State Consumer Disputes Redressal Commission
Sheela R. Bhatia vs Godrej Industries Ltd. on 4 August, 2010
IN THE STATE COMMISSION : DELHI
IN
THE STATE COMMISSION : DELHI
(Appeal
against the order dated 08.02.2009 passed by District Forum (North District )
in complaint case no 1117/2006)
Date
of Decision : 04.08.2010
Appeal
No. FA-10/247
Sheela R. Bhatia,
17/13, Old Rajinder Nagar,
New Delhi-110060.
.. Appellant/Complainant.
VS
Godrej Industries Ltd.,
4/1,
4th floor, Delite Theatre Building,
Asaf Ali Road, New Delhi-02.
..Respondents/OPs.
CORAM
Justice B.A. Zaidi,
President
M.L. Sahni,
Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
M.L. Sahni, Member(Judicial)
1. The complainant through her General Power of Attorney Shri Ashok Kriplani has come in appeal against order dated 08.02.2009 of the District Forum Tis Hazari, Delhi whereby the complaint Case No. 1117/06 filed by G.P.A. on behalf of complainant had been dismissed on merits as well as on the ground of maintainability holding that complaint was not maintainable on account of having filed by G.P.A. and that District Forum lacked Territorial jurisdiction to entertain the complaint.
2. Case of the appellant, briefly stated, is that Smt. Sheela R. Bhatia being small time NRI investor, residing in USA had been investing in India through her brother and G.P.A. Shri Ashok Kriplani, who in the year 2003 found that the shares of the complainant in the Respondent Group of Companies have been lost/misplaced, and, therefore, Shri Ashok Kriplani applied for the issuance of the duplicate shares of the respondent/OP company.
3. It is alleged that during inter-action with the Registrar of the Respondent Company, Shri Kriplani came to know that the shares were bought by the Respondent Company under a scheme approved by the Bombay High Court in 2002 by committing fraud and that the shares of the complainant had come into existence only after year 2003, when Shri Kriplani sent a surrender letter on behalf of complainant on 24.11.2003. It is further alleged that in the absence of RBI permission to purchase/extinguish NRI shares of the complainant, the respondent company concealed this fact and played fraud and thus put sale consideration of the shares of the appellant in repartriable NRI account without RBI permission.
4. It is further stated that within a week, Shri Kriplani on behalf of complainant had applied for shares of one GGICL which was taken- over or merged with Godrej Soaps Ltd which again split the shares in the year 2001 into one GCPL and the respondent company called as GIL. The appellants contention is that since the complainant had not surrendered her shares of GSL of GIL share in her favour never came into existence till year 2003 when Shri Kriplani submitted surrender letter.
5. For the redressal of the grievances of the complainant, the GPA filed complaint before District Forum alleging that the respondent have indulged in unfair trade practice by playing fraud on the complainant as well as by getting approved the scheme whereby the shares of the complainant were purchased at minimal price of Rs. 6/- as against the face value of Rs. 16/- per share.
6. The appellant has assailed the order of the District Forum on variety of grounds, stating, inter-alia, that the Ld. District Forum has erred in holding that the GPA was not entitled to maintain consumer complaint on behalf of complainant on the strength of GPA. In this regard rule 14 of order 40 of C.P.C. and section 188 of Contract Act are referred to. These respectively provide as follows:-
Order 40 to Rule 14- Every pleading shall be singed by the party and his pleader, if any :
Provided that where a party pleading is, by reason of absence or for other good cause; unable to sign the pleading, it may be singed by any person duly authorized by him to sign the same or to sue or defend on his behalf (Civil Procedure Code) Section 188 An agent , having an authority to do an act, has authority to do every lawful thing which is necessary in order to do such act.
An agent having an authority to carry on a business, has authority to do every lawful thing necessary for the purpose, or usually done in the course of conducting such business.
7. Relying upon some case law, it is contended that being the GPA of the complainant, appellant was fully entitled to sign, verify the complaint before the District Forum.
8. It is further reiterated that Form TS-I was required to be filed before the RBI by the respondent and not by the GPA of the complainant as has been wrongly observed in under the impugned order. He contended that respondent since did not take RBI permission as per their documents, that the scheme of arrangement and approval of the scheme obtained from the Bombay High Court was not effective and that subsequent orders in appeal and SLP of the High Court and Supreme Court in that matter were also non-est ; that in view of the law as laid down in AIR 1994 SC 853 (S.P. Chengalvaraya Naidu (dead) by L.Rs Vs Jagannath (dead) by L.R.s & Ors. , District Forum should have declined to rely upon those judgments while holding that District Forum could not set aside the judgment of the High Court or Supreme Court vide which scheme of arrangement of purchase of shares was approved.
9. Another contention raised in the appeal is that Ld. District Forum has wrongly held that complaint was not maintainable in Delhi because Head office of the respondent company was in Mumbai. It is further stated that case law cited by the District Forum in this regard was wrongly interpreted and the same is not applicable in the case of appellant, alleging that the respondent company had been maintaining their full fledged branch office in Delhi, and therefore, they come under purview of section 11(2)(a) of the Consumer Protection Act, which provides that A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,-
a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carried on business or has a branch office or personally works for gain, or
b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carried on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside , or carry on business or have a branch office, or personally work for gain , as the case may be , acquiesce in such institution ; or
c) the cause of action, wholly or in part , arises.
10. We have heard Shri Ashok Kriplani, AR of the complainant in person at the admission stage and have carefully gone through the impugned order. We have also thoughtfully examined the contentions raised in the appeal by the appellant as briefly discussed above.
11. Though we find some force in the arguments of the appellant that the complaint could have been maintained under the Consumer Protection Act in Delhi where the respondent are having their branch office in view of section 11(2)(a) of the Act, yet, we fail to find any merit in the contention that District Forum or this Commission could go against the final decision taken by the higher courts simply on the allegations that those orders were obtained by playing fraud by the respondent company. The allegations of fraud cannot be established in the summary proceedings before the Consumer Forums. It is admitted case of the appellant himself that GPA has already initiated criminal complaint against the respondent. Until and unless the factum of fraud is established, no court or Tribunal can ignore the judgments of the courts of law , especially, when the matter has gone to the Apex Court, whose decision has attained finality. Reliance on the case law as cited by the appellant in the case is of no help to the Appellant, till alleged fraud is proved in a court of competent jurisdiction.
11. For the application of law as laid down in Chengalvaraya Naidu (dead) by L.Rs Vs Jagannath (dead) by L.R.s & Ors. Supra, the appellant is required to prove first that judgment and decree of the Bombay High Court or the Supreme Court had been obtained by the respondent by playing fraud , which is not possible to be enqired into or investigated or tried by Consumer Forums. From bare perusal of the impugned order, in the light of the facts as are submitted by the Appellant, we find no reason to differ with the decision taken by the District Forum in this matter.
12. We find the observations of the Ld. District Forum in this regard to be well reasoned in rejecting the contention of the AR of the complainant holding that the SEBI challenged the scheme of approval, amalgamation of shares before Bombay High Court and the same was declined against which SLP was filed in Honble Supreme Court by the respondent, who put its seal on the decision of the High Court.
13. Pleas of maintaining the complaint filed by GPA applying provisions of the C.P.C. and the Contract Act is also of no avail to the complainant in the light of following observation as recorded in the impugned order :
In the present case the complaint is not filed by the complainant but is filed by the Attorney in the name of the complainant and the Attorney has no power to file the complaint. There is no power given to Shri Ashok Kriplani to file and sign the complaint before any Forum or in Court Even as per RBI guidelines , NRIs are required to submit application in the form of TS-1 to the RBI for sale of shares in the ventures by private arrangements. No such form nor any rule has been filed on record.. Thus the complaint itself is not maintainable on the face of it on this short ground.
14. We fully agree with this finding recorded by the Ld. District Forum in the impugned order and therefore we see no reason to set aside the impugned order as asked for by the Appellant. It is well-reasoned and require no interference. The appeal is, accordingly, dismissed in limine at the admission stage itself.
15. FDR, if any , deposited by the appellant be released after completing due formalities.
16. Copy of this order be provided to the parties free of cost and a copy of this order be also sent to concerned District Forum and thereafter, file be consigned to record room.
(Justice B.A. Zaidi) President (M.L. Sahni) Member sk