsecured loan to cover any shortfall that may arise in financing the project and for working capital. Manisha R. Shah, one of the Director of Opposite Party No.1, herself and through her relatives and friends brought unsecured loan. If the Complainant had given amount as fixed deposit, Complainant must have obtained fix deposit receipt for the same. Admittedly, in this case Opposite Party No.1 has not issued fix deposit receipt to the Complainant. It is submitted that unsecured loan is not matured so, it is not refunded by the Opposite Party. The Complainant had made an application under Section 58-A(9) of the companies Act for repayment of the so-called deposits alongwith interest before C.L.B. Application made by present Complainant and applications of the other Complainants were heard together in which the question as to whether the amount given to Opposite Party No.1 are deposits or a unsecured loan is decided by the Company Law Board. The Company Law Board has dismissed the applications observing that “The confirmation letter given by the Company for income tax purposes and countersigned by some of the applicants (CA 1041 and 2472/2003) confirm that monies were lent by the applicant by way of unsecured loan and not deposit. Moreover, the amounts accepted by the Company from the applicants are reflected in the balance sheet of the Company for the years from 1995-96 to 1998-99 under the head unsecured loans. Though deposit includes any amount borrowed by the Rules are satisfied. In this connection, beneficial reference is invited to the decision in V.E.A.Annamalai Chettiar V/s. S.V.V.S.Veerappa Chetaiar – AIR 1956 SC 12. In view of the foregoing discussion, it is beyond doubt that the monies accepted by the Company from the applicants are not in consonance with the Deposits Rules and therefore the amounts accepted by the Company in the present case cannot amount to deposits for the purpose of section 58-A. Having found that the applicants failed to establish the fact that either monies were actually accepted by the Company as deposits or deposit receipts were issued, there is no need to go into rest of the contentions of either of the parties. The decisions cited in support of the applicants do not go to their aid in view of the fact that in those cases the company had issued deposit receipts and failed to honour its commitments to the depositors upon which the company was directed to repay the matured deposits in accordance with the terms and conditions visible from the deposit receipts. In the present case, the requirements of the Deposits Rules are not found to be satisfied, while accepting the amounts from the applicants by the Company. The C.L.B. can exercise the powers vested in section 58A(9), only when a company fails to repay any deposit (emphasis supplied) as held in a number of decisions cited supra. For these reasons the claim of the applicants shall not be lie under section 58A and therefore their claim must fail. Accordingly these applications are dismissed.
 

It is submitted that as per the provision of section 45-QA of RBI Act Company Law Board has power to order repayment of deposits. Present Complainant had made an application under Section 58A(9) of the Companies Act to the Company Law Board Western Regional Bench at Mumbai for refund of deposit with interest and Complainants applications are dismissed. As such, the Complainant has already availed remedy which was available under the Companies Act 1956 and R.B.I. Act. Remedy provided under Section 3 of the Consumer Protection Act is alternative remedy and not in derogation of provision of any of the law for the time being enforce. In the instance case as the Complainants have already availed remedy under the provision of Companies Act and R.B.I. Act, they are not entitled to file present complaint under the provision of Consumer Protection Act. It is submitted that remedy of appeal against order of C.L.B. was available to the Complainant but instead of filing appeal, the Complainants have filed this complaint before this Forum which is not maintainable. This Forum cannot set aside decision of the C.L.B. as a Appellate Court. In support of his contention, Ld. Advocate has relied upon the decision of Hon’ble NCDRF, New Delhi in Lloyds Finance Ltd. V/s. Ms.Napeena Singh reported in I (2006) CPJ 163 (NC). It is pointed out that above said decision is delivered by larger bench consisting Hon’ble Mr.Justice D.P. Wadhawa, President; Mr.Justice J.K.Mehra, Mrs.Rajjalakshmi Rao & Mr.B.K.Taimni, Members. In the aforesaid judgement it is held that “What requirement is law is that a depositor may either approach the Compnay Law Board under Section 45QA or file a complaint under the Consumer Protection Act before the appropriate Forum. A depositor cannot certainly choose both the remedies simultaneously and once he files an application under Section 45QA of the R.B.I. Act before the Company Law Board, he cannot file a complaint in a Consumer Forum under the Consumer Protection Act.
 

Ld. Advocate for the Opposite Party has submitted that decision of Hon’ble National Commission reported in (2006) NCJ 714 (NC) relied upon by the Complainant is not applicable to the present case as the facts of the present case are altogether different.
 

Opposite Party No.1 is a Private Ltd. Company. As mentioned above, as per the Complainant the amount which the Complainant had given to the Opposite Party No.1 is a deposit. On the contrary, according to the Opposite Parties it is unsecured loan amount. It is admitted fact that the present complainant had filed an application under Section 58-A(9) of the Companies Act before Company Law Board in which similar contentions were raised by the both parties. C.L.B. after hearing submissions of both the parties have held that the amount accepted by the Opposite Party No.1 is unsecured loan and it is not deposit. Therefore, C.L.B. has dismissed the applications. The Complainant has not preferred appeal against the aforesaid order dated 15/10/04 of the C.L.B. In view of decision of the Hon’ble National Commission, New Delhi, in Lloyds Finance Ltd. V/s. Ms.Napeena Singh reported in I (2006) CPJ 163 (NC) “a Depositor cannot certainly choose both the remedy simultaneous once he files an application under Section 45-QA of R.B.I. Act, before Company Law Board, he cannot file a complaint in a Consumer Forum under Consumer Protection Act.” Therefore, present complaint is not maintainable. Hence, we answer point no.1 in the negative.
 

Finding of Point No.2 :-
 

As present complaint is not maintainable under the Consumer Protection Act, 1986 the Complainant is not entitled to any relief from the Opposite Parties. The complaint deserves to be dismissed. Hence, we pass the following order -
 

                                    O RD E R
 

i.Complaint no.62/2004 is dismissed with cost.