State Consumer Disputes Redressal Commission
Bank Of Baroda Through Its Manager, ... vs Balaprasad Bansilal Biryani, Died Per ... on 15 March, 2021
1 FA/131/2002
Date of filing :09.11.2020
Date of order :15.03.2021
MAHARASHTRA STATE CONSUMER DISPUTE
REDRESSAL COMMISSION,MUMBAI, BENCH AT
AURANGABAD.
FIRST APPEAL NO. : 131 OF 2002
IN COMPLAINT CASE NO.: 517 OF 2001
DISTRICT CONSUMER FORUM : NANDED.
Bank of Baroda,
Through its Manager, Trustee of Bond Holders,
3, Walchand Hirachand Marg, Mumbai. 400 038 APPELLANT
VERSUS
BalaPrasad S/o Bansilal Biyani,
Died per LR's
1. Rajesh S/o Balaprasad Biyani,
R/o Sarafa Bazar, Opposite Sonya Mariti Mandir,
Nanded.
2. Jyoti D/o Balaprasad Biyani,
R/o Sarafa Bazar, Opposite Sonya Mariti Mandir,
Nanded.
3. Kiran D/o Balaprasad Biyani,
R/o Sarafa Bazar, Opposite Sonya Mariti Mandir,
Nanded. RESPONDENTS.
CORAM : Smt.S.T.Barne, Hon`ble Presiding Judicial
Member.
Mr.K.M.Lawande, Hon'ble Member.
Present : Adv.R.S.Malani for appellant,
Adv.S.S.Katariya for respondents.
JUDGMENT
(Delivered on 15/03/2021) 2 FA/131/2002 Per Smt.S.T.Barne, Hon'ble Presiding Judicial Member.
1. The appellant Bank Of Baroda through its Manager, has preferred this appeal against the legal representative of Balaprasad Bansilal Biyani, against the judgment and order in C.C. No. 139/2001, decided by Dist. Consumer Forum Nanded on 19.12.2001 .The appellant is the Opponent and the respondent is the original complainant in the original Preceding before District Consumer Forum. They are hereinafter referred as per their status in the complaint.
2. It is the case of complainant Balaprasad Bansilal that he has purchased the bonds from Alpic Finance Limited Company Mumbai ; issued on 11th August 1998 of 11 B series of value of rupees 1000/- each as follows ( as per Xerox copies of bonds produced on record at page No.19 to 24 of appeal compilation).
Sr. Name. Distinctive Nos. Allotment Face No. Of
No. No. value. bonds.
1 Balaprasad Bansilal Biyani. 00052318 to 3284 1000 50
Pushpadevi Balaprasad. 00052367
2 Rajesh Balaprasad Biyani. 00048818 to 3282 1000 50
Balaprasad Bansilal.
00048867
3 Pushpadevi Balaprasad Biyani. 00048768 to 3283 1000 50
Rajesh Balaprasad Biyani. 00048817
4 Jyoti Balaprasad Biyani. 00052248 to 3285 1000 50
00052297
5 Balaprasad Bansilal Biyani. 00052438 to 3328 1000 10
Pushpadevi Balaprasad Biyani. 00052447
6 Kiran Balaprasad Biyani. 00052138 to 3258 1000 10
00052147
3. The said amount of Bonds was payable after 2 years, therefore the complainant approached the Branch Officer of Alpic finance, situated at Nanded. The Manager of Branch collected said bonds 3 FA/131/2002 and he asked the complainant to receive the amount against said bonds after 3 months. However, after 3 months he noticed that the branch office of Alpic Finance was closed. Therefore, the complainant issued legal notice to the opponent and he made demand of the amount of value of Bonds. but the complainant did not receive the reply to said notice. Therefore, he has filed consumer complaint, before the District Consumer redressal forum Nanded. The copy of said complaint is at page No. 16 of appeal compilation.
4. The opponent Bank of Baroda, appeared before the District Consumer Forum through its branch manager and filed a reply to said complaint. The copy of said reply is at page number 17, of reconstructed appeal compilation. The opponent Bank raised an objection that the complainant is not a consumer of the bank, within the meaning of Consumer Protection Act 1986. The complaint is filed only against Bank of Baroda, who is Trustee for Bond holders, but not filed against Alpic Finance Limited who has allotted bonds who is a necessary party. The opponent does not admit contents in the complaint as the opponent has not issued the bonds to the bond holders and public at large, therefore, security cannot be executed by the opponent for each and every holder.
5. Without prejudice to aforementioned contention it is the contention of opponent that Alpic Finance Limited proposed the Scheme of arrangement with Allianzer Distribution services Limited (ADSL) in the High Court of Bombay, under section 391 Companies Act 1956. The main feature of the scheme is conversion of bonds and unpaid interest to shares of ADSL. Pursuant to the order passed by 4 FA/131/2002 Bombay High Court on 6th July 2001, the opponent has invited objections to scheme of arrangement from the bondholders. In terms of notice sent by opponent. The complainant has to send his or her objection in the prescribed proforma, to M/s Satpute and Company latest by 20th August 2001. The said report invited by M/s Satpute and Company will be considered by High Court on 24/8/2001. This forum has no jurisdiction to adjudicate the dispute; It is submitted on behalf of opponent that in view of the above mentioned fact the opponent is not liable to pay any amount to the claimant and lastly the opponent bank has prayed for dismissal of the complaint.
6. On giving opportunity of hearing to the parties District Consumer Forum pleased to allow the complaint. Being aggrieved by said order the opponent Bank of Baroda has preferred this appeal on the following grounds That, the District Consumer Forum ought to have considered that the complainant is not consumer of opponent as per the provision of Consumer Protection Act. The Hon'ble consumer forum ought to have given direction to the complainant to produce all documents, relied upon by the complainant. The forum has committed error in holding that Alpic Finance is not necessary party and arrived at wrong decision awarding Bond amount to the complainant without joining Alpic finance as a Necessary party . The District Consumer Forum failed to consider that the bondholders of Alpic Finance Limited at large and as per terms and conditions of "trust deed", three fourth of the bond holders outstanding in value, have not requested to the opponent, for enforcement of security.
5 FA/131/2002 The forum failed to consider that the complainant has not given all the particulars of the bonds in the complaint, and complete copy of the complaint to the opponent. The learned District Consumer Forum failed to consider that only bonds worth Rs. 60000/- are standing in the name of complainant Balaprasad and rest of the bonds of Rs.1,60,000/- are in the name of his family members who are not complainants. The opponent Is not liable to make payment of Bonds standing in the name of complainant and his family members. The District Consumer Forum ought to have considered that the scheme of arrangement in respect of bond holders is pending before High Court in the company petition. With these submissions, the opponent has prayed for setting aside the order of District Consumer Forum.
7. It will not be out of place to mention here that during pendency of appeal the appellant remain absent , and failed to take legal representative of complainant on record, hence, our learned predecessors pleased to dismiss the appeal in default against which the appellant has preferred Revision Petition number 2590/2013, before National Commission. Hon'ble National Commission has decided said Revision Petition 29th July 2020 and pleased to set aside the order of dismissal with directions to decide the appeal on merits. In the meanwhile due to passage of time, the record before this Commission was disposed off in accordance with the rules. Therefore, this Commission has given opportunity to parties to reconstruct the file with the help of parties, and obtained pursis from them that they have filed available record. On said reconstruction of 6 FA/131/2002 appeal compilation, we heard the learned Advocate of the parties finally.
8. In the given circumstances following points arise for our determination; we have noted them along with our findings against it accordingly for the reasons to follow.
Sr.No. Points. Findings.
1. Whether the complainant proved No.
The deficiency in service on the part
Of opponent?
2. Whether, the complainant entitled No.
For relief as claimed?
3. Whether, there requires interference Yes.
In the order of District Consumer Forum?
4. What order? As per final order.
REASON
9. Points No.1to3:- Heard learned Adv. Mr.R.S.Malani for opponent (present appellant) and Adv. Lakhotiya for complainant (present respondents in appeal). The complainant has filed the complaint, for the payment of amount of bonds issued by M/s Alpic Finance Ltd,. It is stated by complainant that Alpic Finance Ltd,. has issued those bonds vide allotment letter dated 31.3.1998. Those bond certificates are issued in terms of trust deed dated 24.7.1998. The opponent is the trustee for bond holders, hence liable to pay the amount of bonds to complainant.
10. It is argued on behalf of opponent that the complainant has not produced bonds, also not provided details of folio number type/ 7 FA/131/2002 series of bonds along with complaint. However, in impugned judgment of District Forum it is mentioned that complaint is filed in respect of bonds issued vide allotment No. 3282, 3283, 3284, 3328, 3258 of series II scheme B. They are in the name of Rajesh Biyani , Pushpadevi Biyani, Jyoti Biyani and Kiran Biyani respectively. They are not made party to the complaint. The bonds are not in the name of complainant alone. Alpic Finance who has issued bonds is also not made party. The opponent are the trustee for bond holders is made party. As per trust deed the opponent is liable to enforce the security, if 3/4 of the value of bond holders submitted requision in writing. In the present case total value of the bonds is Rs. 19.19 Crors. While the complainants are holding only 2,20,000/- value of bonds, which is not 3/4 of the value of bonds. There is no privity of contract between complainant and opponent.
11. In the year 2001 Alpic Finance has filed petition No. 217/2001 before Hon'ble High Court for approval of the Draft scheme of arrangement made by the company under section 391 of company Act, 1956. As per said draft scheme the properties charged for bonds, subject to charge would stand vest with Allianzer distribution services Ltd,. But Hon'ble High Court refused to grant sanction to draft scheme. Then on 2.8.2002 Hon'ble High Court in Co. Application No. 100/2002 in Co.petition 853/2000 taken out by S.I.D. B.T, the official liquidator was appointed as provisional liquidator of M/s Alpic Finance Ltd,. Then on 21.6.2007 as per order of Hon'ble Bombay High Court in petition No. 853/2000, ordered to wound up M/s Alpic Finance Ltd,. And Bombay High Court appointed Court receiver, who has to sell all the properties of Alpic finance and to 8 FA/131/2002 deposit the sale proceeds. Thus, the properties of Alpic Finance were sold and amount was deposited with official liquidator and sell of one of the property is in dispute for which suit No. 1689/2003 is pending for adjudication. Further, the Bank as a trustee has filed application No. 21/2019 in Co. Petition 853/2000, before the Hon'ble High Court seeking relief that official liquidator be directed to publish advertisement inviting claim from all bond holders series wise, to adjudicate the claim of bond holders, and requested to permit the bank to handover the sum of Rs. 21,95,77,414/- less the amount of charges and express incurred, to the official liquidator. Further as per order of Hon'ble High Court dt. 7th Nov.2014, the opponent bank has deposited Rs.10 Lakhs towards publication & advertising charges. Therefore, as per application No. 346/2016, bank requested the Hon'ble High Court to permit to handover the sum of Rs. 21.96 Cr. with interest to official liquidator on deducting the amount of expenses incurred by the bank. By order of 23.1.2018 in CLJ No.346/2016, the Hon'ble High Court directed the bank, to pay the amount of Rs. 30,21,22,195/- and to lodge the claim along with affidavit of proof of debt, which the liquidator will adjudicate in accordance with law. The Bank has deposited amount of Rs. 326874721/- to official liquidator on 20.2.2018. The official liquidator then filed OLR No. 194/2019 in Co.petition No. 853/2000 and requested to distribute the amount to the debenture holders. Accordingly order was passed on 8.11.2019. Accordingly Bank has performed its duties as per trust deed dt.24.7.1998 and there is no deficiency in service on the part of opponent Bank. The opponent has also produced the copies of orders, in the aforesaid company proceeding before Hon'ble High Court in company petition.
9 FA/131/2002
12. The opponent has also produced the judgment of Hon'ble National Commission on similar issue in (1) Revision Petition Nos. 955/2002 (Bank of Baroda Vs. Gollaudi Sree Rama Murthy and Ors. (2) R.P.No. 3173/2018 Bank of Baroda Vs. Ravindra Agrawal and Ors. and R.P.No.3174/2018 Bank of Baroda Vs. Nish Agrawal, R.P. No. 3175/18 Bank of Baroda Vs. Bhagwan das Gupta & Ors. wherein similar issue was before Hon'ble National Commission wherein Hon'ble National Commission held that there is no deficiency in service on the part of opponent Bank and dismissed the complaint. Hence, it is the contention of opponent Bank of Baroda that the order of District Consumer Forum is liable to be set aside and to allow the appeal and dismissed the complaint.
13. On the other hand, the Ld. Adv. For complainant has argued that, the complainant has filed complaint before District Consumer Forum bearing complaint No. 139/2001. It was decided on 19.12.2001 by District Consumer Fourm. The opponent being dissatisfied, has filed appeal against it before Hon'ble State Commission, it was admitted on 29.12.2002 . On 12.2.2007 the L.R. of original complainant informed the Commission that original complainant is died. This Commission thereupon directed the opponent to take LR of complainant on record, but appellant failed to comply the order. Hence, the appeal came to be dismissed. The opponent preferred Rev. Petition No.2390/2013 before Hon'ble National Commission. The National Commission remanded back the matter for adjudication. It is the contention of complainant that complainant has purchased the bonds of series IIB for value of 10 FA/131/2002 Rs.1,000/- each on 11th Aug. 1998. Total value of bonds is Rs. 2,20,000/-. The complainant paid amount by cheque to Alpic finance on 26.03.1998. Trust deed is executed between Alpic Finance & opponent Bank. After two years on maturity of bonds the amount was payable to complainant by Alpic Finance. However, the Manager of Alpic Finance, Nanded branch has collected bonds but has not repaid amount even after the date of maturity within 3 months as assured. Hence, the complainant filed complaint. The District Consumer Forum passed the order against bank being trustee by rightly appreciating the documents.
14. It is further argued on behalf of complainant that,
(i) the opponent bank has admitted that the complainant has purchased the bond from Alpic Finance. The opponent bank is trustee for Alpic Finance. It is admitted that, said bonds are due for payment. The opponent also admitted that, being trustee they are liable to pay amount to the extent of 3/4 of the total bond value. The opponent admitted that bank being trustee cannot execute security in favour of each individual. Hence, security created by Alpic Finance in favour of opponent bank as a turstee for bond holders. On page 27 of appeal compilation there is trust deed. The opponent bank consented to act as a trustee with said trust deed. It is admitted in para No.28 that bonds are secured by these presents. It means all bonds which complainant possessing and filed before District Consumer Forum are secure by contents of trust deed. It is also made clear that the properties are mortgaged with opponent bank. In para 15 of trust deed gives power to the bank to sell the property of Alpic Finance. Para 17 to 20 gives method of payment to 11 FA/131/2002 the bond holders by trustee bank. Para 36 of trust deed is about indemnification Para 46 & 47 dealt with maturity of the amount of bond holders and liability of payment. The complainant are beneficiaries and opponent is the trustee as a owner, of the trust property. And the instrument, if any by which trust is declared is instrument of trust. From written statement the opponent admitted that the bank is trustee of Alpic Finance, has called objection from bond holders and being a trustee can settle the dues.
(ii) The opponent bank raised objections that Alpic Finance is not made party, is not acceptable. The opponent bank has stepped into shoes of Alpic finance and it is admitted by opponent . Hence, now Alpic Finance is not a necessary to party in view of trust deed.
(iii) So far alternate remedy and the jurisdiction is concerned, the present complaint filed, earlier in point of time, before appointment of liquidator in Dec.2001, One does not know whether complainant was made party to that suit, filed under Company Act, because complainant was not served with the notice.
(iv) Sec.391 Companies Act, provides for power to compromise to make arrangement with creditors or members
(a) Where a compromise or arrangement is proposed between company and its creditors/ any class of them or
(b) between co. And its members or any class of them, the Court may on application of company/creditor /member of company or in case of company being wound up or the liquidator, may order 12 FA/131/2002 meeting of creditors or class of creditors or members be called held and conducted in such a manner as court may directs.
(C) The court may, at any time after an application is made stay the commencement or continuation of any suit or proceedings against the company, until the application is finally disposed of.
(v) There is no stay by Hon'ble High Court on recovery proceedings. There is nothing on record to show that present consumer proceeding also mentioned before Hon'ble High Court in company proceeding under section 391, as the complainant has not received any individual notice.
(vi) If the bond holder chosen to join said proceeding it may be his choice, he may not relegate complaint to these proceedings and it is the prerogative.
(vii) Even if it is assumed that, any order is passed by Hon'ble High Court for winding up the company/appointing liquidator, after delivering the judgment by Consumer Forum in Dec.2001, then in that case question is whether it will supersede the order of Consumer Forum automatically. The answer will be absolutely no.
(viii) It is the contention of opponent that, if the bank has not received the papers or having original bonds are totally contrary to the record of the case. The original bonds were produced on record along with affidavit.
13 FA/131/2002
(iv) The present case is 20 years old. The complainant was persuing for legal remedy. The legal heirs are fighting for their legal money, it is the duty of opponent bank to pay amount to complainant and LR. By trustee of Alpic Finance Company.
15. On hearing both parties and the perusal of the documents on record it clearly reveals that, original complaint is filed by Bala Prasad Biyani R/o Sarafa Bazar, Nanded on 20.07.2001 before District Consumer Forum, Nanded under Consumer Protection Act,1986.
16. It is alleged by the complainant that, he has purchased the bonds from Alpic Finance Company Nanded Branch from Vivek Shette & Vikram Raje, R/o Nanded. The branch of Alpic Finance Company was situated at Gopalkrishna Apartment VIP road, Nanded. The bonds were of value of Rs.1,000/- each amounting to Rs.2,20,000/-( as mentioned in the xerox copy of bonds produced on record).
17. According to complainant Balaprasad, he made payment by cheque which is received by Alpic Finance Company Ltd,. On 26.3.2098 and issued letter of allotment to the complainant. It is alleged that after 2 years on maturity of bonds, the complainant submitted original bonds to Vikram Raje, who is presently working as a Manager of Shankar Nagari Co-operative bank Nanded. He informed the complainant that he would get the amount of bonds after 2 to 3 months. However, in the mean time the Manager, of Alpic Finance closed the branch at Nanded and ran away with staff 14 FA/131/2002 and members. Hence, the complainant has issued notice to opponent Bank of Baroda dt.2.7.2001, and filed consumer complaint.
18. The opponent raised objection that Alpic Finance Company who allegedly issued bond to the complainant is not made party to the complaint. Secondly, all the bond holders are not party to the complaint. Moreover, the opponent is the trustee for Alpic Finance Company as per trust deed between Alpic Finance & opponent Bank of Baroda. The opponent bank is not liable to make payment to individual bond holders. The opponent bank has not issued the bonds to each individual.
19. It is important to note that, the complainant has produced xerox copy of bond on record. It has no back page, to show as to what were the terms and conditions between complainant (bond holder) and opponent Alpic Finance. However, both the parties have relied upon the copy of trust deed, on the point of terms and conditions.
20. It reveals from record that, initially the complaint is filed before District Consumer Forum only against opponent Bank of Baroda. Only Balaprasad is made party as complainant. Therefore, the opponent raised objection against the complainant for non joinder of necessary parties. It is true that, at the time of filing complaint all bond holders, were not party as the complainants and Alpic Finance who has issued bonds not made party, who were necessary party. However, it is also important to note that, the complaint has not got finality till the date, though complainant is 15 FA/131/2002 claiming that at first stage the complaint was decided by District Consumer Forum in the year 2001. However, there is no substance in the submissions on behalf of complainant.
21. It is also important to note that, during pending the proceeding in appeal before Hon'ble State Commission, Aurangabad Bench it is informed in the year 2007, that complainant Balaprasad expired and subsequently his LR made party. Therefore, now all bond holders are on record and now there remain no substance in the objection of opponent that all bond holders are not made party. Admittedly as per the contention of complainant himself the branch office of Alpic Finance branch No.6 from Nanded has been closed when their bonds were matured and the complainant has submitted bond with employee Vikram Raje and he called upon him to come after 2 months. But he could not get the officer or its employee or staff and therefore, as the opponent bank of Baroda is the trustee , said bank is made party. Moreover, now the M/s Alpic Finance is also wound up. Hence, though submission as to non joinder of parties had some substance at the time of filing complaint. However, in the present circumstances these objections cannot be given much weightage.
22. However, as mentioned by the opponent in written statement that opponent bank is a trustee and they are bound by terms and conditions of trust deed. They have not received the requisition for payment of 3/4 of the outstanding value of bond subject to the provisions of trust of deed. Moreover, Alpic Finance has proposed the scheme of arrangement with Alianzor or Distribution Services 16 FA/131/2002 Ltd., in the Bombay High Court under Sec. 391 of the company Act, 1956. In pursuance of the order of Bombay High Court the opponent has invited bond holders objection. In terms of said notice, the complainant and bond holder were supposed to submit his or her objection to M/s Satpute & Company, Advocates of opponent latest by 20.8.2001. The report of the M/s Satpute Company was to be considered by Hon'ble High Court. This matter is subjudiced before Hon'ble High Court. Hence, the District Consumer Forum has no jurisdiction to entertain the matter.
23. As mentioned earlier both parties have placed reliance upon trust deed between Aplic Finance and opponent Bank of Baroda. According to complainant the consumer complaint is filed before all such proceeding under Company Act, and before appointment of liquidator and receiver. The complainant emphasised on the point that opponent being trustee, to protect the interest of depositors/beneficiaries, the opponent was supposed to satisfy the claim of complainants. Para 15 of the trust deed gives power to opponent trustee to sell the property of M/s Alpic Finance Ltd,. which are mortgaged with the opponent bank. Para 46, 47 of trust deed deals with the maturity of bond and liability of opponent towards bond holders on filing of claim the opponent in the year 2001 itself was supposed to return the bond amount to the bond holders on maturity. Here, the opponent bank has committed deficiency in service by non refunding the amount. The liquidators or the receiver are appointed subsequent to the order of District Consumer Forum. It is argued on behalf of complainant that, the amount is also deposited in the District Consumer Forum as per directions of 17 FA/131/2002 Commission on filing appeal before Commission. Hence, there is no bar in releasing the amount, as per order of consumer Forum, as the proceeding under company Act or the judgment and order relied upon by opponent of National Commission are subsequent to said order of District Forum in the case in hand. Due to delay in the proceeding the complaint is deprived of from taking benefit of bond amount even after order of District Consumer Forum passed in 2001. There appears no substance in this submission, as the litigation has got no finality by that time. Secondly transaction between company and opposite bank as submitted on behalf of the opponent that the opponent Bank is only trustee of Alpic Finance Company. There is no agreement between opponent and individual bond holders. When 3/4 of the value of bond holders come with requisition as per agreement trustee the opponent trust will be able to sale the properties of trust, subject to conditions of trust deed out of 19.19 crores of bond value, the value of complainant's bond is of Rs. 1,60,000/- only. There is no such requisition put forth with opponent. On the contrary Alpic Finance in the year 2001 itself has submitted scheme of arrangement with Allienzer Finance, before Hon'ble High Court under company Act for transfer of its interest to Allienzer Finance Distributor. On 19.9.2001 and for sanction to the Draft Scheme. In the year 2002, in co-petition No.853/2001, liquidator is appointed for Alpic Finance. Then bank as a trustee initiated proceeding against Alpic Finance, to protect the interest of bond holders for enforcement of mortgage of various properties of Alpic Finance, by filing suit No.1689/2003, before Hon'ble High Court.
18 FA/131/2002
24. The Bombay High Court then appointed Court receiver, with permission to sale the properties of Alpic Finance. However, only sale in respect of one of the property is in dispute and suit No.1689/2003 is still pending for adjudication. It is the contention of opponent that the opponent bank has submitted application No. 346/2016 to deposit the sale proceeds in the company petition No.853/2000. Accordingly in view of order of Hon'ble Bombay High Court the opponent bank has deposited the amount of Rs.30,21,22,195/- along with interest on deducting the amount of expresses incurred by bank, with liquidator . The official liquidator has also submitted its report to the Hon'ble High Court, showing therein that amount of Rs.32,68,74,721/- with D.D. dt. 20/2/2018 is deposited by opponent Bank of Baroda.
25. The opponent produced the copies order of Hon'ble Bombay High Court since 2001, to show that, how the opponent made efforts to secure the interest of depositors, those copies of orders in company petition are along with his written notes of arguments at page No.87of appeal compilation including the copy of order dt. 19.11.2001. In application No. 217/2001 for sanction to draft scheme, another copy of Co.Application 21/2014 in Co.petition 853/2000, the order dt. 7th Nov.2014, where in the opponent bank is directed to deposit amount of Rs.302122195/- , along with interest and with affidavit within 2 weeks. The copy of order in OLR 194/19 in co.petition 853/2000 the order dt. 8th Nov.2019 of Bombay High Court with which official liquidator is permitted to open separate account for Rs.80606169 to serve the interest of bond holders. The copy of report of official liquidator submitted in Co.petition 19 FA/131/2002 853/2000, on 23rd July 2019, wherein in para 11, at Sr.No.1, there is mentioned about amount deposited by opponent bank of Baroda of Rs. 326874721/- and the copy of D.D. dt. 20.2.2018 is produced.
26. The aforesaid documents and orders in proceeding under Company Act are initiated by Alpic Finance/ and then as a trustee by opponent Bank of Baroda, states that, opponent has taken every efforts to secure the interest of bond holders in general by adopting due legal procedure before Hon'ble High Court under Company Act. The opponent has also produced the copies of the judgment of Hon'ble National Commission with pursis at page 88 of appeal compilation.
27. The opponent has placed reliance upon the judgment in
(i) R.P.3173/2018 decided by Hon'ble National Commission in Bank of Baroda Vs. Ravindra Kumar Agrawal & ors. Decided on 6.3.2019.
The aforesaid cases are exactly similar in respect of the deposits with Alpic Finance filed by against Bank of Baroda wherein the complaint were allowed by Hon'ble State Commission, in Revision filed by Bank of baroda, the appeal is allowed and complaint is dismissed as against the opponent Bank of Baroda with the observation that "the petitioner bank has done whatever it could reasonably do, and there is no deficiency in service on the part of bank of Baroda is made out."
28. The opponent bank has also placed reliance on the judgment in 20 FA/131/2002
(ii) Rev.Petition No. 955/2002 Bank of Baroda Vs. Golapudi, Shree Rama Murthy and Ors. decided on 10th April,2003 is also exactly similar case is involved wherein Hon'ble National Commission observed that "There is nothing on the record to show that the Bank failed to act for the benefit of the bond holders. Under the trust deed various assets of the company had been secured for making payments to the bond holders. Mr.Agarwal, learned counsel for the Bank submitted that the Bank is in the process of collecting the amounts of the security and shall pay the same parl pasu to the bond holders. He says the process is on but it would certainly take time considering the usual delays in the judicial proceedings. There is nothing in the trust deed to show that the Bank ever guaranteed the payment of the amount of the bonds to the bond holders, para 14 of the trust deed gives the circumstances when there is default on the part of the company for the Bank to act. It is difficult for us to hold that the Bank could be accused of any deficiency in service as far as the bond holders concerned."
29. On the other hand the complainant tried to give emphasis on the judgment of District Consumer Forum in the consumer complaint in hand decided on 19.12.2001 and argued that, the case in hand is distinguishing wherein order is passed by District Consumer Forum before appointing liquidator and receiver and the amount in this case is deposited by opponent bank with District Commission, on preferring appeal, as per direction of this Forum. He has placed reliance upon judgment in -
21 FA/131/2002
1. 2012 CPJ p.686 (NC) - The State Bank of India & Ors. Vs. Good earth Synthetics.
2. 2006 CPJ P.149(NC)- A. Rami Reddy Vs. G.K.Sharma.
3. II (2015) CPJ 11(NC)- Small Industries Development Bank Vs. Dr. Saraswati Gupta.
30. However, the aforesaid judgments have no relevancy with the case in hand as the facts of circumstances in the case in hand are distinguishing, as in the case in hand opponent bank has filed applications in company petition, before Hon'ble High Court and judgment therein clearly speaks about steps taken by opponent in the interest of bond holders.
31. The complainants at one hand are claiming that they have submitted bonds to Manager of Nanded branch of Alpic Finance Company and on the other hand submitting that, they have produced copy of bonds in the consumer complaint along with the affidavit. In this case Alpic Finance not made party as it has closed down branch at Nanded. And now all LRs of complainant for whom the bonds were purchased are on record, details as to number and amount of bond is mentioned in the complaint, on the basis of xerox copy of bond. The Hon'ble District Consumer Forum has passed the order against the opponent bank, without considering terms and condition of trust deed and without evidence as to deficiency in service on the part of opponent Bank.
32. The opponent Bank has also mentioned in written statement about the then situation of proceeding of Alpic Finance, as well as what development took place since 2001 under Company Act. Moreover, the Hon'ble National Commission has also already decided 22 FA/131/2002 similar cases in afore mentioned Revision Petition and come to the conclusion that the complainant failed to prove deficiency in service on the part of opponent and pleased to dismiss the complaint as against opponent Bank. In the case in hand subject matter and facts raised before this Commission are exactly similar. In fact, in the case in hand Alpic Finance is not made party though the complainant is claiming that said complaint is filed and decided by the District Forum in the month of Dec. 2001 before order in co.petition, or appointing official liquidator or receiver. In fact, at the relevant time the M/s Alpic Finance was necessary party. However, due to subsequent development to such objections no weightage is given, to the objections raised by opponent bank.
33. In the light of the case proceeding before Hon'ble High Court under Company Act and the case decided by Hon'ble National Commission we are of the opinion that the complainant failed to establish deficiency in service on the part of opponent, District Consumer Forum, failed to consider that there is no deficiency in service involved on the part of opponent. Moreover, Alpic Finance and all bond holder were not party to the proceeding. Therefore, there requires interference in the judgment and order of District Forum. Hence, we answer the points accordingly.
34. In the present case the Hon'ble National Commission while remanding the case for fresh hearing have saddled the cost of Rs. 35,000/- upon opponent, payable to complainant. Then, the present appeal is decided on remanding the file and on giving opportunity of 23 FA/131/2002 hearing to the parties at length. In the circumstances on dismissal of appeal, there requires no order as to costs.
ORDER
1. Appeal No.131/2002 is allowed.
2. Judgment of District Consumer Forum in C.C.No.139/2001 decided on 19.12.2001 is hereby set aside, and the complaint is dismissed.
3. Parties to bear their own costs.
4. However, complainant's LR's are at liberty to approach the official liquidator within 6 weeks from the date of receipt of this order, for their alleged claims.
5. Copy be forwarded to the parties free of cost.
Mr.K.M.Lawande Smt.S.T.Barne, Member Presiding Judicial Member UNK