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Judgment
K. S. Chaudhari, Presiding Member
[1] This appeal alongwith application for condonation of delay has been filed by appellant against order dated 19.2.2010 passed by State Commission in Complaint No. 8/2006- Mrs. Maria Fernandes Vs. National Stock Exchange of India Ltd. & Ors.; by which complaint was allowed and opposite parties were directed to refund Rs. 2,69,965/- with 12% p.a. interest and were further directed to pay Rs. 27,270/- on account of loss of dividends, Rs. 25,000/- as compensation and Rs. 15,000/- as cost.
[2] Brief facts of the case are that complainant/respondent No. 1 purchased 200 shares of ''Satyam Computers'' on 20.10.1999 for Rs. 3,38,770/- through opposite party No. 2/sub-broker of opposite party No. 3 who was member of opposite party No. 1/appellant. It was further submitted that 50 shares were sold and 30 shares were transferred in her name and balance 120 shares were not transferred to her account. It was further submitted that in the year 1999, shares were splitted and dividend was issued from time to time. Alleging deficiency on the part of opposite party, complainant filed complaint before State Commission.
[3] Opposite party No. 1 resisted complaint and submitted that complainant is required to file documents establishing relationship between him and trading member. It was further submitted that trading facility of opposite party No. 3 was withdrawn and he was expelled on 1.8.2002. It was further submitted that complainant was to show proof of purchase of shares and denied any deficiency on its part and prayed for dismissal of complaint. Opposite party No. 2 resisted complaint and submitted that he was Director of opposite party No. 2 upto 25.4.1999 till it existed and later on name of opposite party No. 2 was changed. It was further submitted that he resigned on 1.1.2000 and has no relation with opposite party No. 2 & 3. It was further submitted that complaint was barred by limitation and took many defenses and prayed for dismissal of complaint. Opposite party No. 3 was proceeded exparte. Learned State Commission after hearing the parties allowed complaint as mentioned above.
[4] Presence of respondent No. 2 & 3 was dispensed with.
[5] Heard Learned Counsel for the parties and perused record.
[6] Appellant has filed application for condonation of delay of 20 days whereas as per office report, there is delay of 25 days in filing appeal. Appellant has submitted that after receiving copy of impugned order on 17.3.2010, the matter was discussed with counsel and time was taken in drafting which may be condoned. As there is delay of only 25 days in filing appeal, I deem it appropriate to condone delay subject to cost and delay stands condoned subject to payment of Rs. 2,000/- as cost by appellant to respondent No. 1.
[7] Learned Counsel for appellant submitted that complaint was barred by limitation and Learned State Commission has not considered this aspect so appeal be allowed and matter may be remanded back to Learned State Commission. Learned Counsel for respondent No. 1 admitted that this aspect has not been considered by State Commission which can be considered here and appeal be disposed of on merits.
[8] Perusal of record reveals that transaction of share was of October, 1999 whereas complaint was filed in September, 2006 and claimed limitation in para 37 of the complaint. Opposite party No. 2 specifically pleaded that complaint was barred by limitation. In such circumstances, it was obligatory on the part of Learned State Commission to decide this issue first whether complaint was within limitation or not. If complaint was barred by limitation, complaint ought to have been dismissed instead of deciding complaint on merits.
[9] As limitation aspect has not been considered by Learned State Commission, matter should be remanded back to Learned State Commission for deciding complaint afresh. I do not agree with the submission of Learned Counsel for respondent No. 1 that this aspect may be decided in the appeal because finding of trial court is required on every objection taken by opposite parties.
[10] Consequently, appeal filed by appellant is allowed and order dated 19.2.2010 passed by Learned State Commission in Complaint No. 8/2006- Mrs. Maria Fernandes Vs. National Stock Exchange of India Ltd. & Ors.; is set aside and matter is remanded back to Learned State Commission to decide complaint afresh after giving an opportunity of being heard to the parties and to decide whether complaint was within limitation or not Parties are directed to appear before State Commission on 13.10.2015.