State Consumer Disputes Redressal Commission
1. Sri Vasavi Parameswari Permanent ... vs Tmt.K. Saroja,W/O. S.Krishnan,33, ... on 29 December, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt.Vasugi Ramanan, M.A., B.L., MEMBER I Thiru.S.Sambandam, B.Sc., MEMBER II F.A.262/2007, F.A.545/2007 & F.A.546/2007 (Against the order in OP.9/2004, OP.10/2004 & OP.11/2004 on the file of DCDRC, Erode) DATED THIS THE 29th DAY OF DECEMBER 2010 COMMON ORDERF.A.262/2007
1. Sri Vasavi Parameswari Permanent Fund Ltd., | Appellants / Opposite Parties by its Director K.S. Pasupathi, | 147, Agraharam Street, | Erode. | |
2. K.S. Pasupathi, Director | Sri Vasavi Parameswari Permanent Fund Ltd., | 147, Agraharam Street, | Erode. | Vs. Tmt.K. Saroja, | Respondent/ Complainant W/o. S.Krishnan, | 33, Kumarasamy Street, S.K.C. Road, | Erode. | The Respondent as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay a sum of Rs.21,075/- with cost of Rs.1,500/- with subsequent interest. The District Forum of the President dismissed the complaint and the Members of the District Forum allowed the complaint, against the order passed by the Members, this appeal is preferred, praying to set aside the order of the District Forum dt.13.03.2006 in C.C.11/2004.
This appeal coming before us for hearing finally on 13.12.2010, upon hearing the arguments of the counsels on eitherside and perused the documents, as well as the order of the District Forum, this commission made the following order:
Counsel for the Appellants/ O.Ps. : Mr.D.Selvaraj, Advocate.
Counsel for the Respondent/ Complainant :
Mr.S.Krishnan, Advocate.FA.545/2007
1. Sri Vasavi Parameswari Permanent Fund Ltd., | Appellants / Opposite Parties by its Director K.S. Pasupathi, | 147, Agraharam Street, | Erode. | |
2. K.S. Pasupathi, Director | Sri Vasavi Parameswari Permanent Fund Ltd., | 147, Agraharam Street, | Erode. | Vs. K. Asok, | Respondent/ Complainant S/o. S.Krishnan, | Vettukattu Valasu, | Erode Taluk. | The Respondent as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to return to the complainant his fixed deposit of Rs.10,000/- and Rs.12,000/- with interest at the rate of 16% per annum from the date of maturity of the fixed deposits with cost of Rs.1,500/-. The District Forum of the President dismissed the complaint and the Members of the District Forum allowed the complaint, against the order passed by the Members, this appeal is preferred, praying to set aside the order of the District Forum dt.13.03.2006 in C.C.9/2004.
This appeal coming before us for hearing finally on 13.12.2010, upon hearing the arguments of the appellant counsel and perused the documents, as well as the order of the District Forum, this commission made the following order:
Counsel for the Appellants/ O.Ps. : Mr.D.Selvaraj, Advocate.
For the Respondent/ Complainant : Served Absent.FA.546/2007
1. Sri Vasavi Parameswari Permanent Fund Ltd., | Appellants / Opposite Parties by its Director G.Ramalinga Sainath, | 147, Agraharam Street, | Erode. | |
2. G. Ramalinga Sainath, Director, | Sri Vasavi Parameswari Permanent Fund Ltd., | 147, Agraharam Street, | Erode. | Vs. K. Asok, | Respondent/ Complainant S/o. S.Krishnan, | Vettukattu Valasu, | Erode Taluk. | The Respondent as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to return to the complainant his fixed deposit of Rs.5,000/- with interest at the rate of 16% per annum from the date of maturity of the fixed deposits with cost of Rs.5,000/-. The District Forum of the President dismissed the complaint and the Members of the District Forum allowed the complaint, against the order passed by the Members, this appeal is preferred, praying to set aside the order of the District Forum dt.13.03.2006 in C.C.10/2004.
This appeal coming before us for hearing finally on 13.12.2010, upon hearing the arguments of the appellant counsel and perused the documents, as well as the order of the District Forum, this commission made the following order:
Counsel for the Appellants/ O.Ps. : Mr.D.Selvaraj, Advocate.
For the Respondent/ Complainant : Served Absent.
M. THANIKACHALAM J. PRESIDENT
1. The opposite parties in O.P.9/2004, 10/2004 and 11/2004 on the file of the District Consumer Disputes Redressal Forum, Erode are the appellants in F.A.Nos.262/2007, 545/2007 and 546/2007 respectively.
2. In all the three cases more or less except and name and amount, pleadings are one and the same and therefore, common pleadings for the case is incorporated, similarly common defence also incorporated in this order.
3. As agreed by the parties, though the cases have been disposed independently by the District Forum, all the appeals are taken together and Common Order is passed, which shall dispose all the appeals.
4. The respondents in all the appeals as complainants, have filed the case for the recovery of the amount based upon the deposits as shown in the table given below:-
Sl.No. Complainants Name O.P.No. FA.No. Date of FDRs.
Amount Deposited Rs.
Amount claimed in the O.P. [Rs.]
01.
Tmt.K.Saroja 11/2010 262/2007 09.11.98 15,000/-
21,075/-
02. K. Asok 9/2004 545/2007 06.11.98 10,000/-
10,000/-
with 16% interest per annum 09.03.99 12,000/-
12,000/-
with 16% interest per annum
03. K. Asok 10/2004 546/2007 11.03.99 5,000/-
5,000/-
with 16% interest per annum
5. Alleging that the opposite parties though had accepted the deposits on various dates, agreeing to pay interest, not only failed to pay interest, but also failed to pay the matured amount on deposits, thereby they have committed deficiency, warranting the complainant for the recovery of the amount, with interest.
6. The opposite parties/appellants admitting the deposits made by the complainants in their separate Written Version, opposed the claim on the grounds that as per the Memorandum of Association, the complainants are the share holders of the Company and as such, they are not entitled to file the complaints, seeking relief and in this view, the District Forum has no jurisdiction to decide the case, that the Honble High Court in Writ Petition filed by one of the depositors in W.P.36299/2002, appointed an Administrator and as per the said order, the Administrator alone is administering the day to day affairs of the opposite parties and in fact, in another case, the Company Law Board are also directed the depositors to approach the Administrator for appropriate relief and as such, the opposite parties have no control in the administration independently and as they have not committed any deficiency in service, all the complaints filed, are not maintainable, liable to be dismissed.
7. As seen from the records, based upon the pleadings and documents, when the District Forum had taken the case for disposal, there was difference of opinion between the Members and the President of the District Forum. The learned President in all the cases, considering the admitted fact, even before the date of filing of the case, Administrator has been appointed, as per the order of the Honble High Court, the same is binding upon the parties and in this view, the complaints are not maintainable. It is the further conclusion of the President, that if at all the complainants who had deposited the amounts, should have approached the Administrator and the claim before the Consumer Forum is not maintainable, in view of the position, the Finance Company namely the first opposite party was closed even before the date of filing of the cases. In this view, the learned President passed an order on 13.03.2006, ordering the dismissal of all the cases.
8. On the other hand, two other Members, who have participated with proceedings along with the President, felt that despite the liquidation proceedings and taking over all the administration of the first opposite party by the Administrator, appointed by the Honble High Court, the jurisdiction of the Consumer forum is not ousted or barred in view of the Section 3 of the Consumer Protection Act. Thus, taking the view since admittedly amounts were not paid to the depositors, both the Members have rendered judgement in favour of the complainants, directing the opposite parties to pay the amount with interest, thereby shadowing the order of the President, making their order enforceable on the ground of majority view, which prevails under the Act. Thus, aggrieved by the majority view, the opposite parties have preferred all these appeals as said above.
9. The learned counsel for the appellants urged before us that the majority view taken by the District Forum is erroneous, because of the admitted position, that even before the cases were filed, the first opposite partys Financial Institution was closed and its administration was taken over by the Administrator, appointed by the Honble High Court, as per the order in W.P., which was correctly considered by the President, whereas erroneously concluded by the majority Members, which is liable to be set aside, which is opposed.
10. Having heard the arguments of either side, by going through the documents, as well as taking into account the admitted facts, as well as the position, we find no error in the majority view of the District Forum, though under the change of circumstances, the operative portion of the orders alone require some modification or alteration, instead of allowing the complaints to enforce the order before the District Forum, they should be directed to approach the Administrator appointed in this case.
11. There is no dispute between the parties regarding the deposits made by the complainants, amount, rate of interest, non-payment of interest as well as matured amount by the opposite parties.
The opposite parties admittedly having accepted the fixed deposits, agreeing to pay interest, failed to act in terms of the agreement, even after the maturity of the fixed deposits and therefore, as rightly held by the majority view, we should concur that the opposite parties have committed deficiency in service. In the amount arrived by the majority Members of the District Forum as well as in the amounts claimed by the complainants also, there is no dispute and no argument was also advanced before us, as if, the quantum is incorrect or erroneous as the case may be. Thus concluding, the opposite parties, who have received the deposits, failed to pay the amount, it should be held that the Consumer Forum has jurisdiction to decide the case in view of Section 3 of the Consumer Protection Act even despite of the fact, some of the depositors had approached the Company Law Board or the High Court, has appointed the Administrator, who ever may be the person to administer the Estate of the first opposite party, which was originally administered and controlled by the second opposite party.
12. Admittedly, when the first opposite party failed and neglected to pay the amount to the depositors, as per the fixed deposits, a criminal case has been lodged against the opposite parties, not only that, one Murugesa Pillai approached the Honble High Court in WP.36299/2002, seeking Writ of Mandamus to protect the depositors, who had deposited the amount in the first opposite party bank. The Honble High Court considering the irregularity or deficiency or negligence committed by the first opposite party, who was one of the respondents in the Writ, had appointed an Administrator with direction to take appropriate action for the recovery of the money due from Firm, issuing further direction to file status report then and there. The order appears to be inforce as recorded by the District Forum, whether it is by the majority Members or by the President in his dissenting order.
Therefore, at present or even on the date of filing of the complaints, the opposite parties have no control over the Estate and therefore, though the case is maintainable, the direction to pay the amount, may not be proper. As seen from Ex.B2, some of the depositors have approached before the Company Law Board, Southern Region since the first opposite party is a registered Company under the Companies Act, for relief. The Company Law Board considering the Writ Order, issued a direction to the parties therein to approach the Administrator and the relevant portion of the Order reads directed to prefer their claim before the Administrator appointed by the High Court of Madras, who will entertain the claim of the applicants on priority basis, especially when the orders of the CLB have been passed as early as in July, 2002 and August, 2002. In view of the Writ Order as well as the Company Law Boards Order, majority Members though favoured the complainants, finding deficiency in service on the part of the opposite parties, should have directed the complainants to approach the Administrator since the opposite parties as such cannot pay the amount, in view of the admitted position, the assets and liabilities were taken over by the Administrator.
13. The learned counsel for the appellants contended that the complainants are not depositors, whereas, they are the share holders and in this view, the cases filed by the share holders are not maintainable. Whether the complainants are depositors, simplicitor or share holders as the case may be, they have invested their amounts as shown in the above table, which they are entitled to, that too, not only in view of the fact, amounts matured, but also in view of the fact, the Company had committed irregularity. In this view, even assuming, the complainants are share holders, they are not prevented from filing the case.
14. Section 3 of the Consumer Protection Act contemplates that the remedies available to a person under this Act, is an additional remedy, in addition to, other remedies available elsewhere under any other law for the time being in force. Though, a stand has been taken, as if, complaints are not maintainable, no provision was brought to our notice, wherein, a case of this nature is barred or the jurisdiction of the Consumer Protection Act is ousted. In the absence of any such provisions, when the remedy is made available to the depositors, who will come within the meaning of consumer, they have approached the Consumer Forum for relief, taking into account that the amounts were deposited with the first opposite party probably at the instance of the second opposite party, on their canvassing, advertising that the deposits will carry higher rate of interest, thereby now making even dent to the capital itself. Therefore, when the original service provider or the Financial Institution, who had agreed to pay interest, taking the deposit for consideration since, failed, all the cases are well maintainable. Therefore, the President of the District Forum was not correct in dismissing the complaint in entirety and if at all, he should have directed to work out the remedy before the Administrator, holding that the complainants are entitled to receive the fixed deposits with interest, whatever may be the amount available to them because of the liquidation and administration by the Administrator, pursuant to the Writ Order. The majority of the Members also though concluded that there was deficiency in service, issued direction, that cannot be complied with in view of the admitted, even before the filing of the cases, Administrator had taken possession of the first opposite party and taking into this account, instead of issuing directions to the opposite parties, quantifying the amount, they should have issued directions to all the complainants to approach the Administrator, who will decide, based upon other liabilities and assets, what is the actual amount payable to the depositors according to law. In this view, we are inclined to allow the appeal to some extent for the purpose of modifying the order, not to upset the same in their entire entirety.
15. In the result, all the appeals are allowed, setting aside the direction issued against the opposite parties to pay the amount and modifying the order, retaining the amount, directing all the complainants to approach the Administrator, based upon this order to claim the amount, which are liable to be paid by the opposite parties due to them and on such applications, the Administrator, who is administering the first opposite partys Company, is directed to pay the amount according to law, as per the order passed in the Writ Petition. No order as to cost in all the appeals.
S. SAMBANDAM VASUGI RAMANAN M.THANIKACHALAM MEMBER II MEMBER II PRESIDENT INDEX : YES / NO Ns/mtj/Benefit Fund