Oral Order ( As per R.Lakshminarsimha Rao, Member)
The appeal is filed by the complainant feeling aggrieved by the order of the District Forum returning his complaint on the aspect of pecuniary jurisdiction.
The facts of the case are that the complainant had opened a D-mat account on 13.7.1999 with the opposite partyno.2. The complainant was allotted the securities account bearing No.200002364 and SHCIL DP id IN301022. The opposite party no.2 had sent monthly statement of holding of the 4000 shares of M/s Nagarjuna Construction Co., Ltd., till the month of July 2005. From the month of August 2005 the opposite party no.2 had stopped sending the monthly statement of holding to the complainant. The complainant, in the month of September 2005, came to know that without his knowledge and from his account 3600 shares out of 4000 shares of M/s Nagarjuna Construction Company Limited worth of Rs.17,00,000/- were sold off. The efforts of the complainant to seek the relevant information proved futile. The complainant had got issued notice through his advocate on 1 7.10.2005 to the opposite party no.2. The opposite party no.2 has got issued reply notice dated 19.10.2005 by denying any responsibility for the sold off share of M/s Nagarjuna Construction Ltd. On enquiry the complainant came to know that the opposite parties no.1 to 3 conspired to misappropriate the amount.
The opposite party no.1 has resisted the claim denying the material averments of the complaint and contended that their Himayatnagar Branch received a requisition slip from the regular DIS booklet issued to the complainant. The duly filled annexure L (delivery instructions slip-DIS) was received for transfer of 3600 shares of M/s Nagarjuna Construction Co., Ltd. After verifying the signature, ISIN details, shares and other shares are processed in three stages of âmaker checker and âverification. The genuineness of DIS and signature was established and the complainant was also called to confirm the trade. The complainant himself is responsible in case the DIS issued to him landed in the hands of the perpetrator. The complaint was filed relating to the aspect of forgery of his signature. Appropriate criminal court is competent to try the matter. The complaint is not filed within the period of limitation. Hence, prayed for dismissal of the complaint.
The opposite party no.2 has contended that the transaction statement was sent to the complainant at the end of the month and in case no transaction has been made, the quarterly statement would be sent to the complainant. The transaction statement for the period from July 2005 to August 2005 was also sent to the complainant by bill â mail service of Indian Post. A reply to the notice of the complainant was issued by the opposite party no.2. On request of the complainant in the prescribed requisition slip and after due verification, DIS Booklet was issued to him on 8 9.2005. The guidelines issued by the principal (NSDL) and byelaws and business rules of NSDIL was strictly followed at the time of issuing DIS booklet to the complainant.
The opposite party no.3 contended that it has received the legal notice issued on behalf of the complainant and it had given a reply thereto. On verification of the signature of the complainant in the system, DIS booklet was issued to him. The complainant made a request for furnishing of the document and accordingly it was enclosed to the reply notice dated 19.10.2005. It is the duty of the complainant to ensure proper safety of the DIS booklet and the slip that were issued to him and have been in his possession. There was no deficiency in service on its part. Hence, prayed for dismissal of the complaint.
The complainant has filed his affidavit and got marked Exs.A1 to A16.
No affidavit has been filed on behalf of the opposite parties nor any documents were filed by them.
The District Forum has framed preliminary issue as to pecuniary jurisdiction and returned the complaint for presentation of the same before a competent authority.
Feeling aggrieved by the impugned order the complainant has filed the appeal contending that the District Forum erred in framing the preliminary issue of pecuniary jurisdiction after the evidence was adduced in the case and arguments had been advanced. The claim on account of compensation and other constituents is only to an extent of Rs.18, 97,640/- which is within the pecuniary jurisdiction of the District forum. Adding the future interest, to the other reliefs, the District Forum came to a wrong conclusion at the time of filling of the complaint, the complainant has sought relief within the pecuniary jurisdiction of the District Forum and during the advancement of the arguments the complainant restricted his relief to the grant of compensation only which is well within the jurisdiction of the District forum.
The point for consideration is whether the reliefs prayed for by the complainant are within the limits of pecuniary jurisdiction of the District forum?
The learned counsel for the appellant had submitted that the complaint was filed with the relief well within the limits of pecuniary jurisdiction of the District forum. A perusal of the complaint and the reliefs sought for therein would show that the complainant claimed for restoration of Rs.7200 share of M/s Nagarjuna Construction Company Ltd., or alternatively he had prayed for direction to the opposite parties to pay the value of the shares at the rate of Rs.237/- per share amounting to Rs.17,06,4000 besides which the complainant had sought direction for a sum of Rs.10,000/- expenses of Rs.10,000/- as also compensation of 10% on the sum of Rs.17,06,400/- and interest @ 18% per annum on the total amount.
The District Forum has proceeded to calculate the amount claimed in the relief portion of the complaint in paragraph 5 of the impugned order and it reads as under.
In the complaint the complainant prayed for tracing and restoration of Rs.7200 shares valued at Rs.17,06,400/- plus Rs.10,000/- towards loss of dividend plus legal expenses of Rs.10,000/- plus 10% over and above Rs.17,08,400/- which comes to Rs.1,70,640/- towards the compensation plus interest at 18% per annum on the above total amount of Rs.18,97,640/- which comes to more than 8,50,000/-. It means to say that the total claim of the complainant is more than Rs.27 lakhs. In the evidence affidavit as well as written arguments also the complainant claimed more than Rs.27,00,000/-. As per Sec.11 of the C.P.Act a District Consumer Forum will have pecuniary jurisdiction up to Rs.20 lakhs only. As the claim exceeds the jurisdiction of this forum, we cannot try or decide this case. This is a fit matter for return of the complaint for presentation before the competent authority having jurisdiction to entertain it.
The District Forum has returned the complaint on 12.3.2007 taking objection that it has not got any kind of jurisdiction including the pecuniary jurisdiction. On 16.3.2007 the learned counsel for the complainant had resubmitted the complaint before the District Forum stating that compliance of the objections had been made. In regard to the objection on the question of pecuniary jurisdiction it was submitted âas the claim is for an amount of Rs.18,99,040/-, this Honble District Forum has jurisdiction to admit this complaintâ. Interestingly, the complaint was registered as C.C.No.224 of 2007 without hearing the complainant or his counsel or passing an appropriate order to proceed with the case. On 25.4.2007 the C.C. was posted for appearance of the opposite parties and thereafter the opposite parties made their appearance before the District Forum. The opposite parties contested the case by filing their respective written version. Ultimately, the District Forum has returned the complaint.
The District Forum has taken into consideration the value of the shares mentioned in the affidavit and written arguments of the complainant which are exfacie inconsistent with the relief prayed for in the complaint. Amendment of any contents of the complaint can be made only by filing a petition seeking permission of the District Forum and the District Forum if it thinks proper would permit the amendment sought only after issuing notice to the opposite parties. The District Forum ought not to have considered any relief prayed for in the affidavit or in the written arguments that is inconsistent with what is made in the complaint and as such impermissible.
It is unfortunate that three years have been spent by the District Forum on the question of pecuniary jurisdiction leaving the real issues to be fought between the parties to come up leisurely. The learned counsel for the appellant had contended that at the time of submitting his arguments, he had requested the District Forum to consider that the complainant restricted his claim within the limits of the pecuniary jurisdiction of the District Forum. As aforesaid, the complainant had resubmitted his complaint by way of compliance under the head jurisdiction as â as the claim is for the amount of Rs.18,99,040/- this Honble District Forum has jurisdiction to admit this complaintâ. After the complaint was resubmitted, the District forum issued notice to the opposite parties. Thus, the District forum deemed to have proceeded with the complaint taking into consideration of the relief restricted to Rs.18,99,040/-.
The District Forum has computed the amount by calculating the future interest @ 18% per annum on the total amount claimed and compensation of 10% on the amount of Rs.17,06,400/-. The interest claimed is future interest and the compensation has been claimed in the form interest and the amount of 10% on 17,06,400/- which are under any circumstances cannot be considered as the main constituents of the relief claimed in the complaint touching the peripheral limits of the pecuniary jurisdiction of the District Forum. Interest and compensation may be or may not be awarded depending upon the facts and circumstances of each case. It is the substance of the relief that a complainant prays for that has to be taken into account and not the technical form of the prayer The District Forum has erred in holding that it is not competent to entertain the matter.
The learned counsel for the appellant has submitted that instead of remanding the matter to the District Forum, this Commission can entertain the matter and dispose of the complaint. He has relied upon the decisions, âAshwin Kumar K Patel vs Upendra Patel and othersâ (1999)3 SCC 161, âRouthu Venkatarathnam vs Miryala Venkat Rao and anotherâ 2005(1) ALD 792, II(1991)CPJ 639. The appeal is filed seeking remand of the matter to the District Forum. Obviously, the party seeking remand of the matter cannot invoke the principle laid down in the aforesaid decisions. The decisions relied upon by the learned counsel would not help the case of the appellant who had been all through seeking remand of his complaint to the District Forum. The prayer portion of the appeal reads as under:
Therefore, it is prayed that this Honorable State Consumer Disputes Redressal Commission may be pleased to pass necessary orders to set aside the order dated 15-09-2009 of the Honourable District Forum No.1 at Hyderabad in CC No. 224/2007 and further pass necessary orders directing the Honourable District Consumer Redressal Forum No.1, Hyderabad to adjudicate the above complaint on merits in CC No.224/2007 and pass such other or orders as this Honourable State Commission deems fit and proper in the circumstances of the case or else this appellant will suffer irreparable loss and injury.
Therefore, for the aforesaid reasons, we are inclined to remand the matter, for the District Forum to proceed with the complaint.
In the result, the appeal is allowed. Consequently, the impugned order passed by the District Forum is set aside. The matter is remanded to the District Forum. The District Forum is directed to proceed with the complaint. The parties shall not insist on issuing of fresh notice and they shall appear on 26.5.2010 before the District Forum. There shall be no order as to costs.