Utpal Kumar Bhattacharya, Member
Being aggrieved with the judgment and order dated 17.08.2018 passed by the Ld. District Forum, Kolkata Unit—II in Complaint Case No. 426/2017, the Appellant/OP filed the instant Appeal u/s 15 of the C.P Act, 1986 before this Commission.
The Ld. District Forum disposed of the complaint case allowing the same on contest against the Appellant/OP with the directions as under:-
“That the Complaint Case being No. 426 of 2017 be and the same is allowed on contest against the OP with litigation cost of Rs.10,000/- (Rupees Ten thousand only) in terms of Section 13(2)(i) of the C.P. Act, 1986
That the OP is directed to pay Rs. 80,786/- (Rupees Eighty thousand seven hundred and eighty six only) as balance amount of Deep Discount Bond (Series—I) with interest @ 5% p.a. to the complainant within 30 days from the date of this order along with litigation cost.
That the OP is also directed to pay Rs. 50,000/- (Rupees Fifty thousand only) to the complainant as compensation for harassment and mental agony of the complainant within 30 days from the date of this order.
That the OP is also directed to deposit an amount of Rs. 25,000/- (Rupees Twenty Five thousand only) with this Forum as punitive damage for practicing unfair trade.
Failure to comply with the order will entitle the complainant to put the order into execution according to law.”
The brief fact of the complaint was that the Complainant invested an amount of Rs. 2700/- on 27.02.1992 for purchasing the Deep Discount Bond Series—I bearing certificate No. 01238840 issued by the Appellant/OP Bank. There was recording on the body of the said bond that the Respondent/Complainant, being the bond holder, would be entitled to get an amount of Rs. 1,00,000/- on redemption of the bond on 31.03.2017.
In pursuance of the terms and conditions of the said bond, the Respondent/Complainant deposited on 21.04.2017 the subject bond along with all necessary pre-requisites to the Appellant/OP who, in response, credited only Rs. 19,214/- to the Bank Account of the Respondent/Complainant against redemption of the said bond.
The aggrieved Respondent/Complainant, through his communication dated 28.07.2017, requested the Appellant/OP as to why it, in utter violation of the terms, paid an amount of Rs.80,786/- (1,00,000—19,214) less than the amount he was actually entitled to.
The Appellant/OP, in response, communicated to the Respondent/Complainant under its letter dated 05.08.2017 that the Appellant/OP Bank had exercised a call option in respect of all the investors who had invested in all such Deep Discount Bonds and such call option was publicized through media, newspaper and through notices as well, issued in the name of every individual.
The legal notice issued to the Appellant/OP at the instance of the Respondent/Complainant demanding the remaining amount of Rs. 80,766/- being gone in vain, the Respondent/Complainant filed the complaint case before the Ld. District Forum. The judgment and order under challenge in the instant Appeal originated from the said complaint case.
Heard Ld. Advocates appearing on behalf of both sides.
Ld. Advocate appearing on behalf of the Appellant/OP, describing, in succinct, the fact in issue, submitted that a Call Option Notice was issued by the Appellant/OP in respect of the subject bonds. He drew the notice of the Bench to running page 127 wherefrom it revealed that a Call Notice was published in one English newspaper on 10th of August, 2001. As submitted, the Call Option Notice was sent also to every individual bond holder so as to enable them to redeem the bond. Similar notice was sent to the Respondent/Complainant also who did not take appropriate action for redemption of bond before 31.03.2017. As he continued, the value of the bond at the time of publication of the Call Option Notice was Rs. 12,000/-. Said amount, as alleged, was placed by the Appellant/OP in an interest bearing Account. Naturally, with the passing of days, the amount with the accrual of interest grew to a bigger amount of Rs. 19,214/- which was credited to the Account of the Respondent/Complainant on his approach for redemption on 31.03.2017.
The Ld. Advocate called in question the sustainability of the claim of the Complainant in the given facts and circumstances and prayed for his Appeal to be allowed setting aside the impugned judgment and order.
Ld. Advocate appearing on behalf of the Respondent/Complainant submitted, per contra, that the bond, being the relevant instrument on the instant issue, was the prime document under consideration here. It was, as submitted, a venture for collecting investment with the objective for raising capital. The note on the body of the bond was unambiguous about getting an amount of Rs. 1,00,000/- on 31.03.2017.
Ld. Advocate continued that publication of call Option Notice in newspaper had every possibility to skip the notice of the bond holders, particularly when most of the papers, in which the notice was publicized, were all publications of different states. Ld. Advocate drew the notice of the Bench to running pages 52, 79, 81, 82 and 83 which revealed that the papers were all published, not from West Bengal but from other states of the country.
As contended, the Appellant/OP should not have just washed off their hands by publicizing the Call Option Notice. What would have been a better option for them was to send notice to every individual consumer which they claimed to have sent but, the Respondent/Complainant did not receive it. It appeared on perusal of record at running pages 32 and 78, being the Respondent/Complainant’s recorded address of residence in the bond and the same in the record maintained with the Appellant/OP Bank respectively, the Ld. Advocate submitted that the notice was sent to ‘Green lane’ without the PIN Code being recorded therein instead of ‘Creek lane’ of PIN—700014. The wrongly printed address on the body of the envelope containing the notice, as submitted, led to obvious mis-delivery of the same.
The Ld. Advocate cited a catena of decisions of which the order of the Hon’ble National Commission in Revision petition No.4081 of 2014 [Balwan Singh—Vs—Chairman and Managing Director, IDBI and Ors.] reported in Manu/CF/0353/2015 and the decision of the Hon’ble National Commission in [IDBI Bank Limited and Anr.—Vs—TK Nagarathna] reported in Manu/CF/0231/2008 appeared to be of relevance. In the former, in a case of similar nature, the Hon’ble National Commission at para 18 modified the orders of the Ld. District Forum and State Commission setting aside the wrongly concluded observation that the notices were sent at the same address.
In the said case the Hon’ble Commission at para 13 observed in the lines, “The aforementioned provison stipulates that individual notices are also to be sent to registered bondholders. The learned Counsel for the Respondent submitted that the notices dated 25.05.2000 and 22.09.2009 were sent to the same address and hence the Revision Petitioner cannot state that he received the notice dated 29.04.2009 but did not receive the one dated 25.05.2000. A brief perusal of the record shows that the UPC list pertaining to the year 2000, which shows an incomplete address, only was filed. There is no documentary evidence on record to establish that both the notices were sent to the same address. In fact the Revision Petitioner/Complainant himself filed the notice dated 29.04.2009 which has his complete address as under
Whereas the earlier notice dated 25.05.2000 had only
In the latter the Hon’ble National Commission, while dismissing the Revision petition, observed at para 6, “The contention of the petitioner’s Counsel that Bank has published an advertisement in the newspaper about its intention to exercise the call back option does not carry weight in the days of electronic revolution. In today’s world television is found in almost every urban house. Complainant is a resident of Chitradurga, a District Headquarters and very few people have time to read all pages of all newspapers to locate such advertisements. Hence the Bank cannot escape its liability by merely publishing something in a newspaper.”
Ld. Advocate with the above submission prayed for the Appeal to be dismissed and the impugned judgment and order to be affirmed.
Perused the papers on record and considered submissions of the Ld. Advocates appearing on behalf of both sides.
It was needless to mention that the Respondent/Complainant was supposed to get an amount of Rs.1,00,000/- on maturity of the subject bonds on 31.03.2017.
It was also a fact that a Call Option Notice was issued by the Appellant/OP Bank and the same notice was publicized by newspaper advertisements throughout the country. We did not agree with the Respondent/Complainant’s contention that there was no newspaper advertisement of the aforesaid notice in any newspaper of Kolkata Publication. The advertisements of running pages 139, 140 and 141 were seen to have been published from Kolkata.
We were convinced that chances were there that any such publication might skip the notice of individual for whom the said notice was meant for. So, it would have always been a better option for issuing individual notices to all the bond holders to their recorded address maintained with the bond issuing authority. Here too, the individual notices were allegedly issued but as it revealed from the record that such notice in respect of the Respondent/Complainant was sent to a wrong address for misquoting of the same on the body of the envelope due to mis-maintenance of record at the end of the Appellant/OP.
Since the above mistake on the part of the Appellant/OP led to the mis-delivery of the notice, it was the Appellant/OP organization itself and none else should be blamed for the issue to be developed to a state of present complicacy.
In the facts and circumstances narrated above, we were of the considered view that the Ld. District Forum had made no mistake in fixing up responsibili
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ty for imposing penalty upon the Appellant/OP Organization. We, however, were not in Agreement with the punitive damage imposed upon the Appellant/OP and intended to waive the same. We were also of the view that there should be no payment of interest on the amount of refund as there was order for payment of compensation. We were of further view that the cost and compensation were assessed by the Ld. District Forum at a higher side and those amounts should be reasonably reduced. Hence, Ordered that the Appeal be and same is allowed on contest in part. The Appellant/OP is directed to pay Rs. 80,786/- , being the balance amount of the Deep Discount Bond Series—I within 45 days from the date of the instant order. The Appellant/OP is further directed to pay a cost of Rs. 5,000/- and compensation of Rs. 30,000/- to the Respondent/Complainant within the same deadline, failing which, simple interest @ 9% p.a. shall accrue to Rs. 1,10,786/-, being the total of the refund amount and compensation, from the date of default till the entire amount is fully realized. The impugned judgment and order stands modified accordingly.