Karnataka

Bangalore 4th Additional

CC/15/1301

P.Muralidhar, B.Sc., LL.b. - Complainant(s)

Versus

Manager, M/s Unitech Limited - Opp.Party(s)

02 Apr 2018

ORDER

Complaint filed on: 13.07.2015

                                                      Disposed on: 02.04.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.1301/2015

DATED THIS THE 2^nd APRIL OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

P.Muralidhar, B.Sc., LL.b

27, 2^nd cross, KSFC layout, Lingarajapuram,

Bengaluru-84.

 

Inperson     

 

V/s

Opposite party/s

Respondent/s:-

 

1. Manager,

M/s.Unitech ltd.,

RO: Basement 6,

Community Centre,

Saket, New Delhi-110017

 

Ex-parte

 

2. Manager

Bajaj Capital ltd.,

Mittal Towers,

Mahatma Gandhi Road, Bengaluru-01.

 

By Adv.Sri.S.Kumar Swamy

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against the Opposite party no.1 & 2 (herein after referred as Op.no.1 & 2 or Ops) seeking issuance of direction to refund the principal amount of Rs.80,000/-. Further direct them to settle interest at 12.5% on Rs.1,00,000/- & on Rs.80,000/-. Further award Rs.35,000/- towards cost, transportation expenses and mental agony.  

 

          2. Initially, Complainant filed this complaint in respect of Fixed Deposit (FD) amount of Rs.1,40,000/-. By way of amendment, he has inserted another FD amount of Rs.40,000/-. The brief facts of the amended complaint are that, he had made 3 FDS totaling to Rs.1,80,000/- during last quarter of 2012 for 3 years @ 12.5% interest. The company issued FD receipts bearing numbers (i) 1193813 dtd.15.10.2012 for Rs.40,000/- (ii) 1195328 dtd.05.10.2012 for Rs.1 lakh (iii) 1200399 dtd.05.12.2012 for Rs.40,000/-. The Complainant further submits that, before filing this complaint, he had sent an email request on 07.07.15 to Op.no.1 to settle all the above three FDs prematurely. He sent the email by speed post along with original FD receipts, duly discharged. Inadvertently he did not retain a copy of FDR 1193813 dtd.15.10.2012 and hence did not include it in his complaint. This mistake may kindly be condoned. The Complainant further submits that, Op.no.1 in two of their communications dtd.01.02.16 and 01.05.16 had sent Form 15H for my signature and return. These documents conclusively establish that he had three FDs and not two. Op.no.1 settled the principal of Rs.1 lakh on 08.03.2016 against one of the FDs. Neither interest was paid nor other two FDs with interest was paid. Effectively he is still due to get Rs.80,000/- towards principal and interest on all the 3 FDs from 2012. Hence prays to allow the complaint.

 

3. On receipt of the notice, Op.no.1 did not appear and hence placed exparte. Anyhow on service of the notice, Op.no.2 did appear and filed its version denying the allegations made against it. The sum and substance of the objections of Op.no.2 are that, it acted only as a broker with a view to facilitate the Complainant to put FD amount with Op.no.1. Further there is no any deficiency of service on its part. Further it is contented that, after the receipt of the original FD certificate by the Complainant, the role and responsibility of Op.no.2 as a broker got over or completed. Hence after discharging the completion of issuance of receipt for the said FDs, Complainant later cannot blame Op.no.2 in respect of alleged deficiency of service. Hence prays to exonerate Op.no.2 in respect of the claim made by the Complainant. Hence prays to dismiss the complaint.

 

          4. The Complainant to substantiate his case filed affidavit evidence and got marked the documents as Ex-A1 to A3. Authorized Signatory/Representative of Op.no.2 filed affidavit evidence and got marked the documents as Ex-B1 to B8. Both filed written arguments. Heard both side.

  

5. The points that arise for our consideration are:

1. Whether this forum has territorial jurisdiction to try and dispose this complaint ?
2. Whether is there any deficiency of service on the part of Ops, if so, whether the Complainant entitled for the relief sought for ?  
3. What order ?

6.  Our answers to the above points are as under:

 

Point no.1: In the affirmative

Point no.2: In the affirmative

Point no.3: As per the final order for the following

 

REASONS

 

          7. Point no.1:  Looking to the cause title of the complaint it reveals that Complainant is a permanent resident of Bengaluru, so also the office of Op.no.2 is also situated in Bengaluru. When such being the fact, complaint filed by the Complainant before this forum is certainly maintainable, though the office of Op.no.1 is situated in New Delhi. Accordingly we answered the point no.1 affirmative.

 

8. Point no.2: The Complainant by way of amending the complaint has given the detail particulars in respect of his 3 FDs totaling to Rs.1,80,000/-, which are FD receipts bearing no. (i) 1193813 dtd.15.10.2012 for Rs.40,000/- (ii) 1195328 dtd.05.10.2012 for Rs.1 lakh (iii) 1200399 dtd.05.12.2012 for Rs.40,000/-.  

 

9. The Complainant during the course of his argument submits that Op has settled the amount of Rs.1 lakh of FD receipt no.1195328/05.10.12. With regard to the receipt of Rs.1 lakh is concerned, he further submits that, no interest has been received. We place reliance on the contents of the FD receipt no.1195328/05.10.12, wherein the date of deposit has been shown as 05.10.12, amount mentioned is Rs.1 lakh, FD period is 3 years, rate of interest @ 12.5% p.a., date of maturity is 05.10.15, amount payable on maturity is Rs.1,45,217/-. If the contents of the said FD are strictly construed, date of maturity was on 05.10.15. But looking to the contents of the complaint it reveals that Op.no.1 settled the principal amount of Rs.1 lakh on 08.03.16. The Complainant filed this instant complaint on 13.07.15 that means before the date of maturity period. With regard to the interest on the said FD amount of Rs.1 lakh is concerned, we feel it just and proper to direct the Op.no.1 to pay the interest as agreed at 12.5% p.a.

 

10. With regard to the FD receipt 1200399/05.12.12 is concerned, we place reliance on the contents of Ex-A2, wherein the date of deposit has been shown as 30.11.12, amount mentioned is Rs.40,000/-, FD period is 3 years, rate of interest @ 12.5% p.a., date of maturity is 30.11.15, amount payable on maturity is Rs.58,087/- i.e. after filing the complaint. As on today the said amount under the said FD receipt is already matured, in this context, we inclined to direct Op.no.1 to pay the said maturity amount of Rs.58,087/- to the Complainant, if not paid during the pendency of this proceedings.  

 

11. With regard to the FD receipt no.1193813/15.10.12 for Rs.40,000/- is concerned, Complainant has not produced the copy of the said FD receipt. Anyhow, the Complainant along with his affidavit evidence has produced one email sent to Op.no.1 which reads thus:

Dear Unitech Ltd.,

I had invested a sum of Rs.1,80,000/- as FD during Oct-Nov 2012 wide FDRs 1193813/15.10.12, 1195328/05.10.12 and 1200399/05.12.12. The FDs are for 36 months and in normal course they are due for maturity during Oct 2015 & Dec 2015. As I am in deep financial distress I have decided to prematurely withdraw the Fixed deposits.

In the light of the above, I am sending FDRs, duly discharged, by speed post alongwith a copy of this claim. I request you to settle the claim by 20.07.15, the latest as I have to meet urgent financial obligations.

 

12. If the above email text is meticulously considered, one thing is clear that, he kept the FD amount of Rs.1,80,000/- under the FD receipts no.1193813/15.10.12, 1195328/05.10.12 and 1200399/05.12.12. The said FDs are for 36 months and in normal course they are due for maturity during Oct 2015 & Dec 2015. He intends to prematurely withdraw the fixed deposits. This fact is not denied by answering Op.no.2. As we already stated above, though notice serviced on Op.no.1, it did not appear hence placed exparte. On service of notice, if the Op did not appear and not filed the version, it can be presumed that the claim of the Complainant is admitted in the light of the decision reported in 2018(1) CPR 325 (NC) in the case of Kotak Mahindra Old Mutual Life Insurance ltd., vs. Dr.Nishi Gupta, wherein it is held as under:

 

“non-filing of the written version amounts to admission of allegations made by the Complainant in the consumer complaint”.

 

13. Hence we are of the opinion that, Op.no.1 to pay the said amount covered under the FD, if not paid during the pendency of this proceedings with accrued interest thereon. Accordingly we come to the conclusion that there is deficiency of service on the part of Op.no.1 in not realizing the above said FD amount, as the Complainant decided to prematurely withdraw the fixed deposits. But anyhow, as on today the maturity date of all the 3 FDs are already over and out of 3 FDs the principal amount of Rs.1 lakh covered under FD receipt no.1195328/05.10.12 is already paid by the Op.no.1 and the same is admitted by the Complainant and only agreed rate of interest at 12.5% p.a. is payable on the said FD amount. With regard to the other 2 matured FD amounts are concerned, Op.no.1 has to realize the same. 

 

14. Further Complainant has sought for an amount of Rs.35,000/- towards cost of the suit, transport expenses and mental agony. Anyhow, we find laxity on the part of Op.no.1 in realizing the said matured FD amounts and interest on Rs.1 lakh. In this context, if an amount of Rs.10,000/- is awarded as compensation for mental agony which appears to be just and proper and if an amount of Rs.1,000/- being fixed for cost of litigation, the same is substantial part of amount.

 

15. Now the question that crops up for consideration is, to whom the liability is fastened ?  In the forgoing paragraphs, we directed Op.no.1 to pay interest on the FD amount of Rs.1 lakh and also to realize the matured amount of other 2 FDs. The answering Op.no.2 specifically taken the contention that, he acted only as a broker, hence the liability cannot be fastened on him. In this context, Op.no.2 in its written arguments cited the following reported decisions, which are

1. A.S.Pai vs. Deluxe Roadlines, III (1995) CPJ 44 (NC), Relevant portion reads thus:

There is no other material on the record relevant to the question of hiring of services of the appellant for consideration…..

The appellant has not charged from the Complainant any commission or service charges. The appellant is only a broker who introduced the owner/driver of the truck to the Complainant and acted only as a connecting link between the two…

The Complainant is thus not a consumer within the meaning of Sec.2(1)d(ii) of the Act and thus the complaint is not maintainable against the appellant.

2. Overseas Marine & Transport company vs. Gupta Carpet Palace and Ors, I (2009) CPJ 187 (NC), Relevant portion reads thus:

Consumer Protection Act, 1986-Sec.2(1)(g) – shipping agent – liability – once goods satisfactorily loaded on concerned ships/vessels – bills of loading issued – shipping agent has no further role to pay – responsibility for carriage/delivery of goods lies on carrier – carrier not even impleaded as party – Complainant instead of taking recourse to appropriate remedy against carrier or pursuing any other legal and proper remedy, filed completely baseless and misdirected complaint against shipping agent – State Commission erred in allowing complaint – order set aside in appeal.

3. Master Trust ltd., vs. Dr.P.K.Vasudeva & Anr., I (2002) CPJ 32 (NC) Relevant portion reads thus:

Consumer Protection Act, 1986-Sec.15-Appeal-Securities-FDR-refund-interest-liability of agent-non-payment of maturity amount – District Forum held, Ops deficient in service, jointly liable to refund the amount along with interest – hence appeal – appellant an authorized collecting agent – District Forum not legally justified in holding the appellant conjointly liable for repayment of money – appellant exonerated from liability.

4. Banka Finance & Investment service vs. Sucha Singh Bhati, III (2001) CPJ 398 (NC), Relevant portion reads thus:

Consumer Protection Act, 1986 – Sec.15 – Appeal – security – deposit – liability of agent -  maturity value not paid – forum held, Ops liable jointly and severally to make the payment – hence appeal – amount deposited in response to invitation of finance company – appellant acted in capacity of duly authorized agent – no reliable evidence produced to prove that appellant company in any way jointly and severally liable to pay maturity value along with finance company – appellant company not liable for payment of amount and interest as ordered by forum – order modified to the extent.

5. Sureshchandra V.Paresh vs. Ramvillas Maheshwari & Anr. II (2001) CPJ 543, Hon’ble Gujrat State Commission, Relevant portion reads thus:

(ii) Bank – liability of – bank merely a collecting agent of company not liable for any deficiency of service

6.  Bajaj capital ltd., vs. Shushi Suri, Chairman, Managing Director Morepen laboratories & Others – appeal no.481/2005 – Union Territory Consumer disputes redressal commission, Chandigarh, Relevant portion reads thus:

There was no allegation against the appellant of any deficiency at the part of appellant. We are of the view after collecting money from the Complainant and having remitted to same to M/s.Morepen laboratories ltd., which in due course issue the fixed deposit receipt to the Complainant. The job of the appellant was over and further service was to be rendered by the appellant. It was held that M/s.Bajaj Capital ltd., was not liable only the M/s.Morepen Laboratories ltd., was liable to pay the amount.

7. M/s.Bajaj Capital & Investment Centre ltd., vs. Peeyush Sharma & Others – appeal case no.171/1998, Chandigarh Consumer disputes redressal commission.
8. Bajaj Capital and Investment Centre ltd., vs. Veena Sharma & another – 2000-(CT-2)-GJX-0902-SCUTC- Union Territory Consumer disputes redressal commission, Chandrigarh. Relevant portion reads thus:

The role of the appellant was only to accept deposit for and on behalf of the Mc Dowell Krest Finance ltd., in this appeal and to remit the amount to the company for being deposited, the appellant incurred no liability for the payment of maturity value and interest thereon as the amount duly deposit with Mc Dowell Krest finance ltd., It was held that M/s.Bajaj Capital and Investment centre ltd., is not held liable for maturity value with interest thereon and course of Rs.250/-

9. Bajaj Capital ltd., Vs. Brig. Retd. Jasbir Singh & Anr. Hon’ble Union Territory Chandigarh State Commission, Relevant portion reads thus:

We have gone through the evidence on record as well as the impugned order and have heard the contentions of the parties. Admittedly the appellant is only a broker. Also admittedly, no payment or consideration had been paid by the Complainant to this Op for rendering service. It is also an admitted fact that the money invested through the appellant had been paid to Op.no.1 who accordingly issued FDR’s in question and does not deny its liability to pay the matured amount. In this view of the matter, we find merit in the contention of the appellant that he is not a service provider as defined in the CP act, 1986 as no consideration had been paid to it. Furthermore, it is admitted that as far as the service relating to putting the money in the FDR was concerned, the same had been properly done by the appellant and admittedly there is no deficiency of service in the same. In this view of the matter, we are of the clear view that the learned District Forum erred in holding Op’s jointly and severally responsible for making good the loss of the Complainant and in this view of the matter, the impugned order needs to be modified.

Consequently, the appeal is allowed and the impugned order is modified to the extent that the complaint against the appellant/Op.no.2 is dismissed and it succeeds only against Op.no.1.

10. Bajaj Capital ltd., vs. Arti Kawadia & Ors, Hon’ble Jaipur, Rajasthan State Commission, Relevant portion reads thus:

Further taking in to consideration that the appellant is only a broker and taking in to consideration that no payment or consideration had been paid by the Complainant respondents no.1 & 2 to the appellant and further taking in to consideration that the money invested through the broker ship of the appellant had been paid to respondents no.3 & 4 who had accordingly issued the FDR in favour of the Complainant respondents no.1 & 2, this commission is of the view that the appellant is not a service provider as defined in the Consumer Protection Act, 1986 as no consideration had been paid to its and thus we are of the clear view that the District Forum had erred in holding the appellant jointly and severally liable alongwith respondents no.3 & 4 and the impugned order deserves to be quashed and set aside so far as the appellant is concerned.

Consequently, the appeal filed by the appellant is allowed in the manner that the appellant would not be held jointly and severally liable in any manner along with respondents no.3 & 4 and the complaint filed by respondents no.1 & 2 against the appellant is dismissed and to that extent the impugned order dtd.20.10.2008 passed by District Forum, Udaipur is modified and rest order is maintained.

 

16. Referring to the said decisions, submits to exonerate Op.no.2 from its alleged liability. We placed reliance on the contents of the said judgment. We find there is considerable force in the contention taken by Op.no.2, as Op.no.2 is only a broker and no payment or consideration had been paid by the Complainant to Op.no.2. Further we have taken in to consideration that, money invested through the broker ship of Op.no.2 had been paid to Op.no.1 who accordingly issued the FD receipts in favour of the Complainant. Op.no.2 is not service provider as defined under CP Act, as no consideration had been paid to it and thus Op.no.2 is liable to exonerate i.e. no joint and several liability to be fixed on it. Accordingly we answered the point no.2 in the affirmative.

 

 17. Point no.3: In the result, we passed the following:

 

 

 

 

ORDER

 

          The complaint filed by the Complainant is hereby allowed in part.

 

2. Op.no.1 is directed to pay the interest on FD amount of Rs.1 lakh covered under FD receipt no.1195328/05.10.2012, so also, Op.no.1 is directed to pay the 2 matured FD amounts covered under FD receipts no.1200399/05.12.2012 and no.1193813/15.10.2012 to the Complainant, if the said amount not paid during the pendency of this proceedings.  

 

3. Op.no.1 is also directed to realize the said amounts within 6 weeks from the date of this order, failing which, the Complainant is at liberty to have the redress as per law.

 

4. Op.no.1 is also directed to pay compensation of Rs.10,000/- and cost of litigation of Rs.1,000/- to the Complainant.

 

5. Claim against Op.no.2 is dismissed.

         

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer in the open forum and pronounced on 2^nd April 2018).

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

 

 

 

 

 

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sri.P.Muralidhar, who being the complainant was examined. 

 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1 & A2	Fixed deposit receipt dtd.05.10.12, 05.12.12
Ex-A3	email

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.Vivek Kumar Singh, who being the Authorized Signatory/representative of Op.no.2 was examined.

 

Copies of Documents produced on behalf of Opposite party no.2

 

Ex-B1	Op.no.1 –company master details
Ex-B2	Op.no.2 –company master details
Ex-B3	Details of Op.no.1
Ex-B4	Details of Op.no.2
Ex-B5 to B8	Applications dtd.03.10.12, 28.11.12, 17.10.12, 29.11.12

 

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT