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Judgment
THIS appeal arises from order dated 9.3.1998 rendered by the learned Consumer Disputes Redressal Forum, Ahmedabad City in Complaint No. 1281 of 1993, directing the opponent Bank to allot 5 shares to the complainant with all consequential benefits, dividend, etc. from the inception of the amalgamation of opponent No. 2 Bank with opponent No. 1 Bank and to pay Rs. 1,500/- by way of cost.
WE have heard the learned Advocates for the parties. WE have gone through the impugned order. Since it was submitted that the matter was at the stage of production of documents and the opponent No. 1 Bank did not have the opportunity to produce the documents and canvass arguments with regard to whole of the matter, the impugned order should be set aside. WE have heard the learned Advocate for opponent No. 1 Bank in respect of all the contentions which he alleged to have missed before the learned Forum. It has been submitted that the complainant cannot be said to be a consumer of the first opponent Bank as he was not a member thereof. It has also been submitted that there was no contract of rendition of service which came into existence between the 1st opponent Bank and the complainant. It has also been submitted that the learned Forum did not have jurisdiction to hear and decide the complaint in view of the provision contained in Section 167 of the Gujarat Co-operative Societies Act, 1961. It has finally been submitted that 1st opponent bank sent letter dated 11.12.1992 with cheque equivalent to the value of the shares to be allotted to the complainant which was not accepted by the complainant.
With a view to consider all the aforesaid objections of the 1st opponent Bank, it would be necessary to set out the brief facts of the case which are not in dispute between the parties. The complainant held 20 shares of 2nd opponent Bank as per the particulars set out in the complaint. On 6.5.1991 an Extraordinary General Meeting of the 2nd opponent Bank was held and resolution to the effect that the said Bank was to be amalgamated and merged with 1st opponent Bank was passed. As per the resolution, it was also decided that shares of 1st opponent Bank in the ratio of 4:1 were to be issued. Thus, complainant was entitled to 5 shares of the 1st opponent Bank upon amalgamation of the two Banks. It was the grievance of the complainant before the learned Forum that 1st opponent Bank did not allot shares and sent refund of Rs. 125/- being the value of the shares. As stated above, the complainant did not accept the refund and pursued the matter for allotment of shares. Voicing his grievance with regard to deficiency in service in respect of non-allotment of shares to which the complainant was entitled, he prayed before the learned Forum for relief of allotment of five shares to which he was entitled and compensation and cost. The learned Forum has noted the contentions of the 1st opponent Bank as have been noted hereinabove. The learned Forum has also noted the contention that the complainant was not entitled to allotment of shares. The learned Forum also finally noted that there was application for hearing of preliminary issues with regard to jurisdiction of the learned Forum. Finally, the learned Forum has observed that the matter came to be heard as a whole and accordingly proceeded to dispose of the matter by passing impugned order. It appeared from the evidence that the opponent No. 2 Bank stood merged and amalgamated with opponent No. 1 Bank and before us there is no dispute with regard to that aspect. It has also appeared before the learned Forum that shares of opponent No. 1 Bank were to be issued in the ratio 4:1 upon amalgamation of opponent No. 2 Bank with opponent No. 1 Bank. In view of such admitted facts, the learned Forum came to the conclusion that the opponent Bank was duty-bound to send the shares in the ratio so fixed upon amalgamation of opponent No. 2 Bank with opponent No. 1 Bank. Though the scheme was not produced before the learned Forum and though the copy of the scheme was not given to the complainant, though asked for, we have gone through the scheme. It is no doubt true that there was discretion on the part of the Board of Directors to refuse allotment but in the present case the complainant had in fact sent application for allotment of shares along with the share certificate to opponent No. 2 Bank for cancellation. That document is produced on the record of the learned Forum. In reply, the circular was issued to the members of opponent No. 2 Bank including the complainant stating that application would be placed before the Board of Directors for being accepted and for making provision. It is not the case of the opponent Bank that the Board of Directors had taken a decision to refuse allotment of shares to X member of Y member. What has been submitted is that there was no application from the side of the complainant for allotment of shares. Even before us no decision of the Board of Directors has been placed on record. It is in this background that we are required to consider the submissions made on behalf of the opponent No. 1 Bank.
IT is settled law that upon amalgamation and merger of one company with another company, the share holders of the amalgamated company become shareholders of the company taking over that company. IT is only the formality that is to be carried out while giving option to the share holders. IT was obviously a formality that even the first opponent Bank had followed. IT is not the case of the 1st opponent Bank that the complainant opted for having the refund of the money equivalent to the value of the shares. As a matter of fact, there was evidence before the learned Forum that the complainant positively opted for issuance of shares by surrender of share certficate of opponent No. 2 Bank along with necessary application. This was done by letter dated 9.11.1992 which was part of the record before the learned Forum. He also asked for copy of the scheme which was not applied to him by the 1st opponent Bank. IT would thus factually appear that the complainant became member of the 1st opponent Bank and, therefore, the argument that he cannot be said to be a consumer being not a member of the opponent Bank cannot be accepted. IT is in the background of such peculiar facts of the case that the decisions which have been submitted will have to be examined. Reference has first been made to a decision of National Commission in the case of Dilip Bapat and Another v. Panchvati Co-op. Housing Society Ltd., reported in I (1993) CPJ 68 (NC)=1-1993 (1) CPR P. 174. The question in that case was whether the nature of the dispute presented in that case was a consumer dispute or a dispute which could appropriately be decided by the Co-op. Court. In our considered opinion, this decision will not be applicable. As a matter of fact it is now settled law that jurisdiction of the Consumer Forum is not barred as Section 167 of Gujarat Co-operative Societies Act, 1961 does not refer to bar of jurisdiction of any other authority. It merely refers to bar of jurisdiction of a Court or a revenue Court even under Section 3 of the Consumer Protection Act, 1986, remedy under the Act is in addition to other remedies unless there is clear bar. This can be seen from the decision of the Spreme Court in the case of Secretary, Tirumurugan Co-operative Agricultural Credit Society v. M. Lalitha, reported in I (2004) CPJ 1 (SC)=I (2004) SLT 200=2004 (1) CPR 35 (SC). In that view of the matter, decision rendered by this Commission in the case of Motilal Jechandbhai Ajmera v. Rajkot People''s Sharafi Sahakari Mandli Limited, reported in 1-1994 (1) CPR P. 4, will not hold the field.
IN view of the fact that in the present case by virtue of amalgamation of two Banks as stated above, the complainant continued to be a shareholder decisions in the case of Tata Timken Ltd. v. Consumer Protection Council and Others, reported in II (1995) CPJ 164 (NC)=V-VI - 1995 (2) CPR P. 215, and Consumer Protection Council v. State Bank of INdia and Others, reported in III (1995) CPJ 569=VIII-1995(2) CPR 612, will not be applicable. We have gone through the decision of the Gujarat High Court in the case of Amreli District Co-operative Sale and Purchase Union Ltd. and Others v. State of Gujarat, reported in 25 (2) GLR 1244. It is true that it is the members of the society who decide whether a particular person seeking admission to be a member should be enrolled as member or not. In the present case, the complainant cannot be said to be a stranger seeking admission as a member to the 1st opponent bank. By virtue of settled legal position, he was entitled to have the status of being member of 1st opponent Bank. Hence, this decision will also be not applicable to the facts of the present case. It has finally been submitted that as per the scheme as also as per the bye-laws it will be at the discretion of the 1st opponent Bank to accept a member of the opponent No. 2 Bank as member of opponent No. 1 Bank. In our considered opinion, the relevant provision of the scheme as also bye-laws would require statement of actual facts regarding Board of Directors having taken such a decision. We do not have benefit of such a decision even in this appeal. Needless to say that such a decision has to be communicated to a person who in fact applied for issuance of shares of the 1st opponent Bank as per the scheme of amalgamation.
IN view of what is stated above, we do not find any substance in this appeal. The same is dismissed with no order as to costs. Appeal dismissed.