DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 354/2015
Date of Institution : 14.08.2015
Date of Decision : 18.01.2016
Mahadev Sharma aged about 31 years son of Sh. Vidya Sagar resident of Ward No. 9, Saran Patti, Handiaya, Tehsil and District Barnala.
…Complainant
Versus
1. PACL India Limited (Pearls), Registered Office 22, 3rd Floor, Amber Tower, Sansar Chand Road, Jaipur-302004 through its Authorized Signatory/Managing Director.
2. PACL India Limited (Pearls), 22 Acre Scheme, Barnala Through its Branch Manager.
…Opposite Parties
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. Dhiraj Kumar counsel for the complainant
Sh. Rajneesh Kumar Bansal counsel for opposite parties
Quorum.-
1. Shri S.K. Goel : President.
2. Shri Karnail Singh : Member
3. Ms. Vandna Sidhu : Member
ORDER
(SHRI S.K. GOEL PRESIDENT):
The complainant Mahadev Sharma (hereinafter referred as complainant) has filed the present complaint under Consumer Protection Act (in short as Act) against PACL India Limited and another (hereinafter referred as opposite parties).
2. The facts emerging from the present complaint are that the complainant paid a sum of Rs. 50,000/- in cash through fixed deposit on 16.2.2014 to the opposite parties and it was agreed between them that the opposite parties will pay an estimated amount of Rs. 1,01,400/- on 15.2.2020 and the opposite parties issued a policy cum registration letter in this regard bearing No. U017238128.
3. It is further averred that the complainant as per terms and conditions of agreement the complainant went to the office of opposite party No. 2 and tried to submit the registration letter cum policy in the office of the opposite party No. 2 for the release of Rs. 50,000/- alongwith interest but they refused to accept the policy. So, the complainant got issued a legal notice through counsel to the opposite party No. 2 on 5.8.2015 for surrender of policy and release of Rs. 50,000/- alongwith interest but of no use. Thereafter, the complainant visited the office of the opposite party No. 2 many a times but the payment was not made. Thus, it is alleged that it is a case of unfair trade practice and deficiency in service on the part of the opposite parties. Hence present complaint is filed seeking the following reliefs.-
1) To make the payment as per agreement i.e. Rs. 50,000/- alongwith interest.
2) To pay Rs. 5,000/- as compensation on account of harassment and Rs. 3,000/- as litigation expenses.
4. Upon notice, the opposite parties filed a joint written statement in which they submitted that opposite party is a real estate company which is engaged in the business of sale and purchase of land and development and construction of residential as well as commercial projects. In the present case the complainant had applied for a piece of land vide registration No. U017238128 dated 15.12.2014 and the complainant had duly executed an agreement with the company for the same. Secondly, present complaint does not fall under the purview of Consumer Protection Act as there is no deficiency in service on behalf of opposite parties as defined under Section 2 (1) (g) of the Act. Thirdly, the complainant's claim is based upon the agreement executed between them and there is an arbitration clause in the agreement according to which parties should invoke arbitration proceedings and therefore this Forum has no jurisdiction to entertain the present complaint. Fourthly no cause of action has been arisen in favour of the complainant to file the present complaint.
5. It is further submitted that as per record of opposite parties complainant has deposited a sum of Rs. 50,000/- only with company against sale consideration of the plot for the aforesaid registration.
6. It is further submitted that Central Bureau of Investigation has registered a case against the opposite parties company M/s PACL Limited vide R.C. BD1/2014/E/0004 under Section 420 and 120-B of IPC on 19.2.2014 and pursuant to the same it has passed directions to the concerned banks for freezing of its bank accounts. The opposite party has filed a writ petition No. 705/2014 before the Hon'ble High Court of Delhi against the directions of CBI for de-freezing of bank accounts and vide order dated 6.5.2014 the Hon'ble High Court allowed de-freezing the bank accounts. However, thereafter CBI again freezed the bank accounts of opposite party company. Then company has filed an application bearing Crl. M.A. No. 12444/2014 in the aforesaid writ petition No. 705/2014 before the Hon'ble High Court of Delhi and the said application is still pending. It is further averred that due to the facts and circumstances as referred to above the opposite party is helpless to make payment to its customers including the complainant till the disposal of the appeal by the SEBI Appellant Tribunal Bombay (SAT) and de-freezing of bank accounts by Hon'ble High Court of Delhi. Hence it is alleged that there is no deficiency of service and cause of action. They have denied the other allegations of complainant and finally prayed for the dismissal of the complaint.
7. In order to prove his case, complainant has tendered into evidence his own affidavit Ex.C-1, copy of policy Ex.C-2, copy of legal notice Ex.C-3, copy of postal receipt Ex.C-4 and closed the evidence.
8. To rebut the case of the complainant the opposite party has tendered affidavit of Varinder Singh CSC Incharge Barnala Ex.OP-1 and closed the evidence.
9. We have heard the learned counsel for the parties and have gone through all the record on the file carefully.
10. Before adverting to the matter on merits, it is relevant to deal with objections raised by the opposite parties. Firstly, the learned counsel for the opposite parties has contended that the complainant's claim is based upon the agreement executed between them and there is an Arbitration Clause in the agreement, according to which the parties should invoke arbitration proceedings for the redressal of their grievances and therefore being an exclusion clause in the agreement this fora is not competent to deal with the present complaint. On the other hand learned counsel for the complainant contended that the jurisdiction of this Forum is not barred by Arbitration Clause. After hearing the learned counsel for the parties we are of the view that this fora has the jurisdiction to deal with this complaint notwithstanding any Arbitration Clause in the agreement.
11. In case titled Associated Road Carriers Ltd. Versus Kamlender Kashyap & Ors reported in I (2008) CPJ-404 (NC), it was observed that additional remedy is provided under Section 3 of the Act and jurisdiction of fora is not barred by Arbitration Clause. Further in case titled Pasumarthi S.N. Murthi (Dr.) Versus Nischint Constructions reported in I (2003) CPJ-399 (A.P.), it was observed that fora is at liberty to proceed with matters rather to relegate to arbitration since the Act intends to relieve consumers of cumbersome arbitration proceedings. Keeping in view the citations as referred to above this complaint is maintainable in this Forum.
12. The other objection taken by the opposite party is that Central Bureau of Investigation has freezed the bank accounts of the opposite parties in case Crime No. R.C. BD1/2014/E/2004 and the opposite parties have already approached the Hon'ble Delhi High Court against the orders of the CBI and the matter is pending in the said Hon'ble High Court. In view of this the matter is subjudice and this Forum is not competent to proceed with the present matter till the matter is decided by the Hon'ble Delhi High Court. This contention of the learned counsel for the opposite parties is not tenable. Firstly, the opposite parties have not placed on record any stay order from any Competent Authority restraining this Forum not to proceed further. In the absence of any document in this regard it cannot be held that the matter is subjudice.
13. However, in case Adelkar Pratibha B (Mrs) And others Versus Shivajit Estate Livestock And Farms reported in II (2015) CPJ-221 (NC) it is held by the Hon'ble National Commission in para 7 that Remedy before Consumer Forum is primarily a Civil remedy whereas prosecution before and conviction by designated court is criminal remedy available to victim of fraudulent default, complaint maintainable.
14. Now coming to the case on merits, firstly it is to be seen whether the complainant has paid the amount in question. In his affidavit Ex.C-1 the complainant has specifically stated that he paid Rs. 50,000/- through fixed deposit on 16.2.2014 and the opposite parties promised to pay Rs. 1,01,400/- on 15.2.2020 i.e. on maturity date. In reply filed by the opposite parties there is no denial regarding the deposit made by the complainant. Even in para No. 9 of the affidavit Ex.OP-1 filed by the opposite parties it is clearly mentioned that the complainant deposited Rs. 50,000/- with the company. In the last para of this affidavit it is specifically mentioned by the opposite parties that the customer's money is safe and they are committed to its customers to fulfill their commitments. It further has stated that the opposite party company is helpless to make payment in view of the above circumstances.
15. During arguments the learned counsel for the complainant has contended that the public has lost faith in the opposite party company and more they are not returning the money of the various depositors even after maturity date. Therefore, it is no fun to continue with this policy. Therefore, the complainant even tried to deposit the original policy with required documents with the opposite party but they refused to accept the policy. Moreover it is submitted by the learned counsel for the complainant that an order has been passed by The Securities and Exchange Board of India passed in the month of August 2014 against the PACL, in which the PACL was directed as under.-
“PACL Limited, its promoters and directors, shall wind up all the existing Collective Investment Schemes of PACL Limited and refund the monies collected by the said company under its schemes with returns which are due to its investors... within a period of three months.”
16. Principles of natural justice and equity also provide that no innocent person should suffer or lose his/her hard earned money from any powerful businessman, builder, real estate company or financial institution. It is mentioned by the opposite parties that the complainant deposited Rs. 50,000/- with them through fixed deposit on 15.12.2014 but from the copy of policy Ex.C-2 it is clearly proved that the amount was deposited by the complainant with the opposite parties on 16.2.2014. There is nothing on the record to indicate that the opposite party is entitled to retain the invested amount of Rs. 50,000/-. No terms and conditions has been placed on record by the opposite party to indicate that they are entitled to forfeit the deposited amount of complainant.
17. As a result of the above discussion we are of the considered opinion that the present complaint is partly allowed and the opposite parties are directed to refund the amount of Rs. 50,000/- to the complainant alongwith interest at the rate of 9% per annum from the date of deposit till realization. However no order as to costs or compensation. This order shall be complied with within 45 days from the date of the receipt of this order. Copy of this order be supplied to the parties free of costs. The file be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
18th Day of January 2016
(S.K. Goel)
President
(Karnail Singh)
Member
(Vandna Sidhu)
Member
