State Consumer Disputes Redressal Commission
Smt. Bijali Ghosh, vs The Managing Director, on 30 September, 2013
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI GOA FA. No. 56/2013 1.Smt. Bijali Ghosh, Aged about 55 years w/o. Shri. Tapankumar Ghosh 2.Shri. Tapankumar Ghosh Aged about 65 years both residents of Tapoban, Sunvalley, Arlem, Raia, Salcete Goa. 403 720. Appellants v/s. The Managing Director, Manipal Finance Corporation Ltd., Reg. Office Manipal House, Manipal, Udupi District, Udupi, 576 119 Karnataka State. .Respondents Appellants/Complainants are represented by Adv. Shri. A. N. Fernandes. Respondent/OP is represented by Adv. Shri. S. Samant. Coram: Shri. Justice N.A. Britto, President Shri. Jagdish Prabhudesai, Member Dated: 30/09/2013 ORDER
[Per Shri Justice N.A. Britto, President] Complaint filed by the complainants on 24/08/11 has been dismissed by the Lr. South Goa District Forum by order dated 08/07/13, as being barred by limitation under Section 24-A of the C.P. Act, relying on the decision of this Commission dated 18/02/13 in FA No. 43/12 in the case of Manipal Finance Corporation Ltd., vs. Shri. Cyril DCunha, which case in turn was decided relying on the decisions of the Apex Court in Harayana U.D.A., 2006 (1) SCC 164 and State Bank of India, AIR 2009 SC 2010.
2. Some facts in brief are required to be stated to dispose off this appeal. We have heard Shri. N. Fernandes and Shri. S. Samant, the Lr. advocates on behalf of the complainants and the OP, respectively.
3. The complainants had purchased from the OP 50 secured redeemable non convertible debentures of Rs. 1000/- each in terms of memorandum dated 27/07/1999 issued by OP Company, totaling to Rs. 50,000/-. The said debentures were redeemable on or about 08/09/2005 and the early redemption date was 8/9/2002. The OP Company was to pay interest quarterly on the face value of the said debentures.
4. The complainants sent a notice to the OP Company on 8/4/04 i.e before the redeemable date, stating that interest was paid only upto the third quarter of 2001 and calling upon the OP Company to make the payment due on the said debentures plus interest at the rate of 13.5% from 8/9/2002 within a period of 15 days.
The notice was not replied nor complied with and later the complainant sent a legal notice dated 27/04/11 and filed the complaint, as already stated, on 24/08/11.
5. Their complaint has been dismissed, as already been stated, by the Lr. District Forum on the point of limitation stating that the cause of action for this complaint had arisen in September 2005 and as such the complainants ought to have filed the complaint, within two years from the date of the said cause of action, as provided by Section 24-A of the C.P. Act and in case the complainants were prevented from filing the complaint for some sufficient cause, the complainants ought to have filed an application and seek condonation of delay, which has not been done.
6. Shri. N. Fernandes, the lr. advocate of the complainants would submit that the debentures are borrowing by the Company from the debentures holders. Shri. Fernandes then points out to Clause 4 of the terms and conditions and submits that the Company had undertaken to redeem the debentures on the expiry of the redemption period of the debentures applied/allotted for and therefore the OP Company was bound to redeem the same when asked for.
7. On the other hand, Shri. Samant the lr.
advocate has relied on the said order of this Commission dated 18/02/13 in FA No. 43/12 and has submitted that the OP Company would make the payment to the complainants, as contemplated therein, although the complaint filed by them is time barred. In the said order dated 18/02/13 in FA/43/12 filed by the OP Company, it was stated as follows:
7. Admittedly, no further scheme of arrangement to pay the money due to the creditors has been formulated nor approval sought from the High Court of Karnataka. Nevertheless, it has been submitted by Shri Samant, the lr. advocate of the Opposite Party, that 60% of the amount due to the Complainant would be paid to the Complainant irrespective of the result of the present appeal. We assume that this submission is in accordance with the statement made by the O.P. before National Commission in R.P.No.3425 of 2006 and ors.
8. The conclusion arrived at by the Lr.
District Forum cannot be, per se faulted.
Admittedly, the debentures were payable on or about 8/9/05 but prior to the redeemable date, the complainants, by letter dated 8/4/04 called upon the OP to pay the amount due on the debentures of Rs. 50,000/- plus pending interest within a period of 15 days. The notice was not replied nor complied with by the OP and therefore the cause of action in favour of the complainant to file the complaint arose after the expiry of the period set out in the notice.
The complaint had to be filed within two years after the time started running out against the complainants after 15 days of receipt of notice dated 08/04/04. The complaint therefore which was filed only on 24/08/11 much after two years of the cause of action was bound to be dismissed as time barred, and, more so on the failure of the complainants to show any sufficient cause for not filing the same within the stipulated period of two years.
9. We have perused the decisions cited by Shri. Fernandes in the case of Sadanand Sundar Rao Mahajan, 3(2008)CPJ 75 NC, Manipal Finance Corporation Ltd., IV (2006) CPJ 417 NC and the decision of the NC dated 1/5/12 in FA No. 145/12 in the case of Mr. Tonse N.M. Pai, which have no application to the facts of this case.
10. We find there is no merit in this appeal and consequently we proceed to dismiss the same with no order as to costs but at the same time direct the OP Company to make the payment to the complainants, as stipulated in para 7 hereinabove, by cheque sent by registered post within a period of 3 weeks.
[Shri. Jagdish Prabhudesai] [Shri Justice N.A. Britto] MEMBER PRESIDENT