SUKHWINDER KAUR vs GOLDEN FORESTS (INDIA) LTD.

THIS is complainant''s appeal against judgment and order dated 16.2.2004 of District Consumer Disputes Redressal Forum-II, U.T., Chandigarh [for short hereinafter referred to as the District Forum], U.T., Chandigarh passed in Complaint Case No. 470 of 2003 against Golden Forests (India) Limited vide which the complaint has been dismissed as being barred by limitation under Section 24A of Consumer Protection Act, 1986 [for short hereinafter referred to as the C.P. Act].

THE appellant filed the complaint seeking issuance of direction to the respondent/O.P. to pay the maturity value of Rs. 62,550/- along with interest @ 24% per annum and a sum of Rs. 1 lac as compensation besides Rs. 10,000/- as costs of litigation. The complainant invested in four Fixed Deposit Schemes on 4.3.1995, 12.6.1995, 26.6.1995 and 4.3.2000 having the date of maturity respectively of the amounts deposited to be 4.3.2000, 12.6.2001, 26.6.2001 and 4.3.2001. The amounts deposited were respectively Rs. 10,000/-, Rs. 4,500/-, Rs. 5,500/- and Rs. 15,000/- bringing the total amount of deposit to Rs. 35,000/-. The maturity value of all these four deposits were Rs. 77,550/-. As against the total maturity value of Rs. 77,550/-, the complainant was paid a sum to be Rs. 15,000/- by the respondent/O.P. on 5.10.2002 (vide document placed before us in appeal) showing the deposit of the cheque in the account of the complainant. After adjusting the amount of Rs. 15,000/-, the balance amount of Rs. 62,550/- is now being claimed as due and outstanding against the respondent.

The notice of the complaint was issued to the respondent who put in appearance through Shri R.K. Sayal who was under judicial custody and lodged in Modern Jail, Chandigarh. He was represented by Mr. G.S. Rangi, Advocate and Ms. Pooja Attri, Advocate. The reply filed was mainly in respect of the lack of jurisdiction of the District Forum to adjudicate the complaint on account of the winding up proceedings of the respondent-company being pending before the Company Judge of Hon''ble Punjab and Haryana High Court, Chandigarh who had also appointed Justice R.N. Aggarwal (Retd.), a former Chief Justice of Hon''ble Delhi High Court as provisional liquidator of the company-Golden Forests (India) Limited under process of winding up. It was pleaded that the proceedings pending in before the other Courts shall be stayed where winding up order has been made or official liquidator has been appointed as provisional liquidator.

REFERENCE was also made to the jurisdiction of a Tribunal or the Appellate Tribunal set up and empowered to decide the cases filed against the company under liquidation. The provision of Section 647A of the Companies Act, 1956 has been quoted in para 7 of the reply. REFERENCE was also made in para 9 of the reply about a public notice being published by the provisional liquidator Justice R.N. Aggarwal (Retd.). In para 10, it was pleaded that the respondent-company was bound by law and restrained not to settle its liability or to make any payment at its own to any one and the provisional liquidator being an appropriate authority for settlement of claims, suits, decrees in respect of M/s. Golden Forests (India) Ltd. On the basis of these pleas, it was prayed that the complainant be directed to approach the provisional liquidator for settlement of its claim, suits, decree being the appropriate authority and to obtain leave of the Court for further proceedings. On merit of the case, no plea was raised in the written reply. A photocopy of the newspaper "The Indian Express" dated 22.7.2003 has been placed on record, where public notice was published in Company Petition No. 68 of 2001 in the matter of National Investors Forum (Regd.) v. M/s. Golden Forest (India) Ltd., stating that Mr. Justice R.N. Aggarwal, Chief Justice (Retd.) had been appointed as provisional liquidator by the Hon''ble Company Judge of Punjab and Haryana High Court, Chandigarh vide its order dated 4.7.2003.

THE District Forum repelled the pleas of the respondent/O.P. taken in the written statement and held that the remedy as provided under the C.P. Act is in addition to and not in derogation of the other law for the time being in force and, therefore, the consumer-complaint filed could be adjudicated by the Consumer Dispute Redressal Agencies set up under the C.P. Act. Reference was made to the judgment of this Commission i.e., Smt. Kamini Nanda and Another v. M/s. JVG Leasing, 2002 (1) CPC 359, in support of the said proposition of law. Regarding the provisions of Section 647A of the Companies Act, 1956, the District Forum held that the respondent failed to make an averment and place any copy of notification issued by the Central Government, which was a condition precedent for the application of Section 647A of the Companies Act, 1956 and as such, the objection of the respondent in this regard was not maintainable. In para 6 of the impugned judgment and order, the District Forum held that on merits, the O.P. had not denied that the complainant has made an investment as alleged by him with the O.P. and in para 7 of the impugned judgment and order, the District Forum made reference to Annexures C-1 to C-5 (copies of FDRs). Though the respondent-M/s. Golden Forests (India) Ltd. did not raise a plea of bar of limitation in the written statement yet the District Forum, on its own, considered the question of bar of limitation and held the complaint being barred by limitation as the dates of maturity were 4.3.2000, 12.6.2001, 26.6.2001 and 4.3.2001 whereas the complaint was filed on 14.11.2003. It was also observed that no application for condonation of delay had been filed by the complainant. Regarding the plea of payment of Rs. 15,000/- by the respondent to the complainant, it was held that such a payment would not amount to acknowledgement of liability of O.P. to give rise to fresh cause of action. Resultantly, the complaint was dismissed as being barred by limitation under Section 24A of the C.P. Act.

IN appeal, notice was issued to the respondent and their Counsel Ms. Pooja Attri, Advocate noted the date of hearing, which was fixed as 13.5.2003 i.e., today yet neither she appeared nor any one duly authorised on behalf of respondent put in appearance before us. The file of the complainant case was summoned from the District Forum. The appellant complainant was represented by Mr. Mukand Gupta, Advocate. We have heard Mr. Mukand Gupta, Advocate and have perused the impugned judgment and order with the assistance of Mr. Mukand Gupta, Advocate and perused the evidence placed on record of the case.

MR. Mukand Gupta, Advocate for the appellant submitted before us that since the plea of bar of limitation was not taken by the respondent in the written statement and also since the office did not raise any objection regarding the complaint being barred by limitation and also since the District Forum itself before entertaining the complaint even suo motu pointed to the appellant that the complaint was barred by limitation, hence the appellant was not in a position to place on record any material to show that the complaint was in fact not barred by limitation but had been filed well within the period of limitation. Mr. Mukand Gupta, Advocate next contended that the appellant was paid a sum of Rs. 15,000/- out of the total maturity amount of Rs. 77,550/- and in support of his contention, he referred to a document filed in appeal before us, which is marked Annexure A-1 showing that the appellant had deposited HDFC Bank Cheque No. 223780 on 5.10.2002 in the Savings Bank Account No. 113017 in State Bank of India, Sector 30, Chandigarh amounting to Rs. 15,000/- and the State Bank of India credited the amount in the Savings Bank Account of the appellant on 8.10.2002. He asked for the cheque to be supplied to him. In the affidavit filed in appeal of Mrs. Sukhwinder Kaur wife of S. Jasbir Singh Bedi, the appellant, it was deposed in para 2 as under: "2. That it was not within the knowledge of the deponent as to on which date the deponent had received Rs. 15,000/- from the respondent nor the deponent was aware of the cheque No. vide which respondent had repaid the part payment of Rs. 15,000/- to the deponent. It was only after the decision of the District Forum that the deponent had seen her Bank account and only thereafter after making inquiry and making application to the HDFC Bank, Sector 35, Chandigarh that the deponent came to know that the deponent had received part payment of Rs. 15,000/- from the respondent vide cheque No. 223780 dated 5.10.2002. Immediately, the deponent applied for the photo copy of the cheque mentioned above but till date photo copy of the cheque has not been made available to the deponent. The complaint of the deponent was well within limitation as respondent had repaid the part payment and acknowledged the same vide cheque dated 5.10.2002 and the present complaint was filed in November, 2003."

The averments made by the appellant about the deposit of the cheque on 5.10.2002 and the amount of Rs. 15,000/- being credited in her Savings Bank Account on 8.10.2002 would clearly go to show that the appellant was paid a sum of Rs. 15,000/- vide Cheque No. 223780 by the respondent, which is evidently an acknowledgement of the liability of the respondent/O.P. regarding the amount invested being due and outstanding against the respondent company and payable to the appellant/complainant. It is relevant to note that the respondent did not raise a plea regarding the merit of the case and it would not specifically denied that the investment was not made and the maturity amount was not payable. The only objection raised was in respect of the jurisdiction of the appropriate Forum where such a matter ought to have been decided.

IN our considered opinion, the District Forum went wrong in holding that the fact of payment of Rs. 15,000/- by the respondent company to the appellant of a sum of Rs. 15,000/- was not an admission of liability regarding payment of remaining amount and was not to be taken as a date for fresh cause of action is legally and factually incorrect. It is well settled principle of law that the acknowledgement of liability to pay time barred debt is a good consideration and it will give rise to a fresh cause of action. In the instant case, the payment of Rs. 15,000/- was made in October 2002 and the period of limitation as provided under Section 24A of the C.P. Act being two years and further the complaint having been filed on 14.11.2003, will clearly go to show that the complaint was filed well within the prescribed period of limitation and the complaint was not barred by limitation under Section 24A of the C.P. Act. The finding of the District Forum to the contrary is legally and factually unsustainable.

SO far as the Forum, where the payment of the amount is to be prayed for would be the provisional liquidator appointed by the Hon''ble Company Judge of the Hon''ble Punjab and Haryana High Court, Chandigarh in the aforesaid winding up company petition and before the appellant can ask for the payment, he has to move an appropriate application with the Official Liquidator appointed in the winding up petition namely Justice R.N. Aggarwal (Retd.) and thereafter, the same is to be considered as part of the liability against the respondent company. In our considered opinion, the respondent company committed deficiency in service in not paying the maturity value when it fell due of the various fixed deposits mentioned above. The appeal has considerable merit and is allowed. The impugned order is set aside. The complaint is allowed to the extent that the respondent-company is directed to pay a sum of Rs. 62,550/- with interest @ 6% per annum from the respective dates of maturity till payment. Since interest has been awarded on the amount, separate compensation need not to be allowed as it would amount to conference of double benefit. A sum of Rs. 500/- is awarded as costs of litigation. Copies of this judgment be sent to the parties free of charge. Appeal allowed.