BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE: 30^th day of May 2014        

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member

Complaint No.: 9/2014 

Complaint No.:10/2014

Complainant/s:

Udayakumar B.Mutalikdesai, Age: 55 years, Occ: Private Service, R/o.Haripriya, 1^st Main, 4^th Cross, Rajatagiri, Dharwad.

In CC/9/2014

Gurunath N.Kulkarni, (since deceased R/by nominee Chaitanya G.Kulkarni) Age: 28 years, Occ: Private Service, R/o.Haripriya, 1^st Main, 4^th Cross, Rajatagiri, Dharwad.

In CC/10/2014

(By Sri.M.P.Navalur, Adv.)

v/s

Respondent/s:

1. Golden Glade Plantations Pvt. Ltd., S3, 1^st Floor, Swimming Pool Complex, Hubli 580029.

2. Golden Glade Plantations Pvt. Ltd., R/by its Managing Director, S3, 1^st Floor, Swimming Pool Complex, Hubli 580029.

(By Sri.B.S.Hoskeri, Adv.)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     Since the complainants have filed the complaints against the same respondents claiming the same reliefs, for the purpose of passing common order the above 2 cases have been clubbed together and disposed of in a common order.

2.     The complainant has filed these complaints claiming for a direction to the respondents to give teak tree as per the tree bond or to pay the amount with interest @18%, to pay Rs.2,500/- towards the compensation for mental agony, harassment, Rs.2,000/- towards cost of the proceedings and to grant such other reliefs.

Brief facts of the case are as under:

3.     The case of the complainants in brief is that, they have applied for teak saplings by paying the amount to the respondents. In turn the respondents issued the certificate undertaking to give trees after 20 years. The payment certificates and maturity date and maturity amount is detailed as per the table below.

4.     On the date of maturity the complainant approached the respondents by submitting certificates, requested for delivery of the trees or otherwise to pay the maturity amount. During that officials of the company told that, they will pay Rs.600/- as maturity benefit. But the complainant protest and refused to receive the said money and repeatedly demands for payment of the amount as undertaken by the respondents. Fed up by the action of the respondents, complainant got issued notices on 25.09.2013. The respondent replied on 05.10.2013 denying the claim assigning the reason they are bound by the orders of SEBI, but SEBI notification was not provided. The refusing to pay the amount, amounts to deficiency in service. Hence the complainant filed the instant complaints praying for the relief as sought.

5.     In response to the notice issued from this Forum the respondents appeared and filed the written version in detail denying and disputing the complaint averments. Further the respondents taken contention that the complaints as filed are false, frivolous, without cause of action and is filed in order to have unjust enrichment by harassing the respondents and also pray for dismissal of the complaints on the grounds the complaints are devoid of consumer dispute. Among the other admissions and denials the respondent reveals the entire case of the respondent taking technical grounds and application of Contract Act and terms and conditions of the applications and saplings certificates. Further the respondent also denied the allegation made with regard to deficiency in service. The respondent contending justification in non settlement based on the direction issued by the SEBI they could not able to comply in accordance with the certificate issued to the complainant and as per the circular of the SEBI the respondents totally closed their project. Further the respondents contended that in accordance with the SEBI directions the respondents made payment to the complainants, but the complainant reluctant to receive the same. Hence the amounts sent returned to the respondents. Nowhere either in the application or in the certificate the respondents have agreed to pay Rs.60,000/- as contended by the complainant as such the respondents are  not liable to pay the said amount. As per the guidelines of SEBI letter dtd.25.10.2010 and 08.12.2010 the respondents even today are ready to pay the amount with 6% interest. The respondent in total denied all the allegations and puts the complainant to strict proof of the same contending that there is no deficiency in service and pray for dismissal of the complaints with exemplary cost.

6.     On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

Both have placed sworn to evidence affidavit, relied on documents. The complainant apart from argument also placed notes of argument and also relied on citations.  Heard. Perused the records.

Finding on points is as under.

1. Affirmative 
2. Accordingly  
3. As per order

Reasons

Points 1 and 2

7.     On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact that, the complainant has paid the amount as per the certificate and in turn the respondents had agreed to  deliver the trees on attaining the maturity time.

8.     Now the question to be determined is whether non settlement of the claim amounts to a deficiency in service, if so, for what relief the complainant is entitled.

9.     By the pleadings, evidence and documentary evidence relied and putforth by both the parties it is evident that, the respondents have closed the project of nurturing of the trees and delivery of the same in accordance with the notification issued by the SEBI. This fact has been admitted by the complainant at the time of argument and the complainant has no any dispute in this regard. Further the complainant also admits, as per the SEBI Guidelines, respondent is to return the amount received with interest @6% from the date of receipt of the same. Though both the parties have contended their case in detail by producing bundles of documents coupled with facts we need not discuss all those facts once again as the facts contended are admitted by both the parties.

10.   Very sum and substance of the complaint is that, whether the complainant is entitled for relief or not, if so, what is the relief. As discussed supra when the facts are undisputed by the complainant as per the guidelines of SEBI the respondent is liable to return the amount received by the public with interest @6%. In this juncture the learned counsel for complainant though relied on several citations, the learned counsel specifically concentrated on the judgment 2006 (3) CPJ 30 NC, whereas the appellant in this referred citation is also one of the establishment where the SEBI initiated  the proceedings against the establishment. The appellant establishment is noted in the Sl.No.77 of the paper notification list Dtd.07.12.2000 R.36. In the referred judgment their lordships dismissed the appeal filed by the appellant confirming the order of allow of the complaint by the DF, ordered to return the amount along with compensation. Based on the observation made by their lordships in the referred case the learned counsel pray for allow the complaint with compensation. In the referred citation none of the parties brought the action taken by the SEBI. So also Hon’ble. National Commissioner did not discussed about SEBI action.

11.   By looking into the case of the respondent and evidence and documentary evidence adduced the respondent in accordance with the SEBI guidelines could not able to settle the claim of the complainant as per the certificate.  However it is the case of the respondent that, in accordance with the SEBI directions they paid the amount along with interest to the complainant but they refused to receive the same.

12.   Further contention of respondents is that they have settled as much as 85% of the claims in accordance with the SEBI direction and in rest of the cases as there were no  claimants in accordance with the SEBI direction we are transferring the unclaimed amount to SEBI investors production fund, as such asserted there is no deficiency in service on the part of the respondents. Based on the documentary evidence relied by the respondent this forum cannot go against to the direction of the SEBI and rewrite, even though the complainant suffered loss as it is beyond our jurisdiction. Under those circumstances we are under considered opinion if it is directed to refund the amount with 6% interest along with compensation and cost of the proceedings it will suffice the purpose.

13.  In view of the above discussions we have arrived and proceed to held issue.1 in affirmative and 2 accordingly.

14.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

Order

The complaints are partly allowed. The respondents are jointly and severally directed to refund the amount to the complainants with interest @6% P.A from the date of receipt of the amount till realization along with Rs.2000/- each towards compensation and Rs.1000/- each towards the cost of the proceedings within 30 days from the date of receipt of copy of this order. Failing to comply the same, the said amount shall carry interest @9% P.A. from thereon till realization. 

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 30^th day of May 2014)

(Smt.Vijayalaxmi.M)                         (Shri.B.H.Shreeharsha)

Member                                               President

Dist.Consumer Forum                        Dist.Consumer Forum

MSR