The facts leading to the filing of the complaint are that 1st complainant opened a cumulative deposit account with 1st opposite party Duncans Industries Ltd., which was canvassed by and routed through the 2nd opposite party Bajaj Capital, that the amount deposited was Rs. 15000/- and deposit Receipt No. was 182040, the date of deposit was 04.12.2000, the maturity date of the deposit was 03.12.2003 and the maturity value of the deposit was Rs. 22,826/-.

The complainant surrendered the deposit receipt duly discharged for the payment of the maturity amount, but there was no response from any of the opposite parties. At last complainant sent an advocate notice on 12.09.2005, but there was no response even though the said notice was accepted by the opposite parties. Hence this complaint to direct opposite parties to pay an amount of Rs. 22,826/- with interest at 18% from 03.12.2003 along with an amount of Rs. 5,000/- towards compensation and costs to the complainant.

1st opposite party filed version contending that 1st opposite party faced liquidity crunch due to the withdrawal of fertilizer subsidy from the Central Government retrospectively and filed a scheme before the Company Law Board for further extension or modification of the repayment schedule praying for reduction of interest rate on all deposits in conformity with the interest rate being offered to the public by various banks/financial institutions.

That company has become sick industrial company within the meaning of Sick Industrial Companies(special provision) Act 1985(SICA) and a reference has been made to the Board for Industrial and Financial Reconstruction(BIFR) in terms of provisions of SICA which was duly registered as case No. 70/2006. There is no contract between parties for any fixed rate of interest for post maturity period, that there is no deficiency in service on the part of the opposite party as opposite party is complying with the order of the Hon'ble High Court of Calcutta. Hence 1st opposite party prayed for dismissal of the complaint.

2nd opposite party filed version contending that there is no privity of contract between complainant and 2nd opposite party guaranteeing the repayment of F.D. Receipt that 2nd opposite party acted as a broker only to transmit the application of the complainant to the 1st opposite party to accept the said deposit and issue F.D receipt to the complainant. That the claim of the complainant arises only against the 1st opposite party and not against 2nd opposite party and 2nd opposite party has nothing to do with it. Hence 2nd opposite party prayed for dismissal of the complaint.

The points that arise for consideration are:-

1.

Whether the complaint is barred by limitation?
2.

Whether the complaint is maintainable under the Consumer Protection Act?
3.

Whether the complainant is entitled to get the maturity value of fixed deposit?
4.

Whether the complainant is entitled to fixed rate of interest for post maturity period?
5.

Whether there has been deficiency in service on the part of opposite parties?
6.

Other reliefs and costs?

In support of the complaint, additional 2nd complainant has filed an affidavit of himself as PW1 in lieu of examination in chief and Exts. P1 to P3 were marked. Complainant has been cross examined by opposite parties. In rebuttal, 1st opposite party has filed affidavit and Exts. D1 to D4 were marked.

Points (i) to (vi):- In this case, the original complainant T.R. Padmakanthi Bai died on 28.08.2007 and legal heirs of the 1st complainant were impleaded as additional complainants 2 to 5. It has been the case of the complainants that 1st complainant opened a cumulative deposit account with the 1st opposite party, Duncans Industries Ltd, which was canvassed by and routed through the 2nd opposite party. That the cumulative deposit No. is 182040. Ext. P1 is the copy of the deposit receipt dated 04.12.2000, which is seen issued by 1st opposite party in the name of the 1st complainant. As per Ext P1 deposit receipt, Account No. is F.D 182040, term of deposit is 36 months, amount of deposit is Rs. 15,000/-, rate of interest is 14.5%, amount payable on maturity is Rs. 22,826/- and the date of maturity is 03.12.2003.

It has also been the case of the complainants that though 1st complainant had surrendered the said deposit receipt duly discharged, for the payment of the maturity amount, there was no response from the opposite parties. Ext. P2 is the copy of the advocate notice dated 09.09.2005 addressed to opposite parties which was seen issued on 12.09.2005 and received the same by opposite parties by Ext. P3 series postal receipts and acknowledgement cards. Submission by the complainants is that even after the receipt of Ext. P2 advocate notice, there was no response from the opposite parties. In the version filed by the 1st opposite party, it is stated that the complaint is barred by limitation.

The first point requiring consideration is whether the complaint is barred by limitation. On a perusal of Ext. P1 deposit receipt, it is seen that the date of maturity of deposit was on 03.12.2003. 1st complainant surrendered the deposit receipt duly discharged for payment of maturity amount, but no response from the 1st opposite party inspite of repeated reminders, which caused to issue advocate notice on 12.09.2005 to opposite parties. It is pertinent to note that even after the receipt of the said notice, opposite parties did not respond positively nor did 1st opposite party issue any reply to the 1st complainant. Thereby there is continuing cause of action.

This complaint was filed on 28.11.2005 which is within the period of limitation. Submission by 1st opposite party is that opposite faced liquidity crunch due to withdrawal of fertilizer subsidy by the Central Government, and the company has become a sick industrial company within the meaning of Sick Industrial Companies(special provision) Act 1985(SICA) and a reference has been made to the Board for Industrial and Financial Reconstruction(BIFR) in terms of provisions of SICA which was duly registered as case No. 70/2006 and company has been declared sick by BIFR on 21.02.2007. In this context it is to be highlighted the decision of the Hon'ble National Commission in the case of Sneha Dyachem Ltd. Vs. Jyothi Rathore, reported in 11(2006) CPJ 195 (NC), that Sec. 22 of Sick Industrial Companies Act is no bar on hearing the complaint under the Consumer Protection Act.

Further submission by the 1st opposite party is that the repayment of deposit to the holders is under judicial process and therefore there is no deficiency in service on the part of the 1st opposite party. Submission by the 2nd opposite party is such that there is no privity of contract between the complainant and the 2nd opposite party guaranteeing the repayment of FDR , that 2nd opposite party acted as a broker only to transmit the application of the complainant to 1st opposite party, who accepted the said deposit and issued FD receipt to the complainant, that the claim of the complainant arises only against the 1st opposite party and not against the 2nd opposite party and the 2nd opposite party has nothing to do with it.

There is no material on record showing that the said deposit was canvassed by and routed through the 2nd opposite party and 2nd opposite party had guaranteed the repayment of FD to the complainant. In the absence of any cogent and clinching evidence against 2nd opposite party, complainant cannot say that there was deficiency in service on the part of 2nd opposite party. Applying the law as is obtained and found in the above decision of the Hon'ble National Commission in the case of Sneha Dyachem Ltd. Vs. Jyothi Rathore, reported in 11(2006) CPJ 195 (NC), we find complaint is maintainable under the Consumer Protection Act. Non-payment of maturity amount as per Ext. P1 would definitely amount to deficiency in service on the part of the 1st opposite party. Deficiency in service proved. In view of the foregoing discussions, we are of the view that complainant is entitled to get the maturity amount of Rs. 22,826/-. Complainant is also entitled to get post maturity interest at the rate of 12% till realisation.

In the result complaint is allowed. 1st opposite party shall pay the complainants 2 to 5 a sum of Rs. 22,826/- with interest at 12% per annum from 04.12.2003 till realisation. 1st opposite party shall pay the said amounts within two months from the date of receipt of this order, failing which 1st opposite party shall pay the complainants 2 to 5 an amount of Rs. 5,000/- towards compensation and cost.