DIGITAL MULTI FORMS LTD vs HASMUKHLAL R GANDHI

-HEARD Mr. H. J. Thakkar for Mr. Milan K. Dudhiya, learned Advocate for the appellant and Mr. Mukesh Shah, learned authorised representative for respondent No. 1 (original complainant) and himself as respondent No. 2.

THIS appeal under Section 15 of the Consumer Protection Act, 1986 is directed against order dated 12. 2. 2008 rendered in Complaint No. 2 of 2006 by the learned Vadodara District Consumer Disputes Redressal Forum, at Vadodara, partly allowing the complaint directing the opponent to refund the fixed deposit amount of Rs. 25,000 and Rs. 20,000 with interest at the agreed/contracted rate also awarding Rs. 2,000 by way of compensation by way of mental agony and harassment and cost of the complaint within sixty days from the date of the order. It is suggested from the submissions advanced by the learned Advocate for the parties as well as the impugned judgment and order that the complainant filed a complaint under the provisions of the Consumer Protection Act, 1986 stating that the complainant had invested with the opponent an amount of Rs. 25,000 on 20. 11. 2003 for a period of 36 months under the non-cumulative scheme carrying interst @ 11% p. a. for which FDR No. 9209 was issued; that on 24. 10. 2003, the complaianant invested further amount of Rs. 20,000 with the opponent in non-cumulative scheme for a period of 36 months carrying interest @ 12% for which FDR No. 9208 was issued by the opponent; that on the date of maturity, the fixed deposit amount with interest was not paid back to the complaint; the complainant wrote letter on 3. 1. 2005 to the opponent; that on 20. 2. 2005 the opponent replied stating that because of administrative reasons, the account has been closed and that new cheques are being issued. But the complainant was not paid the amount despite the assurance given by the opponent; hence the complaint for refund of fixed deposit amount with interest at the contractual rate with other reliefs.

The opponent appeared before the learned Forum and filed reply vide Exh. 7 and mainly contended that the complainant has no right to file the complaint; that the complainant is not a consumer within the meaning of the Act; that the District Forum has no jurisdiction to try and entertain the complaint; that the opponent has approached the Board for Industrial Finance and Reconstruction (BIFR) and is a sick unit under the Sick Industrial Companies (Special Provisions) Act, 1985 with effect from 14. 8. 2006; hence the complaint be dismissed considering the provisions contained in Section 22 of Sick Industrial Companies (Special Provisions) Act, 1985. The learned District Forum considering the material on record passed the order aforestated which is assailed in the present appeal by the appellant (original opponent ).

IT is submitted by Mr. H. J. Thakkar that the complaint for the refund of fixed deposit amount would not be maintainable as the opponent company has been declared a sick unit with effect from 14. 8. 2006 under the provisions of Sick Industrial Companies (Special Provisions) Act, 1985 and that the opponent company has approached BIFR and the complaint is liable to be dismissed in view of the provisions contained in Section 22 of the Act, 1985. As against this, it is submitted by Mr. Shah, respondent No. 2 for himself and as authorised representative of respondent No. 1-original complainant that the complaint is maintainable because Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 does not debar filing of complaint under the provisions of Consumer Protection Act, 1986 and even if the opponent company is declared as a sick unit by BIFR, the company would be liable to make the payment. In this regard reliance is placed on a decision in the case of Manoharlal Bhandari and Anr. v. Sun Earth Ceramics Limited reported in III (2008) CPJ 179 (NC ). In the instant case it is not disputed that the complainant invested Rs. 20,000 and Rs. 25,000 by way of fixed deposits for which FDR Nos. 9209 and 9208 respectively have been issued by the opponent company. It is also not disputed that both these Fixed Deposits were for a period of 36 months and the rate of interest agreed is 11% and 12% respectively. Admittedly, the amount has not been refunded on the date of maturity of the fixed deposits. The only defence taken by the opponent company is that the company has been declared as sick industrial unit under the provisions of Sick Industrial Companies (Special Provisions) Act, 1985 and that Section 22 of the said Act would make any proceedings not maintainable. In the case of Manoharlal Bhandari v. Sun Earth Ceramics Limited (supra), it has been held by the Honourable National Commission that ''contention of pendency of company''s reference under Act of 1985 will not operate as a bar to maintainability and diposal of complaint by Consumer Fora. It is further held that Act of 1985 has not placed restriction on Consumer Fora to deal with pending proceedings under the Act, 1986''.

IN para 3 it has been observed that ". . . . . . . . . . reliance has been placed on the decision in Sneha Dyechem Ltd. v. Jyoti Rathore, II (2006) CPJ 195 (NC ). The decision was rendered with reference to Section 22 of the Act. Act of 1985 does not provide for any permission to continue with a pending complaint filed under the Consumer Protection Act, 1986 nor does it place any restriction on the Consumer Fora to deal with a complaint pending proceedings under the said Act. . . . . . . . . . . ". It will be seen that in the instant case the opponent company has been delared as Sick Industrial Unit on 14. 8. 2006 as observed by the learned District Forum on the basis of the documents produced on record. Complaint being No. 2 of 2006, would mean that the complaint must have been filed in the first half of January, 2006 much prior to the opponent company having been declard as sick industrial unit. Following the principle laid down in the case of Manoharlal Bhandari and Anr. v. Sun Earth Ceramics Limited (supra) and other things being not a dispute, in our opinion, the learned District Forum cannot be said to have erred in allowing the complaint directing the opponent to pay the amount invested in Fixed Deposit by the complainant. The above discussion would reveal that the impugned order does not call for any interference in appeal and the order passed by the learned District Forum in Complaint No. 2 of 2006 on 12. 2. 2008 by the learned Consumer Disputes Redressal Forum, Vadodra deserves to the confirmed. We, therefore, pass the following order. ORDER the appeal is dismissed. Order dated 12. 2. 2008 rendered in Complaint No. 2 of 2006 by the learned Consumer Disputes Redressal Form, Vadodra is confirmed. No order as to cost in appeal. Pronounced on this 29th day of September, 2008. A true copy of this order be sent to the parties free of cost. Appeal dismissed.