K. Shivarama Bhat and Others Vs. Darmpal Rao Jadav and Others - Court Judgment

Excerpt:

Judgment:

The above appeals are preferred from the order dated 12^th December, 2003 passed by CDRF, Kasargod in O.P. No. 140/03. The appellants in appeal 241/04 are the opposite parties 2 to 5 in the said complaint in O.P. 140/03. The respondents 1 to 4 herein are the complainants and additional respondents 5 to 8 are the opposite parties 1 and 6 to 8 in the said O.P. 140/03. The appellant in the appeal 229/04 is the 8th opposite party and the respondents are the complainants 1 to 4 and opposite parties 1 to 7 in the said O.P. 140/03. The said complaint was preferred against the opposite parties 1 to 8 alleging deficiency in service. In their failure to refund the amounts deposited by the complainants with the first opposite party, Shri. M.M. Infotech Ltd and the opposite parties 2 to 8 as its directors.

2. The opposite parties 2 to 5 entered appearance before the forum below and filed written version denying the alleged deficiency in service. They contended that they had no connection with the first opposite party, Shri. M.M. Infotech Ltd, and that they are unnecessary parties to the complaint in O.P. 140/03. They denied the allegation that they approached the complainants to get the amount deposited with the first opposite party , Shri. M.M. Infotech Ltd., It is contended that they are only relatives of the directors of the first opposite party, Ltd., Company. Thus, the opposite parties 2 to 5 prayed for dismissal of the complaint filed against them.

3. The opposite parties 6 to 8 remained exparte.

4. Before the Forum below Pw1 was examined and Exts. A1 to A18 were marked on the side of the complainants. Dw1 was examined and B1 to B7 documents were marked on the side of the opposite parties 2 to 5. On an appreciation of the evidence on record, the Forum below passed the impugned order directing the opposite parties to pay Rs. 1,10,310/- each to complainants 1 and 2, Rs. 18,000/- to the 3^rd complainant and Rs. 45,025/- to the 4^th complainant with interest @12% per annum from 7.6.2003, the date of the complaint till the date of the impugned order along with compensation of Rs. 2,500/- and cost of Rs. 1,000/- The opposite parties are made jointly and severally liable to pay the aforesaid amounts with interest and cost within 2 months from the date of receipt of copy of the impugned order. Aggrieved by the said order, the present appeals are preferred by opposite parties 2 to 5, and 8 therein.

5. When these appeals are taken up for final hearing, there was no representation for additional respondents 5 to 7( Opposite parties 1,6 and 7). We heard the learned counsel for the appellants(opposite parties 2 to 5 and 8) and respondents 1 to 4(complaints 1 to 4). The counsel for the appellants much relied on an earlier order passed by the Forum below in O.P. No. 245/02 and submitted that the appellants had no connection with the first opposite party, Shri. M.M. Infotech Ltd. He also found fault with the Forum below in not relying on B2 to B7 documents produced by the appellants/opposite parties 2 to 5. He much relied on the remand order passed by this Commission vide common judgment dated 11/12/2009 in appeal Nos. 789, 790, 791/2006 and requested for remanding the matter to the Forum below for fresh consideration and disposal of the same on merits by affording further opportunity to the appellants/opposite parties to substantiate their case in their written version filed in O.P. 140/03. On the other hand, the Counsel for respondent 1 to 4 (complaints) supported the impugned order passed by the Forum below and prayed for dismissal of the present appeal.

6. The learned counsel for the appellant in appeal 229/04 submitted his arguments based on the grounds urged in the appeal memorandum. He vehemently argued for the position that no notice was served on the appellant/8^th opposite party in O.P 140/03 and thereby he did not get the opportunity to enter appearance and to submit his contention in O.P. 140/03. It is further submitted that the appellant as director of the first opposite party, Shri. M.M.Infotech Ltd., ought not to have been made personally liable to pay back the amounts to the complainants as first opposite party being a public limited company registered under the Companies Act., 1956, that the liability of the directors and shareholders of the company is limited to the number of shares they held. Thus, the appellant/8^th opposite party requested for setting aside the impugned order and to remand the matter to the Forum below for affording an opportunity to him to file written version and to adduce evidence in support of his contentions.

7. The fact that this State Commission had occasion to pass common order in Appeal Nos. 789,790 and 791/2006 vide common judgment dated 11/12/2009 is not in dispute. It is true that the aforesaid appeals were preferred by the appellants 2 and 3 herein. The aforesaid appeals were preferred from the common order passed by CDRF, Kasargod in O.P. Nos. 146,147 and 148/05 which were filed by other complainants against the appellants herein and others claiming refund of the Fixed Deposits effected by the complainants therein. It is true that B2 to B7 documents produced in this case were also produced in those complaints. It was held as improper and incorrect on the part of the Forum below in not relying on those documents. Thus, this State Commission was pleased to remand the matter involved in those complaints for fresh consideration and disposal of the same by the Forum below. The facts and circumstances for this case is also somewhat identical and similar in nature considering those aspects this State Commission is of the view that the issue involved in these appeals are also liable to be remanded to the Forum below for fresh consideration and disposal of the same on merits.

8. The Forum below much related on Ext. A17 and A17(a) and also the admission on the side of Dw1 regarding issuance of A17 and A17(a). The aforesaid evidence available on record would justify the finding of the Forum below that the Forum below had jurisdiction to entertain the complainant in O.P. 140/03. The aforesaid document would show that first opposite party Shri. M.M. Infotech Ltd had a branch office in Badiadka and that the second opposite party, Gopalakrishna Bhatt was the director and manager of the said Shri. M.M. Infotech Ltd. Finding of the Forum below that it has the territorial jurisdiction to entertain the complaint in O.P. No. 140/03 is to be upheld.

9. The Forum below cannot be justified in finding the opposite parties 3 to 5 as liable to pay the fixed deposit amounts to the complaints. There was no conclusive evidence to hold that opposite parties 3 to 5 (appellants 2 to 4) were the directors of the first opposite party, Shri. M.M. Infotech Ltd during the relevant time, Ext. B2 to B7 documents would give an indication that at the relevant period the opposite parties 2 to 5 were not the directors of the first opposite party Shri. M.M. Infotech Ltd. It is true that the appellants failed to prove B2 status report and also to prove B3 to B7 documents by producing the original documents or certified copy issued by competent authority. It is pertinent to note that B3 to B7 documents can be proved by producing the original of those documents or by producing certified copy of the same issued by competent authority. It is to be noted that B2 to B7 documents are public documents maintained by Registrar of companies. So, issuance of those documents by competent authority namely Registrar of companies can be treated as admissible documents. The Forum below has to consider the evidensary value of B2 to B7 documents. The appellants will also be given an opportunity to prove those documents by adducing further evidence.

10. Likewise, the complainants (respondents 1 to 4) are also at liberty for adducing further evidence in support of their case that the 4^th opposite party Kesava Prasad, filled up the Fixed Deposit Receipts (A1 to A10) in his handwriting. The Forum below can not be justified in dis allowing the petition filed to get the disputed signature in the Fixed Deposit Receipts identified by a handwriting expert by making a comparison of the disputed signatures with the admitted signature of the 3^rd appellant (4^th opposite party). Thus in all respects, matter is to be remanded back to the Forum below for fresh consideration and disposal of the same on merits.

11. A perusal of the proceeding paper in the aforesaid complaint would show that notices issued to opposite parties 1 and 5 to 8 were returned undelivered and that the Forum below considered the services of notice on opposite parties 1and 5 to 8 as sufficient . The definite case of the appellant (8^th opposite party) is that he was not served with any notice in O.P. 140/03 and thereby he did not get the opportunity to enter appearance before the Forum below and to contest the complaint in O.P. 140/03. So, the appellant/8^th opposite party (appellant in 229/04) is to be given an opportunity to file his written version in the said O.P. 140/03. Thus, the impugned order passed by the Forum below is liable to be quashed.

In the result, the above appeal is allowed to the extent that the impugned order dated 12.12.2003 passed by CDRF, Kasargod in O.P. No. 140/03 is set aside and the matter remanded to the Forum below for fresh consideration and disposal of the same in accordance with the law. It is made clear that parties to the complaint in O.P. 140/03 will be at liberty to adduce evidence in support of their respective pleadings. As far as the appeals are concerned, the parties are directed to suffer their respective costs and they will appear before the Forum below on 30.11.2011.