Judgment:
V.B. Gupta, Presiding Member
1. Since, facts of above noted revision petitions are similar and common question of law is involved, as such these petitions are being disposed of by this common order.
2. Brief facts are that Respondent No.1/Complainants being attracted by the advertisement of the petitioner/o.p.no.2 and respondent no.2/o.p.no.1 and on the assurance made by them, invested a sum of Rs.6,500/- each in the Diamond Plantation Scheme on 31.12.1994 at Ernakulam. This scheme was for 20 years and following benefits were offered ;
(i) Registration of 10 cents of land in complainants name in Odaimarchan village, Tamil Nadu State.
(ii) Payment of Rs. 500/- annually from third year onwards till the maturity of the scheme to the complainant.
(iii) Rs. 10,000/- accidental death insurance coverage for 20 years to the complainant.
(iv) New year gift worth Rs. 50/- to the complainant.
(v) On maturity of scheme teak wood worth Rs. 2,88,000/- To the complainant.
3. It is further stated that among above said promises, they fulfilled only the first promise by registering 10 cents of land each in the complainants name. The prayer made in the complaints are for refund of amount paid with 18% interest from date of payment till realization.
4. Before District Forum, petitioner took the plea that complaints are not maintainable, since they are barred by limitation. The other plea is that petitioner is not liable at all as he had resigned as Director from the Board on 31.12.1998.
5. District Forum, vide its order dated 17.2.2004 allowed both the complaints and directed as under;
œOpposite parties 1 to 3 pay each complainants the amount deposited by them with the opposite parties, as could be seen from Exts. A2 and A5 receipts Rs. 6,500/- each with 12% interest form date of deposit that is 31.12.94 till payment. We also direct the opposite parties to pay Rs.500/- each to the complainants as costs of these proceedings?.
6. Being aggrieved by the order of the District Forum, petitioner filed appeals before the State Commission which were dismissed vide impugned order, dated 30.06.2010.
7. By way of present revision petitions, petitioner has challenged the impugned order.
8. Notice of these petitions were issued to the respondents. Respondents No.2 and 3 were duly served but they did not appear and as such they were proceeded ex parte.
9. As far as respondent no.1 is concerned, he sent a letter dated 19.5.2012 after receipt of the notice but he also did not appear. Hence, respondent no.1 was also proceeded ex parte.
10. We have heard the learned counsel for the petitioner and gone through the record.
11. The only plea raised by learned counsel for petitioner before us is that since petitioner has resigned from the post of Managing Director of respondent no.2s Company on 31.12.1998 and his resignation was accepted by the company vide letter dated 16.1.1999, hence, petitioner cannot be made as a party in these proceedings neither in the representative capacity nor in the personal capacity. Hence, the impugned order passed by the State Commission is liable to be set aside.
12. District Forum, in its order held ;
œIt is seen from the evidence that the office of the first opposite party is functioning in the house of the second opposite party. The address of opposite parties 1 and 2 shown in the complaint is the same. Only the second opposite party has entered appearance and he has not appeared in the capacity of the first opposite party. The case of the second opposite party is that he ceased to be a director of the company on 31.12.98. Ext. B1 is the letter dated 16.1.99 from the first opposite party, which says that the company accepted the resignation of the second opposite party made as per letter dated 31.12.98. The second opposite party has not produced any document from the Registrar of Companies to show that he had resigned from the company on the alleged date. If the second opposite party had resigned there will be Form No. 32 with the registrar of companies. But the second opposite party has not produced the same. The counsel for the second opposite party has relied upon the decision in Dushyant D. Anjria V. Wall Street Finance Ltd.(2001) 105 company cases 655(Bombay). What is stated in this decision is that the Director is not bound to explain the delay in filling Form No. 32 with the Registrar of Companies by the company. We had relied upon the decision of the Madras High Court in T. Murari V. State rendered on 5.9.1975 (1976) 46 companies cases 613(Madras). What is stated in this decision is that in the absence of any provision in the article of association resignation once made will take effect immediately when the intention to resign is made clear. The articles of association has not been produced and we do not know what are the conditions therein. We find that both the above decisions are applicable to the facts of this case. Ext. B2 is a copy of the vakalath filed in CDRF, Alappuzha by the company, opposite party 1 herein. It has been pointed out that in the said case the company is represented by the Director, Rose Mary. We find no address of the company in Exts. B2. The 2nd Opposite Party does not know when Rose Mary became the Director of the company and when she resigns etc. It may be probable that she was authorized by the company to represent the company in that particular case. Ext. B2 does not help second opposite party to show that he was not responsible. However, second opposite party was a director at the time of the complainant paid the amount. It has been admitted by her that Ext. A1, A3, A4 and A6 bear her signature. There is no case for him that the opposite parties had not offered the benefit stated in the complaint?.
13. Further, State Commission while dismissing the appeals in its impugned order observed;
œWe have perused the entire evidence adduced by the appellant/opposite parties. We do not know what was the difficulty from the part of the appellant to produce a copy of the Article of Memorandum of the company either before the Forum below or before this Commission. Copy of the Article of Memorandum of the company prepared by the company and served to all the shareholders and the directors but it was suppressed intentionally by the appellant and another aspect is that he produced a photo copy of Vakalaths filed before the CDRF, Alappuzha and marked as Ext. B2. What is the difficulty to produce certified copies of all other documents in connection relation with his defence. This is also suppressed with bad intention to some relevant facts. It is clear piece of evidence that the notice of the first opposite party was received by the appellant second opposite party and he represented for the first opposite party before the Forum below suppose he is an innocent person now he received a registered notice of the Forum below and he appeared before the Forum below directly. This Commission is seeing that the order passed by the Forum below is strictly accordance with the law and evidence. The mere contention or version of the appellant/opposite party cannot be treated as an evidence. It is this burden and duty to establish through the documentary evidence that he was not a part and parcel of the transaction done with the complainant. Other arguments are nothing but arrows against the moon. We are not seeing any apparent error in the order passed by the Forum below which is legally sustainable?.
14. As per petitioners own case, he was Managing Director of the Company as on 31.12.1994 when the investments were made by the complainants in the Company. Further, it is petitioners own case that he has resigned form the Managing Directorship of the Company only in the year 1998. Petitioner did not file copy of Form No.32 as envisaged under the Companies Act before the Fora below, for the reasons best known to him. Be that as it may, filing or non filing of the Form No. 32 will not make any difference in these cases, since at the time of acceptance of the deposits on 31.12.1994, petitioner was admittedly the Managing Director of the Company and as such he cannot escape from the liability with regard to refund of money to the complainants.
15. Under section 21 (b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
16. Honble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
œ Also, it isto be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.?
17. In view of the concurrent findings of facts given by fora below, no jurisdiction or legal error has been shown to call for interference in the exercise of power under section 21 (b) of the Act. Both the fora have given cogent reasons in their order which do not call for any interference nor do they suffer from any infirmity or revisional exercise of jurisdiction.
18. It is not that every order passed by the fora below is to be challenged by a litigant even when the same is based on sound reasonings.
19. The present petitions being meritless, bogus and frivolous one are required to be dismissed with punitive cost for wasting time of this Commission and for causing harassment to the complainants. Accordingly, these petitions are hereby dismissed with cost of Rs.15,000/- (Rupees Fifteen Thousand only) in each case.
20. Out of aforesaid cost imposed upon the petitioner, Rs.10,000/-(Rupees Ten Thousand only)each be paid to the respective complainants by way of demand draft in their name and balance amount of Rs.10,000/-(Rupees Ten thousand only) be deposited by the petitioner by way of demand in the name of œConsumer Legal Aid Account? of this Commission, within eight weeks from today.
21. In case, petitioner fails to pay/deposit the aforesaid cost within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization.
22. List on 26th July, 2013 for compliance.