RAM KUMAR ASWANI vs A.K. STRUCTURAL FOAM LTD.-/

THE unsuccessful complainants have filed this Appeal under Sec. 15 of the Consumer Protection Act, 1986 ("the Act" hereinafter) against the order dated 11.1.1990 passed by the District Forum, Jaipur in Complaint Case No. 403/89. By the impugned order the District Forum dismissed the complaint.

THE complainants have alleged that they submitted an application form for the allotment of 100 shares each and deposited application form alongwith the requisite amount of Rs. 500/- with the opposite party-respondent through its banker at Jaipur. THE opposite party allotted 100 shares each as per the application form. According to the original terms and condition of the subscription, allotment money ie; balance 50% of the remaining amount of the shares was to be paid to the company upto 15.5.1986. THE complainants could not deposit call money in time and the balance was sent on 1.5.1987. THE complainants submitted original share certificates alongwith two D.D. for Rs. 500/- each while sending balance allotment money, the complainants submitted original share certificate alongwith two demand drafts of Rs. 500/- each. Opposite party vide its letter dated 19.6.1987 raised a demand for Rs. 195/- being the interest as a consolidated amount and further informed that the matter in respect of waiver of interest was placed before the Managing Director and Directors of the Share Committee. THEy took the view that if waiver of interest is granted to a particular share bolder then it should be made uniformly applicable to all such cases and that at this juncture it was not possible for them to do so. THE complainants have filed letter dated 19.6.1987. THEreafter the complainants addressed a letter dated 17.7.1987 to the Company stating that in the same type of a case of M/s. Kiran Jain in Regd. Folio No. 3725 waiver of interest has been granted and so, taking a uniform view the interest may be waived in the complainants case too, as the complainants are petty investors having very limited source of income. No reply was received to this letter. Repeated requests in writing were made but were of no avail. Ultimately on 5.2.1989 the opposite party intimated the complainants that their request cannot be entertained as already informed vide letter dated 19.6.1987 and again raised a demand of interest to the tune of Rs. 311/- instead Rs. 195/- which were earlier demanded. Subsequently, letters were addressed from time to time to the opposite party. THE complainants sent a representative to Bombay in person but it was of no avail. The complainants, therefore, filed the complaint which was registered on 9.8.1989 praying that the opposite party may be directed to grant waiver of interest in respect of Folio No. 3450 and 3451 of the complainants and to release share certificates forthwith and further a sum of Rs. 20,000/-, Rs. 1,800/-, Rs. 1,500/-, Rs. 350/- plus Rs. 3,500/- for legal expenses were claimed against the Company. In support of the complaint, the complainant Ram Kumar submitted his affidavit. The District Forum issued notice to the opposite party. The opposite party did not appear despite service. On 18.10.1989 the complainants were directed to submit the affidavits. On behalf of the complainants affidavits were submitted on 9.1.1990. After hearing the arguments, the District Forum dismissed the complaint by its order dated 11.1.190. The complainants have filed the appeal. Service was presumed on the respondent vide ordersheet dated 8.11.1990.

As nobody appeared on behalf of the respondent, Mr. D.P. Chadda learned Counsel for the appellant was heard. It may be stated that the District Forum dismissed the complaint on the ground that the complainants are non "consumers" as defined in Sec. 2(1)(d) of the Act. It is contended by the learned Counsel for the appellants that the complainants-appellants have purchased shares of the Company and the dispute was with respect to those shares. Shares are "goods" as defined in the Act and therefore, there was a consumer dispute before the District Forum. The District Forum, thus, failed to exercise jurisdiction vested in it by law and dismissed the complaint. "Goods" have been defined in Sec. 2(l)(i) of the Act and according to this definition goods means goods as defined in the Sale of Goods Act, Sec. 2(7) of the Sale of Goods Act, 1930 defines goods as under: "Goods" means every kind of movable property other than actionable claims and money, and includes stocks and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale."

A perusal of the definition of the goods defined in the Act which has been adopted shows that the shares are goods. The case of the complainants is that they submitted applications for the allotment of 100 shares each and deposited application form alongwith the requisite amount of Rs. 500/- each with the respondent through its Banker at Jaipur itself. The shares were allotted to the complainants. The complainants failed to deposite the balance amount until 15.5.1986 and they could only send the balance amount on 15.1987. They requested for waiver of interest as was done in the case of M/s. Kiran Jain in Folio No. 3725. The District Forum opined that the complainants cannot be said to be purchasers for according to it after the purchase of the shares, the complainants acquired the status of the share holders and thus become partners of the Company. In our opinion the District Forum entirely made a wrong approach to the whole case, for, as stated above the complainants were allotted shares on the application forms but the complainants failed to deposit balance of 50% of amount as asked for by the Company on 15.5.1986 and instead deposited the amount on 1.5.1987. The complainants requested for the waiver of interest. The grievance of the complainants was that the opposite party did not grant relaxation of waiving interest as was done in the case of M/s. Kiran Jain in Regd. Folio No. 3725 and thus the service that was rendered to the complainants suffered from "deficiency" as envisaged by Sec. 2(1)(g) of the Act. It is again a serious question to be adjudicated upon that the reliefs which the complainants have claimed in the complaint could be granted under Sec. 14(1) of the Act. Be that as it may, the fact remains that the District Forum failed to exercise its jurisdiction vested in it by law when it held that complainants are not consumers and that by purchase of the shares they become share holders of the Company which are not articles and that could not form the subject-matter of dispute. The case of the complainants is that the opposite party by not issuing the share certificates did not render proper service as was done in case of M/s. Kiran Jain vide Regd. Folio No. 3725. Having carefully considered the definitions of the "complaint", "complainant", "consumer", "consumer dispute", "deficiency", "goods" and "service" as defined in Sec. 2(1)(b), (c), (d), (e), (g), (i) and (o) of the Act, we are of considered opinion that the District Forum was not right in dismissing the complaint on the ground that the complainants are not consumers and that the dispute raised was not a consumer dispute. The order under appeal deserves to be set aside and the case is to be sent back to the District Forum for the trial of the complaint. The District Forum shall after notice to the parties afford an opportunity to the opposite party to file its version of the case, it shall also afford an opportunity to the parties to produce affidavits or other enhence if they so like. The parties will also be heard if they so like before disposing of the complaint. The result is that the appeal is allowed and the order dated 11.1.1990 passed by the District Forum, Jaipur in Complaint Case No. 403/89 is set aside. The case is remanded to the District Forum Jaipur with a direction to decide it in accordance with law keeping in view the observations made hereinabove. As the opposite party has not appeared, there will be no order as to costs.

AN afterward: Nothing said here in above will prejudicially affect any of the parties and the District Forum will be free to decide the complaint as it thinks fit. Appeal allowed. ______________