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2002 DIGILAW 282 (HP)

I. T. C. LIMITED v. KHANAM M. JAVED

2002-10-01

ONKAR CHAND THAKUR, PREM CHAUHAN, SURINDER SARUP

body2002
ORDER Justice Surinder Sarup (Retd.), President: - This order will dispose of the above mentioned two appeals as they arise but of the same order of the District Forum, Shimla dated 26.3.1999. As a result of the said order, the appellant - I.T.C. Limited has been directed and commanded to transfer 100 shares bearing distinctive Nos. 240934320 to 240934419 in the name of the complainant- Khanam M. Javed alongwith all the resultant financial benefits, dividend and other fiscal advantages which had already accrued since may, 1995 within 15 days of receiving the copy of the impugned order. Additionally, it has been saddled with damages amounting to Rs. 15,000/-, to be paid within the same period and litigation cost of Rs. 2,000/-. The other appeal has been filed by Vinod Kumar Kandei (opposite party No.5) in view of the adverse remarks passed in the impugned order against them. 2. The complainant i.e. respondent No. 1 is stated to have purchased 100 equity shares bearing distinctive Nos. 240934320 to 240934419 having certificate No. 192188 of the value of Rs. 23,000/-from I.T.C. Limited, Investor Service Centre (opposite party No. 1) vide share transfer form dated 17.5.1999, Annexure A-1 from opposite party No.2 which were subsequently deleted alonwith...CITIBANK by an order dated 17.3.1998 by the learned Forum below. The receipt of the sale of such equity shares is Annexure A-2. The complainant then applied for transfer of the equity shares in her name to I.T.C. Limited vide registered letter, Annexure A-3. As per her case, the said appellant i.e. I.T.C. Limited did not send the amended equity shares, showing them to be in her favour pursuant to the transfer of the same in her name as aforementioned. This resulted in protracted correspondence between the parties. Ultimately, the said appellant came up with the explanation that Shri Vinod Kumar Kandei i.e. the other appellant had lodged these equity shares for transfer in his name on 11.5.1995. The appellant No.1 further informed the complainant that the said transfer, in the name of appellant No. 2 had been registered on 14.9.1995. The rest of the sequence of events is mentioned in detail in the impugned order and need not be repeated here. Suffice it to say that ultimately the said complainant i.e. respondent No. 1 filed a complaint before the learned Forum below which has resulted in the impugned order. 3. The rest of the sequence of events is mentioned in detail in the impugned order and need not be repeated here. Suffice it to say that ultimately the said complainant i.e. respondent No. 1 filed a complaint before the learned Forum below which has resulted in the impugned order. 3. In the reply filed by the appellant No.1 i.e. I.T.C. Limited, a number of preliminary objections were taken, namely, that the complainant is not a consumer under the consumer protection Act, 1986, hereinafter to be called the Act inasmuch as had not utilized the services of the said appellant nor any consideration passed between the parties, that the dispute raised in the .complaint is not a consumer dispute as between her and appellant No.1, at the most it is in the nature of a civil disputes which would fall within the jurisdiction of a civil court, being a dispute of title of ownership of the shares, in question, that no relief(s) can be granted to the complainant by the consumer court because the relief (s) sought by her can only be done by a company on the direction of the companys law Board and lastly that the complaint discloses complicated questions of facts as allegations of fraud, cheating and connivance have been levelled therein, which is not in the domain of the consumer court. On merit the allegations as contained in the complaint have been broadly denied in the reply of appellant No. 1 - I.T.C. limited. The other appellant i.e. Vinod Kumar Kandei in a separate reply also took more or less similar preliminary objections and did not offer any defence insofar as the merits of the case incorporated in the allegations in the complaint are concerned. 4. A bare perusal of the impugned order would show that the learned Form below, instead of adverting to the record and the evidence led by the parties before it, has proceeded to decide the complaint in a totally one sided manner, by assuming that the facts as alleged in the complaint are automatically correct. This has led to the remarks and posing of irrelevant interrogatories from para-14 onwards upto para -19 of the impugned order. At the outset, we have no hesitation in coming to the conclusion that the said remarks are absolutely uncalled for and not at all based on the material on the record. This has led to the remarks and posing of irrelevant interrogatories from para-14 onwards upto para -19 of the impugned order. At the outset, we have no hesitation in coming to the conclusion that the said remarks are absolutely uncalled for and not at all based on the material on the record. Consequently, the same are hereby set aside. 5. Coming now to the controversy in issue, we find considerable force in the submission of the learned counsel for the appellant -I.T.C. Limited that there was no service rendered by the said appellant to respondent No.1/complainant for any consideration, as per the allegations made in the complaint. It necessarily follows that there was no relationship of a consumer and service provider between the respondent No.1 and the said appellant respectively, so as to make the respondent No. 1 a consumer as defined in section-2(1)(d)(ii) of the Act. On a bare perusal of the complaint, we do not find any oblique reference that the said appellant had provided service or services to respondent No. 1 for any consideration. Therefore, no order, command or direction could be passed against the appellant No. 1 i.e. I.T.C. as contained in the operative part of the impugned order. It necessarily follows that the said appellant is, therefore, not liable to pay any damages, whatsoever or litigation cost as contained therein. In fairness to the learned counsel for respondent No.1, he has faintly sought to argue that the said appellant -I.T.C. Ltd. was guilty of unfair trade practice against the respondent No.1 has not been able to point out either any allegations in the complaint to that effect or place any other material on the record to support the said submission. All that can be said is that in para-15 (I), it has been alleged in the last sentence that the act of the said company amounts to deficiency in service (which it was not) in view of the fact that the complainant had applied for transfer of shares in May, 1995 and also unfair trade practice. However, what was the unfair trade practice on the part of the said company has not been explained or established on the record. 6. The learned Counsel for the appellant No.1- I.T.C. Limited has placed reliance on case law which may briefly be discussed. However, what was the unfair trade practice on the part of the said company has not been explained or established on the record. 6. The learned Counsel for the appellant No.1- I.T.C. Limited has placed reliance on case law which may briefly be discussed. He has cited the case of Herberteens Limited v. Ram Ratan Shaw & Ors., 11(2001)CPJ 24, a decision of the West Bangal State Commission. It has been held therein that where the transfer of shares took place in a manner that the share register was maintained at the registered office of the company in Mumbai, and shares were not received after such transfer, cause of action for failure to deliver the share certificates would arise where the registered office of the company is situated. In view of the ratio of this decision, we also find force in the submission of the learned counsel that the District Forum at Shimla had no territorial Jurisdiction in. the mater insofar as the I.T.C. (Appellant) was concerned. He has then cited a decision of the Supreme Court i.e. H.V. Jayaram v. Industrial Credit and Investment corporation of India Ltd. and others, AIR 2000 Supreme Court 579. That was a case under the companies Act and there was non delivery of share certificates within prescribed time. In that case also the Apex Court held that the cause of action would arise where the head Office of the company is situated and not where the purchaser of such shares resides, Complaint can be filed only where the registered office of the company is situated. The third authority cited by him is also a decision of the Supreme Court in the case of Morgan Stanoly Mutual fund V. Kartick Das, etc., 11 (19940 CPJ 7 (SC). That was the case under the Act and it was held that till the allotment of shares takes place, the shares do not exist, therefore, they can never be called goods under section 2(1 )(i). It was further held that the applicant could not be called a consumer under the Act before the allotment of shares. In the same decision the Supreme Court also came to the conclusion that where allegations are made against a company that it had not issued shares to a share holder, it cannot be said to be engaged in unfair trade practice. In the same decision the Supreme Court also came to the conclusion that where allegations are made against a company that it had not issued shares to a share holder, it cannot be said to be engaged in unfair trade practice. This decision of the Supreme Court completely knocks out the case of the complainant/respondent No.1 both on the ground of deficiency in service as well as unfair trade practice insofar as the appellant- I.T.C. Limited is concerned. 7. In fairness to the learned counsel for the appellant - I.T.C. Limited, he has also placed reliance on a decision of the Supreme Court in the case of U.P. State Sugar Corporation Ltd. V. U.P. State Sugar Corporation Karamchari Association and others, (1995) 4 SCC 276. It has been held by the Apex Court in the said decision that Judges should not use strong or disparaging language against the parties or their witnesses. This supports the ground against the impugned order in the present case where uncalled for remarks have been made against both the appellants without any basis and which we have already set aside. 8. For the reason recorded above, we set aside the impugned order in toto insofar as the appellant - I.T.C. Limited is concerned and, therefore, the appeal filed, by the said party is allowed. Insofar as the appeal of the second appellant, namely, Vinod Kumar Kandei is concerned, we set aside the uncalled for and adverse remarks in the impugned order qua him. However, we remit the case back to the learned Forum below for a fresh decision of the complaint against the remaining opposite parties, namely, Hi Growth Financial Services, Vinod Kumar Kandei and Senior Superintendent of post offices in accordance with law and on the basis of the pleadings and evidence already on the record which be transmitted forthwith, thereafter, the learned Forum below shall issue notice to the concerned parties and proceed to dispose of the complaint in the light of the above observations within three months preferably, as the same relates to the year 1996. Both the appeals are disposed of accordingly.