State Consumer Disputes Redressal Commission
Abhijit Dhiren Zaveri vs Karvy Computershare Pvt Ltd on 10 February, 2023
Details DD MM YY
Date of disposal 10 02 2023
Date of filing 11 04 2019
Duration 30 09 03
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
OF
GUJARAT AT STATE AHMEDABAD
COURT NO: 02
COMPLAINT NO:59/2019
1. Abhijit Dhiren Zaveri
2. Dhiren Pannalal Zaveri
Both residing at:
"Balram", 6, Maitripath Society,
Next to Standard Chartered Bank,
Nr. Mithakhali Cross Road,
Ahmedabad- 380006. ...Appellants
V/s
1. Karvy Computer Share Pvt. Ltd.
Add. : 201/202, Shail,
Opp. Madhusudan House,
Navrangpura,
Ahmedabad- 380006.
2. Kotak Mahindra Bank Ltd.
27 BKC, C-27, G-Block,
Bandra-Kurla complex,
Bandra (E), Mumabai-400051. ...Opponent
Akshay CC/59/19 Page |1
APPERANCE: For the Complainant, Ld. Advocate Mr. V. M. Pancholi
For the Opponent, Ld. Advocate Mr. H. P. Motiramani
BEFORE: Mr. M. J. Mehta, Judicial Member,
Ms. P. R. Shah, Member.
ORDER BY Mr. M. J. MEHTA, JUDICIAL MEMBER.
1. The present complaint has been filed by the complainant alleging deficiency in service and unfair trade practice by the Opponents.
2. Brief facts of the complaint are as under:
Opponent No.1 is the company registered under the Companies Act, 1956 and involved in the business of providing service to their customer, more particularly working as share transfer agent of different companies. Opponent no.2 is joined in the complaint being necessary and proper party as the complainants are share holders of opponent no.2.
3. Complainant has stated that complainants are joint share holders of 100 shares of Kotak Mahindra Bank Ltd., having registered folio no. KMF08133. Complainants are holding the above shares since long. The Kotak Mahindra Bank has declared bonus shares time to time and the share holding of the complainants at present is 4,000 shares.
Akshay CC/59/19 Page |2
4. Complainants submitted that they have received letter from Kotak Mahindra Bank Ltd. informing the complainant about the unclaimed dividend for the above mentioned 4,000 shares of the complainant. Kotak Mahindra Bank has informed the complainant that complainants have not encashed the dividend between 2009-10 to 2015-16. Thus it is crystal clear that complainants are shareholders in the records of the Kotak Mahindra Bank Ltd. for the above referred 4,000 shares on 02/06/2017. Complainants further stated that complainants have initiated the procedure to encash the above mentioned dividend as per the advice by the opponent and produced the details of the bank record of the complainant no.1 as demanded by the opponent. Complainant stated that complainants have also submitted the letter of indemnity as well as affidavit as demanded by the opponent for encashment of the dividend.
5. Complainants were shocked when complainants received letter dated 27/09/2017 from the opponent no.1. Opponent no.1 has informed for the first time to the complainant that opponent no.1 has received a mail from MR. Akash Kothari on 07/09/2017 and 08/09/2017, informing the opponent no.1 that the certificate no.167345 for 100 shares of Rs.10 face value has been sold to Mr. Ashok Bafna in the year 1994-95. Thus by this letter opponent no.1 has informed the complainant that the procedure Akshay CC/59/19 Page |3 to issue duplicate shares as well as encashment of the dividend to the complainant is not possible.
6. Complainant further submitted that complainants by letter dated 19/12/2017 denied the baseless allegations about the sale of the shares in the year 1994-95. Complainants requested the opponent no.1 to furnish the details of the transfer of the shares, as a long period had passed from 1994-95 to 2017. Complainants stated that till this long period no one has claimed the shares held by the complainants. Complainants further submitted that when complainants have claimed the unclaimed dividend and requested for duplicate shares in the year 2017, for the first time such type of mail was delivered by the opponent no.1 without any supporting evidence. Complainants states that on 4th June, 2018 opponent no. 1 informed the complainants that unclaimed dividend was transferred to investor education and protection fund. The above act of the opponent itself is deficiency in service and unfair trade practice, as the legitimate claim of the complainant on the dividend was denied due to the negligent act of the opponent no. 1.
7. Complainants further submitted that complainants have received the letter dated 15th February, 2018 from the opponent no. 1, in which opponent no. 1 has informed the complainants that Mr. Ashok Bafna and Mr. Chandar Gidwani had purchased the Akshay CC/59/19 Page |4 shares in their names on 05/08/1994. Opponent no. 1 has informed the complainants to pursue the matter with Mr. Gidwani in future without verifying the correct facts about the alleged purchase of the shares by Mr. Bafna and Mr. Gidwani. Complainants were further informed by the Opponent No.1 that Mr. Bafna expired on 02/07/2000, hence future communication should be made with Mr. Gidwani.
8. Complainants further submitted that complainants have issued a letter dated 10th March, 2018 to the opponent no. 1 and denied all the allegations of the letter dated 15th February, 2018. Complainant states that opponent no. 1 has presumed about the complainants‟ verbal consent to transfer the shares in the name of Mr. Gidwani without any consent given by the complainants. It appears that opponent no. 1 wants to help Mr. Gidwani for the reason, best known to the opponent no. 1.
9. Complainants further submitted that complainants by letter dated 21/03/2018 again denied allegations of the letter dated 14/03/2018. Complainants have specifically stated that complainants have never given any consent for transfer of the shares, as complainants have never sold the shares and the same are in the name of the complainants. Complainants have informed the opponent no. 1 that they have never contacted Mr. Gidwani. Complainants have received the documents from the Akshay CC/59/19 Page |5 opponent no. 1 on 21/03/2018, which includes e-mail dated 06/09/2017 and 08/09/2017 by Mr. Ashok Kothari to the opponent no. 1 i.e. purchase note confirmation memo dated 05/08/1994 of M/s Surbhi Finance, Shrirampur.
10. Complainants further submitted that after verifying documents given by the opponent no. 1, it is crystal clear that the opponent no. 1 with the help of the unknown Mr. Gidwani and Mr. Kothari, tried to transfer the shares held by the complainants, in the name of Mr. Gidwani and Mr. Kothari. Complainants stated that the opponent no. 1 has provided alleged purchase memo dated 05/08/1994 in favor of Mr. Ashok Bafna and Mr. Chandar Gidwani for 100 shares of Kotak Mahindra Finance. Opponent no. 1 has also provided share delivery notes dated 02/12/1994 with transfer deed for the shares of Kotak Mahindra Finance. Complainants state that as a matter of fact it is the duty of the opponent no. 1 to check the details of the purchase of Mr. Gidwani and Mr. Bafna. It is not the duty of the complainants to verify the details.
11. Complainants submitted that complainants are the holder of 4,000 shares, as per the record of the Kotak Mahindra Bank Ltd. and the dividend till 2017 was issued in the name of the complainants. Complainants state that neither Mr. Bafna nor Mr. Gidwani have claimed the title of the shares or dividend till 1995 Akshay CC/59/19 Page |6 to 2017 or initiated the procedure for encashment of dividend or to obtain the share certificates. Complainants stated that looking to the quantity of the shares, opponent no.1 with mala fide intention, with the help of Mr. Ashok Kothari and Mr. Bafna tried to pressurize the complainants and to get the undue advantage from the complainants.
12. Complainants submitted that under the above stated facts and circumstances complainants have issued the legal notice through M. R. Bhatt and Company on 21/04/2018, 23/04/2018 and 18/05/2018. Complainants have warned the opponent no. 1 to supply the alleged transfer deed and all the supporting documents submitted by either Mr. Kothari or Mr. Gidwani with the opponent no. 1. However, opponent no. 1 has not provided any of the above mentioned documents to the complainants. Opponent no. 1 has replied to the said notice on 7th June, 2018. Opponent no.1 has stated that it is the duty of the complainants to establish Complainant‟s right as absolute owner of the shares through proper means. Opponent no. 1 has admitted that Mr. Gidwani and Mr. Ashok Kothari have never submitted transfer deed or original share certificates with the opponent no. 1. Complainants stated that above facts clearly establish that complainants do not have to prove that they are the owner of the Akshay CC/59/19 Page |7 shares. however, it is the duty of opponent no. 1 or Mr. Gidwani to prove about ownership of the shares.
13. Opponent no.1 has no right to instruct the complainants to establish the ownership of the shares. The above act of the opponent is deficiency in service as well as unfair trade practice as defined in the Consumer Protection Act. Complainants have no other alternative but to file the present complaint.
14. Ultimately complainants have prayed to direct opponent no.1 to issue duplicate shares in the name of the complainants and prayed to direct opponent no.1 to pay the dividend for the period between 2009 to 2017. And they have also prayed for the compensation of Rs.2,50,000/- under the head of mental agony and Rs.2,00,000/- under the head of litigation expenses.
15. Along with this complaint, the complainants have produced evidence documents at page no.10 which are as under:
Sr. No. Details Pages
1 Copy of letter dated 26/06/2017 by complainants to
opponent no. 1
2 Copy of letter dated 12/09/2017 by complainants to
opponent no. 1
3 Copy of letter dated 14/08/2017 by opponent no. 1 to
complainants
Akshay CC/59/19 Page |8
4 Copy of letter dated 27/09/2017 by opponent no. 1 to
complainants
5 Copy of affidavit for change of signature
6 Copy of signature verification
7 Copy of letter dated 27/09/2017 by opponent no. 1 to
complainants
8 Copy of letter dated 19/12/2017 by complainant to
opponent no.1
9 Copy of letter dated 04/01/2018 by opponent no. 1 to
complainant
10 Copy of letter dated 15/02/2018 by opponent no. 1 to
complainants
11 Copy of letter dated 10/03/2018 by complainants to
opponent no.1
12 Copy of letter dated 14/03/2018 by opponent no. 1 to
complainant
13 Copy of letter dated 21/03/2018 by opponent no.1 to
complainant
14 Copy of legal notice dated 21/04/2018 by M. R. Bhatt
& Co. to opponents
15 Copy of legal notice dated 18/05/2018 by M. R. Bhatt
& Co. to opponents
16 Copy of letter dated 07/06/2018 by opponent no. 1 to
M. R. Bhatt & Co.
17 Copy of dividend intimation letter by opponent no. 2 to
complainant
18 Copy of letter dated 08/06/2018 by complainants to
opponent no. 1
19 Copy of letter dated 02/07/2018 by opponent no. 1 to
complainants
Akshay CC/59/19 Page |9
20 Copy of mail dated 24/10/2018 by opponent no. 1 to
complainant
21 Copy of letter dated 25/10/2018 by opponent no. 1 to
complainant
16. Opponents have been duly served upon the notice and opponent no.1 and 2 has filed their reply at page no.50. At the outset Opponents have contended that the Ld. State Commission has no jurisdiction to entertain the complaint. They have also stated that complainants have not established the deficiency in service of the opponent no.1 and 2. Further they have raised the issue that Section 430 of the Companies Act, 2013 suggests that the Ld. Commission has no jurisdiction.
17. Opponents have further contended that the complaint is bad for mis-joinder of necessary parties and is liable to be dismissed for mis-joinder of necessary parties. And they have also contended that the complaint is barred by limitation. And the Ld. Commission does not have territorial jurisdication to entertain this complaint.
18. Further opponents have contended that facts have not been correctly stated by the complainants. The joint holder of 100 shares of Kotak Mahindra Bank vide folio bearing no. KMF08133 has not been correctly stated by the complainant and denied for Akshay CC/59/19 P a g e | 10 being vague and concocted. It is respectfully stated that there is a rival claim on these shares on behalf of one Mr. Ashok Bafna and Mr. Chandar P. Gidwani. Further, it is averred that the signature which was provided by the Petitioner was not matching with that of specimen signature which is in record of the Opponents and therefore due compliance was not done by the Complainants. Furthermore, the Opponents were informed about the rival claims of these shares on behalf of Ashok Bafna who claimed to have purchased these shares from them. All these material facts have been concealed by the complainants and therefore this complaint is liable to be dismissed.
19. Further it is contended by the opponents that the complainants have failed to claim the dividend for the last 7 years and if the dividend for 7 years is not claimed by the shareholder, the shares are mandatorily required to be transferred to IEPF fund. Further, the Petitioner cannot raise the issue of deficiency in services in case of any statutory obligation.
20. It is stated by the opponent 1 and 2 that Ashok Bafna has provided documentary evidences viz. contract notes evidencing the purchase of 100 shares in year 1994. It is further averred that the Opponents have neither acceded nor acted to the request of Chander P. Gidwani and Ashok Bafna and we had asked them for to provide further documentation viz. no objection from the Akshay CC/59/19 P a g e | 11 legal heirs etc. Opponent no.1 has not affected the transfer in the name of Chander P. Gidwani and Ashok Bafna on these shares. It is emphatically denied that the Opponents have presumed the transfer and therefore on account of rival claim on the same Shares it was communicated to the Petitioner to get the order from the competent court.
21. Further it is contended that as per the para qua the exchange of documents/correspondences are matter of record and the contents of selling of shares does not pertain to the Opponents and therefore the same is denied for want of knowledge. All the other averments made therein are bald and bereft of any material particulars; and the complainants are put to strict proof of the said averments.
22. It is submitted that the opponent no.1 vehemently denies that it has acted in collusion with the individual/persons mentioned in the complaint. Pertinently, opponent no.1 is Registrar and Transfer Agent and it acts as a facilitator in smooth transaction of transfer and transmission of shares under the SEBI mandated rules and regulations. It is respectfully submitted that Opponent no.1 neither acts as a detrimental to the interest of any person nor wished to be misused by any unlawful claimant/buyer. It is further stated that as being alleged, transfer in the name of other persons have still not been effected upon and the claimant has Akshay CC/59/19 P a g e | 12 been informed to get the NOC for transferring the same. The Opponent no.1 specifically and vehemently denied that it has acted in any collusion with any person and the Petitioners are put to strict proof of the same.
23. And thereby it is contended that the exchange of correspondence and the rest of the contents are denied as being vague, baseless and bereft of material contradictions. It is stated that the complainants are completely misinterpreting and misconstruing the provisions of law. Since there are rival claims on these shares, the Opponent no.1 on the basis of due diligence has asked for the related documents in order to justify the title on these shares. Pertinently, the complainants are not in receipt/possession of original share certificates and furthermore the signature which has been affixed on the documents does not tally with the one in the record of the opponents. In view of the rival claim on these shares, it was communicated to get the order/directions from the competent court. It is reiterated that there is no deficiency in services and unfair trade practices as being alleged in the complaint. As per the contention of the said provisions complainants are not entitled to any relief from this commission. And the complaint should be dismissed.
24. Further opponents have submitted the evidence documents as shown on page no.68 which are as under:
Akshay CC/59/19 P a g e | 13 Sr. No. Details Pages 1 Copy of the Authority letter issued in favour of 69
Abhishek Kumar for representing Opponent no.1 2 Copy of the Authority Letter issued in favour of Bina 70 Chandrana for representing Opponent no. 2 3 A copy of the Correspondence dated 26th June, 2017 71-77 received from the Petitioners 4 A copy of the reply dated 14/08/2017 78 5 A copy of the email dated 6th September, 2017 79 received from one Akash Kothari.
6 A copy of the email dated 8th September, 2017 80 received from Akash Kothari to [email protected] 7 A copy of the correspondence dated 27th September, 81-88 2017 received from the Petitioner(s) 8 A copy of the letter dated 27th September, 2017 89 9 A copy of the letter dated 27/09/2017 90 10 A copy of the letter dated 11/10/2017 91-98 11 A copy of the letter dated 19/12/2017 received from 99-105 the Petitioner along with the enclosures 12 A copy of the letter dated 30/12/2017 106 13 A copy of the letter dated 15/02/2018 107 14 A copy of the letter dated 27/02/2018 108-123 15 A copy of the letter dated 14/03/2018 124-140 16 A copy of the letter dated 21/03/2018 141-148 17 A copy of the letter dated 07/06/2018 149-151
25. The complainants have submitted their re-joinder after the reply was submitted by the opponent and mainly contended that reply Akshay CC/59/19 P a g e | 14 is not correct and according to law. And opponent no.1 has shown deficiency in service and unfair trade practice and this Ld. Commission has jurisdiction on this matter. And the shares are holding in the name of the complainants in register folio no. KMF08133.
26. Thereafter both the parties were heard initially. Ld. Adv. Mr. Motiramani submitted an application for a early hearing on the ground that he is a senior citizen and has desire to complete his pending matters. And request was accepted by the Ld. Commission and matter was heard on priority at length. During the course of argument Ld. Adv. Mr. Motiramani has submitted one application to transfer the matter from Court No.2 of this Commission to another Court of the Commission in the interest of justice.
27. Below this application, order was passed by this Ld. Commission wherein it was ordered that such type of application shall have to be moved before the President of Ld. State Commission. Further it was ordered that for mediation purpose a competent officer of the Opponents office shall have to remain present or be available for online discussion. After this instruction the transfer application is filed and thereby it is a case to demoralize the judiciary. However the matter had come before the President and Akshay CC/59/19 P a g e | 15 the decision was that the matter has to be heard by Court no.2 and it is hereby complied with.
28. Upon this application, complainant‟s Advocate Mr. Pancholi has noted his observation. Thereafter this matter was adjourned since 16/09/2022 and today the matter was fixed for order. It is to be noted that on previous date proceedings noted by this Commission the matter was adjourned after completion of the arguments. However stenographer was not available and thereby judgment was not dictated in open court.
29. As per the practice of this commission, on the day of the hearing the judgment is pronounced and dictated in open court. However, as narrated above the date was fixed for 9th February, 2023 and on that day Ld. Adv. Mr. Motiramani remained present and he requested one day more and accordingly matter was adjourned today to 10/02/2023. Today Ld. Adv. Mr. Motiramani remained present and submitted his written submission.
30. Today both the Advocates remained present before the Commission. Ld. Adv. Mr. V. M. Pancholi for the complainant and Ld. Adv. Mr. Motiramani for the opponents. Ld. Adv. Mr. Motiramani submitted further written arguments after oral arguments. It is therefore kept on record. Here in the matter the crux of the complaint is that the complainants are joint owners of the shares and the share are registered in the complainants Akshay CC/59/19 P a g e | 16 name in folio no. KMF08133, and this was intimated to the complainants by the Kotak Mahindra Bank as shown on page no.48. And thereby it is confirmed that the email was an intimation to the complainant on the encashment of the dividend and thereby it is conclusively established on record that at present complainants are holding the shares in the company and shares are registered in the complainant‟s name.
31. And therefore complainants are entitled to file the complaint under the circumstances for this purpose. Ld. Adv. Mr. Motiramani contended that opponent no.1 has obtained intimation from Ashok Bafna and Mr. Gidwani that they have purchased the shares and it is pending for the transfer proceedings and therefore complainants are not entitled to have shares demanded in the complaint. Against this Ld. Adv. Mr. Pancholi has submitted before us that under such circumstances and factual aspects, complainant have issued notice to the opponent no.1 to produce the relevant papers about the agreement of sale of these shares but such agreement was not given to the complainant and thereby merely because opponent no.1 said in reply that there was an application for transfer but without having necessary procedural documents this contention is not sustained. It is believed that there was intimation to the present complainant and in that circumstances it is open to sky Akshay CC/59/19 P a g e | 17 situation where one cannot accept the case that Mr. Ashok Bafna and Mr. Gidwani have purchased the shares and that such transaction had taken place in the year 1995, and since 1995 to 2017 no such proceedings were carried out for transfer of shares in the name of Mr. Gidwani and Mr. Ashok Bafna.
32. Further it is clarified by the Ld. Adv. Mr. Pancholi that Mr. Ashok Bafna died in the year 2000 and thereafter also Mr. Gidwani has produced the request before the opponent no.1 that he must be approached only for the transfer of these shares. But simply submitting by the opponent no.1 that shares were purchased by Mr. Ashok Bafna and Mr. Gidwani and other than that no circumstantial proof is produced by the opponent no.1 nor it was communicated to the complainant by the opponent, that the dividends were not encashed since 2017. And only because of that reason there is a presumption taken by the opponent no1 that shares might have been sold out by the present complainant and thereby informed that these shares cannot be handed to the complainant as requested.
33. Here, Ld. Adv. Mr. Pancholi submitted that without any substantial material evidence regarding the sale of these shares the shares are still pending in the name of the complainants with the opponent no.2 and the present opponent no.1 is only a agency to look after the work regarding the transfer of shares etc. Akshay CC/59/19 P a g e | 18 and therefore are service providers to opponent no.2 for the same purpose and therefore whichever rights, duties and obligations are to be performed by opponent no.1 has to be regular correct and followed according to the provisions in law. Here it traced out from the record in reply of the opponent no.1 that there is nil evidence brought on record that particular shares were sold by the complainants to Mr. Ashok Bafna and Mr. Gidwani. And therefore it is surprising to note that under which defense opponent no.1 has come before the commission with the contention that shares were sold out by the complainants. And the opponents have to substantiate their contention with material evidence placed on record. When opponent no.2 has clearly given the acceptable evidence that the shares are still in the complainant‟s name, there is no convincing explanation by the opponent no.1 on the above matter.
34. If there is any reasonable cause and reason to accept that the said shares are indeed sold by the complainants then the supporting evidence shall have to be brought on record. And for that there are no documents on record and also is not evident on scrutiny of the documentary evidence produced on behalf of the opponent no. 1 and 2. And therefore it is not established legally that the shares have been acquired for selling from the complainants by opponent no.1. Merely because there was a Akshay CC/59/19 P a g e | 19 request, and if the request of transfer of the shares with the opponent no.1 was pending then there must be necessary legal documents submitted by the claiming person. But on this ground there is nothing submitted by the opponent no.1 and no explanation on this issue is on record.
35. Further, the Ld. Adv. Mr. Pancholi submitted before us that there is a stand taken by the opponent that the signature of the complainant does not match as per their records. It may be a fact but unless and until it is totally mismatching or dissimilar the signature of the complainant should be considered. In such circumstances procedure should be adopted for signature verification and complainant has a right to produce documents, with other bank documentary evidence established before the proceeding that these are the persons who are holding the shares in their name which is just fair and reasonable according to law. The stand taken by the complainant is also indirectly admitted by the opponent that shares are in the name of the complainant and only the signature is not found to match. It is very natural that the person‟s signature can have many variations. In such circumstances the authority who can deal with this issue can ask for the authorized documents like Aadhar card etc. On this point Ld. Adv. Mr. Pancholi has drawn our attention that such documents were demanded by opponent no.1 and all the Akshay CC/59/19 P a g e | 20 documents were submitted accordingly as per evidence vide page no.14 to 18 which itself proves that opponents have accepted complainant as shareholder of Opponent no.2.
36. And thereby according to our view the contention of the opponent that signature was not matching is not sustained.
37. Further, the Ld. Adv. for the Opponent Mr. Motiramani contended that the complainant have not been able to provide any proof of holding of even a single share and therefore the holding of 4000 shares is with the complainant is not tenable in the eye of law, and it cannot be accepted. Therefore the Ld. Advocate Mr. Pancholi against this contention of Ld. Advocate Mr. Motiramani submitted that Opponent no.1 and 2 have accepted in their reply from page 56 and 57 about details of 4000 shares held by complainants. Hence no more proof is required and further as we have discussed earlier that the correspondence with the opponent no.2 and the complainant implies admission on that ground and therefore it should be accepted that complainants are having the shares in their name and then such technical presumption is not justifiable on part of the opponent no.1.
38. Further it is contended by the Opponents that share holders never filed loss of shares. This point was not taken in the WS filed by the Opponent but even then we would like to observe that Akshay CC/59/19 P a g e | 21 if the complainant has not filed for duplicate shares it has no relevance as opponents have accepted complainants as shareholder and also the Opponent no.2 has corresponded with respect to dividends related to these shares which establishes that in the records of opponent no.2, complainants are share holders. We have discussed earlier that not a trace of evidence was brought on record by opponent no.1 that there was another person who has purchased the shares and if the shares are sold then definitely opponent no.1 has to establish the case with acceptable and valid evidence. In absence of that we are not inclined to accept the arguments advanced by the opponents.
39. It is a premise taken by the opponents that no proof of joint holder has been produced by the complainants but according to our view that such point is not relevant to deal with the issue as we have discussed whether the complainants are having right to have duplicate share certificates or not. And for that the opponent no.1 is a competent authority to deal with the issue individually.
40. Further the Ld. Adv. Mr. Motiramani has raised that no consideration was paid by the consumer. The word consumer is defined in Section 2(d) of the Consumer Protection Act, 1986 for that Ld. Adv. Mr. Pancholi submitted that such defense is not taken in WS and thereby it is submitted that the present Akshay CC/59/19 P a g e | 22 complainants are holding the shares in question and the denial of the duplicate shares is only because of the reason that there are persons claiming these shares. But the claim was pending since 1994 to 2017 and thereby such a protracted silence by the purchasing party does not give any right to the title over the shares in absence of a valid transaction regarding transfer of shares as per provisions.
41. Further Ld. Adv. for the Opponents has submitted before us that this commission is not having jurisdiction and on the ground opponent no.2 Company is at Mumbai and therefore under the provisions of Consumer Protection Act, 1986, this commission has no jurisdiction to hear the complaint. On this point Ld. Adv. Mr. Pancholi submitted that their complaint was with the disclosure of the fact that how this commission has jurisdiction as opponent no.1 are doing business and giving service to the opponent no.2 and being an agent all these proceedings are carried out in Ahmedabad. And thereby as the party Opponent no.1 is residing or doing business in Ahmedabad the complaint would fall within the jurisdiction of this commission. This commission is definitely entitled to hear the complaint on merits. Further the Ld. Adv. averred that the decision is to be taken by opponent no.1 with respect to the shares of the complainant and there is no administrative action required to be taken by the Akshay CC/59/19 P a g e | 23 opponent no.2 and therefore the affected party is opponent no.1 only. According to our view as earlier discussed and on scrutiny of the documents for such correspondence and it is conclusive that the transfer of shares is within the jurisdiction of Gujarat and particularly in Ahmedabad and therefore the State Commission of Gujarat is empowered to deal with the function carried out by opponent no.1 on behalf of opponent no.2. And therefore we have appreciated the evidence on record and discussed at length and thereby we are not inclined to accept the submission that this commission has no jurisdiction to entertain the matter.
42. Further Ld. Adv. Mr. Motiramani has submitted that there is no cause of action to the complainant as the complainant has not disclosed from where 100 shares were purchased. But according to our view when the questioned shares are accepted by opponent no.2 that the company‟s shares are in the name of the complainants and for that intimation was also issued, therefore it is conclusive and documentary proof that the shares were in the name of the complainants. So the question of cause of action does not arise and mere denial by opponent no.1 not supported by any legal actionable transaction, documentary evidence about the purchase of shares is not sustained. It is evident from the facts of the case that evidence on record does not permit the Akshay CC/59/19 P a g e | 24 opponent no.1 to hold the shares which are already with the complainant as there is acceptable evidence and admission of this fact by opponent no.2.
43. Further the Ld. Advocate Mr. Motiramani has submitted the argument that the letter of Mr.Ashok Bafna and Mr.Gidwani at page no.28 wherein it is stated that the transaction is about 25 years back. This leads us to question as to why the so called purchasers were silent and did not carry out the necessary legal transaction with legal proof. The prime document in such circumstances is agreement to sell. Why the opponent no.1 has not demanded such documentary evidence from the so called purchasers but are simply demanding evidence from complainants on the holding of shares. This itself suggests unfair trade practice. Moreover, only because of a letter as discussed hereinabove there is denial of the title to the shares of the complainants although it is already admitted by opponent no.2 even then complainants are prevented to have fruits of their shares. It is a question as to why the opponent 1 is taking this stand without any substantial evidence on record, and when there is not even an iota of proof to have the right to prevent giving duplicate shares to the complainant. According to our view as discussed hereinabove there is no need to establish evidence regarding the purchase of the shares because the title is not Akshay CC/59/19 P a g e | 25 denied by opponent no. 2 that complainants have not purchased their shares.
44. The Ld. Advocate Mr. Motiramani has submitted before us that under the company law provision, Civil Court does not have jurisdiction. We do agree that if the issue is related to title than the Civil Court is not having jurisdiction. Here in the instant case there is no issue regarding the title of the complainants shares. On the contrary opponents stand to come in defense to protect unknown person, having no proof, cannot be accepted. Therefore as we have discussed it is evident that unfair trade practice has been adopted to prevent the interest of the complainant, as we have in sequence narrated by discussing the evidence. Thus there is deficiency in service and unfair trade practice which comes within the purview of the Consumer Court. We agree with the submission of the Complainant that this Commission is having jurisdiction. As we have discussed two material points are to be dealt with, within the purview of the Consumer Protection Act. One thing is that, shares are pending with the registrar and title is with the complainants and therefore their rights are violated, only because of baseless bereft stand taken by the opponent no.1. We are therefore not inclined to accept this argument by the Ld. Adv. Mr. Motiramani on behalf of the opponent no.1 & 2.
Akshay CC/59/19 P a g e | 26
45. According to our view Ld. Adv. Mr. Motiramani as opponent no.1 is arguing before us contrary to what the stand of opponent no.2 is. It is suprising to us that how a contradictory plea can be taken and only if there was any documentary proof with the opponent no.1 that Mr. Ashok Bafna and Mr. Gidwani were indeed purchasers of the shares then definitely there may be a another point of view for determination of the issue. Further Ld. Adv. Mr. Motiramani came with the plea that the complainant is not a consumer as share trading is a commercial purpose activity and excluded under the Consumer Protection Act. There is no evidence on record that the complainants are in the business of share trading for commercial purpose because of the fact established on record and as advanced on behalf of the complainant that the particular complaint for shares was only for the purpose of the delay in encashment of the dividend. And therefore citation II 2015 CPJ 95 (NC) Krishan Lal Kalra VS Religare Security Ltd. and others advanced by the Ld. Adv. Mr. Motiramani does not support his case.
46. Further Ld. Adv. Mr. Pancholi relied on the citation III 2018 CPJ 50 (NC) in Shamlal Ramlal Changoiwala VS Dr. Mukund Jagannath Bhusari and ANR, wherein Honorable National Commission has decided that if certain surplus funds are invested by a person once in a while, in certain deposits, Akshay CC/59/19 P a g e | 27 purchase of share etc. such a person does get covered under the category of „consumer‟. Occasional investor does not lose status of „consumer‟. Here as we have discussed earlier above, this citation is supporting our view that in absence of material evidence that establishes that complainants are doing trading of shares on a regular basis, they would come within the purview of the Consumer Protection Act. In the instant case there is nothing on record to establish that complainants were doing trading and therefore they fall in the definition of „consumer‟ and this Commission is therefore having jurisdiction.
47. Further Ld. Adv. Mr. Pancholi submitted before us that Consumer Protection Act remedy is an additional remedy over any other special remedy available. The consumer has the right to deal with their grievances and the procedure adopted by the Ld. State Commission are summary proceedings and the main objective of the legislation is to provide for protection of the interests of consumers with speedy redressal of their grievances. It is an additional remedy provided and therefore we are coming to the conclusion that this Commission is having jurisdiction and thereby we have adjudicated the issue on merits.
48. The last issue to be looked at this juncture is that complaint is well within the limitation or not. For that Ld. Adv. Mr. Pancholi submitted that on page no.49 the letter written by the opponent Akshay CC/59/19 P a g e | 28 no.1 dated 25/10/2018, wherein it is intimated to the complainant that unpaid dividend cannot be released to you unless the ownership of the share is established in court of law. And thereby according to the complainant there is no question regarding the issue to establish title when it is already admitted by opponent no.2 whose shares are held by the complainant. Here, opponent no.1 Adv. Mr. Motiramani came with the contention that there is a demand of another person being the purchaser of the shares in question. Needless to say that no evidence was brought on record which can lead us to conclude that the shares were already sold out by the complainants. If it is so, then opponent no.1 is bound to produce documentary proof which was even demanded by the complainant by way of a legal notice. Notice was complied by opponent no.1. When questioned that whether the shares are with Mr.Ashok Bafna and Mr. Gidwani, Ld. Adv. Mr. Motiramani referred us to page no.30, 31, 32 which according to him is the documentary evidence regarding the sale of the shares. And thus as per the Ld. Adv. complainants have sold out these shares to Mr. Ashok Bafna and Mr. Gidwani.
49. On scrutiny we find that these are simply receipts not supported by any acceptable evidence about sale allowed by complainants on record. There must be an agreement to sell which is not on Akshay CC/59/19 P a g e | 29 record. And therefore on demand of this documentary proof regarding the sale of shares, no documents were delivered to the complainant and thereby in absence of any acceptable evidence simply because the receipts were submitted regarding the sale of shares as shown on page no.30, 31, 32 is not considered convincing evidence. And under such circumstances disputable and arbitrary evidence as shown on page no.30, 31, 32 does not give any conclusive proof about selling of the shares. And therefore after receiving the letter dated 25/10/2018 from the opponent no.1 informing the complainant that unpaid dividends cannot be released unless the ownership of the shares is established by the complainants in a court of law, thereafter the complaint was filed on 18/12/2019 which leads us to accept that the complaint is filed well within time and therefore the issue regarding the limitation cannot be take as a ground to dismiss the complaint.
50. On hearing the arguments advanced by both parties and appreciating the evidence main issue to be looked into is whether there is any sale of shares or not. However the arguments advanced by Ld. Adv. for the opponent that the evidence of sale is seen on page no. 30,31, 32 does not sustain as on these pages the name of the seller is absent, there are no details of the shares, and the share certificate numbers are also not Akshay CC/59/19 P a g e | 30 mentioned. And therefore this document does not lead us to accept that the shares were sold. Moreover the Ld. Adv. Mr. Pancholi has drawn our attention that Mr. Ashok Bafna has sent a mail to the opponent no.1 on 08/09/2017 shown on page 28 wherein he has stated that "I am shareholder of Kotak Mahindra bank and my folio no. is KMF0881333. According to your record the shareholder name is Abhijeet Zaveri and Dhiren Zaveri. But in 1994-95 I have purchased 100 shares from them, after that I had sent all the documents with share certificate to you for transfer the name from Abhijit Jhaveri J/H Dhiren Jhaveri to Ashok Bafna J/H to Chander Gidwani..." This mail itself is illegal, counterfeit and fabricated as the opponent no.1 received a mail dated 08/09/2017 from Mr. Ashok Bafna who died in the year 2000 as informed by the Opponent no.1 on page 23. This reveals that a person who died in 2000 has written a mail in 2017 to the opponent no.1. Thus it can be accepted as conclusive evidence that opponent no.1 has failed to establish that Mr. Ashok Bafna was a living person and the sale proceedings produced before us does not give any reason to us to accept the version of opponent no.1. The version advanced by opponent no.1 is not sustained because of lack of cogent documentary evidence.
51. Thereby we come to the conclusion that this complaint under such circumstances is well within time and not barred by Akshay CC/59/19 P a g e | 31 limitation and as we have discussed some hurdles were created in the way of the complainant and therefore we are inclined to partly allow the complaint and pass the following order.
ORDER
1. The complaint no.59/19 is partly allowed.
2. It is directed that opponent no.1 and 2 jointly and severally deliver duplicate shares in the name of the complainants within 90 days.
3. The Opponents are directed to pay Rs.10,000/- under the head of mental agony and Rs.5000/- under the head of litigation expenses.
4. Complainant is directed that on receiving the duplicate shares as prayed for, he has to submit an indemnity bond in favour of Opponent no.2 for the period of one year.
5. Copy of the judgment be provided to the parties free of charge.
Pronounced in the open Court today on 10th February, 2023.
P.R. Shah M.J. Mehta
Member Judicial Member
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