Rumnita Mittal, Member:
1. The present appeal has been filed against the orders of the District Forum-I dated the 9th January, 1995, passed in Complaint Case No. 3186/93 entitled Smt. Santosh Kumari v. The Chairman, M/s. Ispat Alloys Ltd. and Ors.
2. In brief, the facts, relevant, are that the appellant had filed a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as âthe Act), stating therein that the appellant/complainant was the holder of 100 Part B secured fully Convertible Debentures of M/s. Ispat Alloys Limited (respondent) @ Rs. 160/- each. In the month of December, 1992, the appellant received a letter of option dated 24.12.1992 alongwith Consent Form, from the respondents for conveying her consent for conversion of Part B 14% Convertible Debentures either into non-convertible 14% secured Debentures or equity shares. The appellant, as per requirements, sent the said Consent Form alongwith 100 Part B Convertible Debentures to the respondent No. 4 on 4.2.1993 under registered cover vide Postal Receipt No. 295 alongwith forwarding letter indicating the appellants option for conversion of Part B 14% Convertible Debentures into 14% secured Non-convertible Debentures. However, respondents 1 to 3 instead of converting the Debentures of appellant into Non-convertible Debentures as per appellants option, sent 640 equity shares of Rs. 10/- each vide their letter dated 22.2.1993. The said shares of Rs. 10/- were supplied to the appellant @ Rs. 25/- per share whereas, the rate of the share in the Calcutta Stock Exchange, was only Rs. 15/- or so. It was the case of the appellant that she had been cheated by the respondents by converting her 100 Part B Convertible Debentures of Rs. 160/- each into 640 equity shares of Rs. 10/- each and thus, had incurred a loss of Rs. 9,600/- being the difference in the price of the 14% Part B Convertible Debentures worth Rs. 16,000/- and the price of the equity shares amounting to Rs. 6,400/-. It was, therefore, prayed by the appellant in her complaint that the respondents be directed to refund the price of 100 Debentures alongwith interest and damages to the appellant.
3. The defence of the respondents, in the written version/reply filed before the District Forum, was that the Convertible Debentures of respondent No. 1, were convertible subject to the exercise of option by the concerned holder to that effect either into Non-convertible Debentures or equity shares and that the exercise of option was subject to the condition that it should reach the hands of the office of M/s. Computech International Limited (respondent No. 4) by 10.2.1993. It was also stated that mere exercise of option was not enough and that it was clearly mentioned in the option form that unless the same is delivered at or reaches the correct address within the appointed time, the Company would proceed to allot equity shares in lieu of Convertible Debentures. It was further stated by the respondent Nos. 1 to 3 that the option form of the appellant did not reach the respondents by the due date, i.e. 10.2.1993 and as such, the respondents had converted the same into equity shares and, therefore, there was no malafide intention on their part.
4. The learned District Forum dismissed the claim of the complainant vide order dated 9.1.1995 on the ground that the appellant had given her option for conversion of said Debentures into equity shares and as such could not challenge that the same were issued at a high premium by the respondents and that there was no deficiency in service on the part of the respondents.
5. Aggrieved by the said order, the appellant has filed the present appeal before us.
6. We have gone through the documents/material placed on record as well as the written submissions filed by the appellant. We have also heard the arguments advanced on behalf of both the parties.
7. In the impugned order, the learned District Forum seems to have proceeded on the wrong premise that the controversy, in question, related to the rate of equity shares allotted to the appellant by the respondents. Whereas, the short controversy, involved in the facts and circumstances of the case, is that whether the option exercised by the appellant for conversion of her Convertible Debentures into Non-convertible Debentures, sent by her vide registered post on 4.2.1993, reached the respondent No. 4 in time, i.e. on or before 10.2.1993 as per the requirement of the respondents. The main contention of the appellant, in this regard, is that she had exercised her option for conversion of her Convertible Debentures into Non-convertible Debentures and had sent the same vide registered post to respondent No. 4 as stipulated and the same must have been received by the respondents well in time, i.e. on or before 10.2.1993, but the respondents had with malafide intention and deliberately converted the same into equity shares on the ground that her option for converting the same into Non-convertible Debentures did not reach the respondents in time. The respondents on the other hand, have contended that the same letter accompanied by the option form of the appellant had not reached the respondents in time and as such in accordance with the conditions of letter of option, the same had been converted into equity shares and sent to the appellant. The appellant has placed on record a copy of the Receipt No. 295 dated 4.2.1993 in support of her averments that the option had been exercised by her and duly sent to the respondents by registered cover on the said date, whereas, the respondents have denied the receipt of the same by 10.2.1993. In order to resolve the said controversy, this Commission had vide its order dated 16.9.1999, directed the respondent No. 4, to state on affidavit as to whether the abovesaid communication from the end of the appellant had been received by respondent No. 3 and if so, on which date. In the affidavit, filed by Shri S.P. Yadav, Sr. Manager, (Secretarial) Computech International Ltd., it was stated that since the matter was quite old, despite the best efforts of the respondents/officials at Calcutta, the details regarding receipt of the letter of the appellant dated 4.2.1993, were not available in their records. It was further stated that the respondents had also requested the postal Authorities to supply the said information, but on account of the fact that the relevant records of the year 1993 were not in existence with the concerned postal department, they were unable to confirm the delivery of the letter and the exact date thereof.
8. However, on perusing the letter dated 1/9.12.993 of respondent No. 4, addressed to the appellant, it was admitted that the option letter had been received by them. The relevant portion of the letter is being re-produced hereunder :
âNow, firstly, you have not enclosed copy of your option form alongwith the letter under reference. Secondly, we did not reply that we had not received your option letter. What we meant to say was that, we did not receive your option letter within the stipulated time, i.e. 10.2.1993.â
(Underlined by us)
9. In view of the admission of the respondent No. 4 regarding receipt of the appellants letter dated 4.2.1993, the onus was on the respondents to show that the said letter had not reached them in time, i.e. on or before 10.2.1993. It is also pertinent to point out that in ordinary course a letter posted on 4.2.1993, should have been delivered to the respondent No. 4 within 3-4 days and in order to rebut the said presumption in law, the respondents have not placed on record any material/evidence that the respondents did not receive the said letter in time. Since only a question of fact is involved in the present appeal, we may conclude from the affidavit of the appellant filed alongwith corroborative documents like Postal Receipt No. 295 dated 4.2.1993 as well as admission by the respondents regarding receipt of the said letter, that the option containing the request of the appellant, to convert her Convertible Debentures into Non-convertible Debentures must have reached in time, in the absence of anything to the contrary on record and as such the respondents have been deficient in not complying with the option exercised by the appellant and, therefore, are liable to compensate the appellant for the actual loss sustained by her. Further, the respondents have nowhere, either in their reply before the District Forum or in appeal before us, have controverted the estimation of loss, as stated by the appellant.
10. Therefore, in the facts and circumstances of the present case, we hold that the impugned order, passed by the learned District Forum, cannot sustain the test of judicial scrutiny and the same is liable to be set aside. Accordingly, we set aside the impugned order of the District Forum and allow the appeal of the appellant with the directions to the respondents to pay to the appellant Rs. 6,900/- with interest @ 15% per annum till payment for the pecuniary loss sustained by the appellant in the present transaction. The appellant is also entitled to the costs of present proceedings. The same are fixed at Rs. 2,500/-. The respondents are directed to comply with the above directions within 60 days of the receipt of this order. The liability of all the respondents will be joint and several.
11. The present appeal is disposed of in above terms.
Appeal allowed with costs.