Chandigarh

StateCommission

A/94/2018

Unit Trust of India - Complainant(s)

Versus

Ms. Ashmeet Kaur - Opp.Party(s)

Aman Bahri, Adv.

31 Dec 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Appeal No.	:	94 of 2018
Date of Institution	:	25.04.2018
Date of Decision	:	31.12.2018

 

1.  Unit Trust of India through its Authorised Signatory/Branch Incharge Mr. Amit Handa, UTI Infrastructure Technology and Services Limited (UTI ITSL), Branch Office at SCO-70, Sector 20-C, Chandigarh 160 022.

2.  Unit Trust of India through its Authorised Signatory/Branch Incharge Mr. Amit Handa, UTI Infrastructure Technology and Services Limited (UTI ITSL), Head Office at Plot No.3, Sector 11, CBD Belapur, Navi Mumbai – 400 614.

…….Appellants/Opposite Parties.

Versus

 

Ms. Ashmeet Kaur daughter of Sh. Narinder Jit Singh Kohli, resident of House No.233, Sector 55, Chandigarh.

 

                                                     ...Respondent/Complainant.

 

Appeal under Section 15 of the Consumer Protection Act, 1986 against   order dated 01.03.2018 passed by District   Consumer Disputes Redressal Forum-I, U.T. Chandigarh   in Consumer Complaint No.225 of 2017.

 

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                MRS. PADMA PANDEY, MEMBER.

                MR. RAJESH K. ARYA, MEMBER.

 

Argued by:

 

Sh. Raghav Talwar, Advocate for the appellants.

Sh. Devinder Kumar, Advocate for the respondent.

 

PER  RAJESH  K.  ARYA, MEMBER

                   The appellants/opposite parties have filed this appeal against order dated 01.03.2018 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short ‘the Forum’ only), vide which, complaint bearing No.225 of 2017 filed by the respondent/complainant was partly allowed in the following manner:-

“10.   In the light of above observations, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same is allowed, qua them. The Opposite Parties are, jointly and severally, directed, to:-

[a]    To pay the balance amount of Rs.56,400/- as per the Scheme.

[b]     To pay Rs.25,000/- to the Complainant on account of deficiency in service, unfair trade practice and causing mental agony and harassment; 

[c]     To pay Rs.15,000/- as cost of litigation;

11.        The above said order shall be complied within 30 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @12% per annum on the amounts mentioned in sub-para [a] & [b] above from the date of institution of this complaint, till it is paid, apart from cost of litigation of Rs.15,000/-.”

2.              Before the Forum, it was case of the complainant that the agent of the Opposite Parties approached the father of the complainant for taking the Rajlakshmi Unit plan (II), said to be an exclusive plan for the benefit of the women, which provided for an investment that would grow 14 times in 20 years. The said agent assured that in case the father of the complainant would invest a minimum amount of Rs.1500/- in the plan, then after 20 years, the Opposite Parties would pay a sum of Rs.21,000/-. Allured by the green pastures projected by the said agent, the father of the complainant deposited a sum of Rs.5,000/- in the name of complainant i.e. Ashmeet Kaur in the aforesaid Plan on 20.08.1996 against Membership No. 400970070000576. The said membership consisted of 500 units (face value of Rs.10/- per unit) and the date of maturity was 20.08.2016. After completion of 20 years, the complainant through her father approached the Opposite Parties with a request letter dated 20.09.2016 to release the maturity amount, pursuant whereof, the Opposite Parties vide letter dated 28.09.2016 demanded certain documents, which the complainant submitted on 20.11.2016. However, instead of releasing the maturity value of Rs.70,000/-, the Opposite Parties credited a sum of Rs.13,600/- on the basis of 136 units in the account and Rs.4,552.71/- being interest accrued thereupon vide letter dated 30.11.2016. The complainant, immediately, through her father, protested against the same vide letter dated 28.01.2017 and requested to release the maturity amount, as per the Scheme, but neither reply nor any amount has been released to the complainant. Hence, a consumer complaint was filed before the Forum. 

3.             The opposite parties, in their reply, while admitting the factual matrix of the case, stated that the father of the complainant Sh. Narinderjit Singh Kohli had invested an amount of Rs.5,000/- in favour of Ashmeet Kaur on 20.08.1996 and allotted Unit Certificate No.400970070000576 for 500 units (face value of Rs.10/- per unit), as per the provisions of the Rajlakshmi Unit Plan (II). It was further stated that there were adverse equity and banking market conditions, which were eroding the capital in the kitty of the said Scheme, therefore, fearing a loss to the investors, the Opposite Parties decided to foreclose the Scheme along with other such Schemes launched by UTI vide notice in Indian Express, Mumbai dated 24.12.2003 and its news bulletin. It was further stated that as no response was received from the complainant, the amount payable on foreclosure amount i.e. Rs.13,664.71 was converted into Government ARS Bond of Rs.100/- each. It was further stated that Bond certificate sent to the complainant was received back undelivered and even there was no response to further communication.  It was further stated that on receipt of request from the complainant and compliance with requirements the foreclosure value of Rs.13,600/- along with accrued interest of Rs.4,552.71/- was credited to the bank account of the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of the opposite parties nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

4.             The complainant filed rejoinder wherein he reiterated all the averments contained in the complaint and repudiated those contained in the written version of opposite parties.

5.             The parties led evidence in support of their case.

6.             After going through the evidence on record and submissions of Counsel for the parties, the Forum partly allowed the complaint, as referred to above.

7.             Feeling aggrieved, the instant appeal, has been filed by the appellants/opposite parties.

8.                          We have heard the Counsel for the parties and, have gone through the evidence, and record of the case, carefully.

9.             It may be stated here that alongwith the appeal, an application for condonation of delay of 14 days in filing the appeal has been filed. We have gone through the reasons given in the application for condonation of delay. It has been stated in the application that certified copy of the order dated 01.03.2018 was delivered by hand to the Counsel for the appellant on 12.03.2018 and the same was dispatched to the office of the appellant at Chandigarh, which was received on 17.03.2018. Thereafter, for approval to file appeal, scanned copy of order was sent via email to Registered Office of the appellant at CBD Belapur, Navi Mumbai on 19.03.2018 and original copy of impugned order was received at Navi Mumbai on 23.03.2018. Approval to file reply was given by the competent authority on 27.03.2018 and statutory demand draft for filing appeal was received on 10.042018, which was sent to the office of the appellant at Chandigarh on 12.04.2018. For the reasons stated in the application, which is supported by a duly sworn affidavit and finding sufficient cause, the delay aforesaid is condoned. The application is disposed of accordingly.

10.           So far as the second application moved by the appellants for placing on record publication dated 24.12.2003 as Annexure A-4 is concerned, it may be stated here that the said document is already on record of Forum as Annexure – G at Page 40. Therefore, there is no need to put this document on record again. Accordingly, the application stands disposed of having become infructuous.

11.           Now coming to the merits of the case, the impugned order has been assailed by the appellants/opposite parties on the ground that the termination/ foreclosure of the Scheme by SUUTI in consultation with the Board was done with a bona fide intention to safeguard the interest of the beneficiaries with regard to the volatile market conditions. It was further stated that the communication of termination/foreclosure of the scheme was made by publication in the daily newspaper ‘The Indian Express’, Chandigarh Edition dated 24.12.2003. It was stated that the said publication having been made in a daily newspaper widely circulated in the area where the respondent/complainant has been residing, he cannot controvert contents of the said public document to support her contention on non-communication of the termination/foreclosure of the scheme. It was further stated that no assured return was ever promised to the respondent/complainant and her investment was subject to market risks and its value could appreciate or depreciate depending on the factors and forces affecting security market. Lastly, prayer to set aside the impugned order dated 01.03.2018 passed by the Forum was made. The Counsel placed reliance on Kumari Palvi (Minor) Vs. Unit Trust of India, 2002 (2) RCR (Civil) 503; Rajasthan Upbhokta Sanrakshan Samiti Vs. Unit Trust of India, 2002 (1) WLC 48; Rama Walia Vs. U.T.I. Technology Services Ltd. & Anr., Revision Petition No.1233 of 2014 decided by Hon’ble National Consumer Disputes Redressal Commission, New Delhi on 11.04.2016; Vijay Shakti Vs. Unit Trust of India & Anr., I (2012) CPJ 346 (NC) and Nitika Sharma Vs. Unit Trust of India & Ors., Revision Petition No.3956 of 2011 decided by Hon’ble National Commission on 03.04.2012.

12.           On the other hand, Counsel for the respondent/complainant argued that the alleged option form was never received by the respondent/complainant or that the bulletin (Annexure –G) carrying the condition was ever sent at the address of the complainants. It was argued that the Forum rightly rejected the plea of the appellants/opposite parties that said publication was made in a daily newspaper widely circulated in the area where the respondent/complainant has been residing. It was argued that the Forum, while holding deficiency, in rendering service, on the part of the appellants/opposite parties, rightly directed them to pay the balance amount of Rs.56,400/- as per the scheme. It was argued that it also rightly awarded compensation on account of deficiency in service, unfair trade practice and causing mental agony and harassment besides cost of litigation.

13.           The core question that falls for consideration before us, is, as to whether the option form giving option either to exit out of RUP-II Scheme or to opt for 6.6% ARS Bonds, was ever communicated by the appellants/opposite parties or received by the respondent/complainant and whether publication of Foreclosure of Assured Return Scheme (ARS), in question, was ever communicated to the respondent/complainant or circulated in the locality where the respondent/complainant was residing?  We are one with the view expressed by the Forum on aforesaid two issues. No doubt, the last date for receipt of duly filed option form was 16.02.2014. There is nothing on record of Forum that by which mode the alleged option form was sent to the complainant or when it was received by him. The appellants/opposite parties were to prove successful delivery of the aforesaid option form to the complainant. Furthermore, the ARS Bond Certificate sent to the respondent/complainant vide letter dated 17.04.2004 through registered post was returned back undelivered to the appellants/opposite parties by the Postal Authorities.

14.           So far as the second limb of argument qua press release in Times of India/Indian Express (Annexure – G) is concerned, perusal of the said document shows that it was Mumbai edition, which could not in any way said to have circulation in Chandigarh. The complainant resides in Chandigarh. Had the press release appeared in Times of India/Indian Express, Chandigarh Edition, the matter would have been different. The Forum, in Para 8 of its order, rightly held, inter-alia, as under:-

“8.…………..It is also not shown if the bulletin carrying decision of foreclosure was ever got published in the local daily newspapers sold in the Chandigarh region or that the bulletin which was published (Annexure-G) carrying the condition was ever sent at the address of the complainants. At any rate, the press release, the shelter of which is sought to be taken by the Opposite Parties to defend themselves, are Bombay based which are not circulated in the area of Chandigarh, therefore, it cannot be said that the Complainant/unitholder was well aware about the option to be exercised by her before 16.02.2004. In these set of circumstances, without proving that the foreclosure of the scheme had been conveyed to the complainant, to our mind, she cannot be deprived of the proceeds of the certificate under Rajlakshmi Unit Plan (II).  There is no dispute about the fact that the redemption money has been paid after the complainant applied for the same on 20.09.2016. The scheme terminated/ foreclosed w.e.f. 31.03.2004. For all these years, the opposite parties used the money of the complainant (unit holder). The Opposite Parties have also contended that the ARS Bond certificate was also dispatched to the bond holder’s/ Complainant’s recorded address on 17.04.2004 by registered post, which was returned as undelivered. However, we do not find any merit in this contention, as neither such a letter nor any postal receipt thereof have been placed on record by the Opposite Parties to substantiate their stand. In the absence of which, an adverse inference can be drawn against the Opposite Parties that in fact no such letter was ever send to the Complainant/bondholder that is why Opposite Parties failed to place on record the proof of postal receipt etc. For the sake of repetition, it is important to note that the onus to prove the delivery of the option form, as well as ARS bond certificate lay at the door of the Opposite Parties. However, there is no concrete evidence regarding the said fact showing that these were actually delivered to the Complainant, thus the above assertion is held to be hollow.   In these set of circumstances, the Complainant is held entitled for the amount as claimed in the Complaint and the Opposite Parties cannot escape their liability by taking the namby pamby pleas which leads this Forum nowhere. Accordingly, the Opposite Parties are liable to make the remaining payment to the Complainant. The action of the Opposite Parties withholding the remaining payment and thrust this unwarranted litigation on the Complainant, to our mind, amounts to deficiency in service and their indulgence into unfair trade practice.”

       

15.           Now dwelling on to the judgments relied upon by the Counsel for the appellants/opposite parties, it may be stated here that we have carefully gone through those judgment. The same have been decided based on facts involved in each and every case and therefore, the appellants/opposite parties cannot derive any benefit out of the same.

16.           It may also be stated here that in Fakir Mohd. (Dead) by L.R.s Vs. Sita Ram, 2002 (1) APEX COURT JUDGMENTS 325 (S.C.). the Hon’ble Supreme Court laid down the law that when notice is sent under certificate of posting, it is obligatory on the part of the sender to prove the service of notice in view of the statement on oath given by the addressee denying receipt of any such notice. Further in in the case of ‘IDBI Bank Ltd. & Anr. Vs. T. K. Nagarathna’, 2009 (1) CLT 108 (NC), the Hon’ble National Commission, in the absence of any acknowledgement, rejected the contention of the IDBI Bank that the call option was communicated through UPC. It may also be stated here that this Commission in the case of ‘Small Industries Development Bank of India Ltd. etc. Vs. Dr. Saraswati Gupta’, Appeal No.291 of 2009 decided on 07.01.2010, upheld the claim of the respondent/complainant for similar reasons. This Commission dismissed the appeal by observing that there was no document on the file for having sent any intimation to the complainant qua redemption. Aggrieved against order of this Commission, the appellants went in Revision Petition No.982 of 2010 before the Hon’ble National Commission, which was also dismissed on 02.02.2015. While confirming the order passed by this Commission, the Hon’ble National Commission held that the petitioner had not placed UPC receipt by which, intimation was sent to the respondent. It was further held that merely by this letter, it does not stand proved that intimation was given to the complainant by opposite party Under Certificate of Posting.

17.           In the instant case, nothing has been placed on record by the appellants/opposite parties, wherefrom, the mode of sending the alleged option letter or its receipt by the respondent/complainant could be judged. In the absence of any such document or acknowledgment, we endorse the view held by the Forum that it could not be said that the appellant/complainant was well aware about the option to be exercised by her before 16.02.2004. The action of the appellants/opposite parties withholding the remaining payment, in our considered opinion, amounted to deficiency in service and their indulgence into unfair trade practice. 

18.           No other point was urged by the Counsel for the parties.

19.           In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality, warranting the interference of this Commission.

20.           For the reasons recorded above, this appeal being devoid of any merit, is dismissed with no order as to costs. The impugned order passed by the District Forum is upheld.

21.           Certified copies of the order be sent to the parties free of charge.

22.           File be consigned to the Record Room after completion.

Pronounced

31.12.2018.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

(PADMA PANDEY)

        MEMBER

 

 

(RAJESH  K. ARYA)

MEMBER

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