Unit Trust of India vs V.CHANDRA SEKHAR

THIS appeal has been preferred by the opposite parties 1 and 2 i.e., Unit Trust of India and M.N. Dastur and Company Ltd., questioning the order of the Nellore District Forum in O.P. No. 658/1997 dated 13.7.1998. The complainant in that O.P. is the first respondent before us and the opposite parties 3 to 6 in that O.P. are respondents 2 to 5 before us.

RESPONDENTS were served. The first respondent i.e., complainant, sent his written submissions and the same was received by this Commission on 21.4.1999. We have the record of the District Forum before us. The case of the complainant before the District Forum was that he purchased 300 UTI Master shares bearing certificate No. 01440844, 01527440, 01527441, 01527438 and 01527439 from a third party and submitted them for transfer to the first appellant on 27.11.1993. As the transfer was not effected and the units were not returned to him he sent reminders on 25.10.1993, 7.6.1994 and 2.11.1994 to the appellants and again on 27.7.1995 to the second appellant. Thereafter he received a reply from the second appellant stating that as per their record the transfer documents for the 300 UTI Master shares in question were not received and that on verification of their record they found that the 300 UTI Master shares stood transferred to respondents 2 to 4 (opposite parties 3 to 5 in the O.P.). It was also stated that as regards the 100 shares bearing distinctive Nos. 0150571786 - 885 under Folio No. MF 660987 the holder in turn transferred the shares to Morgan Grenfell Trust Corpn. (C. 10 Ltd.) the 5th respondent (opposite party No. 6 in the O.P.). Thereafter the complainant got issued a Lawyer''s notice dated 3.2.1997 to the second appellant and also another notice dated 26.3.1997 to respondents 2 to 5 and the second appellant and presented this complaint before the Nellore District Forum on 27.8.1997.

The complainant filed before the District Forum a duplicate delivery note issued by one Royal Investments dated 5.10.1993 (marked as Ex. A1) showing that 300 UTI Master shares bearing certificate Nos. 1440844, 1527440-41 and 1527438-439, were delivered to the complainant for Rs. 10,800/- at Rs. 36/- per unit and also duplicate receipt No. 1988 dated 15.10.1993 for Rs. 10,800/- issued by the said Royal Investments. He has also filed copies of his letters dated 25.10.1993 (Ex. A2), 2.11.1994 (Ex. A3), 7.6.1994 (Ex. A4) and 27.7.1995 (Ex. A5). He has also filed a letter received from the second appellant dated 18.2.1997 (Ex. A6) and notices got issued by him through Advocate dated 3.2.1997 (Ex. A7) and 26.3.1997 (Ex. A8). He has not filed any affidavit evidence.

THE District Forum considered the contentions raised by the appellants as regards the maintainability of the complaint as a consumer dispute and after rejecting the said contention and holding that it had the jurisdiction to decide the matter held as follows : "Here in our case, the shares were already issued by R1 (1st appellant) and the complainant sent them for transfer and so the rulings mentioned by R1 and R2 in their written statement are not applicable to the facts of the present case. Even otherwise the Tamil Nadu State Commission in V.N. Manilal & Anr. v. T.D. Bhasker, III (1995) CPJ 366=1995 C.C.R. 192, held that before purchase of shares one is not a consumer, but he is entitled to get back the amount actually paid with interest. In the result, the 1st respondent is directed to pay Rs. 10,800/- (Rupees ten thousand eight hundred only) alongwith interest @ 12% p.a. from 15.10.1993 till date of payment and also pay a compensation of Rs. 5,000/- and costs of Rs. 500/- to the complainant. Time for compliance one month from the date of receipt of this order."

The only discussion by the District Forum as regards the facts is as follows : "Ex. A1 the delivery note and the receipt dated 15.10.1993 shows that the complainant purchased the shares in question for Rs. 10,800/-. Ex. A2 office copy of the letter shows that the complainant sent the shares on 25.10.1993 to the 1st respondent by registered post for transfer in his name. Ex. A3 is the notice sent to R1 and Ex. A4 and Ex. A5 are the notices sent to R2 reminding them to send the duly transferred shares. But there was no reply from R1 and R2. The plea of R1, R2 and R4 shows that the shares of the complainant must have been subsequently transferred fraudulently by R1 and R2 in favour of third parties. So the certificates must have been received by R1 and must have been subsequently transferred in favour of R3 to R6 to have wrongful gain. So there is deficiency of service on the part of the respondents 1 and 2."

We find this reasoning fallacious and without any basis. Exs. A1 and A2 are not proved by examining any one from Royal Investments. The complainant has also not given any affidavit. Ex. A1 does not state who the transferers of the 100 UTI Master shares were. We find that the appellants filed photo copies of the UTI Master share certificates. The complainant has not placed any material whatsoever before the District Forum to establish the genuineness of his purchase of the shares in question. The complainant has also not filed any acknowledgements of the appellants evidencing receipt of the letter dated 25.10.1993 (Ex. A2) by which the Master shares were sent. In the letter dated 25.10.1993 the complainant did not mention anything about the transfer letters though he stated therein that he was sending five share certificates therewith. In the complaint however he stated that he sent the 300 UTI Master shares for transfer in his name to the first appellant on 27.11.1993 and that he sent reminders on 25.10.1993, 7.6.1994... In the letter dated 7.6.1994 (Ex. A4) he stated that he sent 3 share certificates totalling 300 shares for registration to transfer in his name on 27.11.1993 and that he did not receive any bonds transferred in his name. But in the letter dated 2.11.1994 (Ex. A3) he stated that he sent 300 shares for transfer in his name on 25.10.1993 and that he did not get any reply or bonds and that he sent a reminder on 7.6.1994. In Ex. A2 letter dated 25.10.1993 it was stated as follows : "I herewith sending five share certificates containing totally 300 shares for registration. Please transfer them in my name by duly registered..."

(Emphasis supplied) The complainant himself was not sure whether he sent three share certificates or five share certificates and whether he sent them on 25.10.1993 or on 27.11.1993. As already stated by us earlier, there are no acknowledgemenst for these letters filed by the complainant. In view of these contradictions and in view of the fact that there is no material to establish that the complainant in fact sent the share certificates alongwith the share transfer forms, even assuming that he sent the same there is no material to establish that the appellants received the same or acknowledgements for receipt of the same it is not possible to hold that there was deficiency in service on the part of the appellants. We also note that the complaint was addressing letters annually. After his letter dated 25.10.1993 he addressed only on 7.6.1994 (Ex. A4) and 2.11.1994 (Ex. A3) and thereafter on 27.7.1995 (Ex. A5). Thus we find that the complaint itself is barred by time, because he has filed the complaint on 27.8.1997 complaining about non-transfer of shares which according to him were sent on 27.11.1993 as per the complaint and on 25.10.1993 as per Exs. A2 and A3. We find that the perfunctory order of the District Forum has to be set aside. In the result, the order of the District Forum is set aside and the complaint is dismissed. The appeal is accordingly allowed. No costs. Appeal allowed.