Highland Holiday, V/S T S. Chritoshper - Consumer Court Case

Karnataka

Bangalore Urban

CC/05/416

T S. Chritoshper - Complainant(s)

Versus

Highland Holiday, - Opp.Party(s)

In person

30 Sep 2008

ORDER

BANGALORE URBAN DISTRICT CONSUMER DISPUTES REDRESSLAL FORUM, BANGALORE, KARNATAKA STATE.
Bangalore Urban District Consumer Disputes Redressal Forum, Cauvery Bhavan, 8th Floor, BWSSB Bldg., K. G. Rd., Bangalore-09.
consumer case(CC) No. CC/05/416

T S. Chritoshper						...........Appellant(s)
Vs.
Highland Holiday,						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

30th SEPTEMBER 2008 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. MUNIYAPPA MEMBER COMPLAINT NO. 416/2005 & 417/2005 COMPLAINT NO.416/2005 COMPLAINANT COMPLAINT NO.417/2005 COMPLAINANT T.S. Christopher, No.39, Ground Floor, Central Tower Block, 4th Block, Jayanagar Shopping Complex, Bangalore 11. H.N. Damani, Darshan Enterprises, 4th Block, Shop No.28, Shopping Complex, Jayanagar, Bangalore-01. Rep by his authorized representatives Raj Damani, Damani M.N. & Karlin, Free Homeopathy Clinic, 69/5, 1st Floor, M.K. Street Cross, Shivajinagar, Bangalore-51. V/s. OPPOSITE PARTY Highland Holiday Homes (P) Ltd., No.S-523 5th Mezzanine Floor, No.47, Dickenson Road, Manipal Center, Rear Wing, Bangalore-47. Rep by Directors Advocate (Younous Alikhan) O R D E R These are the two complaints filed by the respective complainants, seeking for refund of their amount invested with the OP and for such other reliefs on an allegations of deficiency in service. 2. As the opposite parties in both the complaints are one and the same, the question involved relief claimed being the common, in order to avoid the multiciplity of facts and reasoning, in the interest of justice it is deemed fit to dispose of both the complaints by this common order. 3. The brief averments, as could be seen from the contents of the complaint No. 416/2005 are as under: The complainant being carried away with the Mangium Gold scheme of OP invested Rs.19,500/- in OP Silver Unit Scheme of 20 trees on 02/04/1997. For an investment of Rs.975/- for one Mangium tree investor would get returns of Rs.150/- in 4th year, Rs.175/- in 5th year, Rs.195/- in 6th year, Rs.215/- in 7th year, Rs.235/- in 8th year, Rs.255/- in 9th year and Rs.20,000/- in 10th year, totally Rs.21,225/- for an investment of just Rs.975/- plus special bonus etc. Thereafter some how OP failed to release the said returns in time. The repeated requests and demands made by the complainant went in vain. Complainant felt the deficiency in service on the part of the OP. As such he is advised to file this complaint and sought for the relief accordingly. 4. The complainant in complaint No.417/2005 invested Rs.9,750/- on 05/09/1996. In his case also the returns will be same as stated above. But unfortunately he could not get the returns as promised by the OP in time. His requests for return of the benefits, when went in vain, he too felt the deficiency in service on the part of the OP and he is also advised to file this complaint and sought for the relief accordingly. 5. On appearance, OP filed the version in both the complaints, the defence set out in the said version is almost identical. The brief contents of the said version are as under. That the complainants are not consumers as defined under the act, so they cannot allege the deficiency in service against the OP. It is further contended that the SEBI issued a public notice dated: 18/12/97 under section 12 (1) (B) of the SEBI Act prohibiting collective investment schemes, including mutual funds from sponsoring any new scheme till the regulations are notified, while the regulations for mutual fund schemes have been notified by SEBI, regulations for collective investment schemes including plantations schemes require to be notified in view of the press release issued by the Central Government. In view of the directions from the SEBI OP is not in a position to carry on their business activity. A legal battle between SEBI and the OP reached Securities Appellate Tribunal, Mumbai in Appeal No.46/2001 wherein it was held In the light of the solemn commitment made by the appellant and its counsel to refund the money to the person seeking refund and its readiness to comply with the requirements of regulation 74. In pursuance of the said regulations, letters have been sent to all the investors, but no reply was received from the complainants. Hence the scheme was wound up. When the scheme itself did not continue as per the public notice, the question of OP paying returns does not arise. The entire complainant is mis-conceived and frivolous. There is no deficiency in service of any kind on the part of the OP. Among these grounds, OP prayed for the dismissal of the complaint. 6. In order to substantiate the complaint averments, each one of the complainants have filed their respective affidavit evidence and produced the documents. OP has also filed the affidavit evidence and produced their documents. Then the arguments were heard. 7. This Forum was pleased to dismiss the complaints vide common order dated 29.08.2005. Being aggrieved by the said impugned order respective complainants preferred an Appeal before the Honble Karnataka State Consumer Disputes Redressal Commission at Appeal No. 1634/2005 and 1635/2005. The said appeals came to be allowed vide order dated 12.09.2007. The matters are remitted back to this Forum to dispose of the cases afresh after due notice to all the parties. In pursuance of the said kind orders notices were sent to the litigating parties. Only complainants have appeared and filed their additional affidavit evidence and produced some documents. OP did not appear inspite of the service of the notice. The absence of the OP does not appears to be bonafide and reasonable. 8. In view of the above said facts, the points now that arise for our consideration in these complaints are as under: Point No. 1 :- Whether the complainants have proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainants are entitled for the reliefs now claimed? Point No. 3 :- To what Order? 9. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on above said: Point No.1:- In Affirmative Point No.2:- Affirmative in part Point No.3:- As per final Order. R E A S O N S 10. At the outset it is not at dispute that the complainant in complaint No.416/2005 invested Rs.19,500/- in OP Silver Unit Scheme on 02/04/1997 and complainant in complaint No.417/2005 invested Rs.9,750/- on 05/09/1996. There is no dispute with regard to the payment of the returns as averred in the complainants that too the return starts from the 4th year to 10th year of investment. It is further contended by the complainants that they were unable to get the said returns as promised by the OP. Thus they felt the deficiency in service on the part of the OP. 11. On the other hand it is a specific defence of the OP that the SEBI vide its public notice dated 18/12/97 issued under section 12 (1) (B) of the SEBI Act prohibited the collective investment schemes including mutual funds from sponsoring any new scheme till the regulations are notified. OP has produced the said public notice copy which is not at dispute. It is further contended by the OP as per the directions from SEBI OP is not in a position to carry on the business activity. The matter has reached the Securities Appellate Tribunal, Bombay in Appeal No.46/2001 it is also not at dispute. The matter was ultimately decided by the said Appellate Authority, wherein there is a requirement of compliance of regulations No.74. 12. On the perusal of the documents produced by the respective complainants both proceedings pending before the SEBI, has nothing to do with a litigation on hand. OP accepted the membership of the complainants, they in turn invested their hard earned money in the Mangium Gold scheme with respect to plantation of certain trees. They are unable to reap the fruits of their investment. OP having retained the said amount for more than a decade accrued the wrongful gain to itself, thereby caused the wrongful loss to the complainants. At the outset OP has not disputed the fact of payment of the returns from 4th to 10 year from the date of alleged investment made by each one of these complainants. The period of investment is for 10 years and that period is already lapsed. On the face of it there is a proof that OP has violated the terms and conditions of the said scheme and also there is a breach of promise. The hostile attitude of the OP must have naturally caused both mental agony and financial loss to the complainants, that too for no fault of theirs. 13. On the perusal of the orders passed by the Honble State Commission in the appeal, it appears OPs have refunded only the deposit amount of Rs.9,500/- and Rs.19,000/- to the respective complainants. That means to say OP admits their liability and the fault. After the maturity period of 10 years when OP failed to pay the amount as promised under the scheme amounts to deficiency in service. We have closely scrutinized both oral and documentary evidence, we are satisfied that the complainants are able to establish the deficiency in service on the part of the OP. 14. It was earlier contended by the OP that they have closed the scheme long back and there are some legal hurdles and restraints for them to refund the said amount to the concerned investors. It is also contended that the scheme was wound up long back. This appears to be false, because OP refunded the principal amount very recently to the complainants. To corroborate the said facts OP has not appeared before this Forum after the remand and produced the documents to substantiate their so called defence. Though complainants invested their hard earned money about a decade back, they are unable to reap the fruits of their investment. Naturally they have suffered both monetary loss and mental agony. Under such circumstances they deserves some compensation, though not the actual refund of the scheme amount. With these reasons we proceed to pass the following: O R D E R The complaints are allowed. In complaint No.416/2005 OP are directed to pay a compensation of Rs.50,000/- and a litigation cost of Rs.1,000/- to the complainant apart from the amount invested which is already refunded. In complaint No.417/2005 OP are directed to pay a compensation of Rs.25,000/- and a litigation cost of Rs.1,000/- to the complainant apart from the amount invested which is already refunded. This order is to be complied within 4 weeks from the date of its communication. The original order shall be kept in the file of the complaint No.416/2005 and a copy of it shall be placed in other respective file. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 30th day of September 2008.) MEMBER MEMBER PRESIDENT p.n.g.

30th SEPTEMBER 2008 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. MUNIYAPPA MEMBER COMPLAINT NO. 416/2005 & 417/2005 COMPLAINT NO.416/2005 COMPLAINANT COMPLAINT NO.417/2005 COMPLAINANT T.S. Christopher, No.39, Ground Floor, Central Tower Block, 4th Block, Jayanagar Shopping Complex, Bangalore 11. H.N. Damani, Darshan Enterprises, 4th Block, Shop No.28, Shopping Complex, Jayanagar, Bangalore-01. Rep by his authorized representatives Raj Damani, Damani M.N. & Karlin, Free Homeopathy Clinic, 69/5, 1st Floor, M.K. Street Cross, Shivajinagar, Bangalore-51. V/s. OPPOSITE PARTY Highland Holiday Homes (P) Ltd., No.S-523 5th Mezzanine Floor, No.47, Dickenson Road, Manipal Center, Rear Wing, Bangalore-47. Rep by Directors Advocate (Younous Alikhan) O R D E R These are the two complaints filed by the respective complainants, seeking for refund of their amount invested with the OP and for such other reliefs on an allegations of deficiency in service. 2. As the opposite parties in both the complaints are one and the same, the question involved relief claimed being the common, in order to avoid the multiciplity of facts and reasoning, in the interest of justice it is deemed fit to dispose of both the complaints by this common order. 3. The brief averments, as could be seen from the contents of the complaint No. 416/2005 are as under: The complainant being carried away with the Mangium Gold scheme of OP invested Rs.19,500/- in OP Silver Unit Scheme of 20 trees on 02/04/1997. For an investment of Rs.975/- for one Mangium tree investor would get returns of Rs.150/- in 4th year, Rs.175/- in 5th year, Rs.195/- in 6th year, Rs.215/- in 7th year, Rs.235/- in 8th year, Rs.255/- in 9th year and Rs.20,000/- in 10th year, totally Rs.21,225/- for an investment of just Rs.975/- plus special bonus etc. Thereafter some how OP failed to release the said returns in time. The repeated requests and demands made by the complainant went in vain. Complainant felt the deficiency in service on the part of the OP. As such he is advised to file this complaint and sought for the relief accordingly. 4. The complainant in complaint No.417/2005 invested Rs.9,750/- on 05/09/1996. In his case also the returns will be same as stated above. But unfortunately he could not get the returns as promised by the OP in time. His requests for return of the benefits, when went in vain, he too felt the deficiency in service on the part of the OP and he is also advised to file this complaint and sought for the relief accordingly. 5. On appearance, OP filed the version in both the complaints, the defence set out in the said version is almost identical. The brief contents of the said version are as under. That the complainants are not consumers as defined under the act, so they cannot allege the deficiency in service against the OP. It is further contended that the SEBI issued a public notice dated: 18/12/97 under section 12 (1) (B) of the SEBI Act prohibiting collective investment schemes, including mutual funds from sponsoring any new scheme till the regulations are notified, while the regulations for mutual fund schemes have been notified by SEBI, regulations for collective investment schemes including plantations schemes require to be notified in view of the press release issued by the Central Government. In view of the directions from the SEBI OP is not in a position to carry on their business activity. A legal battle between SEBI and the OP reached Securities Appellate Tribunal, Mumbai in Appeal No.46/2001 wherein it was held In the light of the solemn commitment made by the appellant and its counsel to refund the money to the person seeking refund and its readiness to comply with the requirements of regulation 74. In pursuance of the said regulations, letters have been sent to all the investors, but no reply was received from the complainants. Hence the scheme was wound up. When the scheme itself did not continue as per the public notice, the question of OP paying returns does not arise. The entire complainant is mis-conceived and frivolous. There is no deficiency in service of any kind on the part of the OP. Among these grounds, OP prayed for the dismissal of the complaint. 6. In order to substantiate the complaint averments, each one of the complainants have filed their respective affidavit evidence and produced the documents. OP has also filed the affidavit evidence and produced their documents. Then the arguments were heard. 7. This Forum was pleased to dismiss the complaints vide common order dated 29.08.2005. Being aggrieved by the said impugned order respective complainants preferred an Appeal before the Honble Karnataka State Consumer Disputes Redressal Commission at Appeal No. 1634/2005 and 1635/2005. The said appeals came to be allowed vide order dated 12.09.2007. The matters are remitted back to this Forum to dispose of the cases afresh after due notice to all the parties. In pursuance of the said kind orders notices were sent to the litigating parties. Only complainants have appeared and filed their additional affidavit evidence and produced some documents. OP did not appear inspite of the service of the notice. The absence of the OP does not appears to be bonafide and reasonable. 8. In view of the above said facts, the points now that arise for our consideration in these complaints are as under: Point No. 1 :- Whether the complainants have proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainants are entitled for the reliefs now claimed? Point No. 3 :- To what Order? 9. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on above said: Point No.1:- In Affirmative Point No.2:- Affirmative in part Point No.3:- As per final Order. R E A S O N S 10. At the outset it is not at dispute that the complainant in complaint No.416/2005 invested Rs.19,500/- in OP Silver Unit Scheme on 02/04/1997 and complainant in complaint No.417/2005 invested Rs.9,750/- on 05/09/1996. There is no dispute with regard to the payment of the returns as averred in the complainants that too the return starts from the 4th year to 10th year of investment. It is further contended by the complainants that they were unable to get the said returns as promised by the OP. Thus they felt the deficiency in service on the part of the OP. 11. On the other hand it is a specific defence of the OP that the SEBI vide its public notice dated 18/12/97 issued under section 12 (1) (B) of the SEBI Act prohibited the collective investment schemes including mutual funds from sponsoring any new scheme till the regulations are notified. OP has produced the said public notice copy which is not at dispute. It is further contended by the OP as per the directions from SEBI OP is not in a position to carry on the business activity. The matter has reached the Securities Appellate Tribunal, Bombay in Appeal No.46/2001 it is also not at dispute. The matter was ultimately decided by the said Appellate Authority, wherein there is a requirement of compliance of regulations No.74. 12. On the perusal of the documents produced by the respective complainants both proceedings pending before the SEBI, has nothing to do with a litigation on hand. OP accepted the membership of the complainants, they in turn invested their hard earned money in the Mangium Gold scheme with respect to plantation of certain trees. They are unable to reap the fruits of their investment. OP having retained the said amount for more than a decade accrued the wrongful gain to itself, thereby caused the wrongful loss to the complainants. At the outset OP has not disputed the fact of payment of the returns from 4th to 10 year from the date of alleged investment made by each one of these complainants. The period of investment is for 10 years and that period is already lapsed. On the face of it there is a proof that OP has violated the terms and conditions of the said scheme and also there is a breach of promise. The hostile attitude of the OP must have naturally caused both mental agony and financial loss to the complainants, that too for no fault of theirs. 13. On the perusal of the orders passed by the Honble State Commission in the appeal, it appears OPs have refunded only the deposit amount of Rs.9,500/- and Rs.19,000/- to the respective complainants. That means to say OP admits their liability and the fault. After the maturity period of 10 years when OP failed to pay the amount as promised under the scheme amounts to deficiency in service. We have closely scrutinized both oral and documentary evidence, we are satisfied that the complainants are able to establish the deficiency in service on the part of the OP. 14. It was earlier contended by the OP that they have closed the scheme long back and there are some legal hurdles and restraints for them to refund the said amount to the concerned investors. It is also contended that the scheme was wound up long back. This appears to be false, because OP refunded the principal amount very recently to the complainants. To corroborate the said facts OP has not appeared before this Forum after the remand and produced the documents to substantiate their so called defence. Though complainants invested their hard earned money about a decade back, they are unable to reap the fruits of their investment. Naturally they have suffered both monetary loss and mental agony. Under such circumstances they deserves some compensation, though not the actual refund of the scheme amount. With these reasons we proceed to pass the following: O R D E R The complaints are allowed. In complaint No.416/2005 OP are directed to pay a compensation of Rs.50,000/- and a litigation cost of Rs.1,000/- to the complainant apart from the amount invested which is already refunded. In complaint No.417/2005 OP are directed to pay a compensation of Rs.25,000/- and a litigation cost of Rs.1,000/- to the complainant apart from the amount invested which is already refunded. This order is to be complied within 4 weeks from the date of its communication. The original order shall be kept in the file of the complaint No.416/2005 and a copy of it shall be placed in other respective file. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 30th day of September 2008.) MEMBER MEMBER PRESIDENT p.n.g.