:    J U D G M E N T    :

This is a case under Section 12/13 of the Consumer Protection Act.  The facts of the case to put in a nutshell, are as below:-

The complainant, Dilip Kumar Dutta invested the following amounts to the OPs, Prayag Infotech Hi-Rise Limited Company as per the table below:-

The branch office of the OP No. 1 was located at Bejikhali Bowbazar St. at Krishnagar, Nadia, but the said office has been closed without any intimation to the complainant and other investors.  OP No. 3, Ganesh Ch Basak is the commissioning agent of Prayag Infotech Hi-Rise Limited.  The complainant invested hard earned money in Prayag Infotech Hi-Rise Limited.   But on the dates of maturity that means on 30.05.14 and 08.01.14 the due money was not paid by the OPs.  The complainant is a consumer and the OPs are the service providers.   The cause of action arose in November, 2014 and it is continuing till date.  Lawyer’s letter was sent to the OPs but to no effect.  The complainant prays for the amount invested as per table above and also compensation of Rs. 50,000/- for mental tension and agony and Rs. 50,000/- for physical and mental harassment.  The complainant has also prayed for litigation cost of Rs. 10,000/-. 

The opposite party No. 2 filed written version on 04.12.14.  Basudev Bagchi signed as the MD of Prayag Infotech Hi-Rise Limited.  The case of the opposite party is that the complaint is barred by Consumer Protection Act, 1986.   It is not maintainable.   It is harassing.  It is bad for non-joinder of the parties.  A title suit was filed by Naba Kumar Mandal on behalf of AMRA a registered society of the depositors, debenture holders against the OPs.  The case is pending before the Ld. 5^th Civil Judge (Junior Division) at Alipore, South 24 Parganas.  Hence, the obligations of the opposite party cannot be fulfilled as by an order dtd. 17.06.13, Ld Civil Judge, 5^th Court in title suit No. 11680/13 appointed advocate commissioner who is periodically giving interim report regarding status of disbursement funds to at plaintiffs or intending petitioners.  The opposite parties have pleaded that they cannot honour the debentures issued by them and disburse the amount without the order of Ld. Court at Alipore. 

            Just after completion of the argument an amendment petition vide application under order 6, rule 17 C.P.C. read with Sec. 151 C.P.C. dtd. 17.08.15 was filed, the copy of which was received by the Advocate of other side.  The amendment was allowed as the copy of the same was sent to OP No. 1 and OP No. 2 both.  The OP 1’s letter was sent back by postal peon with the observation ‘left’.  OP No. 2 received it but did not oppose thereafter.  The amendment petition was allowed after hearing vide order No. 18 dtd.  11.09.15.  The technical correction was made and an amended complaint was filed.  Supplementary affidavit evidence was filed by D.K. Dutta as PW 1 on 11.09.15.  The copy was not received by other side as Ld. Advocate for the OP was not present at all since 11.09.15.

The following points are framed for determination of the dispute.

Point No. 1)        Is the complainant a consumer under the OPs?

Point No. 2)         Has the Ld. Civil Judge, 5^th Court, Alipore debarred the

OPs to payment of the amount to Prayag Aristro Club Members in spite of having their services?

Point No. 3)        What reliefs the complainant is entitled to get?

REASOND DECISIONS

            For the purpose of brevity and convenience all the points are taken up together for discussion.

            We have meticulously perused the orders passed by Ld. Civil Judge (Jr. Div.), 5^th Court, Alipore in title suit No. 11680/2013.  Ld. Court at Alipore considered the application under order 1, rule 8, C.P.C. read with Section 151 C.P.C. and also order 39, Rule 1 & 2 CPC.  The Ld. Court at Alipore has also considered the petitioner under Section 40, Rule 1 CPC.  The petition under 40 Rule, 1 was rejected by the Ld. Court.  However, on the basis of the joint petition filed by the parties Sri Anirban Das was appointed as advocate commissioner to submit periodical report before the court regarding disbursing of money to the subscribers.  A scheme was also filed before the Ld. Court showing modus operendi of disbursement of amount of Prayag Infotech Hi-Rise Limited in consultation of the ld. Commissioner vide order of Civil Judge, Jr. Div. Alipore dtd. 05.07.13 and in order dtd. 02.09.13 we find that Prayag Infotech Hi-Rise Limited defended company paid Rs. 17,99,83,946/- in between 26.07.13 to 29.08.13 to 23436 subscribers. 

            We have also perused the Prayag Aristro Club Membership Facility Certificates filed by the complainant.  We also meticulously gone the evidence-in-chief filed by the complainant, Dilip Kumar Dutta.  In affidavit of reply of the interrogatories put by the complainant on behalf of the OP No. 2.  It has been mentioned in Para—4 that 464228 subscribers / investors received their money from the OP.  We have also perused the entire report of the Ld. Commissioner. 

            The petitioner has given affidavit of examination-in-chief as PW1 and in Para- 2 he has stated that he paid Rs. 2,07,580/- to OP No. 1 and OP No. 2.  He repeated the table of such investment in his affidavit evidence.  In reply to interrogatories filed by the petitioner, Dilip Kr. Dutta has stated that he has no personal knowledge regarding the case pending before the Ld court at Alipore.  OP No. 2 has filed evidence on affidavit on 16.04.15.   The OP No. 2, Basudeb Bagchi has filed the photocopies of the orders of the Ld. Court. 

            We have perused five original documents by Prayag Infotech Hi-Rise Ltd. about which the above table has already dealt with.

            Our attention has drawn to the following case laws along with order of Ld President of South 24 Parganas at Alipore.  We have meticulously gone through the brief notes of arguments filed by the OP No. 1 & OP 2 and also by the petitioner. 

            Let us discuss the case laws first.  In IV (2012) CPJ 597 (NC) we find that for commercial purpose the Consumer Protection Act, 1986 was not enacted.  In the case laws the complainant was held not a consumer for booking of commercial / business space.  This facts of the case does not tally with the present case.

            In I (1991) CPJ 78 in this case laws it was held that where subject matter of the sub-judice before the Civil Court the Consumer Forum or State Commission should not interfere.  Hon'ble National Commission, New Delhi was pleased to hold as follows:

            “Elaborate scrutiny and settlement of amount can be satisfactorily undertaken and performed only in a Regular Civil Suit and not in persist before this Commission under the Act which are more or less summery in nature.”

            From the facts and circumstances of the case and also on the basis of the documentary evidence we find that the opposite parties were the service providers to the complainant.  The question of pleadings livelihood in the instant case does not arise.  Moreover, we find that in the BNA at page-2 the OP No. 1 and OP No. 2 have admitted that the complainant is entitled to get money in diminishing returns for all such unused rooms and resorts of the opposite parties. 

            Thus, the claim of the complainant has been admitted in part by the OP No. 1 & 2.  In the defense of facts the opposite parties have mentioned that they have every intention to honour the amount invested by the complainant.  But it has been pointed out sum of the amount are lying premature and hence, it has been argued that the complainant is not entitled to get premature amount.  When the office of the OPs has been closed at Krishnagar the complainant cannot be directed to approach the civil court at Alipore as Ld President of South 24 Parganas directed the complainant to approach the court at Alipore.  But in the instant case the jurisdiction of the Forum is at Krishnagar and we cannot direct the complainant residing at Krishnagar who purchased certificate at Krishnagar branch Office to go to Alipore where some of the aggrieved investors moved the civil court.  It would be a travesty of justice if the OPs are not directed to pay the amount received by them at Krishnagar office.  It has not been denied within the four corners of the written version and affidavit in reply that office of the OPs at Krishnagar has not been closed.  Thus, mere closure of the office without intimating the local subscribers is an unfair trade practice and we should not allow it to continue.  According to Section 2 (r) of the Consumer Protection Act, 1986 the OPs are found guilty of continuing unfair trade practice.  From the evidence on record we are compelled to hold that Prayag Hi-Rise Limited resorted to unfair trade practice which can be termed as ‘scam’ in order to deceive the subscribers / investors.  There was false or misleading representation made by the OPs in order to deceive the complainant.  Although the amounts mentioned in the table have not matured yet the complainant is entitled to get back the principal amount invested along with bank interest thereon.  But the complainant is entitled to get the full matured amount for two cases i.e., on 30.05.14 and 08.11.14.  Hence, all the points are disposed of accordingly in favour of the complainant. 

Hence,

Ordered,

That, the case CC/2014/145 be and the same is allowed on contest in part against OP No. 1 & OP No. 2.

The OP No. 1 & 2 are jointly or severally liable to pay Rs. 2,01,100/- plus 9% interest thereon from the date of commencement of the certificate till the date of realization plus Rs. 1,22,213/- (Rs. 70,200/- + Rs. 52,013/-) shall be paid within 15 days.  The complainant is also entitled to get Rs. 10,000/- as compensation for his mental tension and harassment and Rs. 2,000/- for litigation cost, in default of payment the complainant is entitled to liable put to decree into execution.  The OP No. 1 & 2 are directed to pay Bank Draft of the above amount to the complainant by registered post.

Let a copy of this judgment be delivered to the parties free of cost.