Tamil Nadu

StateCommission

CC/10/2015

Mr.Antonio Santana, S/o.Mr.Francis - Complainant(s)

Versus

M/s.Tycoonn Plantation Pvt Ltd, rep by its Director, Mr.P.Govindarajulu, and 4 other - Opp.Party(s)

M/s.P.Munuswamy

26 Oct 2022

ORDER

Date of filing :09.12.2014

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble Thiru Justice R.SUBBIAH       ... PRESIDENT

             Thiru.S.KARUPPIAH      ... JUDICIAL MEMBER

 

C.C. No.10 of 2015

 

                                 Orders pronounced on:   26.10.2022

1.Mr.Antonio Santana,

S/o.Francis,

Door No.136, Santhiappa Street,

Konnur High Road,

Otteri, Chennai 600 012.

 

2.Mrs.Shanthi Santana,

W/o.Antonio Santana,

Door No.136, Santhiappa Street,

Konnur High Road, Otteri,

Chennai 600 012.                                 ... Complainants

 

vs.

 

1. M/s.Tycoonn Plantation P. Ltd.,

rep. by its Director - Mr.P.Govindarajulu,

No.6-A, Ram's Mansion,

Door No.386, Pantheon Road,

Egmore, Chennai 600 008.

 

2. Mr.P.Govindarajulu,

Director - M/s.Tycoonn Plantation P. Ltd.,

No.6-A, Ram's Mansion,

Door No.386, Pantheon Road,

Egmore, Chennai 600 008.

 

3. Mrs.G.Pushkala,

Authorised Signatory/Director,

M/s.Tycoonn Plantation P. Ltd.,

No.6-A, Ram's Mansion,

Door No.386, Pantheon Road,

Egmore, Chennai 600 008.

 

4. Mr.Kuppuraj,

Director, M/s.Tycoonn Plantation P. Ltd.,

No.6-A, Ram's Mansion,

Door No.386, Pantheon Road,

Egmore, Chennai 600 008.

 

5. Mr.Kalaivanan,

Manager-in-charge,

M/s.Tycoonn Plantation P. Ltd.,

Vengal Village,

Tiruvallur Taluk & District.          ... Opposite Parties.

 

                     For Complainants      : M/s.P.Munusamy                                     For OP Nos.1, 2, 4 & 5 : M/s.V.Balaji

                    For Opposite party 3    : Exparte      

 

This Complaint came up for final hearing on 25.08.2022 and, after hearing the arguments and perusing the materials on record and having stood over for consideration till this day, this Commission passes the following:-

 

O R D E R

R.Subbiah, J. – President.

 

             The complainants herein seek this Commission to direct the OPs to jointly and severally pay to them a sum of Rs.86,25,000/- towards promised investment maturity in respect of the investments made by them on 27.04.1993 in the OPs' Teak Tree Plantation Scheme which reached maturity for payment on 27.04.2013 in respect of Certificate Nos.S/145 to S/259 and another sum of Rs.10 lakh towards damages/compensation for the mental agony, pain, etc., besides litigation expenses.

 

             2. The case of the complainant, in brief, is as follows:-

             During 1993, the OPs herein made wide publicity of their Teak Tree Investment Scheme (in short 'Scheme'), calling upon the public to invest in their 20 Year Project with a promise that the investors would stand to gain financially innumerable times at the end of the investment period.  It was represented to the investors that, for investing in one Teak tree, the investor will have to pay a sum of Rs.875/- only and, at the end of the investment period of 20 years, the said single Teak Tree, after culling, would in return fetch a sum of Rs.75,000/-.  It was further represented by the OPs through brochures and advertisements that, at the then prevailing market rate of sale value of a Teak Tree, a 30 Cubic Feet of Teak Tree, after culling, would fetch a sum of Rs.24,000/- at approximately Rs.800/- per cubic feet in the year 1993 and, after 20 years, the very same 30 cubic feet of teak tree would definitely fetch a whopping rate of Rs.75,000/- (at Rs.2,500/- per cubic feet X 30 cubic feet per teak tree).  The complainant paid Rs.1,00,625/- on 27.04v.1993 under Certificate Nos.S/145 to S/259 - for 115 teak trees @ 875/- per teak tree that would fetch the maturity value of Rs.86,25,000/- on 26.04.2013.    Upon such investment, the OPs/Company executed a registered deed of sale, dated 08.08.1997, at the Office of the Sub-Registrar, Arani, for 0.50 Acre of land at S.No.67/8  of Vengal Village, Tiruvallur Taluk. The OPs had undertaken to maintain the teak trees for the scheme period of 20 years and also promised to pay minimum three interim incentives from the cullings.  While so, the 1st complainant got job in London where the family moved and they stayed there for 15 years.  In 2011, the complainants came back to Chennai and tried to contact the OPs but in vain.  After great difficulty, they were able to contact OP Nos.4 and 5, who stated that the teak trees did not grow to the expected level for deriving the assured price of Rs.75,000/- per tree and that they would be able to pay a sum of Rs.5,000/- only per teak tree. The said conduct of the OPs not only amounts to cheating and fraud but also exhibits their deliberate negligence that caused heavy loss to the investments made with them by the complainants, who have been put to untold agony and pain, physically & mentally.  The complainants issued a legal notice, dated 17.12.2011, followed by another notice, dated 10.09.2013, calling upon the OPs to pay the maturity value of the investment.  The OPs deliberately evaded to receive the said notice which was returned with the endorsement 'left'. The OPs thus failed and neglected to discharge the basic duty of rendering their part of service efficiently and honestly, as agreed and promised in the Investment Certificate and the said conduct amounts to glaring service deficiency, for which, the OPs are individually and collectively responsible.  Hence, the present complaint, seeking to grant the relief as aforementioned.

 

             3. The OPs resisted the complaint by filing a written version, inter alia stating thus:-

             The complaint for a claim of Rs.86,25,000/- and another sum of Rs.10 lakh towards compensation is not legally sustainable. As per term-4 of the Scheme, it was promised that, at the end of 20 years, the teak tree was likely to yield 30 cubic feet; as such, there is no categorical undertaking that such an yield would in fact definitely happen.  The complainant was given to understand clearly that the trees as they stood on the date of investment would be grown by the OPs to the best of their ability and that they are entitled to the value of the teak trees as available in the lands owned by them.  It is only after satisfying themselves about the project and genuineness of the offer made by the OPs, the complainants purchased the teak tree certificates from the OP.  The contract clearly stipulates only 'likely yield' and there is no definite assurance on the quantum.  Therefore, what was given in the contract is only an approximation of the likely income that would be derived.  The complainants, who have got the lands in addition to the trees in respect of which certificates were issued, have conveniently chosen to remain silent about the same.   They omitted to mention the crucial fact that, besides the trees in respect of which certificates were issued, they were given half an acre of land free of cost which is not part of the scheme; as such, on transfer of the said land, the complainants have already become the owners thereof and also the trees standing thereon and the 1st OP was only managing the said assets owned by the complainants. The value of the land together with the trees standing therein is more than commensurate with the expectations of the complainants.  The returns calculated by the complainants are based only on the tentative figures and they are entitled to the returns on the full grown teak trees together with the land on which those trees stand today.   There has been good appreciation which implies that the complainants  have made substantial profits even on the trees itself.  As against 115 trees, in respect of which certificates were issued to the complainants, nearly 200 trees had been planted and managed in the extent of land transferred to the complainants.  Therefore, the OPs have, in no way, ever deprived the complainants of the best possible returns, rather, they had taken all possible steps to ensure that, in the given circumstances, the trees had the best possible growth. The trees will approximately fetch Rs.15 lakh which implies that the complainants have made good profits even on trees, but, the complainants project as if that the trees planted had not grown and there would be no return on the same.  The trees together with the land will get more than adequate return for the investments made by the complainants.   Further, after the first legal notice, dated 17.12.2011, the OPs held talks with the complainants and clearly explained to them that they would have adequate returns on their investments.  That is why the complainants kept quiet for about three years, however, they have now grown avaricious and chosen to file a frivolous complaint.  Further, knowing pretty well that the OPs are not operating their office in the given address, intentionally, the complainants had sent the 2nd legal notice to the said address just to ensure that the said notice was not duly served.  It is absolutely unfair to allege any service deficiency or unfair trade practice against the OPs.  There is no factual basis for the sums claimed by the complainant and hence, the complaint is liable to be dismissed with costs.

 

             4. In order to prove the claim and counter-claim, both sides have filed their respective proof affidavits and, on the side of the complainants, 11 documents have been marked as Exs.A1 to 11, however, no documents has been marked on the side of the OPs.

 

             5. It is the main contention of the complainants that, enticed by the assurance of the OPs that the investment would fetch a return of Rs.75,000/- per Teak Tree on the date of maturity after the scheme period of 20 year,  the complainants had invested in the project and, contrary to such promise, to say that it is only a tentative value and not an assured one is to somehow escape from the liability and guarantee given in the investment certificate.  Secondly, when the scheme is confined to plant, manure, manage and grow the teak trees that would yield its value after 20 years, adding the value of the land which is not part of the Scheme at all would in no way help the OPs since the entire claim is based only upon the assured value of the grown-up teak trees. According to him, the Project/Scheme corresponds to growth and value of the teak trees only and its maturity value and thus, it automatically excludes the future potential value of the land which is not part of the scheme or maturity value.   Thirdly, after return from London, when the complainants visited the land where the trees stand, they found that the trees had no expected growth which shows that the OP failed to properly look after and maintain the trees, reflecting clearly the negligence and carelessness in their service and obligation, as promised and agreed upon under the scheme.  Inasmuch as the OPs are now going back on their promise to pay a sum of Rs.75,000/- per teak tree, the instance of service deficiency is glaringly apparent on their part and hence, the plea of the complainants deserves all acceptance.  So stating, learned counsel pleads to allow the complaint by granting the relief sought for therein.

             6. Per contra, learned counsel for the OPs would submit that there is no cause of action in this case to allege any service deficiency against the OPs.  According to him, only if the scheme gives the return value in definite terms, one can rise an argument on the fixed return, whereas, in the case on hand, what was stated in clear terms to the investors is that the teak tree was 'likely' to yield 30 cubic feet, as such, there is no categorical undertaking that such an yield would in fact happen. According to the learned counsel, the complainants derive their claim pointlessly from their own tentative calculations on returns, for which there is no basis at all.  Secondly, the argument of the complainants to exclude the land value has to be repelled as such for the reason that both the land and the trees standing thereon are indivisible in terms of value and return.  When the OPs have given the land to the complainants and had grown the teak tress in the said land, the complainants can reap the benefits of the grown up teak trees available and also the land-value and beyond that, they have no legal basis to claim anything. Further, after putting all their efforts, the OPs had raised the teak trees to the present level and if it is not upto the expectation of the complainants, they cannot blame the OPs or allege service deficiency without even visiting the place in question at least one single time in the whole of 15 years.  According to the learned counsel, had they done so, they would have understood the maximum efforts put in and the care taken by the OPs in growing the trees owned by the complainants to the present level.   At any rate, from the investment made by the complainants, now, they can derive maximum gains both from the land value of Rs.37.50 lakh and the tree value that approximately comes to Rs.15 lakh. Thus, there being no scope to allege any service deficiency, the complaint is liable to be dismissed at the threshold, he pleaded.

 

             7. In the light of the rival submissions, the point that arises for consideration in this case is as to whether the claim of the complainant that definite returns were fixed in the scheme is substantiated by them through tangible material so as to hold the OPs liable for service deficiency and further, whether, in the given factual scenario, the complainants herein fall within the ambit of 'consumers' as defined in the CP Act?

 

             8. It is the averment and contention of the complainants that, under the Teak Tree Certificates issued by the OPs upon the investments made, they were in fact 'assured'  of a return to the tune of Rs.75,000/- per teak tree on the date of maturity.   On the contrary, it is the defence of the OPs that no such assurance or guarantee was ever given to any investors including the complainant.  According to them, the terms of contract under the Investment Certificate only stipulate a 'likely yield' and there is no definite assurance on the quantum.  In between these two differing contentions, it would be apt to refer to the Investment Certificate marked as Ex.A2, wherein, clause-B(4) deals with yielding and it reads as follows:-

         " B. BENEFITS TO THE INVESTORS:-

                 ......

                 4. A Teek Tree, Managed by TP at the end of 20 years is likely to yield 30 Cubic Feet (Cft) of Teak Timber.  Taking today's price of Rs.800/- this would mean a yield of Rs.24,000/- per tree at today's price.  Based on 6% inflation this value of Rs.24,000/- would go upto Rs.75,000/- per tree, at the end of 20 Years."

A reading of the above clause only indicates that it does not speak about the yield in definite terms and on the contrary, it only projects a theoretical or speculative value which cannot be definite, as presumed by the complainants.   Therefore, as rightly pointed out, when the value is not assured or guaranteed and only a possibility is given, the complainant cannot have any legal basis to lodge a huge claim against the OPs, who are said to have grown about 200 teak trees   and maintained the same to the maximum extent possible for the scheme period and, apart from that, admittedly, the land had already been transferred to the complainants.  Also, the complainants had never visited the land for more than one and a half decade to know the developments that had taken place with the trees grown over there. In such circumstances, they have no locus standi to allege any service deficiency over the maintenance aspect of the trees in question by the OPs.  Apart from that, now, the land has its own value and also the trees that stand thereon.  Obviously, the trees grown there were not for self-use, rather, it is meant for commercial purpose to derive profits therefrom.  Nobody would  grow 100s of teak trees without the ambition of earning huge profits.  In such circumstances, as held in Prithiviraj Narayanrao Chavan vs. National Seeds Corporation Ltd. (I-2012-CPJ-382-NC), complainants having assumed dual capacity being purchasers as well as sellers of goods at same time, cannot be considered as Consumers. The purchase of the teak saplings under the investment scheme for ultimately deriving huge benefits from the grown up teak trees/timber denotes the commercial purpose involved and as such, the complainants cannot claim themselves to be consumers.  Hence, the complainants having miserably failed to make out a valid case in the capacity of consumers, no relief can be granted to them under the Consumer Protection Act, particularly when there is no scope for service deficiency attributable to the OPs.

 

             9. In the result, the complaint fails and it is dismissed as devoid of any merit. No costs.         

            

S.KARUPPIAH                                                                 R.SUBBIAH, J.

JUDL. MEMBER                                                            PRESIDENT.

 

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANT

•       Date            Description of Documents

 

1.  
2.  
3.  
4.  
5.  
6.  
7.  
8.  
9.  
10.  
11.  

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE OPs

                                            NIL.

 

 

S.KARUPPIAH                                                               R.SUBBIAH, J.

JUDL. MEMBER                                                            PRESIDENT.

 

ISM/TNSCDRC/Chennai/Orders/OCTOBER/2022.

 

 

Orders, dated     26.10.22, pronounced in

C.C. No.10 of 2015

 

 

         In the result, the complaint fails and it is dismissed as devoid of any merit. No costs.

 

 

JUDL. MEMBERPRESIDENT