State Consumer Disputes Redressal Commission
M/S. Rista Fisheries & Infrastructure ... vs Mrs. Gouri Biswas on 25 April, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/778/2018 ( Date of Filing : 10 Sep 2018 ) (Arisen out of Order Dated 27/07/2017 in Case No. Complaint Case No. CC/237/2017 of District Kolkata-III(South)) 1. M/s. Rista Fisheries & Infrastructure Ltd. & Others 282, Diamond Harbour Rd., Kolkata- 34, P.S. - Behala. 2. Sri Srimanta Chakraborty, Director, M/s. Rista Fisheries & Infrastructure Ltd. 282, Diamond Harbour Rd., Kolkata- 34, P.S. - Behala. 3. Sri Sudip Chandra, Director, M/s. Rista Fisheries & Infrastructure Ltd. 282, Diamond Harbour Rd., Kolkata- 34, P.S. - Behala. 4. Sri Anupam Sarkar, Director, M/s. Rista Fisheries & Infrastructure Ltd. 282, Diamond Harbour Rd., Kolkata- 34, P.S. - Behala. 5. Sri Saikat Mukherjee, Director, M/s. Rista Fisheries & Infrastructure Ltd. 282, Diamond Harbour Rd., Kolkata- 34, P.S. - Behala. ...........Appellant(s) Versus 1. Mrs. Gouri Biswas W/o Lt. Phanindra Nath Biswas, Vill. - Singha, P.O. - Dighalgram, P.S. - Haringhata, Dist. Nadia, Pin -741 257, W.B. ...........Respondent(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Mr. Trambak Ghosh, Mr. Prosenjit Roy, Advocate For the Respondent: Mr. Ramanuj Banerjee., Advocate Dated : 25 Apr 2019 Final Order / Judgement Order No. 6 date: 25-04-2019 Sri Shyamal Gupta, Member
This day is fixed for passing order in respect of the delay condonation petition of the Appellants.
The case of the Appellants, as stated in the delay condonation petition, is that, as notice was not properly served upon them, they could not defend their case before the Ld. District Forum. Due to this, Appeal could not be filed within the stipulated time causing such delay in preferring this Appeal.
We have heard both sides and gone through the documents on record.
As it appears, there is a delay of 377 days in filing this Appeal (excluding the statutory period of limitation). It appears from the order sheet that considering the remark contained in the postal track report, 'item delivery attempted Unclaimed' as good service, the Ld. District Forum went ahead to adjudicate the case. According to Collins dictionary 'unclaimed' means 'not having been claimed'. Going by such literal meaning of the word, in our considered opinion, the Ld. District Forum rightly treated it as good service.
Even if it is assumed for the sake of argument that notice of the complaint case was not served properly, it remains inexplicable, why they did not move the Appeal on receipt of notice of the Execution Case. It appears from the order sheet dated 04-12-2017 that notice in respect of the Execution Case was duly served upon the Appellants.
Further, it appears that the complaint case was filed over non-payment of interest as well as maturity sum in respect of the concerned certificates. It seems that the Appellants have not offered any justified ground for non-payment of the due sum to the Respondent, but only disputed the maintainability of the case contending inter alia that disputes related to share trading is not adjudicable before the Consumer Fora.
We, however, found no force into such contention. On going through the share certificate being issued by the Appellant Company, it is observed that, there was no mention of payment of monthly interest in respect of the shares of the company. Yet, the fact that the Appellants paid monthly interest to the Respondent, albeit for a brief period, it goes to show that there was something more to this than meets the eye.
The Appellants contended that in Morgan Stanley Mutual Fund v. Kartick Das, SCC (4) 225 1994, the Hon'ble Supreme Court observed thus, "share relating matter cannot deal under consumer forum". On thorough scrutiny of the said authority, we, however, do not come across any such observation as mentioned hereinabove. It is a fact that prospective investor does not become a consumer as defined under the Act. However, in this case, the share has already been allotted in favour of the Respondent. Thus, the case law cited in this respect has got no bearing in respect of the complainat case.
Similarly, the decision of Hon'ble National Commission in Vishwanidhi Dalmia v. India Infoline Commodities Ltd., 2017 (1) CPR 153 (NC) too cannot have any bearing in the instant case given that share trading and purchasing share cannot be equated under any circumstances.
The undisputed fact of this case is that the Appellants have not paid the legitimate due of the Respondent which is a clear act of gross deficiency in service on their part. Thus, we find that the instant Appeal is bereft of any merit also.
Be that as it may, in view of our above findings that Appellants intentionally did not strike while the iron was hot and more so, given that the inordinate delay is not properly explained, we are constrained to reject this petition. Consequent thereof, the Appeal stands dismissed being barred by limitation. [HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER