State Consumer Disputes Redressal Commission
Nicco Uco Alliance Credit Ltd. vs Amitabha Chattopadhyay on 24 January, 2011
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. FA/397/10 DATE OF FILING:15/7/2010 DATE OF FINAL ORDER:
24.01.2011 APPELLANT Manager/CEO representing NICCO UCO ALLIANCE CREDIT LTD.
Nicco House 2, Hare Street, P.S. Hare Street Kolkata 700 001 RESPONDENTS 1) Amitabha Chattopadhyay S/o Late K. Chattopadhyay 2) Indrani Chattopadhyay W/o Sri Amitabha Chattopadhyay Both residing at Flat No.4 134/2, P.G.H.S. Road, Jadavpur Kolkata 700 032 BEFORE : HONBLE
JUSTICE MR. PRABIR KUMAR SAMANTA, PRESIDENT MEMBER :
MRS. S. MAJUMDER FOR THE APPELLANT : Mr. G. Gupta Roy, Advocate FOR THE RESPONDENTS : In person (No.1) :
O R D E R :
HONBLE JUSTICE MR. PRABIR KUMAR SAMANTA, PRESIDENT The short but interesting question involved in this appeal is whether the complaint case should remain stayed in view of the pendency of the Company Application No.93/2008 being an application under Section 391(6) of the Companies Act, 1956 before the Honble High Court at Calcutta.
The complainants jointly deposited a sum of Rs.75,000/- in total with the OP/company as fixed deposit which was payable to the complainants by the OP/company on maturity along with interest on the terms and conditions as has been specified by the OP/company. The OPs did not pay all the interests that accrued from time to time and also not the amount along with interest due on maturity of such deposits. The complaint case has accordingly been filed by the complainants for payment by OP of the maturity amount of Rs.90,170/- inclusive of interest by the OP and further for payment of post maturity interest @ 18% per annum on the same plus payment of compensation for deficiency of service, prolonged harassment as well as costs. The said case was contested by the OP1 by filing written objection wherein a preliminary objection was taken by contending that the complaint case should be kept in abeyance pending final order by the Honble High Court in the aforesaid Company Application No.93/2008. In support of such contention the OP/Company relied on the order made by the Honble High Court in the aforesaid Company Application by restraining the fixed deposit holders from initiating any proceeding and/or taking any further steps in respect of the proceedings if any initiated in the meantime pending final disposal of the above Company Application No.93/2008.
The District Forum below has allowed the complaint case on merit by rejecting the aforesaid contention of the OP/company because of the fact that the aforesaid order of injunction as above made by the Honble High Court on the said Company Application No.93/2008 was vacated on 15.02.2008 by the Honble High Court upon dismissal of the said company application on the ground of default. However, the said Company Application No.93/2008 was immediately restored to file on the very next day i.e. on 16.02.08 by setting aside the order of dismissal of the same on the ground of default. The District Forum even then did not accept the contention of the OP/company that by virtue of restoration of the above Company Application No.93/2008 as above on the very next day of dismissal of the same on the ground of default, there stood revived the said order of injunction as above made earlier by the Honble High Court in the aforesaid company application.
In the above appeal the only question that has come up for decision before this Commission is that in the facts and circumstances as above whether upon restoration of the aforesaid Company Application No.93/2008 the present complaint case should have been kept in abeyance pending final order by the Honble High Court in the aforesaid company application.
Upon careful reading of the above company application and the order of injunction so made by the Honble High Court, it becomes clear that such order was made by the Honble High Court pending framing of a scheme of arrangement in between the company and its creditors for liquidation of its debts. The Honble High Court by the aforesaid injunction order restrained the fixed deposit holders including those specified in the schedule to the said petition from initiating any proceeding and/or taking any steps in the proceedings which have already been initiated. The said restrained order was obviously made by the Honble High Court to protect all and sundry fixed deposit holders. Otherwise the small fixed deposit holders like the present complainants may not get anything out of their fixed deposits whereas high networth depositors may usurp the entire assets of the company in liquidation of their debts only.
Therefore, in the facts and circumstances as above whether the order of restoration of the above company case on the very next date of dismissal of the same would tantamount to restoration of the said restrained order is the question to be decided in this case. The Honble Supreme Court in the decision reported in 2004(6) SCC 378 (Vareed Jacob-Vs-Sosamma Geevarghese & Ors.) has held in paragraph 33 & 34 as under:
33.
Incidental proceedings are, however, taken recourse to in aid of the ultimate decision of the suit which would mean that any order passed in terms thereof, subject to the rules prescribed therefore, would have a bearing on the merit of the matter. Any order passed in aid of the suit are ancillary powers.
Whenever an order is passed by the Court in exercise of its ancillary power or in the incidental proceedings, the same may revive on revival of the suit. But so far as supplemental proceedings are concerned, the Court may have to pass a fresh order.
34. An order to furnish security to produce any property belonging to a defendant and to place the same at the disposal of the Court or order the attachment of any property as also grant of a temporary injunction or appointment of a receiver are supplemental in nature. The effect of such order may be felt even after decree is passed. An order of attachment passed under Order 38 of the Code of Civil Procedure would be operative even after the decree is passed.
Such an order of attachment passed under Order 38 can be taken benefit of by the decree holder even after a decree is passed. An order of temporary injunction passed in a suit either may merge with a decree of permanent injunction or may have an effect even if a decree is passed, as, for example, for the purpose of determination as regard the status of the parties violating the order of injunction or the right of a transferee whom have purchased the property in disobedience of the order of injunction.
The orders passed in supplemental proceedings may have to be treated distinctly as opposed to an order which is ancillary in nature or which has been passed in the incidental proceedings.
Ultimately in paragraph 67 it has been held as under:
67. From the decisions rendered by different High Courts, therefore, the law that emerges is that there exists a distinction between ancillary orders which are required to be passed by the court in aid of or supplemental to the ultimate decision of the Court; as contradistinguished to an order passed under Part VI of the Code of Civil Procedure in terms whereof an order is passed in favour of a party to the lis which may not have a bearing on the ultimate result of the suit. An interlocutory order passed in a suit may not also have anything to do with the relief prayed for by the plaintiff. An order for injunction or appointment of receiver can be passed even at the instance of the defendant. An order which has been obtained by the defendant may not revive on restoration of the suit.
Supplementary proceedings, thus, envisage that such a power must be specially conferred upon the Court which are required to be passed in the interest of justice irrespective of the fact as to whether the same would ultimately have any bearing on the reliefs claimed in the suit or not. In absence of any statutory provisions such a power cannot be exercised whereas a power which is ancillary or incidental, can always be exercised by the Court in aid of and supplemental to the final order that may be passed. Furthermore, a jurisdiction expressly conferred by a statute and an inherent power, subject to just exceptions, must be treated differently.
Upon careful analysis of the aforesaid Honble Supreme Court judgment and in view of the facts and circumstances of this case we are of the clear opinion that the aforesaid restrained order was made by the Honble High Court to subserve the interest of all and sundry fixed deposit holders so that they are not deprived at the hands of the big networth investors only. Therefore, the said restrained order was made in aid of the ultimate decision of the Court for protecting the interest of all the fixed deposit holders and creditors of the company including the present complainants and as such we hold that the above Supreme Court decision applies in full force in the case in hand. We, therefore, hold that the aforesaid restrained order stood revived upon restoration of the company application on the very next day of its dismissal on the ground of default. Therefore, in view of the said restrained order the complaint case ought to have been stayed by the District Forum below pending final disposal of the aforesaid Company Application No.93/2008 by the Honble High Court.
For the reasons as aforesaid the impugned order is set aside. The complaint case is sent back on remand to the Forum below with a direction to keep the same in abeyance pending disposal of the aforesaid Company Application No.93/2008 by the Honble High Court. The appeal is thus allowed.
(S. Majumder) (Justice P.K. Samanta) MEMBER(L) PRESIDENT