State Consumer Disputes Redressal Commission
M/S. Jai Vijay Enclave & Finance (P) Ltd. vs Ambuja Cements Ltd. on 12 September, 2008
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.268/A/96 DATE OF FILING:26.6.1996 DATE OF FINAL ORDER:12.09.2008 PETITIONER/APPELLANT M/s. Jai Vijay Enclave & Finance (P) Ltd. 22, Strand Road Kolkata 700 001 RESPONDENTS/O.P.S 1) Ambuja Cements Ltd. 122, Market III, Narimane Point Mumbai 21 Branch Office: 216, A.J.C. Bose Road Kolkata 700 017 2) M/s. EPIC Financial Consultancy Services (P) Ltd. 201/2, New India Industrial Estate Plot No.33 (Off Mahakali Cave Road, Andheri (East), Mumbai 93 3) The Oriental Insurance Co. Ltd. Orient House, A/25/27, Asaf Ali Road New Delhi 110 002 4) Ms. Sumita Mittal C-6/13, Krishna Nagar Delhi 51 5) M/s. D.P. Khemka 7, Lyons Range, 1st Floor, Room No.1 Kolkata 700 001 BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : MRS. S. MAJUMDER MEMBER : Mr. S.N. BASU FOR THE PETITIONER/APPELLANT: Mr. B. Prasad, Advocate FOR THE RESPONDENT/O.P.S. : Mr. G. Gupta Roy, Advocate : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT This complaint was filed long back in the year 1996.
Facts stated in the complaint in brief are that the complainant purchased 500 shares of the OP1 from one Sri Sajjan Kr. Singhania through the Broker OP No.5 and sent the same to the OP2 being the authorized transferring agent of OP1 for registration of these shares in the name of the petitioner. For these 500 shares the share certificates in original with requisite share transfer deeds and stamps were sent with single covering letter in single envelop on 30.6.95. The OP sent back share certificates for 200 shares transferred in favour of the petitioner but did not mention anything about the balance 300 shares. After correspondence as the petitioner did not get back the said 300 shares or their registration in the name of the petitioner, the present complaint was filed seeking appropriate relief. The OP raised the question of maintainability of the complaint itself on the ground that OP No.1 does not have any branch office within the territorial jurisdiction of the Forum. The District Forum by its order dated 13.6.96 dismissed the complaint for want of jurisdiction.
The appeal filed by the complainant was considered by the State Commission and by judgment dated 30.10.1996 the appeal was allowed holding both the questions on jurisdiction and on merit in favour of the complainant. The OP1 moved the Honble National Commission in its Revisional jurisdiction which decided the Revision Petition by its judgment dated 11.7.2000 remanding the matter back to the State Commission directing it to hear the case afresh on evidence allowing the shareholder to be cross examined by the Company and the Company was to produce entire record of receipt and despatch of shares during the period in controversy as also the letters sent by the complainant requesting registration of the shares and its reply to that letter. The State Commission was further granted liberty to draw adverse inference if the Company is unable to produce its records including the records of the Registrar before the State Commission.
Accordingly in terms of the said direction of the Honble National Commission evidence were taken on record. The Company was directed to produce records. The Company produced the record before this Commission at the time of hearing and inspected by Ld. Advocate for both sides. Mr. Gupta Roy the Ld. Advocate for the Respondent Company made available the Share Transfer records for the relevant period, Share Despatch Record for the relevant period and Share transfer deeds relating to the appellant and respondents no.3 & 4. Mr. Gupta Roy informed this Commission that his client does not possess the records showing receipt of the shares from the petitioner or from the OPs Nos. 3 & 4 nor his client possesses the letters by the petitioner requesting registration of its shares. Mr. Prasad the Ld. Advocate for the petitioner contended that his clients letter dated 28.5.95 (Annexure B to the Affidavit) shows clearly that 500 shares indicating their identifying numbers were sent to OP No.2 by the petitioner with a request to register the same. Mr. Prasad further pointed out that the Honble National Commission in the opening sentence of the judgment recorded that the present OP waived the objection regarding jurisdiction and it also found that present petitioner purchased 500 shares from a named seller and named broker and documents supporting such purchase are available. Therefore, Mr. Prasad argued that only the questions on merit are now to be decided by this Commission on the basis of the material on records. It is strongly contended by Mr. Prasad on behalf of the appellant that had it been correct that only 200 shares were received by the Respondent Company from the petitioner its normal reaction would have been to write a letter asking as to why particulars of 500 shares were supplied with a request for their registration when only 200 shares were received by them. It did not happen and the Respondent Company only registered 200 shares and made a communication thereof to the petitioner without mentioning anything about the balance 300 shares.
Mr. Prasad further contended that the OP Company failed to produce the documents showing receipt in respect of the shares from the petitioner or the original letter of the petitioner requesting for registration of his shares. It is said on behalf of the complainant that the reason given by the OP for non-availability of the vital documents relating to 500 shares purchased by the petitioner and sent to the OP for registration, cannot be accepted as the OP was expected to maintain the records even after initial dismissal of this complaint for default and it is not acceptable that when the OP lost the documents only the documents relating to receipt of the shares from the petitioner were lost and not the other documents.
On behalf of the OP it is contended that the OP Company is not at fault if it could not maintain all the documents even after dismissal of the complaint for default particularly when the same was not restored for a long period. It is further contended that OP Company did not benefit in any manner in registering the 300 shares in favour of the OP 3 & 4 as registration in favour of one in place of other does not benefit the Company. It is further contended that the documents were lost at a stage when petitioner was acting with negligence in getting its complaint dismissed for default and not getting it restored for a long time. The OP1 in its evidence recorded in this appeal in terms of order of the Honble National Commission also has stated that all the documents lying with the Registrar were available with OP1 and those were sent to its Mumbai Office. There is no statement whatsoever as to how those were lost and in what circumstances OP1 is unable to produce the same.
Mr. Gupta Roy the Ld. Advocate for the OP further contended that the question of jurisdiction of this Commission is required to be considered and decided and this cannot be omitted by anybody particularly when question of jurisdiction in this case is of inherent jurisdiction. It is stated that such questions of jurisdiction can be raised at any stage of the proceeding and cannot be waived by any person as want of jurisdiction is a matter which goes to the root.
We have considered the contention of the respective parties. It appears that question of jurisdiction was raised at the initial stage and the District Forum disposed of the matter on that question.
But when the matter was brought to the Hobble National Commission, the OP waived the said jurisdictional question and the said fact was recorded in the judgment of the Honble National Commission. In such circumstances the OP is not entitled to raise the question of jurisdiction before this Commission when this Commission is hearing the matter in terms of the self same order of the National Commission. The question of jurisdiction raised was relating to territorial jurisdiction which was waived while inviting the Honble National Commission to decide the matter on other question and waiving the jurisdictional question.
With regard to the merit we find that the Honble National Commission directed this Commission to hear the appeal after recording evidence as indicated in the order itself. The order of the Honble National Commission shows that the OP did not raise the question of non-availability of some of the documents before the Honble National Commission in the Revision Petition filed by it challenging the order of the State Commission at the earlier stage.
It appears even with regard to the records of the Registrar, the Honble National Commission imposed the responsibility of their production on the OP Company. No explanation has been given before this Commission by the OP as to why and how those records could not be made available. It has not also been shown that any attempt was made by the OP Company to obtain records of the Registrar in spite of the direction by the Honble National Commission.
We also take into consideration that the OP Company has produced several records including the records showing share transfer for the relevant period, share despatch record for the relevant period and share transfer deeds from the appellant and two other applicants but could not produce either the records showing receipt of the shares from the petitioner or any other documents relating thereto nor the records showing receipt of shares from OP 3 & 4. In these circumstances we hold that the OP has withheld vital documents on which this question could have been decided. The OPs. 3 & 4 in whose favour the 300 shares were registered, have also not come up in this proceeding at any stage in support of their claim in respect of those 300 shares. Therefore, we draw adverse presumption against the Company in respect thereof. We hold that the OP Company illegally registered the said 300 shares purchased and sent by petitioner/appellants. The appellant has disclosed the Bill showing that all the said 500 shares were purchased from the seller mentioned in one bill dated 11.4.95.
It has also produced the letter dated 28.5.95 sending all the said shares for transfer in favour of the petitioner. The OP2 as Registrar and Transfer Agent of OP1 sent letter dated 30.6.95 to appellant enclosing share certificates for only 200 shares. OP1 or 2 did not mention anything about rest 300 shares until 13.11.95 though appellant wrote letter relating to 300 shares on 30.6.95, 21.9.95, 12.10.95, 28.10.95 and 04.12.95.
In the circumstances the complaint is allowed and the OP Company is directed to register the 300 shares (Distinctive Nos.41350733-832) in Certificate No.435267, (Distinctive Nos.41350833-932) in Certificate No.435268 and (Distinctive Nos.41350933-1032) in Certificate No.435269 in the name of the petitioner after completing necessary formalities for striking out the name of the OP Nos.3 & 4 in respect of those 300 shares. The OP also is directed to pay compensation of Rs.10,000/- to the petitioner as also cost of Rs.10,000/- within a period of two months from the date of this order and in case of default the petitioner will be entitled to obtain relief in execution of the order and also recover interest @ 9% per annum for the period of default.
(S. Majumder) (S.N. Basu) (Justice A. Chakrabarty) MEMBER(L) MEMBER PRESIDENT