DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __32 _ OF ___2018
DATE OF FILING :_8.3.2018 DATE OF JUDGEMENT: 24.4.2019
Present : President : Ananta Kumar Kapri
Member(s) : Jhunu Prasad
COMPLAINANT : Sri Phanindra Nath Halder, son of late Umapada Halder of Vill. & P.O Baromollakhali, via Chotomollakhali, P.S Sundarban Costal, Dist. South 24-Parganas, Pin-743378.
O.P/O.Ps : 1. Vibgyor Allied Infrastructure Limited, represented by its Chairman and Managing Director Raja Bhadra at Satyam Building, 46D, Rafi Ahmed Kidwai Road, Kolkata-16, head office at 4, Dr. Suresh Sarkar Road, Kolkata- 14.
2. Vibgyor Allied Infrastructure Limited , Beltala, Baruipur, represented by authorisex signatory Rabi Shankar Majumder at Be,ltala Subudhipur, P.O & P.S Baruipur, Dist. South 24-parganas, Kolkata-144.
3. Vibgyor Allied Infrastructure Limited, Canning represented by authorized Signatory Rabindra Nath Dey Village, P.O & P.S Canning, Dist. South 24-Parganas, Pin-743329.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
Refusal of the O.ps to release the maturity value of the policy of the complainant in favour of the complainant has galvanized the complainant to file the instant case under section 12, C.P Act, 1986, alleging deficiency in service on the part of the O.Ps.
Facts leading to the filing of the instant case may be epitomized as follows.
The complainant is a senior citizen . He deposited Rs.1 lac in O.P company by cheque on 26.8.2009 in a scheme of 5 years and 6 months . The O.P company agreed to provide him redemption value of Rs.2 lac on 5.3.2015. Letter of allotment was also issued by the said company in favour of the complainant. On 13.4.2015, the complainant submitted the letter of allotment before the O.p company for redemption of maturity value . But, no payment whatsoever was made by the O.P company to the complainant. Therefore, the complainant has filed the instant case ,praying for release of the redemption value of Rs.2 lac in his favour by the O.P company and also for compensation etc. Hence, this case.
The O.ps have been contesting the case by filing written statement ,wherein it is mainly contended that the case is not maintainable in law as the complainant is not a consumer. The further case of the O.Ps is that the company collected money from various investors and thereafter invested the said money in real estate market. But, several writ petitions have been filed before the Hon’ble Calcutta High Court including his one and the Hon’ble High Court has been pleased to restrain 73 companies including the O.P company from creating any third party interest and from disposing of their properties. Further, a one man committee comprising Mr. Justice S.P Talukder has also been constituted by the Hon’ble Calcutta High Court to asses the value of the property and fix the liabilities of the company. So, according to the O.Ps, the instant case is not maintainable before this Forum and, therefore, the case should be dismissed in limini.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the case maintainable in law?
- Are the O.Ps guilty of deficiency in service for not releasing the maturity value due to the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Both the parties have led evidence on affidavit. BNAs filed by the parties are also kept in the record after consideration.
DECISION WITH REASONS
Point no.1 :
It is argued on behalf of the O.Ps that complainant invested the money in the scheme of the O.Ps for financial gain. He invested the money for commercial purpose and as such , the complainant is not a consumer within the definition as provided in C.P Act. As the complainant is not a consumer the instant case is not maintainable in law before the Forum.
It is true that the complainant invested money in the financial scheme of the O.P company. The question which arises for consideration is whether such investment by the complainant is for commercial purpose or not.
We have to see now what kind of exercise may be termed as commercial business. A business is an activity carried on continuously and systematically by a person by the application of his labour or skill with a view to earning income. In Stroud’s “Judicial Dictionary, 5th Edition” , Commercial venture is defined as a venture where capital is to be laid out on any work and a risk run of profit or loss.. Investment in financial scheme is not a continuous process; it is an occasional process. Person invests money in a financial scheme whenever some accumulation of money comes in his hand. It can never be termed as continuing process. There is no risk of loss in the investment of complainant. The complainant does not apply his labour or skill to earn income. So, we are inclined to hold that investment of money in a financial scheme can never be called a business or investment with commercial purpose.
Coming to the facts of the instant case, we do hold that the investment of money by the complainant in the scheme of the O.P company is not a business and, therefore, the complainant is a consumer in accordance with the provisions under section 2(1)(d) of the C.P Act, 1986.
Again, it has been argued that all the properties of the O.P company have been placed under the custody of the Hon’ble High Court at Calcutta and, therefore, the instant case is not maintainable inasmuch as the matter is subjudice before the Hon’ble Calcutta High Court. The complainant has certainly got a right under C.P Act, if he becomes a victim of deficiency in service on the part of the O.P company. That apart, there is no document whatsoever produced before the Forum by the O.Ps to prove that the instant complainant is also a party to the proceedings pending before the Hon’ble Calcutta High Court. In absence of such document, we feel constrained to hold that any findings of the Hon’ble Calcutta High Court passed in those writ petitions is not binding upon this complainant and, therefore, there is no bar on the part of the complainant to take shelter for redressal of his grievance under the C.P Act, 1986. The case is ,therefore, held to be quite maintainable in law.
Point no.1 is thus answered in favour of the complainant.
Point no.2 & 3 :
It is admitted fact that the complainant invested Rs.1 Lac with the O.P company and the O.P company also agreed to return Rs. 2 lac on 5.3.2015 i.e after 5 years 6 months. The complainant has also filed a copy of letter of allotment which is marked as Annexure C to the complaint. Annexure C to the complaint also reveals that the O.P company agreed to return redemption value of Rs.2 Lac to the complainant after a period of 5 years 6 months . The date of redemption was on 5.3.2015. So, by virtue of the agreement concluded between the complainant and the management of the O.P company, the complainant is entitled to get Rs.2 lac from the O.P company on 5.3.2015. Delay in making such payment to the complainant by the O.P company is certainly deficiency in service and, therefore, the complainant is found entitled to get the redemption value of Rs.2 lac from the O.P company along with compensation for harassment and mental agony suffered by him.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.Ps i.e Managing Director and Authorized Signatory of the O.P company, with a cost of Rs.10,000/- .
The said O.Ps are directed to pay Rs.2 Lac to the complainant with interest @10% p.a from 5.3.2015 till full realization thereof along with a sum of Rs.30,000/- as compensation for harassment and mental agony suffered by the complainant, within a month of this order, failing which, the compensation amount and cost amount will also bear interest @10% p.a till full realization thereof.
Registrar-In-Charge of this Forum is directed to deliver a copy of the judgment free of cost to the parties concerned.
President
I / We agree
Member
Dictated and corrected by me
President
T
