State Consumer Disputes Redressal Commission
Shilpi Shakt vs Rajiv Kumar Gupta on 4 October, 2010
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Appeals against the order dated 09.09.2005 passed by District Forum (Central) , Kashmere Gate, Delhi in complaint case no 1135/01 and 545/05 ) Date of Decision : 04.10.2010 Appeal No. FA-1070/2005 Mrs. Shilpi Shakt, w/o Sh. Sunil Shakt, R/o A-2/141, Sector-III Rohini, Delhi-85. .. Appellant VS Shri Rajiv Kumar Gupta, s/o Sh. Man Mohan Gupta, R/o 1405, Chhapar Wala Kuan, Karol Bagh, New Delhi-110005. ...Respondents Appeal No. FA-610/2009 Shri Rajiv Kumar Gupta, s/o Sh. Man Mohan Gupta, R/o 1405, Chhapar Wala Kuan, Karol Bagh, New Delhi-110005. .. Appellant VS Mrs. Shilpi Shakt, w/o Sh. Sunil Shakt, r/o A-2/141, Sector-III Rohini, Delhi-85. Mr. Sunil Shakt Husband of Mrs. Shilpi Shakt r/o A-2/141, Sector-III Rohini, Delhi-85. Mr. Naresh Tyagi, s/o Late Sh. Yashpal Tyagi, r/o K-1/59, Gali no. 36, Rajapuri, sector-3, Dwarka, New Delhi ...Respondents CORAM Justice B.A. Zaidi, President. M.L. Sahni, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
M.L. Sahni, Member (Judicial)
1. These two appeals arise out of the same order dated 09.09.2005 passed by the District Forum, Kashmere Gate, Delhi, whereby Mrs. Shilpi Shakt one of the OPs (hereinafter referred to as the Appellant) alongwith two other Directors of M/s Fintra Centre , M/s Fintra System Ltd. and M/s N.T. Financial Services, have been directed to refund the deposit amount of Rs. 1,95,000/- of the complainant-Shri Rajeev Kumar Gupta (hereinafter referred to as the complainant) , together with interest @ 9% (p.a.) from the date of deposit till realization, with cost and compensation of Rs. 50,000/-, within a period of 30 days , failing which the entire amount would carry interest @ 15% from the date of order till realization.
2. Since both the appeals are directed against the same order and the parties to the proceedings are also the same, we have proposed to dispose off them by this order, together.
3. None has been appearing on behalf of Appellant since 08.02.2010 after the appeal case No. FA. 1070/2005 was remanded back by Honble National Commission vide order dated 24.11.2009, setting-aside the interim order dated 30.08.2006 passed by this Commission staying execution proceedings initiated by the complainant and directed for recording conclusive findings in the matter giving due opportunities to the parties. We have, therefore, heard the complainant in person at length.
4. Firstly, we take-up appeal No. FA-1070/2005.
5. According to the Appellant, She is wife of Shri Sunil Shakt, who was the Director of the Company, known as Fintra Systems Ltd. , which was registered under the provisions of the Companies Act vide Registration Certificate dated 2.7.1990 ; that the Appellant had no concern, whatsoever, with the said company, as she was married to Shri Sunil Shakt, only on 23.2.1992 much after registration of the company ; that the Appellant had not issued the cheques-in-question in favour of the complainant relating to M/s Fintra Centre ; that M/s Fintra Centre was sole proprietory concern of Mr. Naresh Tyagi s/o Shri Yash Pal Tyagi ; that the investors were signatories to an agreement, Clause 14 of which, contained a specific arbitration clause for adjudication of all disputes, differences and / or claims arising out of their contract ; that the cheques were issued for and on behalf of M/s Fintra Centre, which is a sole proprietary concern of the Respondent/OP-3 - Shri Naresh Tyagi.
6. Appellant has assailed the impugned order mainly on the ground that it has been based on oral testimony of the complainant without any corroborative evidence and without application of mind and that there was an agreement between the investors and the companies of the OPs containing specific arbitration clause , but the Ld. District Forum ignored to consider the same before passing the impugned order.
7. We have gone-through the impugned order, from where it is revealed that all the three OPs in the complaint case no. 1135/01 contested the complaint by filing their written replies. OP-2-the Appellants before us and her husband OP-1 had pleaded that they did not have any concern with M/s Fintra Centre, which was proprietary concern of Shri Naresh Tyagi-the OP-3, who in his separate reply had submitted that the complaint was barred by time, while winding up proceedings against Fintra System Ltd. of which Shri Sunil Shakt and Smt. Shilpi Shakt were also arrayed as the directors, are pending in the High Court, though the Appellant was not the director of that company as well.
8. After considering material produced by the parties before the Ld. District Forum, it had observed in the impugned order that, the copies of advertisement filed by complainant which are placed on record clearly show that it is a joint advertisement to earn profits @ 3.5% from the Fintra System Ltd. N.T. Financial Service Ltd. against Financial services and C.K. Financial Services and address is 9-D Masjid Moth, Phase-I, near Greater Kailash, New Delhi-48 & 306, Mandhari Chambers, D.B. Gupta Road, Karol Bagh, New Delhi-05 and also C-190, Sector-31, Nodia. Another advertisement shows 3% interest from Fintra Centre and address is 9-D, Masjid Moth, Phase-I, near Greater Kailash , New Dlehi-48 i.e. address of Fintra System Ltd. and also the other address 306, Mandhari Chambers, D.B. Gupta Road, Karol Bagh, New Delhi-05. All this shows that all the persons are in connivance with each other to allure public at large to get the finance from them which shows intentions not to return the same to the depositors who has deposited their hard earned money with them. OPs initially not denied in their submissions that these advertisements were not established by them. Complainant has also placed on record the copies of the cheques issued by Fintra Centre in favour of some other depositor namely Shri Vijay Mathur which is signed by Shri Sunil Shakt on behalf of Fintra Centre. This cheque also goes to prove that Sh Sunil Shakt signed the same on behalf of Fintra Centre. This cheque also goes to prove that Sh. Sunil Shakt who claims only to be associated with Fintra System Ltd against whom winding up proceedings have been initiated and if Sunil Shakt is not connected /associated and is not in hand and glove with Fintra Centre in any manner whatsoever then there was an occasion for Sh. Sunil Shakt to issue the cheques on behalf of Fintra Centre in favour of Sh. Vijay Mathur, i.e. one of the depositors with Fintra Cenre.
OP in his submissions nowhere submitted that Sh. Sunil Shakt has not issued the cheques.
9. From the above observations of the Ld. District Forum, however, it is not clear if the Appellant had issued the Advertisements or that there was produced any evidence to establish that Appellant was in any manner concerned with either of three companies of which she was alleged to be one of the Directors, so as to be liable for the misdeeds of those companies, whether same were the proprietary concern of OP-3 or Private Ltd. Company of OP-2 & OP-3, as is evident from Certificate of Incorporation of Fintra System Pvt. Ltd., filed on record in this appeal, nor she has allegedly signed any document on behalf of these companies like her husband Shri Suil Shakt, who had signed cheques on behalf of Fintra Centre in favour of Shri Vijay Mathur as observed by the Ld. District Forum as cited above. What persuaded the Ld. District Forum to conclude that the thee group of concerns arrayed as OPs in the complaint case were all controlled by the Appellant also is not known. Thus, holding Shilpi Shakt liable by the Ld. District Forum is based purely on surmises and conjectures that being wife of Shri Sunil Shakt she could also be conniving her husband and the OP-3.
10. Neither,OP-2 nor OP-3 has have come in appeal before us and hence the impugned order as against them has attained finality.
11. In a similar matter of this Appellant in Appeal No. 1382/99, arising from order dated 8.4.1999 passed by District Forum II, Maharuli District, New Delhi in complaint case of Shri Darshan Singh against the Appellant and others, it was held by this Commission , vide order dated 16.01.2006 that in view of the certificate of incorporation and failure of the complainant in that case to show that the Appellant was in any way in-charge of the company and responsible for the day to day affairs of the company, the order impugned in that appeal was not sustainable against the appellant.
12. We fully subscribe to this view taken by this Commission and hold that the Appellant for want of cogent evidence produced before the Ld. District Forum it is not established that she was in any manner responsible for the conduct of the business of either of these companies arrayed in the complaint case, would be liable for the misdeeds of other Directors or those companies, responsible for the same. Merely being wife of one of those directors, does not suffice to fix her liability for any act of Unfair Trade Practice as found by the Ld. District Forum that the three companies were indulging in.
13. As a result of our above discussion, we find the appeal having sufficient merit for allowance. Hence appeal of Smt. Shilpi Shakt is accepted and the impugned order qua the Appellant alone is set- aside, while it can be enforced by the complainant against other OPs namely Sh. Sunil Shakt and Sh. Naresh Tyagi (OP-1 & OP-3 respectively) in the compliant case no. 1135/01.
14. Now we take-up Appeal No. FA-09/610 filed by the Complainant whose main grievance is not against the order dated 0909.2005 passed in his favour by the District Forum, but is against the Recovery Certificate issued pursuant to the said order, while calculating the recoverable amount of Rs. 5,41,142.00 vide order dated 29.07.2009 passed on his execution application, by the Executing District Forum.
15. According to the complainant, the Ld. District Forum erred in computing the interest @ 9% & 15% at simple rate of interest whereas it should have calculate @ 18% compound interest in view of the decision of Honble High Court of Delhi laid in case, State Bank of India Vs M/s Ambey Enterprises (Suit No. 1082 of 1982 decided on 3.7.1996) reported as I (1997) BC
138. In this case, it was held that since the defendant had committed fraud on the plaintiff-Bank, had cheated the Bank and is guilty of utilizing public money, therefore, the claim of interest @ 18% p.a. is reasonable. We have carefully examined facts of the cited case, but have failed to any relevance with the present case of the Complainant.
16. As per the order dated 09.09.2005, all the three OPs including the Appellant have been directed by the District Forum to refund to the complainant the deposited amount of Rs.
1,95,000/- with interest @ 9% from the date of deposit till realization with cost and compensation of Rs. 50,000/- within a period of 30 days, failing which, the entire amount would be carrying interest @ rate of 15% from the date of order till realization.
17. Now, with allowance of the appeal of Smt. Shilpi Shakt, as stated in forgoing paras, the above order of the District Forum remains enforceable only against OP-1, Shri Sunil Shakt and OP-3, Shri Naresh Tyagi, none of whom had preferred any appeal and the order dated 09.09.2005 has become final against them. They have failed to comply with the order till date. Thus while ascertaining their liability jointly or severely, it has to be seen , what is implied by the order dated 09.09.2005 which is pending under execution before the District Forum. 18. This Commission vide order dated 30.08.2006 in Appeal No. 1070/05 had stayed the execution proceedings. The same had been vacated on 18.07.2008 by the orders of the Honble National Commission. Since the stay in the appeal of Smt. Shilpi Shakt operated only qua her, OP-1 & OP-3 who did not challenge the order dated 09.09.2005, were obliged to comply with the same failing which necessary consequence had to follow, but because of mis-conception of the stay , the execution proceedings as against OP-1 & OP-3 also remained in abeyance. Now the entire shroud of clouds has been cleared, we find the grouse of the complainant against non-action in his execution proceedings as justified entitling him to equity justice and fair play, forthwith.
19. It is, therefore, now incumbent upon the Executing Court to get the order dated 09.09.2005 enforced in letter and spirit considering the terror of its dictate, in truest sense.
20. The order under execution required of the OPs to refund the deposited amount of Rs. 1,95,000/- with interest @ 9% p.a. w.e.f. date of deposit till realization within 30 days, failing which, entire amount i.e. Rs. 1,95,000/- plus Rs. 50,000/- of compensation and cost would be to carrying interest @ 15% p.a. Since the OP-1 & OP-3 have failed to pay the above stated amount within 30 days of the date of order till date, therefore, they have rendered themselves liable to pay interest @ 15% on the entire decreetal amount as per the order dated 09.09.2005, which is pending execution before the District Forum.
21. The order has two parts, one to pay interest @ 9% w.e.f. date of deposit and @ 15% w.e.f. date of order. Date of deposit is 1.11.1996 and date of order is 09.09.2005. Hence, the complainant is entitled to interest @ 9% w.e.f. 1.11.1996 on the principle amount of Rs. 1,95,000/- till 09.09.2005 and interest @ 15% w.e.f. 09.09.2005 on the entire amount of Rs. 1,95,000/- plus interest @ 9% upto 09.09.2005 , plus Rs. 50,000/- awarded as compensation.
22. So far as contentions of the complainant for enhancement of rate of interest or altering mode from simple to compound is concerned , we do not find any force in it. Executing Court cannot go behind the decree as in the settled principle of law. Since the original order dated 09.09.2005 was not challenged by him at the appropriate stage and now it is too late to mend the said order, the complainant cannot ask for enhancement of rate or mode of interest in execution proceedings, which order is subject matter of his appeal before us.
23. So far as calculation/computation of recovery amount is concerned, we leave to the District Forum to do the needful as per the dictates of the order dated 09.09.2005, without any further delay.
24. The appeal of the complainant in above terms stands disposed off with directions to the District Consumer Forum to issue Recovery Certificate against both the OPs namely Shri Sunil Shakt and Shri Naresh Tyagi u/s 25 (3) of Consumer Protection Act 1986 forthwith failing which, prosecution as envisaged u/s 27 of the Act be initiated against the defaulters in accordance with law. Address of both the JDs are available in appeal file no. FA-1070/05, wherein is placed the copy of certificate of Incorporation of FINTRA System Private Limited, showing them as r/o A-14, Bhandari House, Mukerjee Nagar, Delhi-19 and r/o 108, B-9, Sector-III, Rohini Delhi respectively. It has been observed in these proceedings that these Respondents have been evading Service on their given addresses last known to the complainant. In such an eventuality, the District Forum can proceed against them through Registrar of Companies, Delhi to ensure realization of decreetal amount in this case. In case the amount is not recovered proceeding u/s 27 which are penal in nature be initiated forthwith , as had been directed as long back in 2007 by this Commission vide order dated 14.03.2007 passed in appeal no. FA -2005 /75 filed by Shri Naresh Tyagi, one of the JDs.
25. Both the appeals are disposed off accordingly. Copy of the order be sent to the parties with one copy to the District Forum, Kashmere Gate, Delhi for immediate compliance and one copy be placed on each file for record.
26. FDR, if any , deposited by the appellant be released after completing due formalities.
(Justice B.A. Zaidi) President (M.L. Sahni) Member sk