Sri Ranjan Ray, Ld. Member

FINAL ORDER/ JUDGEMENT

This complaint U/S 2 (1) (d) (ii), 2 (1) (G) and 12 of the provisions of C.P. Act, 1986, Read with Section 420/406/34 of IPC was initially filed against the Opposite Party (O.P.)- 1) Dipak Kumar Saha, C/O Lakhan Saha. Present Address: Silicon Regency, Flat No. 219, Block B, 2^nd Floor, P.O. & P.S.- Bhaktinagar, Dist.: Jalpaiguri, Parmanent Address: Paticolony, Road No.1 (Patel Road), P.O. & P.S.- Pradhan Nagar, Dist.- Darjeeling, Showroom Address: Holy Gold and Jewellery Pvt. Ltd., Pakurtala More, Opposite Maya Sanyal Nursing Home, P.O. & P.S.- Siliguri, Dist.- Darjeeling, Back Office Address: Holy Gold and Jewellery Pvt. Ltd., City Plaza, Sevoke Road, Opposite Payel Cinema Hall, P.O.- Sevoke Road, P.S.- Siliguri, Dist.- Darjeeling who did not appear in the case and declared ex- parte vide Order No.10, dated 19.11.2023.

                    The case of the complainant as per her complaint is as follows-

The O.P. has a gold jewellery showroom, offers selling of gold ornament under the name and style Holy Gold and Jewellery Pvt. Ltd. being company Registration No. 188420 and CIN No. U36996WB2012PTC188420. The O.P. company also offered services like selling of gold ornaments, exchange of old gold with new gold and monthly deposit saving schemes namely “Asha HGC and HGCO” Scheme to the customers together with fixed deposit scheme also. The company also provided the monthly deposit scheme towards the customers that if any customer wanted to give monthly amount for eleven months then one month amount would be free because this one month amount would be paid by the O.P. and if the customer again wanted to extend the those deposit amount till 18 months then three months amount would be paid by the O.P. After completion of this locking period the customers could purchase any gold products from the O.P. and if an extra amount was being required then customers could add the required amount to purchase the gold product. The company also provided the monthly deposit scheme towards the customers that if any customer wanted to give monthly amount for eleven months then one month amount would be free because this one month amount would be paid by the O.P. and if the customer again wanted to extend the those deposit amount till 18 months then three months amount would be paid by the O.P. After completion of this locking period the customers could purchase any gold products from the O.P. and if an extra amount was being required then customers could add the required amount to purchase the gold product. Seeing this features and scheme on monthly basis and also on good faith like many customers the complainant also fell under the tempting scheme of the O.P. and started a monthly saving scheme, of Rs. 5,00/- (Rupees Five Hundred) only dated 21.12.2019 vide Customer ID No.- 646581, A/C No. HGCOA10000798, under the plan of Asha 24. The complainant deposited total sum of RS. 10,500/- (Rupees Ten Thousand and Five Hundred) only through 21 installments.   

Then, after some time, the complainant went to the O.P. and demanded gold out of his deposited amount and the O.P. told that at present they were not in a good stage and not able to give neither any gold nor his deposited amount to the complainant and for this reason they requested the complainant for giving them some time but after some period of time when the complainant again met the O.P. and demanded her gold or to return his money, the O.P. conducted misbehave with the complainant and nothing was given to him. Thereafter, on 03.06.2022 when the complainant again went to the O.P. to get back his gold/ money the O.P. threatened the complainant by their appointed musclemen and refused to returned his money/ gold. Subsequently, on 11.06.2022 a FIR was being lodged by one Mayuri Saha, resides in Malbazar, Jalpaiguri, before the Pradhan Nagar P.S., vide FIR No. 429/22 and the FIR was duly being accepted and  the Pradhan Nagear P.S. started a specific case the O.P. U/S 420/406/506/34 of IPC and hence, when the complainant went to the Pradhan Nagar P.S. for lodging a FIR but the Pradhan Nagar P.S. did not take the FIR by saying that once a FIR had already been lodged and a case had also been started on the basis of said FIR, so, no more FIR would be taken by the concerned P.S. Having no other option, complainant again several times requested the O.P. to return his amount but all were in vain and on 03.12.2022 when complainant met the O.P. and requested for the same, the O.P. made a violent activity upon the complainant and refused him to return his amount/ gold. For this reason the complainant suffered a lot and finally, having no other alternative the complainant lodged this complainant.             

The prayers of complainant are as follows: -

1. Arrest the O.P. for cheating.
2. To pass an order directing the O.P. to return the sum of Rs. 10,500/- (Rupees Ten Thousand and Five Hundred) only as per the saving book account number.
3. Interest charged 15% per annum from the date of starting the saving book.
4. Claim of Rs. 4,00,000/- (Rupees Four Lakhs) only for mental harassment, pain, agony which O.P. has done to the complainant.
5. Cost of the suit Rs. 25,000/- (Rupees Twenty Five Thousand) only.
6. Any other award/s which the complainant is being entitled of his case.

                                      List of Documents filed by the complainant:

1. Copy of Aadhaar Card.
2. Speed Post Counter Receipt (Original).
3. Copy of Online Tracking Delivery Report.
4. Copy of Money Receipts (20 nos. of Original and Photocopy copy).
5. Photocopy of savings book.
6. Copy of FIR, Dated 11.06.2022 before Pradhan Nagar P.S. and 29.06.2022 before Bhaktinagar P.S.   

The Opposite Party (O.P.)- Dipak Kumar Saha, C/O Lakhan Saha. Present Address: Silicon Regency, Flat No. 219, Block B, 2^nd Floor, P.O. & P.S.- Bhaktinagar, Dist.: Jalpaiguri, Parmanent Address: Paticolony, Road No.1 (Patel Road), P.O. & P.S.- Pradhan Nagar, Dist.- Darjeeling, Showroom Address: Holy Gold and Jewellery Pvt. Ltd., Pakurtala More, Opposite Maya Sanyal Nursing Home, P.O. & P.S.- Siliguri, Dist.- Darjeeling, Back Office Address: Holy Gold and Jewellery Pvt. Ltd., City Plaza, Sevoke Road, Opposite Payel Cinema Hall, P.O.- Sevoke Road, P.S.- Siliguri, Dist.- Darjeeling who did not appear in the case and declared ex- parte vide Order No.10, dated 19.11.2023 of this Commission.   

Having heard, the Ld. Advocate of the complainant and on perusal of the Complaint and documents filed by the complainant the following points are taken to be decided by this Commission.

POINTS FOR CONSIDERATION

1) Whether the complainant is a consumer?

2) Whether the case is maintainable under the CP act 2019?

3) Whether this Commission has its jurisdiction to decide this case? 

4) Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?

5) Is the complainant is entitled to get any award and relief as prayed for? If so, what extent?

DECISION WITH REASONS

          All the points are taken up together for consideration and decision.

Seen and perused the complaint petition filed by the complainant which is supported by the affidavit, documents filed by the parties. We are also heard arguments of the complainant in full length.

The complainant resides in Naxalbari of Darjeeling district and the permanent address as well as the business address of O.P. also falls under Darjeeling district. Thus, the Commission has no doubt that the complainant is a very much consumer in this case and also there is no doubt that this Commission has its territorial jurisdiction to decide this case as per the Consumer Protection Act 1986 and also Consumer Protection Act 2019.

In this case, notice was issued to the O.P. which was returned by the Postal Department with an endorsement “insufficient address” and subsequently as per Order No.08, dated 26.09.2023 of this Commission, complainant published news paper advertisement of the notice on 15.10.2023 in the news paper namely Aajkal under Order 5 Rule 20, Sub Section 1A read with Section 151 CPC but the O.P. did not turn up before this Commission. Hence, vide Order No. 10, dated 19.11.2023 the O.P. was declared ex-parte.

The complainant started a monthly saving scheme, of Rs. 5,00/- (Rupees Five Hundred) only dated 21.12.2019 with the O.P. vide Customer ID No.- 646581, A/C No. HGCOA10000798, under the plan of Asha 24. The complainant deposited total sum of RS. 10,500/- (Rupees Ten Thousand and Five Hundred) only through 20 installments. Hence, this Commission does not hesitate to hold that the complainant is a very much consumer in this case as per the C.P. Act, 1986 and also as per C.P. Act, 2019.  

In this instant case, The O.P. has a gold jewellery showroom, offers selling of gold ornament under the name and style Holy Gold and Jewellery Pvt. Ltd. being company Registration No. 188420 and CIN No. U36996WB2012PTC188420. The O.P. company also offered services like selling of gold ornaments, exchange of old gold with new gold and monthly deposit saving schemes namely “Asha HGC and HGCO” Scheme to the customers together with fixed deposit scheme also. The company also provided the monthly deposit scheme towards the customers that if any customer wanted to give monthly amount for eleven months then one month amount would be free because this one month amount would be paid by the O.P. and if the customer again wanted to extend the those deposit amount till 18 months then three months amount would be paid by the O.P. After completion of this locking period the customers could purchase any gold products from the O.P. and if an extra amount was being required then customers could add the required amount to purchase the gold product. The company also provided the monthly deposit scheme towards the customers that if any customer wanted to give monthly amount for eleven months then one month amount would be free because this one month amount would be paid by the O.P. and if the customer again wanted to extend the those deposit amount till 18 months then three months amount would be paid by the O.P. After completion of this locking period the customers could purchase any gold products from the O.P. and if an extra amount was being required then customers could add the required amount to purchase the gold product. Seeing this features and scheme on monthly basis and also on good faith like many customers the complainant also fell under the tempting scheme of the O.P. and started a monthly saving scheme, of Rs. 5,00/- (Rupees Five Hundred) only dated 21.12.2019 vide Customer ID No.- 646581, A/C No. HGCOA10000798, under the plan of Asha 24. The complainant deposited total sum of RS. 10,500/- (Rupees Ten Thousand and Five Hundred) only through 20 installments.  

Then, after some time, the complainant went to the O.P. and demanded gold out of his deposited amount and the O.P. told that at present they were not in a good stage and not able to give neither any gold nor his deposited amount to the complainant and for this reason they requested the complainant for giving them some time but after some period of time when the complainant again met the O.P. and demanded her gold or to return his money, the O.P. conducted misbehave with the complainant and nothing was given to him. Thereafter, on 03.06.2022 when the complainant again went to the O.P. to get back his gold/ money the O.P. threatened the complainant by their appointed musclemen and refused to returned his money/ gold. Subsequently, on 11.06.2022 a FIR was being lodged by one Mayuri Saha, resides in Malbazar, Jalpaiguri, before the Pradhan Nagar P.S., vide FIR No. 429/22 and the FIR was duly being accepted and  the Pradhan Nagear P.S. started a specific case the O.P. U/S 420/406/506/34 of IPC and hence, when the complainant went to the Pradhan Nagar P.S. for lodging a FIR but the Pradhan Nagar P.S. did not take the FIR by saying that once a FIR had already been lodged and a case had also been started on the basis of said FIR, so, no more FIR would be taken by the concerned P.S. Having no other option, complainant again several times requested the O.P. to return his amount but all were in vain and on 03.12.2022 when complainant met the O.P. and requested for the same, the O.P. made a violent activity upon the complainant and refused him to return his amount/ gold. For this reason the complainant suffered a lot and finally, having no other alternative the complainant lodged this complainant.   Having no other option, complainant again several times requested the O.P. to return his amount but all were in vain.   

In order to prove the case the Complainant has filed its evidence in the form of an Affidavit and in the Written Complainant has specifically corroborated the complaint and has stated on which day she purchased the scheme from the O.P., also narrated the date of payment of installment. The Complainant has also stated on which day she went to the O.P from demanding the gold/ amount in respect of her scheme from O.P. No.1. The Complainant has also stated in her evidence that the Complainant went to meet the O.P. several times but the O.P. did not make any payment till today.

At the time of argument Ld. Advocate of the Complainant submits that the Complainant has been able to prove its case against the O.P not only through her Written Deposition but also by producing documents.

In view of above discussion and other materials on record we are of the view that this Commission has sufficient Jurisdiction to entertain this complaint as a consumer dispute and thereby this case is maintainable.  

In the case in hand, as per documents and evidence filed by the complainant, there is no dispute that the complainant started a monthly saving scheme, of Rs. 5,00/- (Rupees Five Hundred) only dated 21.12.2019 with the O.P. vide Customer ID No.- 646581, A/C No. HGCOA10000798, under the plan of Asha 24. The complainant deposited total sum of Rs. 10,500/- (Rupees Ten Thousand and Five Hundred) only through 20 installments to the O.P. The date of paying monthly installment payments of Rs. 5,00/- (Rupees Five Hundred) only are - (i) 21.12.2019, (ii) 22.02.2020, (iii) 22.02.2020, (iv) 16.03.2020, (v) 26.08.2020, (vi) 26.08.2020, (vii) 26.08.2020, (viii) 26.08.2020, (ix) 26.08.2020, (x) 23.11.2020, (xi) 26.12.2020, (xii) 26.01.2021, (xiii) 28.01.2021, (xiv) 26.02.2021, (xv) 27.02.2021, (xvi) 27.04.2021. (xvii) 28.07.2021, (xviii) 26.08.2021, (xix) 26.10.2021 and (xx) 26.11.2021. It is also not denied/ disputed that, the complainant did not deposit the Sum of money to the O.P. It is also admitted fact that, the O.P. on receiving the sum of money and issued deposit receipts to the complainant.

The complainant several times tried to get her legitimate claim but the O.P.s failed to settle her said legitimate claim.

So, as per the above discussion this Commission has no doubt to hold that the O.P. conducted an unfair trade practice to the complainant. In the instance case, the complainant is entitled to get back her Rs. Rs. 10,500/- (Rupees Ten Thousand and Five Hundred) only from the O.P.  

Hence it is,

ORDERED

That the Consumer Case No. 98/2022 be and same is allowed in ex- parte against the O.P. (Holy Gold and Jewellery Pvt. Ltd.). In this case the O.P. is liable.     

The complainant do get an award of Rs. 10,500/- (Rupees Ten Thousand and Five Hundred) only  along with a simple interest @ 7.5% per annum from the date of her first deposit Receipt, i.e. from 21.12.2019, within 45 days (Forty Five days) from the date of this order, i.e. from 25.07.2024 for her claim from the O.P. failing which the complainant shall be at liberty to realize the entire awarded amount in due process of law along with a penal interest @ 9% per annum from the date of this award till the realization of entire amount. The complainant is also entitled to get Rs. 5,000/- (Rupees Five Thousand) only for mental pain, agony and harassment and Rs. 5,000/- (Rupees Five Thousand) only for litigation cost. The O.P. shall pay the entire amount through an account payee cheque. The O.P. is also directed to deposit Rs. 5,000/- (Rupees Five Thousand) only to Consumer Legal Aid Account of this Commission within 45 days (Forty Five days) from the date of this order.

 Let a copy of this judgment be given to the parties directly or through their representative Ld. Advocate for compliance free of cost.