PRAMOD KUMAR BOTHRA Vs. ISHWAR CHAND SHARMA

JUDGEMENT

(1.) THIS First Appeal by Shri Pramod Kumar Bothra, Opposite Party before the State Commission is directed against the order dated 25.3.1994 of the State Commission, Delhi accepting the complaint and directing the Appellant herein to pay Rs. 4,97,000/ - with interest at the rate of 18% per annum from the date of the order till the date of payment and Rs. 20,000/ - as damages besides costs of Rs. 5,000/ -.

(2.) THE case set up by the Complainant in the complaint is this. The Complainant holds valid general power of attorney on behalf of his son Shri Arun Sharma, presently employed with the Emirates Airlines, Dubai, U.A.F., as Development Engineer and his wife Smt. Anita Sharma. The Complainant contacted the Appellant Shri Promod Bothra of Bothra Brothers, Stock & Share Broker & Financial Consultants in September, 1991 to arrange for the sale of the shares held in the joint names of Shri Arun Sharma and Smt. Anita Sharma and to discuss the preliminaries before sale of shares. Shri Bothra advised the Complainant that he should obtain the permission of the Reserve Bank of India, Bombay for the sale of the shares under Section 19(5) of the Foreign Exchange Regulation Act, 1973. The Complainant handed over all the share certificates alongwith the signed transfer deeds to Shri Bothra and his office employees on 31st October, 1991 and 7th January, 1991 to effect the sale after obtaining RBIs permission. According to the Complainant Shri Bothra effected the sale of most of the shares without obtaining the permission of Reserve Bank of India particularly those highly valued and known as Blue Chips on 1st October, 4th October, 15th October and 29th October, 1991 well before the receipt of RBIs permission dated 8.11.1991. A total sum of Rs. 9,15,673 / - accrued to Shri Bothra by virtue of the sale of shares in question i.e. Rs. 9,12,586/ - on 15.1.1992 and Rs. 3,087/ - on 29.1.1992 as per the credit notes issued by him. Shri Pramod Bothra did not make the payment to the complainant immediately after the sale and committed a breach of trust and misappropriated the amount, thus depriving the Complainant of the use of that amount. After a number of personal visits by the Complainant and over 100 telephone calls, Shri Bothra issued 9 cheques in between 19th and 25th February, 1992 for about half of the total amount, totalling Rs. 4,70,000/ -. Six cheques for an amount of Rs.

(3.) THE main submission of the learned Counsel for the Appellant is that although the Appellant did receive the notice of the filing of the complaint in early April, 1993 and got the written version prepared through Counsel, but in the meantime the Complainant approached the Appellant for out of Court settlement by promising to remove the defects for some shares like Premier Industries & Punjab National Fertiliser and also to rectify the bad deliveries for the remaining shares and also get the power of attorney registered in respect of shares held in Western Electronics, Usha Micro Processor and Western India Enterprises. The submission is that the State Commission erred in proceeding ex -parte against the Appellant, the ex -parte order should be set aside and the case remanded for deno trial or in the alternative the Appellant may be permitted to lead evidence in the appeal before this Commission. There is no merit in this submission.