Date of Filing:05.07.2021

Date of Disposal:19.05.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

SRI RAMACHANDRA.M.S,  PRESIDENT

1. The complainants files a complaint with this Commission under Section 35 of the Consumer Protection Act of 2019 with a direction to OPs to pay the total relief of Rs.2,61,200/- and penal interest at 18% and compensation, cost of  litigation and such other reliefs.

2.   The following are the complaint's key facts: 

This is the case of thecomplainantthat the complainant invested his retirement benefits as deposited in the form of non-convertible debenture of an amount of Rs.2,00,000/- and has also deposisted the said amount with the OP company by filling prescribed application form of OP through authorised brocker  and  it was deposited on 04.06.2018 and the period of deposite is 10 years and the interest payable is yearly and rate of interest is 9.2% and the date of maturity is 04.07.2028.

3. It is the case of the complainant that since the OP-1 has taken only it amounts to violation of the section 71 of the company and when the complainant approached the OP for payment of interest,the OP Company has neither repaid nor assigned any reasons for the refusal to pay the interest on the said investment. Aggrieved by the act, the complainant was forced to initiate the present complaint and sought for refund of deposit amount of Rs.2,00,000/- along with interest and other reliefs as claimed in the complaint.

4. Notice to OPs-duly served, OP-1  represented by counsel, but they fail to file version well within time. Hence, version of OP-1 is taken as not filed. OP-2 filed version and affidavit.

5.  The complainant filed chief-examination affidavit along with relevant documents in support of his contention.

6.  Heard arguments. The matter is reserved for order.

7.  The points that arise for our consideration are;

1. Whether the complaint is maintainable?
2. Whether the Complainant prove that there is deficiency of service on the part of the OP as alleged in the complaint and thereby prove that he is entitle for the relief sought?
3. What order?

8. The findings on the above points are as under:

Point No.1               :  Negative

   Point No.2                 : In view of the findings given to point  no.1, consideration for Point No.2 does not arise.

Point No.3                 :  As per final order

REASONS

9. POINT NO.1:-  The brief facts of the complaint is that the complainant invested his retirement benefits has deposited in the form of non-convertible debenture of an amount of Rs.2,00,000/- and has also deposisted the said amount with the OP company by filling prescribed application form of OP through authorised brocker  and  it was deposited on 04.06.2018 and the period of deposite is 10 years and the interest payable is yearly and rate of interest is 9.2% and the date of maturity is 04.07.2028.

10. It is the case of the complainant that since the OP-1 has taken only it amounts to violation of the section 71 of the company and when the complainant approached the OP for payment of interest, the OP Company has neither repaid nor assigned any reasons for the refusal to pay the interest on the said investment. Aggrieved by the act, the complainant was forced to initiate the present complaint and sought for refund of deposit amount of Rs.2,00,000/- along with interest and other reliefs as claimed in the complaint.

11. The OP-2 filed written version, they denied entire allegations of the complainant and also any deficiency on their part during the course of service to the complainant. The OP has also contended that on various grounds like on the maintainability of the complaint and also on the ground that the territorial jurisdiction of this court and also on the ground that the complainant is not a consumer under section 2(7)(i) of C.P.Act and the very important contention of the OP is that the claim for recovery has alredy been filed before the Resolution Professional on behalf of all Devbenture holders including the complainant. It is also contended that there is no privity of contract between the complainant and the OP-2. It is also specifically contended that there is no deficiency of service on the part of the OP and all these grounds the OP has contended that the complaint preferred by the complainant deserves to be dismissed on these grounds as not maintainable.

12. On the perusal of the complaint averments and also by considering the documents produced by both the parties, the commission is of the definite  opinion that admittedly the complainant has preferred complaint before NCLT proceedings before NCLT, Mumbai in  CP(IB) No.4258/MB/C-II/2019 and the Honb’le NCLT has approved the resolution plan for OP-1 vide order dt.07.06.2021 and same is under implementation and the said order is still in force and  they are in the process of making payment to the investors on priority during the process  and it is also very important to note that the complainant is also one of the party in the proceedings and he also obtained order from the said authority for his investment  for payment of deposit amount of Rs.2,00,000/-.  When the  proceedings is pending before the DRT as well as NCLT all court except for the  Debts Recovery Tribunal have been outsted of the jurisdiction to entertain recovery /application for recovery of debts due under section 18 of the Recovery of Debts due to Bank and Financial Institutions Act, 1993 is as follows.

Bar of Jurisdiction: On and from the appointed day, no court or other authority shall have, or be entitled to exercise, any jurisdiction, powers or authority (Except the Supreme court, and a High Court exercising jurisdiction under section 226 & 227 of the Constitution) in relation to the matters specifie in section 17. Since, there is  a bar on jurisdiction of this Hon’ble Commission, the present complaint cannot be entertained.

13. It is also very importatnt to note that Reserve Bank of India through an Administrator (Appointed under section 45-IE of RBI Act, 1934) initiated corporate insolvency Resolution process (CIRP) against the OP-1 before the NCLT, Mumbai in CP(IB) No.4258/MB/C-II/2019. The Hon’ble NCLT vide order dt.03.12.2019 appointed an administrator  to perform all functions of resolution professional under the Insolvency & Bankruptcy Code and all proceedings initiated against OP-1 were paused as a result of the Moratorium under section 14 of Insolvency & Bankruptcy code. This included the proceedings initiated by the answering OP against the complainant.  The OP has also produced all the proceedings order copies pertaining to the NCLT and DRT as per annexured produced in the complaint.

14. In view of the discussion and also by taking note of all the proceedings which took before the NCLT and DRT  pertaining to the complainant claims as against the OPs,  when the complainant has already initiated recovery proceedings before the NCLT and DRT in order to recover debendures non-covertable debentures as deposit amount of Rs.2,00,000/-.  When the said procedings is pending before the said authority the question of maintaining another recovery proceedings before this commission by way of complaint is not maintainable either in law or in facts. This complaint is also mainted by the complainant for the recovery of non-convertible debentures deposit amount of Rs.2,00,000/- along with interest. When the earlier proceedings before the appropriate authority is pending and for consideration the question of the maintainability of Consumer complaint before the Commission is not maintainable on the same grounds and the relief which is sought in the complaint also similar to the earlier proceeding. In the earlier proceedings also the complainant along with other debenture holders have maintained the proceedings by claiming  the relief of deposit amount. When such being the case the present complaint filed by the complainant is liable to be dismissed as not maintainable for the above reasons. In view of the above discussion, the Point No.1 we answer in negative.

15. POINT NO.2:- In view of the findings given to point  no.1, consideration of Point No.2 does not arise.

16. POINT NO.2:- In the result, we passed the following:

ORDER

1. Complaint is hereby dismissed as not maintainable. No costs.
2. Furnish free copy of this order to both the parties.

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 19^th                May  2023)

(RAMACHANDRA M.S.)

PRESIDENT

       (NANDINI H KUMBHAR)             (CHANDRASHEKAR S.NOOLA)       

                 MEMBER                                        MEMBER

Witness examined on behalf of the complainant-1 by way of affidavit: Michael F.J.Pais-who being the complainant

Documents produced by the complainant:

Witness examined on behalf of the OP-2 by way of affidavit: Sri Vikas.P. –Who being the Asst. Vice president of OP-2

Documents produced by the OP-2:  

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*