PRESIDENT, FUNDS OF THANJAVUR LTD. vs S.BHASKARAN

THE appellant is the President, Funds of Thanjavur Ltd., against whom an award has been passed by the District Forum in the opposite party.

THE complainant had deposited with the appellant/opposite party Funds of Thanjavur Ltd., 3 sums of money namely Rs. 10,000/-, Rs. 10,000/- & Rs. 5,000/- respectively on 6.4.84, 13.12.84 & 21.2.85 on Fixed Deposit Accounts. According to the complainant on maturity of the deposits he asked the opposite party Fund to repay the amounts with interest thereon. THEy first promised to pay the amount but they did not keep up their promise. On these allegations, the complaint has been filed for an order directing the opposite party to pay the said 3 deposits with interest thereon @ 12% p.a. and also for compensation at Rs. 30,000/-. The opposite party contended that the complainant is a member of the Fund and at the time of the transaction in question he was also a Director. Because of the mis-management of the Fund by one Director by name Srinivasan, the, Fund incurred loss and further there was a Circular by the Reserve Bank of India to the effect that as a non-banking Company the Fund could collect fixed deposits for 15% of the authorised capital only under Section 620(a) of the Banking Companies Act. Because of these they could not get further deposits from customers and consequently they found it difficult to manage the affairs of the fund. Even at the time the complainant was as a Director a resolution was passed by the Fund to the effect that interest shall not be paid for a period of 2 years. In these circumstances, the Fund could not repay the deposits of the complainant. It is further contended that the dispute between the complainant and the Fund can be decided only in a Civil Court and not in a Consumer Forum.

The District Forum on consideration of the pleadings and evidence in the case came to the conclusion that the complaint is maintainable and the opposite parties are liable to pay the amount claimed. Accordingly it passed an order directing the opposite party to pay the sums of money namely Rs. 13,600/-, Rs. 13,600/- and Rs. 6,800/- with interest thereon @ 12% p.a. from the date of maturity i.e., 6.4.87,13.12.87 and 21.2.88. The opposite parties have been also directed to pay to the complainant a sum of Rs. 1,000/- as costs.

NOW in the appeal it is contended by the learned Counsel for the appellant / opposite party that the complaint is not maintainable in the Consumer Forum because the complainant is not a consumer coming within the definition given in the Consumer Protection Act. In this connection, the learned Counsel cites a decision of the National Commission in "Devashish Mitra v. The Managing Director, M/s. Lakshmi Varsha Company & Anr." I (1992) CPJ 30 (NC). On a careful consideration of the matter we find much force in the said contention of the learned Counsel. It is not in dispute that the complainant is not only a member of the opposite party Fund but was also a Director at the time of the transaction in question. It is also not in dispute that there was a resolution passed by the General Body Meeting in 1990 to the effect that because of the financial constraints there would be moratorium for payment of interest for two years. We are of the view that obviously there is no question of the complainant hiring or availing of the services of the opposite party but, the opposite party has been giving his services to the complainant as a member of it. In the above said decision of the National Commission in which the complainant was a member of a company, it is observed as follows : "During the hearing the appellant was asked to establish as to how he claimed to be a consumer under the Consumer Protection Act and whether he had paid any consideration by way of hire charges to the respondents. He had become a member of the respondent-company on payment of the enrolment fee of Rs. 50/-; he could not be deemed to be a hirer of the services to be rendered by a hires. The services in this case were to be rendered to members as per enrolment form. In other words, the services were given to the members of the company as members and not as hirers." The principle enunciated by the National Commission, in our view, would quite well apply to the facts of the present case. The complainant being a Member of the Fund is a part of the Fund. Whatever profit the Fund earns he will be entitled to his share of the profits. It would appear that the complainant filing a complaint against the opposite party is filing a complaint against himself. Thus considering it appears to us that the complainant cannot prefer a complaint in the Consumer Forum. His remedy, if any, is elsewhere. For these reasons, we hold that the order passed by the District Forum cannot be upheld as correct.

IN the result therefore, the appeal is allowed; the order of the District Forum is set aside and the complaint is dismissed. There will be no order as to costs. Appeal allowed.