DATE OF DISPOSAL: 10.02.2021
Sri Karuna Kar Nayak, Member:
The factual matrix of the case is that the complainant has filed this consumer complaint Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Party (in short the O.P.) and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that he is a self-employed and bonafide customer of the Opposite Parties by agreeing in writing and investing of Rs.50,000/- only by opening of account for dealing in E-Gold and E-silver on 31.03.2012. The member Registration No. (NSEL):13690, Unique Clint No. CAT04728 and DP Name: Stock Holding Corporation of India Ltd. Vide No. 1601010000386099. The O.P.No.3 is the Chief Administrative head of O.P.No.1 & 2. The O.P.No.1 is the head office, whereas the O.P.No.2 is the Branch Office of the O.P.No.1 & 3. As per letter of undertaking executed in between complainant and the O.P.No.1 & 3, the complainant opened a commodity trading account with the O.Ps by investing of Rs.50,000/-only which has been duly signed by the O.P.No.1. In referring to Annexure-2, the O.Ps agreed and ensured the complainant to execute the following:
a) The complainant (Second party to the letter of Undertaking) gives power of attorney to First Party (Opposite Parties of this case) to trade of E-Gold, E-Silver, E-Copper, etc. on behalf of second party i.e. the complainant.
b) On behalf of Second Party’s (the complainant) trading account, First party provides obligation margin up to 36 months.
C) The O.Ps also agreed to give margin-cum-consultancy fees (non-refundable) @Rs.694/-per month for Rs.25,000/- for the term 36 months from the date of Registration: 31.03.2012 to Date of Expiry:31.03.2015.
d) The O.Ps also agreed and having obligation that, ‘being the First Party (Opposite Parties in this case) fails to fulfill its obligation towards the customer, the second party (the complainant) may claim interests on his/her deposited amount at the prevailing bank rate of interest or in case of any dispute or differences between the parties hereto, then the matter shall be referred to the Arbitration under the Arbitration under the Arbitration and conciliation act, 1996.
As per the signed letter of undertaking, the O.Ps also agreed to pay the benefits on invested amount i.e. as per Annexure B as follows:
“On investment of Rs.50,000/- for 20 days @Rs.120/- per trading day, the second party will get @Rs.2400/-per month till 36 months and the total amount was a sum of Rs.86,400/-.” As per commitment, the complainant got a sum of @Rs.2400/- per month for 2 months only and the total amount was Rs.4800/-. In referring to Annexure-2, the Opposite Parties were given a murky of water from the ocean i.e. Rs.4800/- in two months out of Rs.86,400/-. Subsequently, the O.Ps to avoid the further payment of Rs.81,600/- to the complainant as per the written agreement, gave deaf ear to the demand of the complainant from time to time at the office as well as at the residence of the O.P.No.3 but to no avail. The O.P. No.2 left the office due to hue and cry of the general public at large. The O.P.No.3 was caught red-handed by the State Govt. police authority due to further delay in payment to other investors of the state like the complainant and now he is in jail custody since last one month. Now the O.P.No.3 is in jail at Bhubaneswar. Inspite of the above approaches, no tangible steps has been taken by the opposite parties as a result the complainant effected day in day out. The O.P.No.1 to 3 are responsible for the above deficiencies in service and having vicarious liability to pay the compensation for unfair trade practice, misleading advertisement and deficiency in service provided to the complainant. On account of the service deficient by the O.Ps the complainant sustained a loss of Rs.81,600/- towards margin for 34 months with interest on the amount of Rs.50,000/-. All the O.Ps are jointly and severally liable to compensate the complainant for deficient in service, misleading advertisement and unfair trade practice. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to return the amount of Rs.50,000/- paid by the complainant towards commodity trading i.e. E-Gold, E-silver and E-copper etc, to pay the rest of the margin amount as per Annexure-3 a sum of Rs.81,600/- for 34 months with interest @9% per annum till final realization of the total amount, Rs.50,000/- towards compensation and litigation cost of Rs.5,000/- in the best interest of justice.
3. 3. Notices were issued to the Opposite Parties but they neither appeared nor filed any written version. As such notice published in the daily newspaper “Anupam Bharat” dated 21.02.2017 for appearance and filing written version by the O.Ps but they did not appear. Hence the O.Ps are declared exparte on dated 18.05.2017.
4. On the date of hearing of the consumer complaint, the advocate for complainant is present. We heard argument from him for the complainant at length and perused the complaint petition, written argument and materials placed on the case record. In the instant case it reveals that the O.Ps received Rs.50,000/- only through DD paid vide Instrument No.082664 dated 31.03.2012drawn on SBI located Berhampur and issued payment acknowledgement receipt. It also reveals that the complainant has already received Rs.4,800/- from the O.Ps. But as per the terms of the deposit the O.Ps did not release the amount in favour of the complainant. So taking the sole testimony of the complainant as well as affidavit in to consideration, we accepted the contentions of the complainant as true. Law is well settled in case of Mrs. Puneet Kaur versus Hindustan Financial Management Ltd. and others reported in 2003(1) CPR 274 where in the Hon’ble National CDR Commission, New Delhi has held that “Non payment of fixed deposit amount on its maturity by Financial Institution constitutes deficiency in service”.
On foregoing discussion and In view of the above decision of law, the complainant’s case is allowed on exparte against the O.Ps. The Opposite Parties are jointly and severally liable as such they are directed to pay Rs.45,200/- (Rs.50,000/- -Rs.4,800/- already paid) only along with 8% interest per annum from the date of deposit i.e. on 31.03.2012 to the complainant within 60 days from receipt of this order. Further the O.Ps are also directed to pay Rs.5000/- for compensation alongwith Rs.2000/- as costs of litigation to the complainant within the above stipulated period failing which all the dues shall carry 12% interest per annum.
The order is pronounced on this day of 10th February 2021 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of
