DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
Consumer Complaint No 08 of 2015
Date of filing: 09.01.2015 Date of disposal: 26.8.2015
Complainant: Nilmoni Mazumdar, S/o. Late Upendranath Mazumdar, 139/M, Block – E, Post Office: Kanyapur, Senraleigh, District: Burdwan - 713 341.
-VERSUS-
Opposite Party: 1. Project Manager, Indian Railway Welfare Organization, Rail Vihar, Asansol, 83, S.P. Mukherjee Road, Murgasol, Asansol – 713 303.
2. Managing Director, Indian Railway Welfare Organization, Railway Office Complex, Shivaji (Minto) Bridge, Behind Shankar Market, New Delhi – 110 001.
Present: Hon’ble President: Asoke Kumar Mandal.
Hon’ble Member: Silpi Majumder
Appeared for the Complainant: R.S. Ganguly, Authorized Representative.
Appeared for the Opposite Party (s): Ld. Advocate, Soumendra Roychowdhury.
JUDGEMENT
This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service and unfair trade practice against the Ops as the Ops did not refund the booking money paid by him towards dwelling house to him till filing of this complaint.
The brief fact of the case of the complainant is that he applied in prescribed application form for booking of a dwelling house with the OP on 02.9.2013 along with necessary registration fee of Rs. 1,000/- by bank draft dated 31.8.2013 and booking money of Rs. 1,00,000=00 by bank draft dated 31.8.2013 in favour of IRWO-India Railway Welfare Organization. The OP-2 in its letter dated 25.9.2013 intimated the complainant that one DU of type A-1/A has been booked under Tax Registration no. AAT10400 LSD 001 and the tentative cost is of Rs. 14.76 excluding other charges enclosing the payment schedule in it and enclosed one form for confirmation of acceptance of booking of the same. The complainant was requested to put signature on this form for “Acceptance and Undertaking” of his acceptance of the booking and the same was required to be returned by the complainant by 31.10.2013. Upon receipt of the above letter thereby the complainant was advised to pay EMI of Rs. 2, 00,000=00 on 25th day of every month and being perused the same he became perplexed and thought he could not pay such huge amount of EMI since it is beyond his capacity and decided to withdraw from the scheme. For this reason he neither put signature on acceptance form nor sent it back to the Ops, which means the complainant did not want to proceed furthers in this scheme. Then the complainant issued a letter on 25.10.2013 intimating both the Ops separately under speed post stating that he was inclined to cancel the booking and accordingly request was made to them for refund of the booking money paid by him on 02.9.2013. But the Ops didn’t pay any heed to his request and not bothered to reply to the letter of the complainant. Then the complainant approached before Burdwan District Consumer Protection and Welfare Centre on 18.7.2014 requesting them to interfere into the issue and to take up the matter with the Ops so that he can get refund of his money. In that letter the complainant had alleged that inspite of sending reminder to the Ops on 18.3.2014 he did not receive any reply. The said Protection and Welfare Centre issued a letter on 29.7.2014 upon the Ops requesting them to refund the booking money received by them as the complainant had already cancelled the booking. Since then five months elapsed, the Ops did not take any step to refund the amount and did not bother to attend the grievance of the complainant. Thereafter finding no other alternative the complainant has approached before this ld. Forum by filing this complaint praying for direction upon the Ops to refund the booking money of Rs. 1,00,000=00 along with interest @12% per annum, from the date of cancellation of booking i.e. October’13 till the date of filing of this complaint i.e. December’14, compensation to the tune of Rs. 10,000=00 due to unnecessary harassment, mental pain and agony and litigation cost of Rs. 2,500=00 to him along with further interest on the total amount as prayed for @12% per annum till the date of payment.
The complaint has been contested by the Ops by filing written objection wherein it is stated that the complainant at the time of entering into the agreement had carefully perused the terms and the conditions i.e. GTC and after accepting the same the complainant entered into the agreement with the Ops with a view to purchase the dwelling house and put his signature in the agreement paper. For this reason as there is a privity of contract by and between the parties the same is binding upon the both parties. It is stated by the Ops that in the clause no. 37 of the GTC of the IRWO which has been admitted by the complainant wherein it is mentioned that all disputes shall be the subject of jurisdiction of the Courts of New Delhi and that being the settled situation, now the complainant cannot travel beyond the said rules as he had already accepted the said rules during execution of agreement. Therefore, in view of the abovementioned clause the grievance of the complainant can only be adjudicated by the Courts of New Delhi, not the ld. District Forum, Burdwan and hence this ld. District Forum has no authority and jurisdiction to try and dispose of the disputes pending by and between the parties. For this reason prayer has been made by the Ops for dismissal of the complaint due to want of jurisdiction.
Both the complaint as well as the written objection has been filed by the parties on affidavit. The complainant has filed several documents to substantiate his case. Both parties have relied on several Rulings in support of their respective contentions.
We have carefully perused the record, documents and the Rulings as relied on by the parties and it is seen by us that admittedly the complainant applied for a dwelling house and booked the same making payment of Rs. 1,00,000=00 through demand draft on 31.8.2013, registration fees of Rs. 1,000=00 was paid by him, flat was allotted to him by the Ops, necessary papers was remitted to him by the Ops for his signature, namely, acceptance and undertaking, the said form was required to be returned by the complainant by 31.10.2013, the same was not returned by him, due to financial stringency the complainant did not inclined to proceed further in the scheme and prayed for cancellation of his name from the booking list, the Ops was requested by the complainant to refund the booking amount of Rs. 1,00,000=00 to him, the said amount has not been refunded to the complainant till filing of this complaint, several written correspondences were made by him with the Ops, no fruitful steps have been taken by the Ops. Hence this case has been filed by the complainant praying for certain reliefs. The allegation of the complainant is that as he could not proceed with the said scheme due to some financial problem he requested the Ops to refund the booking amount of Rs. 1, 00,000=00 as paid by him, but till filing of this case no step has been taken by the Ops and no reply is also forthcoming from their end. According to the complainant such inaction of the Ops can easily be termed as deficiency in service as well as unfair trade practice. On the contrary, the case of the Ops is that as the complainant had accepted the clause no. 37 as mentioned in the GTC of IRWO, now the complainant cannot travel beyond the same wherein it is stated that the grievance, if any, in respect of the said scheme should be adjudicated by the Courts situated at New Delhi, not by this ld. District Forum, Burdwan. Plea has been taken by the Ops that this District Forum is not empowered to adjudicate this complaint and for this reason the complainant is not entitled to get any relief through this ld. Forum and he has to approach before the Arbitrator, New Delhi. In support of the contention of the Ops the ld. Counsel for the Ops has relied on the judgment passed by the Rajasthan SCDRC, Jaipur, reported in 1993 (2) CPJ (737) in the case of Bhagwati Chandwani vs. Sipani Automobile Ltd. & Anr. We have carefully perused the said judgment and in our view the said judgment is not applicable in the case in hand because the fact of the said case is not identical with the case in hand and moreover this Ruling does not support the contention of the Ops. The ld. Counsel for the Complainant has relied on several judgments i.e. 211 (1) CPR (1) passed by Hon’ble Kerala SCDRC wherein it has been held existence of Arbitration clause is not a bar for entertainment of complaint by CDRFs and Commission. Upon perusal of the judgment in our view the said Ruling is applicable in the case in hand. Another judgment as relied on by the complainant has been passed by the Hon’ble NCDRC, reported in 2010 (2) CPR (NC) 280 in the case of M/s. Magma Financial Corporation Ltd. vs. Pandit Ishwar Dev Thakur wherein it has been held by Their Lordships that the Arbitration proceeding were intimated much after the consumer complaint was filed and then Arbitrator gave award it would not render complaint or order passed by the Consumer Forum for infructuous. We have perused the said judgment and in our view the said Ruling does not match in the case in hand because the two facts are totally separate. No case has been made out by the complainant that before filing of this complaint arbitration proceeding started and Arbitrator has passed an award. Therefore, question does not arise for infructuous of any order of this ld. Forum. Therefore the term ‘infructuous’ does not arise in respect of any order of this ld. Forum. Another Ruling as relied on by the complainant passed by the Hon’ble NCDRC reported in 2011 (2) CPR (NC) 244 wherein it has been held it would defeat very purpose and object of the Act if the provisions of an agreement between the consumer and a service provider alone were to determine the jurisdiction of the Consumer Fora. In our view this judgment is applicable in the case in hand because the facts are almost same and identical in nature. The complainant has also relied on a landmark judgment of the Hon’ble NCDRC passed in the case of DLF Limited vs. Mridul Estate Private Limited reported in 2013 (2) CPR (NC) 756 wherein it has been held by Their Lordships that Consumer Forums constituted under the C.P. Act are not bound to refer the dispute to the Arbitrator in view of the Arbitration clause mentioned in any document of the OP.
Upon perusal of the said judgment it is seen by us that the facts of the said case is totally same and identical with the case in hand and not only that Their Lordships have relied on several landmark judgments passed by the Hon’ble Supreme Court.
The ld. Counsel for the complainant has also relied on an order passed by the Hon’ble SCDRC, West Bengal in the Revision Petition being No. RP 22/2014 wherein it has been held that Section 3 of the C.P. Act, 1986 does not incline that rights created under the Act can be curtailed on the ground of pendency of other proceedings, viz. Arbitration proceedings.
In this respect we are to mention to the judgment of Kishore Lal vs. Chairman, Employees’ State Insurance Corporation (2007) 4 SCC (579), where the Hon’ble Supreme Court has held that-
‘The trend of the decisions of this court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of Civil Court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different for a have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated.’
In the case of Fair Air Engineers (P) Ltd vs. N.K. Modi (1996) 6 SCC (385) The Hon’ble Supreme Court after taking into consideration the provisions of the Consumer Protection Act, 1986, the Arbitration Act of 1996 and the Arbitration Act, 1940 held as under:
“The provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true that the words ‘in derogation of the provisions of any other law for the time being in force’ would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure i.e. to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.
It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act.”
In Skypak Couriers Limited vs. Tata Chemicals limited (2000) 5 SCC (294) the Hon’ble Supreme Court has again in the context Arbitration Act, 1940 observed as under:-
“Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an Arbitration clause will not be a bar to the entertainment of the complaint by the Redressal agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force.”
In the paragraph no-66 of the Madhusudhan Reddy’s case (supra) the Hon’ble Supreme Court has held that-
66. “The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an Arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force.”
Having regard to above-mentioned dictum of the Hon’ble Courts we are of the view this complaint is very much maintainable before this Ld. Forum inspite of existence of Arbitration and Conciliation Clause in the agreement.
We have noticed that the Ops in their written version have only challenged the maintainability of the complaint from the jurisdiction point of view. No statement has been assigned by the Ops in their written version regarding the fact of the complaint. During hearing also the ld. Counsel for the Ops did not advance any argument on the factual aspect and argued only on the law points i.e. this complaint is suffers from jurisdictional error as due to existence of arbitration clause in the agreement this complaint is not maintainable before this ld. Forum. This point has been discussed by us on the above in detail based on several Rulings passed by the Superior Courts. Now we turn up our eyes as to whether the complainant is at all entitled to get refund of the amount as deposited by him towards booking money for purchasing of a dwelling house to the Ops. The ld. Counsel for the Ops have argued that the complainant is not entitled to get refund of any amount through this ld. Forum, but he may get refund through the arbitration proceeding only. The contention of the complainant is that in view of general rules of Indian Railway Welfare Organization, April 2013 the complainant is very much entitled to get refund of the deposited amount and in this aspect he has attracted our notice the clause no. 20.1. We have carefully perused the said clause wherein it is enumerated that -
20.1 (a) if a member who has deposited commitment money in response to a demand survey withdraws from the scheme within one year of the closing date of the demand survey or before publication of the scheme brochure, whichever is earlier, 10% of the amount deposited will be forfeited and balance will be refunded without interest.
(b) if a member withdraws from the scheme after one year of the closing of the demand survey or before publication of the scheme brochure, no amount will be forfeited and the entire money will be refunded without interest.
(c) if a member withdraws from the scheme after the publication of the scheme brochure irrespective of time, 10% of the commitment money deposited by him will be forfeited and balance will be refunded without interest.
Upon careful perusal of the said clause we are of the view that the complainant is very much entitled to get back 90% of the deposited amount immediately and the balance amount will be forfeited and the complainant cannot claim the said forfeited amount having regard to the said clause as knowing fully well of the existence of the said clause in the rules the complainant has endorsed his signature and accepted the same. Be it mentioned that the complainant is not at all entitled to get any interest on the 90% of the deposited amount. During argument the ld. counsel for the Ops has submitted that the complainant is not entitled to get back any amount as in the general rules it is mentioned that after booking of the dwelling house the complainant is not entitled to get refund of the deposited amount. But the ld. Counsel for the Ops has failed to show us any existence of such clause in the general rules of IRWO. Therefore, where apart from the clause no. 20.1 there is no other clause by which means the claim of the complainant can be curtailed, hence we are of the view the complainant is very much entitled to get back 90% of the deposited amount without interest from the Ops.
In the prayer portion of the complaint the complainant has prayed for compensation and litigation cost due to unnecessary harassment and mental agony. In this respect we are of the opinion that admittedly inspite of existence of clause no. 20.1 in the general rules the Ops have harassed the complainant for quite a considerable period and did not pay any heed to his request regarding refund of the deposited amount and for this reason the complainant had to approach before the court of law for redressal of his grievance. Certainly in this way the complainant had to face unnecessary harassment and mental agony and for this reason in our view the complainant is entitled to get compensation from the Ops and litigation cost because by filing this complaint he had to incur some legal expenses.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint is allowed on contest with cost. The Ops are directed either jointly or severally to refund 90% of the deposited amount i.e. Rs. 90,000=00 (Rs. 1, 00,000 – Rs. 10,000) to the complainant without any interest within a period of 45 days from the date of passing of this judgment, in default, to make payment of the above amount the amount shall carry penal interest @8% per annum for the default period. The Ops are further directed for making payment of Rs. 2,000=00 as compensation due to unnecessary harassment and mental agony and also litigation cost of Rs. 500=00 to the complainant within a period of 45 days from the date of passing of this order, in default, the complainant is at liberty to put the entire decree in execution as per provisions of law.
Let a plain copy of this final order/judgment be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
