At, National Consumer Disputes Redressal Commission NCDRC
By, THE HONOURABLE MR. JUSTICE K.S. CHAUDHARI
By, PRESIDING MEMBER
For the Petitioner: Jasmeet Singh, Advocate. For the Respondents: R1, Dr. Sushil Kumar Gupta, Advocate, R2, Ex-parte.
K.S. Chaudhari, Presiding MemberThis revision petition has been filed by the petitioner against the order dated 21.07.2010 passed by the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (in short, ‘the State Commission’) in Appeal No. 214 of 2007 – Bombay Dyeing and Manufacturing Co. Ltd. Vs. Mohammad Ibrahim Chopda & Anr.by which, while dismissing appeal, order of District Forum allowing complaint was upheld.
2. Brief facts of the case are that complainant/respondent no. 1 purchased 100 shares of OP No. 1/petitioner through OP No. 2/Respondent No.2 @ Rs.380.50 per share and paid amount. Shares were transferred in the name of complainant. Complainant received notice from Civil Court, Madras, but he could not appear before that Court. On 26.12.2005, complainant received two separate papers along with copy of Court order and share transfer form and 100 shares of complainant were taken back and it was further mentioned that duplicate share certificates will be issued in the name of Sharda Joshi and Sanjay Chedda; though, complainant did not sell aforesaid shares. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP did not file written statement. District Forum after hearing complainant allowed complaint and directed OPs to pay jointly and severally market price of 100 shares to the complainant along with 9% p.a. interest and further awarded Rs.3,000/- as compensation. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.
3. None appeared for Respondent no. 2 even after service and he was proceeded ex-parte.
4. Heard learned Counsel for the parties and perused record.
5. Learned Counsel for the petitioner submitted that in pursuance to Civil Court’s order shares in the name of complainant were cancelled and transferred in the name of Sanjay Chedda and Sharda Joshi even then learned District Forum committed error in allowing complaint against the petitioner and State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.
6. Perusal of record clearly reveals that in pursuance to the Civil Court’s order shares transferred in the name of complainant were cancelled and transferred in the name of Sanjay Chedda and Sharda Joshi by petitioner.
7. Learned State Commission while dismissing appeal, observed in paragraph 10, as under:
'That in our opinion, Bombay Dyeing and Manufacturing Company Ltd. transferred the shares in the name of respondent-Mohammad Ibrahim Chopda, thereafter in pursuance of order passed by the City Civil Court, Chennai, if the shares were transferred in the name of someone else, then this can be considered as deficiency in service. Bombay Dyeing and Manufacturing Co. Ltd. initially transferred the shares in the name of Mohammad Ibrahim Chopda, thereafter on the basis of the order of City Civil Court, Chennai they were transferred in the names of Sanjay Chheda and Sharda Joshi and transfer in the name of Mohammad Ibrahim Chopda was cancelled, hence there is deficiency in service. Therefore, in our opinion, Bombay Dyeing and Manufacturing Co. Ltd. is liable to pay the amount for shares.'
Aforesaid finding is per se contrary to law because if any direction of Civil Court is carried out by any party, it cannot be held as deficiency in service. Petitioner transferred shares in the name of Sanjay Chedda and Sharda Joshi as per decree of Civil Court and by no stretch of imagination it can be treated as deficiency on the part of petitioner and learned State Commission committed error in dismissing appeal.
8. Perusal of District Forum order makes it clear that liability has been fastened on both the OPs and in such circumstances, complainant is free to recover his amount from OP No. 2, but no liability can be fastened on the petitioner and revision petition is to be allowed.
9. Consequently, revision petition
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filed by the petitioner is allowed and impugned order dated 21.7.2010 passed by learned State Commission in Appeal No. 214/2007 – Bombay Dyeing and Manufacturing Co. Ltd. Vs. Mohammad Ibrahim Chopda & Anr. is set aside and order dated 31.1.2007 passed by learned District Forum in Complaint Case No. 42/2006 - Mohammad Ibrahim Chopda Vs. Bombay Dyeing & Manufacturing Co. Ltd. is partly modified and complaint is dismissed against petitioner with no order as to costs.