State Consumer Disputes Redressal Commission
Prem Lata Bansal vs Aptech Limited on 22 May, 2008
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986.) Date of decision :22.05.2008 Appeal No. FA-08/217 (Arising from order dated 15.1.2008 passed by the District Forum, Central, ISBT, Delhi in Compliant case No. C-642/07) Mrs. Prem Lata Bansal, W/o Shri R.A. Bansal, Mr. Rajeev Kumar Bansal S/o Mr. R.A. Bansal, Both resident of 4653, Mahavir Bazar, Cloth Market, Delhi ..Appellant Through Sh. Hemant K. Chaudhary, Advocate Versus 1. Aptech Ltd. Elite Auto House, 54-A, Sir M.V. Road, Anehri (E) Mumbai 400 093 (Through its Managing Director) 2. Sharepro Services (I) Pvt. Ltd. Unit Aptech Ltd. Satnam Estate, 3rd Floor, Above Bank of Baroda, Cardinal Gracious Road, Chakala, Andheri (E), Mumbai-400 099 3. Narayan Securities (P) Ltd. 5008, Sirkiwallan, Delhi Through its Managing Director 4. Anjani Share Delaers East Park Road, New Delhi 5. Mr. Adiya Rallan, 39, Lajpat Kunj, Civil Lines, Agra 282 004 ..Respondents CORAM Justice J.D. Kapoor President Ms. Rumnita Mittal Member1
Whether reporters of local newspapers be allowed to see the Judgement.
2. To be referred to the Reporter or not.
Justice J.D. Kapoor (Oral)
1. Vide impugned order dated 15.1.2008 passed by the District Forum, the complaint of the appellant was dismissed at the stage of admission being not maintainable .
2. The complaint was that the appellants purchased 100 shares of respondent No. 1 from respondent No. 3. The shares were purchased with Bonus. The record dated for the bonus entitlement was 9.7.1998. The appellant sent the purchased shares to respondent no. 2 on 7.7.1998 through courier. Though the courier offered delivery to respondent No. 2 (which is Registrar of respondent no. 1) on 9.7.1998 itself but respondent No. 2 managed to show delivery on 10.7.98. Thus respondent no. 2 managed to deprive the appellant with bonus entitlement. The appellant protested to respondents in writing. The appellant further pleaded that respondent No. 1 further issued bonus share in the year 2000. Since the appellant was deprived off with 100m bonus shares in the year 1998 in clandestine manner, the appellant were deprived with bonus entitlement in the year 2000.
3. Frustrated with the malafide action of respondent No. 1 and 2 the appellant filed a Civil Suit for permanent injunction and mandatory injunction. The Civil Court of Shri Shailender Mali Civil Judge, decreed the said suit. The Civil Court directed respondent no. 1 and 2 to deliver bonus shares to the appellants. The respondent No. 1 and 2 delivered 200 shares as per order of Civil Court. Appellant filed the instant complaint before the District Forum on the ground that appellant suffered great loss due to lowering down of the value of shares of respondent No. 1. He submitted that value of 200 shares of Aptech on 14.2.2000 was Rs. 6,36,000/- while the present value of holding is Rs. 72,280/- . The appellant filed the instant complaint praying for a compensation of Rs. 16,15,040/-
4. The complaint was dismissed being not maintainable for the following reasons :
(I) Application of Order 2 Rule 2 and Rule 3 CPC.
(ii) Application of section 11 of C.P. Act.
Point No. 1 Order 2 Rule 2 and Rule 3 is reproduced as under:-
2.
Suit to include the whole claim-
(1)Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action ; but a plaintiff may relinquish any portion of his claim in order to bring the shit within the jurisdiction of any Court.
(2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of , or intentionally relinquishes, any portion of his claim, he shall nto afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such relief, but if he omits, except with the leave of the Court, to sue for all such relief, he shall not afterwards sue for any relief so omitted.
Explanation-For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.
Illustration.
A lets a house to B at a yearly rent of Rs. 1200/-. The rent for the whole of the year 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907.
Even if original shares were purchased from OP-4, even then OP-4 is not necessary partly in this complaint. No deficiency is pleaded against OP-4. OP-4 is neither a necessary or proper party.
5. On the face of it, the ground of dismissal of the complaint suffers from inherent infirmity in as much as that remedy under the C.P. Act is an independent and additional remedy and not in derogation of any other law for the time being in force. The Supreme Court in case after case has held that even if there is civil suit filed by the complainant and even if there are other remedies available in other Forums and even if there is Arbitration clause or arbitration proceedings are pending , still the consumer has right to file the complaint under section 12 of the C.P. Act as the remedy and relief under the C.P. Act encompasses in its fold not only the payment of compensation as to the actual loss suffered by the complainant but also the compensation for the mental agony, harassment and other sufferings. In this regard following judgement of the Honble Supreme Court are note-worthy:
(i) Secretary, Thirumurugan Coo-operative Agricultural Credit Society Vs. M. Lalitha (Dead) through LRS and Ors.
Civil Appeal No. 92 of 1998 decded on 11-12-2003.
Reported in S.C. & N.C. Consumer cases (1996-2005).
10. In Section 3 of the Act in clear and unambiguous terms it is stated that the provisions of 1986 Act shall be in addition to an not in derogation of the provisions of any other law for the time being in force.
From the statement of objects and reasons and the scheme of 1986 Act, it is apparent that the main objective of the Act is to provide better protection of the interest of the consumer and for that purpose to provide better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve purpose of the Act, various quasi judicial forums are set up at the district, State and National level with wide range of powers vested in them. These quasi judicial forums, observing the principle of a specific nature and to award, whenever appropriate compensation to the consumers and to impose penalties for non-compliance of their orders.
(ii) Fair Air Engineers Pvt. Ltd. and Anr. Vs. N.K. Modi, 1996 (6) SCC 385.
It would, therefore be clear that the legislature intended to provide a remedy in addition to the consequent arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure.
In view of the object of the Act and by operation of section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matter in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act.
(iii) Smt. Kalawati and others Vs. M/s United Vaish Co-operative Thrift and Credit Society Ltd. R.P. No. 823 to 826 of 2001, SC & NC Consumer Law Cases (1886-2005) 275, wherein the National Commission observed that
4. Section 3 is worded in widest terms and leaves no one in doubt that the provisions of CPA shall be in addition and not in derogation of any other law for the time being in force. Thus even if any other Act provides for any remedy to litigant for redressal by that remedy a litigant can go to Dist. Forum if he is a consumer under CPA.
That remedy exists in any other law which creates the right is no bar to District Forum assuming jurisdiction.
6. Aforesaid reasons persuade us to allow the appeal, at the outset, set aside the impugned order and send back the matter to District Forum for deciding it on merits.
7. Appellant shall appear before the District Forum on 3rd July, 2008.
8. F.D.R./ Bank Guarantee, if any, furnished by the appellant be returned forthwith after completion of due formalities.
9. A copy of this order as per statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to the record room.
Announced on the 22nd May, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member rk