TATA FINANCE LIMITED vs PREMNATH PRASAD

COUNSEL for the petitioner present. Arguments heard. Tata Finance Limited Mumbai -OP -1 floated Fixed Deposit (cumulative) Scheme. The complainant Sh. Premnath Prasad purchased four(4) Demand Drafts, each valued Rs.15,000/ - (Rupees Fifteen Thousand only) including Commission on 31.01.1997 from Syndicate Bank, Shillong, payable at Kolkata. The FDRs were handed over to broker Eastern Financer Limited having its office at Kolkata, which is the Broker of M/s TATA Finance Limited. It was the duty casts upon the Broker to send the FDR to TATA Finance Limited -OP -1.

THE complainant, however, received payment in respect of only one Fixed Deposit. He alleged that TATA Finance Company did not send the other three Fixed Deposits. He made the claim but the amount was not paid to him.

THE sequence of the correspondence between the paries runs as follows: - i) On 6th January 2000, Eastern Financiers Ltd. Company sent a letter to Mr. Prem Nath Prasad, which runs as follows: - "This has reference to your complaint regarding non -receipt of F.D.R. for Rs.15,000/ - for Rs.15,000/ - each from Tata Finance Ltd., for the 3 deposits made in the first week of February 1997, through our Shillong office.

We had since contacted Tata Finance Ltd. and they want the certificate from your bankers, Syndicate Bank, regarding encashment of the three cheques.

We are enclosing herewith 3 fresh FD Application forms which may please be returned to us duly completed and signed by the depositors alongwith the bank certificates to enable us to do the needful in the matter. We regret for the inconvenience caused to you in this regard".

ii) Syndicate Bank gave the following certificate on 26.02.2000: -

"This is to certify that we have issued the following Demand Drafts in favour of Tata Finance Ltd. on 31.1.1997 to the following purchasers.

Demand Draft No. Date Amount Name of the purchaser

257218/1049 31.1.97 Rs.14970/ - Khusbu Prasad

257217/1048 31.1.97 Rs. 14970/ - Kalpana Prasad

257216/1047 31.1.97 Rs. 14970/ - Sita Prasad

257215/1046 31.1.97 Rs. 14970/ - Gudiya Prasad ''''

iii) On 29.02.2000, the petitioner wrote a letter to Tata Finance Limited:

"Sir,

It is regretted to inform you that on 31/01/97 I invested Rs.60000/ - in your company in name of my minor daughters Kalpana Prasad, Sita Prasad, Gudiya Prasad, Khusbu Prasad. Rs.15,000/ - each by four D.D. No. 257215/1046 To 257218/1049 payable at Calcutta through Eastern Financiers Limited. (Xerox Copy of receipt enclosed). But unfortunately out of four deposits you have send me one F.D.R. No. TFL 00029382 Dated 03/02/1997 in name of Gudiya Prasad, the rest three F.D.R. has not yet received instead of my repeated request.

You are once again requested to send me rest three F.D.R. in following name: -

Kalpana Prasad 2. Sita Prasad 3. Khusbu Prasad at an early date.

Thanking you

Yours Faithfully"

iv) On 24.04.2000, Eastern Financiers Ltd. sent a letter to Tata

Finance Limited, which runs as follows: -

"Sub - Non receipt of Deposit Receipts

We refer to our earlier discussion with you regarding non -receipt of Deposit Receipts by our Clients in Shillong against their FD Applications.

We are enclosing herewith the Banker''s certificate regarding issue of Demand Drafts against the depositors'' FD applications and duplicate applications forms duly completed.

We request you to arrange to send the Deposit Receipts directly to the depositors, under advice to us at the earliest.

Thanking you"

The complainant did not receive any response from the Tata Finance Limited. This is a deficiency on their part.

IT also transpired that the amount is lying with the Syndicate Bank. The complainant did not make any effort to get the money from the Syndicate Bank. Moreover, the Syndicate Bank is not liable to pay the money back to the complainant because it is a case of demand drafts and not those of cheques. Although, Syndicate Bank is not a necessary party, yet, its presence before us would have made the problem easy. The amount of Rs.45,000/ - is still lying with the Syndicate Bank.

THE main grouse of the complainant is that the OP -1 did not issue the FDR in his favour. However, the case of OP -1 is that he did not receive the above said amount. Learned counsel for the petitioner argued that the respondent No. 2 is guilty of not sending the FDRs to OP -1. It is also a fact that OP -2 did not appear before the State Commission or before the District Forum. It was proceeded against ex -parte. The counsel for the OP -2 stated that it had changed the address and therefore, it could not appear before the Fora below. However, we allowed him to argue the case. He has placed reliance on the above said letters written by him dated 06.01.2000 and 24.04.2000. However, he could not produce the evidence that those letters were served upon OP -1.

WE have heard the counsel for the parties. Learned counsel for the petitioner vehemently argued that the case is barred by limitation. He has cited the following authorities in support of this case, viz Haryana Urban Development Authority and Ors. Versus Tej Refrigeration Industries Limited, 2013 14 SCC 758, State Bank of India Versus B. S. agricultural Industries, 2009 1 CPJ 29 ., Kandimalla Raghavaiah and Co. Versus National Insurance Co. Ltd. and Anr., 2009 3 CPJ 75 . and few authorities of this Commission.

WE are unable to locate any substance in these arguments. Unless or until the money is returned to Sh. Premnath Prasad, the cause of action will continue. Since it is a case of continuous cause of action, therefore, it cannot be said that the case is barred by time.

THE second submission made by the counsel for OP -1 was that there was no occasion for it to get along with the conduct of the complainant. He denied having received the FDR from Respondent No.2. He contended that OP -2 appears to be guilty of negligence. He did not send the FDR. No deficiency can be attributed to OP -1. OP -2 is the agent of the complainant, who connived with the complainant to escape from its liability arising out of the deficiency in service in the present case.

ALL these arguments have left no impression upon us. OP -2 is a Broker. He must be getting Brokerage fee from OP -1. We are of the considered view that they are acting in cahoots with each other to deprive the benefit accruing from this Scheme in favour of the complainant. This is a matter between OP -1 and 2 inter -se the complainant does not come in the picture at all. If the case of the OP -1 is true, he should sue OP -2 for the damages it will have to bear. If one keeps a Broker and then the vicarious liability comes into force.

LAST but not the least, the negligence, inaction and passivity is writ large on the part of OP -1. Legal notice was sent on 16.10.2000. Another letter was sent to the petitioner dated 29.02.2000. The complaint was filed before the District Forum in the month of April 2002. Yet, the petitioner did not swirl into action it should have taken the action instantaneously. It should have investigated the matter there and then. It allowed a period of 15 years to pass. It is clear that the petitioner is not a serious Company. They have made a vain attempt to lead the gullible person up the garden path. The Revision Petition, without having merit is dismissed.