BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE

Dated this the 24^th April 2009

COMPLAINT NO.10/2009

(Admitted on 29.01.2009)

PRESENT:              1. Smt. Asha Shetty, B.A. L.L.B., President                                                                                                                                                                                                                                                                                                                                   

                                                                                  2.Sri. K. Ramachandra, Member

BETWEEN:

Mr.Raju D.Moolya,

So. Dooma Moolya,

RA. Flat No.101,

Bharath Apartments,

Ground Floor, Door No.33.2884.1,

Ashok Nagar, Kodikal,

Mangalore  575 001.                          …….. COMPLAINANT

(Advocate: Mrs.Suma R. Nayak).

          VERSUS

1. Unit Trust of India,

F.02, First Floor, Souza Arcade,

Balmatta Road,

Mangalore  575 001.

2. UTI Technology Services Ltd.,

Navi Mumbai Office,

Plot No.3, Sector No.11,

CBD Belapur,

Navi Mumbai – 400 614,

Represented by

Assistant Manager.          ……. OPPOSITE PARTIES

(Advocate: Sri.K.P.Vasudeva Rao).

                                      ***************

ORDER DELIVERED BY SMT. ASHA SHETTY, PRESIDENT;

1.       The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs. 

The Complainant is the holder of 2500 units under the Unit Trust of India GMIS 1991 bearing unit certificate No.M91-2-1-162444.  The said certificate was issued to the Complainant on 30.11.1991.  It is submitted that the Complainant was working overseas for a few years and on his return to India visited the office of Opposite Party No.2 and make the enquiries about the payment procedure but the Opposite Parties not given concrete answers.  And thereafter the Complainant approached several times to the Opposite Party to repay the maturity amount of Rs.52,925/- and finally addressed letter calling upon Opposite Party No.2 to pay the same.  The Opposite Parties on 15.3.2008 stated that maturity proceeds were remitted to all unit holders without calling back the unit certificates and without bank particulars.  It is submitted that, the details such as when the payment was made, to whom it was made and whose bank account was credited, whether the cheques were encashed and by whom are not given to the Complainant.  Thereafter the Complainant issued a legal notice calling upon the Opposite Parties to pay  the amount but the Opposite Parties failed to pay the above said amount till this date amounts to deficiency and hence filed the above complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to pay Rs.52,925/- is the matured amount with interest at the rate of 21% p.a. from the date of the fixed deposit till the date of the payment and Rs.60,000/- claimed as a compensation and cost of the proceedings.

2.       Version notice served to the Opposite Parties by RPAD.  Opposite Parties appeared through their counsel and filed common version submitted that the Unit Trust of India (herein after called ‘UTI’) had been set up as a Statutory Corporation under UTI Act, 1963 and the said Act got repealed by an Act of parliament known as the Unit Trust of India Act, 2002 with effect from 29.10.2002.  It is submitted that on receipt of the above complaint from this Hon'ble Forum, the records taken over from the earlier registrar were verified and it is observed that the maturity proceeds against the said unit certificate was processed by the erstwhile registrar vide following account payee, non-negotiable and not- transferable cheques in favour of Complainant and dispatched to the address without calling back the duly discharged unit certificate in original for payment as per the procedure of trust for payment of matured proceeds.  And they have contended that there are 3 cheques for Rs.25,000/- Rs.25,000/- and Rs.2,925/- were paid through cheques bearing No.R0304778001,  R0304778002 and R0304778003.  It is further submitted that the maturity cheques sent to the Complainant have not returned as undelivered by postal authorities and hence it is presumed that the same has been received by the addressee/ Complainant.  And it is submitted that the Complainant has encahsed the maturity proceeds way back on 3.1.1997 and now in 2009 claiming maturity proceeds under the said scheme is not valid and it is barred by limitation. 

It is further alleged that, since the cheque is the account payee, not negotiable and not transferable and the same could be encashed in the account of payee only.  And the same was duly informed that the said maturity cheques sent to him was encashed by him and he has failed to check up with the records/all bank accounts for the validity period of cheque and they contended that a false complaint has been filed and submitted that there is no deficiency and prayed for dismissal of the complaint.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the complaint is barred by limitation?

2. Whether this Forum has jurisdiction to entertain the complaint?

3. Whether the Opposite Parties have committed deficiency in service?

4. If so, whether the Complainant is entitled for the reliefs claimed?

5. What order?

4.         In support of the complaint, Sri.Raju D.Moolya (CW1) filed affidavit reiterating what has been stated in the complaint and got marked Ex C1 to C6 for the Complainant as listed in the annexure.   Opposite Parties not filed counter affidavit. 

          We have considered the materials that was placed before the Hon'ble Forum and answer the points are as follows:                   

          Point No.(i): Affirmative.

          Point No.(ii): Affirmative.

          Point No.(iii) to (v): As per the final order.   

Reasons

5.  Point No. (i):

Both the parties admitted before the FORA that the Complainant was a holder of 2500 units under the UTI GMIS 1991 bearing unit certificate No.M91-2-1-162444.  The said certificate was issued on 30.11.1991.  According to the Complainant the money invested by him before the Opposite Party under the units were not paid despite of the maturity and also he has approached the Opposite Party No.2 personally despite of that they have not paid and subsequently on 15.3.2008 the Opposite Party sent a letter stating that the scheme has already been matured and the maturity proceeds were remitted to all unit holders without calling back the unit certificates and the bank particulars.  And subsequently the Complainant also issued a legal notice dated 8.11.2008 calling upon the Opposite Party to pay the maturity proceeds that means it a definite case of the Complainant that maturity proceeds under the above units were not paid/received by the Complainant hence the cause of action is a continuing cause of action until and unless the matured proceeds were received by the Complainant and hence the complaint is not barred by limitation.

Point No.(ii):

As far as issue No.(ii) is concerned, the Section 11 of the Consumer Protection Act is very clear that any of the Opposite Parties where there are more than one, at the time of the institution of the complaint actually and voluntarily resides or carries on business or has a branch office or personally works for gain.  In the present case, the Opposite Party No.1 situated within the jurisdiction of this Forum hence the question of rejecting the complaint does not arise and this Hon'ble Forum has jurisdiction to entertain the complaint and point No(ii) held in favour of the Complainant. 

Point No.(iii) to (v):

As far as point No.(iii) is concerned, as we already discussed herein above, the Opposite Party admitted that the Complainant is a holder of 2500 units under the certificate No.M91-2-1-162444 and the Ex C1 i.e., letter dated 15.3.2008 issued by the Opposite Party to the Complainant clearly reveals that the Opposite Party without calling back the unit certificate and without the bank particulars it has stated that the maturity proceeds were paid to the Complainant by giving details and mentioned that the cheque No.R0304778001, 8002, and 8003 dated 28.11.1996 for Rs.52,925/- has been paid dated 3.1.1997.  The Ex C1 issued by the Assistant Manager of the Opposite Party bank clearly reveals that without obtaining the bank particulars and without calling back the unit certificate the maturity proceeds were remitted to the unit holders.  The contents of the above said letter is really strange to note that when the payment was made, to whom it was made and whose bank account was credited and whether the cheques were encashed and by whom are not clear in the said letter.  It is pertinent to note that without obtaining the bank particulars of the unit holders how the payment can be made or how the payment can be reached to the unit holders.  The another point we have noted in the reply filed by the Opposite Parties in para No.6 (II) they have specifically stated that the maturity cheques was processed by the erstwhile registrar vide following account payee not negotiable and not transferable cheques in favour of the Complainant.  The maturity cheques sent have not returned as undelivered by postal authorities and they have presumed that the same must have been received by the Complainant.  Except the statement there is no material/cogent evidence is available before the FORA that the matured process were paid to the Complainant.  But the Opposite Party in their version contended that as per the Regulations 14 and 15 issued by the SEBI Regulations 1993 the registrars have to maintain and preserve records and documents for a minimum period of 3 years and now the documents are not available this part of the defence has no merits, it is the bounden duty of the Opposite Parties to satisfy the FORA that the matured proceeds have been paid to the Complainant under account payee cheque or any other means.  In the present case, the Opposite Parties miserably failed to show before the FORA that the Opposite Parties paid the maturity proceeds under the unit certificate No.M91-2-1-162444 to the Complainant.  In the absence of the same, we are of the considered opinion that the Opposite Parties were not discharged their obligations and the proceeds under the unit certificates were not paid to the Complainant and hence the service rendered by the Opposite Parties amounts to deficiency. 

In view of the above said reasons, the Opposite Parties are hereby directed to pay jointly and severally the matured amount under the UTI GMIS 1991 amounting to Rs.52,925/- along with interest at the rate of 10% p.a. from the date of maturity till the date of payment.  However, the interest as well as compensation both cannot be allowed. Interest is always inclusive of compensation.  And further Rs.1,000/- awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.                                                                                                     

6.       In the result, we pass the following:

ORDER

            The complaint is allowed.  Opposite Parties are hereby directed to pay jointly and severally to the Complainant the matured amount under the UTI GMIS 1991 amounting to Rs.52,925/- along with interest at the rate of 10% p.a. from the date of maturity till the date of payment.  And further Rs.1,000/- awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.                                                   

Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 24^th day of April 2009.)

          PRESIDENT                            MEMBER

(SMT. ASHA SHETTY)            (SRI. K.RAMACHANDRA)

APPENDIX

Witnesses examined on behalf of the Complainant:

CW1 – Sri.Raju D.Moolya – Complainant.

Documents marked on behalf of the Complainant:

Ex C1 – 15.03.2008: Letter sent by the Opposite Party to the Complainant.

Ex C2 – 08.11.2008: Legal notice sent to the Opposite Party.

Ex C3 –                   : Acknowledgement Card.

Ex C4 –                   : Postal receipts.

Ex C5 -            : Under Certificate of Posting (2 in number).

Ex C6 -          : Original Cumulative/Transferable Certificate.

Witnesses examined on behalf of the Opposite Parties:

RW1 –  Nil.

Documents marked on behalf of the Opposite Parties:    

- Nil -

Dated:24.04.2009                            PRESIDENT