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Judgment
THE complainant is an association of investors in the deposit and other schemes of the opposite party duly registered under the Societies Registration Act. THE opposite party-company is incorporated under the Companies Act, 1956 with the Registrar of Companies, Karnataka and having their Branch Offices in various cities in Goa.
BRIEFLY stated, it is the case of the complainant that the opposite parties through various handouts, press statements and publicity introduced a deposit scheme known as "Manipal Sowbhagya Nidhi Ltd." and invited applications from the public. The deposit application form contained various terms and conditions; one such condition stipulated that in case of any deficiency in servicing the deposit, the depositor could approach Forums set up under the Consumer Protection Act for relief. The Members of the complainant held various deposits in the opposite party-company. The opposite party-company closed down their business in Goa without any reasonable cause and refused to refund the deposits to the depositors. Instead, the opposite party-company approached the Company Law Board seeking its guidance in the matter; however the said petition was dismissed.
The complainant issued a letter to the opposite party-company dated 28.11.2002 "inter alia" calling upon it to return their deposits without further delay failing which the creditors would be compelled to approach the appropriate authorities.
THERE was no response from the opposite party-company to the said letter dated 28.11.2002. Most of the investors are senior citizens, retired and sick persons who have deployed their hard earned savings with the opposite party-company, and entirely depend on the interest for their survival.
IT was alleged that the opposite party-company was disposing of their office premises and other immovable properties in Goa. It was further alleged that the opposite party-company had committed unfair trade practice while conducting their trade/business. The complainant prayed for a direction to the opposite party-company to refund the deposits held by the investor-members of the complainant along with interest, and for costs.
UPON being noticed, the opposite party-company filed its written version. It was contended that the complainants were not consumers under the Consumer Protection Act, and as such this Commission had no jurisdiction to try the complaint. It was further contended that the registered office of the opposite party-company was at Manipal, Karnataka and, therefore, this Commission had no territorial jurisdiction to try the complaint. It was further contended that the subject matter of this complaint is similar to the Companies matter bearing No. C.A. 711/2002 before the Karnataka High Court.
ON merits, it was denied that there was any deficiency-in-service or any unfair trade practice adopted by the opposite party while conducting their business. It was denied that the opposite party-company has shut down its business in Goa. Parties filed their affidavit-in-evidence and reiterated the stand taken by them in their pleadings.
The complainant was cross-examined by the opposite party company by way of questionnaire.
HEARD Mr. G.M. Kanekar and Mr. S. Samant on behalf of the parties. Counsels also filed notes of arguments. We have minutely considered the evidence on record and the submissions of learned Counsel.
THE following points crystallise for consideration of this complaint: (i) Whether the complaint is within pecuniary and territorial jurisdiction of this Commission? (ii) Whether the complainant is entitled for premature withdrawal of their fixed deposits and debentures held with the opposite party-company? (iii) Whether the opposite party-company committed deficiency in service by refusing to refund the deposit amounts? (iv) Whether the investor members of the complainant are entitled to the reliefs prayed for in the complaint?
Point No. 1 The opposite party raised preliminary objections that the sum total of the deposits and debentures held by all members of the complainant-Creditors Association amounted to more than Rs. 1,00,00,000/- and, therefore, a complaint ought to have been filed before the National Commission. We do not find any merit in this submission. It is true that the complainants are members of the Creditors Association. However, different groups of consumer members have preferred separate complaints whose value is within the pecuniary jurisdiction of this Commission; all such groups being represented through the Creditors Association of which they are members. Insofar as territorial jurisdiction is concerned, the deposits were made through the various branches of the opposite party-company situated in Goa, and, therefore, the complaints have been filed before this Commission. Point No. II, III and IV taken together An important issue which arises for our consideration is whether the complainants are entitled for premature withdrawal of debenture invested with the company. This Commission had asked the complainants to give a breakup of the investments in various instruments, which was duly furnished on 21.7.2004. Copy thereof was furnished to the opposite party-company who have concurred with the same.
DEBENTURES are in a nature of a loan requirement of a company that is met by several lenders by issue of several units. It is seen from the terms and conditions of the debentures issued by the opposite party to the complainant that the debentures are secured against the assets of the company. It is also seen that the debentures are not payable on demand (as is the case made out by the complainant) and are redeemable only on the expiry of the redemption period. This coupled with the fact that the debentures were in the nature of a loan taken by the opposite party from individual investors show that there is no element of service involved in the issue and servicing of debentures. In any case, as stated earlier, the investor is not entitled for pre-mature redemption of the debentures. Therefore, in our considered opinion the complainants are not entitled for the premature redemption of the debenture instruments, and there is no deficiency in service on the part of the opposite party or its branches in this respect.
IN the case of fixed deposits and Sowbhagyalaxmi Cash Certificates, the terms and conditions clearly provide for premature closure after a specified period and the rates of interest payable on such premature withdrawal is also specified in the terms and conditions framed by the opposite party-company for such deposit schemes. It is seen from the records that the complainant gave notice of premature withdrawal of their various Fixed Deposits/Cash Certificates held with the Company and demanded payment of the due amounts. This request was not complied with by the opposite party-company on one pretext or the other. It is also seen that the requests for premature withdrawals were made well within the period specified in the said terms and conditions fixed by the company. IN our opinion, failure to pay the principal amount along with specified interest, albeit prematurely, amounts to gross deficiency in service. The complainant is entitled to a direction to the opposite party to refund the Fixed Deposits/Cash Certificates along with interest at the rate specified in the terms and conditions of such deposit schemes. In view of what is discussed above, we pass the following order: (i) The opposite parties jointly and severally are directed to pay to the complainant the principal amount of Sowbhagyalaxmi Cash Certificates and Fixed Deposit Receipts amounting to Rs. 20,30,800/- along with interest at the rate specified in the terms and conditions within 30 days. (ii) The opposite parties jointly and severally are directed to pay to the complainant-Association a sum of Rs. 10,000/- as costs of this litigation. Order accordingly.
Complaint disposed of.