State Consumer Disputes Redressal Commission
M/S. Morepen Laboratories Ltd vs R. Srimathi on 24 December, 2011
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/10/407 (Arisen out of Order Dated 30/01/2010 in Case No. CC/05/334 of District Thiruvananthapuram) 1. The Chairman & MD,Morepen Laboratories Limited K.G.Marg,New Delhi New Delhi New Delhi ...........Appellant(s) Versus 1. R.Srimathi Vallakkadavu,Trivandrum Trivandrum Kerala ...........Respondent(s) BEFORE: HONARABLE MR. SRI.M.V.VISWANATHAN PRESIDING MEMBER PRESENT: ORDER KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL 407/2010
JUDGMENT DATED. 24.12.2011
PRESENT:-
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SHRI. M.K. ABDULLA SONA : MEMBER
APELLANTS
1. M/s. Morepen Laboratories Ltd.,
4th Floor, Antriksh Bhavan,22, K.G. Marg,
New Delhi. 110 001
2. Chairman/Managing Director,
M/s. Morepen Laboratories Ltd.,
4th Floor, Antriksh Bhavan,22, K.G. Marg,
New Delhi. 110 001.
( Rep.. by Adv. B. Vijayakumar)
Vs.
RESPONDENTS
1. R. Srimathi,
Residing atT.C. No. 42/14440(15)
Ganesh Nivas, Sreevaraha Nagar, Vallakkadavu P.O
Thiruvananthapuram.
2. The Branch Manager,
M/s. Bajaj Capital Pvt. Ltd., Attukal Shopping Complex,
East Fort, Thiruvananthapuram.
(R1 Rep. by Adv. Sri. M. Nizamudeen)
( R2 Rep. by Adv. Sri. R.S. Mohanan Nair)
JUDGMENT
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER The appellants are the opposite parties 1 and 2 and respondents 1 and 2 are the complainant and 3rd opposite party respectively in O.P. No. 334/05 on the file of CDRF, Thiruvananthapuram. The complaint therein was filed against the opposite parties 1 to 3 alleging deficiency in service in their failure to disburse the maturity value of the deposited amount to the complainant. It was alleged that the complainant deposited Rs. 25,000/- on 11/4/2002 with the first opposite party M/s. Morepen Laboratories Limited with an Agreement to get the maturity value of Rs. 35,128/- on the maturity date of 11.4.2005, but the opposite parties failed to disbursed the said amount. Hence the complaint was filed claiming Rs. 36,900/- with interest and compensation of Rs. 50,000/-
2. The opposite parties 1and 2 entered appearance before the Forum below and filed written version denying the alleged deficiency in service. They contended that they filed a company Petition under Section 391 of Companies Act, 1956, for reshedulement and revision of all the dues to various creditors including Fixed Deposit holders. The Hon'ble court by its order dated 28th June, 2004 granted an interim stay on all the legal proceedings pending in various courts and Foras across the country against the first opposite party, company; that the Hon'ble High court by its order dated 2nd August, 2005, directed the company to hold its meeting of all its creditors for seeking consensus of all the proposed re structuring scheme. Thus, the opposite parties 1 and 2 prayed for staying the proceedings till the disposal of the company petition filed under Section 391 of the Companies Act, 1956.
3. The 3rd opposite party filed written version denying the alleged deficiency in service. They contended that they acted as broker and transmitted the application of the complainant to the first opposite party; that the first opposite party accepted the deposited amount and issued Fixed Deposit Receipt to the complainant; that the 3rd opposite party has nothing to do with the Disbursement of Deposit amount. Thus, the 3rd opposite party prayed for dismissal of the complaint filed against them.
4. The mother and legal guardian of the minor complainant filed proof affidavit in support of the claim of the complainant. Ext. P1 to P4 documents were also marked on the side of the complainant. No evidence was adduced from the side of opposite parties. On an appreciation of the evidence on record the Forum below passed the impugned order dated 30.01.2010 allowing the complaint and thereby the first opposite party is directed to pay to the complainant a sum of Rs. 35,218/- with interest @12% per annum from 11.04.2002 till realization. The first opposite party is also directed to pay the said amount within 2 months from the date of receipt of the order, failing which the first opposite party is further directed to pay a sum of Rs. 5,000/- by way of compensation and costs. Hence the present appeal by opposite parties 1 and 2 therein.
5. We heard the learned counsel for the appellants/opposite parties 1 and 2 and the first respondent/complainant. The counsel for the appellants submitted his arguments based on the grounds urged in the appeal memorandum. He further submitted that the appellants had approached the Hon'ble High Court of Himachal Pradesh at Shimla with a scheme of arrangements and compromise and that the said scheme /compromise has been approved by the Hon'ble High Court of Himachal Pradesh vide its order dated 4.8.2009 and that in view of the approval of the said scheme of arrangements and compromise the impugned order passed by the Forum below is liable to be set aside and the complaint in O.P. 334/05 is to be dismissed. The appellants also produced copy of the scheme of arrangements/compromise approved by the Hon'ble High Court of Himachal Pradesh in Company Petition No. 5/04 in company application No. 49/08. Thus, the appellants prayed for setting aside the impugned order passed by the Forum below, in view of the order dated 4.8.09 in Company application No. 49/08 on the file of the Hon'ble High Court of Himachal Pradesh. On the other hand, the learned counsel for the first respondent/complainant supported the impugned order passed by the Forum below and submitted that the first respondent/complainant deposited Rs. 25,000/- with the first opposite party M/s. Morepan Laboratories Ltd. and that the said company is liable to disburse maturity value of Rs. 35,128/- with subsequent interest, cost and compensation. Thus, the first respondent prayed for dismissal of the present appeal.
6. The above appeal is preferred from the order dated 30.01.2010 passed by CDRF, Thiruvananthapuram in O.P. No. 334/05. The complaint therein was filed for getting refund of the maturity value of the Fixed Deposit amounting to Rs. 35,128/- with subsequent interest and compensation. The fact that the complainant therein (first respondent herein)deposited Rs. 25,000/- with the 1st opposite party and that the maturity value of the said Fixed Deposit would come to Rs. 35,128/- is not disputed. It is also an established fact that on maturity of the fixed deposit , the complainant/deposit holder requested the first opposite party to disburse the maturity value of Fixed deposit. The complainant has also issued registered notice to the first opposite party demanding the amount. Exts P2 to P4 documents would show the above said demand made by the complainant.
7. The definite case of the appellant/opposite parties 1 and 2 is that the first opposite party M/s. Morepen Laboratories Ltd. was under financial crisis and to meet the demands of its creditors including Fixed Deposit holders, the appellants framed a scheme of arrangement/compromise. Thereby the Hon'ble High Court sanctioned the compromise and arrangement set forth in the said petition and the schedule thereto. A perusal of the said order would make it clear that the parties to the compromise or arrangement and any other persons interested shall be at liberty to apply to that court for any directions that may be necessary in regard to the working of the compromise or arrangement. It is further ordered that the said Company, (Morepen Laboratories Ltd) do file with the registrar of companies certified copy of the order within 14 days of the order. The documents produced from the side of the appellants/opposite parties would also show that the company filed certified copy of the said order as stipulated by the Hon'ble High court of Himachal Pradesh. Thus, in the light of approval of the scheme of arrangement and compromise under Section 391 of the Companies Act, 1956, it is clear that the CDRF, Thiruvananthapuram had no jurisdiction or authority to pass the impugned order in O.P. 334/05.
8. Provisions of Section 391 of the Companies Act, 1956, would show that an order of the court sanctioning the scheme becomes binding on all the creditors, including Government creditors, the liquidators, the contributories and the dissenting creditors or members. The judicial pronouncements on this subject would show that a compromise or the arrangement takes effect from the date when it is arrived at subject to the sanction of the court. If the court refuses sanction, it becomes without effect. If the court grants sanction, it takes effect not from the date of the sanction, but from the date when it was arrived at. Sanction, of the court to a compromise has relation back and a scheme or arrangement agreed to by the creditors of a company becomes operative from the date of the meeting in which it is agreed to and not from the date on which the court's sanction is given.
9. In the present case, on hand, the impugned order was passed by the Forum below in O.P 334/05 on 30.01.2010. Even before the date of the impugned order, the Hon'ble High Court of Himachal Pradesh sanctioned the scheme of arrangement and compromise vide order dated 4.8.09 in Company Application No. 49/08 in Company Petition No. 5/04. It is also to be noted that even before the order dated 4.8.09, a meeting of the creditors of the first appellant/company was convened and the scheme of arrangement and compromise was agreed. It is also to be noted that the appellant company had also acted upon the scheme of arrangement/compromise approved and sanctioned by the Hon'ble High court of Himachal Pradesh . The impugned order passed by the Forum below can be considered as an order passed without jurisdiction and authority. If that be so, the impugned order passed by the Forum below is liable to be quashed.
10. Section 392 of the companies Act, 1956 deals with power of tribunal(Company court) to enforce compromise and arrangement, where the tribunal makes an order under Section 391 sanctioning a compromise or an arrangement in respect of a company, it :-
a) shall have power to supervise the carrying out of the compromise or an arrangement; and
b) may , at the time of making such order or at any time thereafter give such directions in regard to any matter or make such modifications in the compromise or arrangement as it may consider necessary for the proper working of the compromise or arrangement.
11. The aforesaid provisions of Section 392 of the companies Act. 1956 would make it clear that any of the aggrieved parties have to approach the Hon'ble High court of Himachal Pradesh which sanctioned the scheme of arrangements and compromise, as far as the first appellant/first opposite party Morepen Laboratories Ltd. is concerned. Thus, in all respects the impugned order passed by the Forum below is to be setaside and the complaint in O.P. 334/05 is to be dismissed. Hence we do so.
In the result, the appeal is allowed. The impugned order dated 30.01.2010 passed by CDRF, Thiruvananthapuram in O.P. No. 334/05 is set aside and the complaint therein is dismissed. The parties are directed to suffer their respective costs through out.
M.V. VISWANATHAN : JUDICIAL MEMBER M.K. ABDULLA SONA : MEMBER ST [HONARABLE MR. SRI.M.V.VISWANATHAN] PRESIDING MEMBER