DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 111 of 09-04-2015

Decided on 06-10-2015

Harprit Kaur alias Bholi Kaur aged about 59 years W/o Sukhdev Singh Singh, R/o 99, Green Park, Sri Ganganagar (Raj).

…... Complainant

Versus

1. PACL India Limited, SCF 12, Bharat Nagar, Near Bibiwala Chowk, Bathinda, through its Branch Manager.

2. PACL India Limited, having its Corporate Office at : PACL House, B-1/5, Jwaldheri Road, Paschim Vihar, New Delhi 110 063 and also at 28, 7^th Floor, Gopaldas Bhawan,Barakhamba Road, New Delhi 110 001 through its Managing Director

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

Quorum :

Sh. M.P.Singh. Pahwa, President

Smt. Sukhwinder Kaur, Member

Sh. Jarnail Singh, Member

Present :

For the Complainant : Sh. A S Sekhon, counsel for complainant

For the opposite parties : Sh. N.K. Singla, counsel for opposite parties

O R D E R

M.P.Singh Pahwa, President

1. This complaint has been filed by Harpreet Kaur complainant under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against PACL Ltd., and others (here-in-after referred to as 'opposite parties').

2. Briefly stated, the case of the complainant is that her real brother namely Naib Singh deposited Rs. 2,50,000/- with the opposite parties on 27-05-2008 vide receipt No. F0744657. The opposite parties issued registration No. U018093115 and agreed to pay Rs. 5,22,500/- on 27-08-2014 to Naib Singh. Naib Singh nominated the complainant in the said transaction. The opposite parties issued certificate No. S. No. YF 23 A 3636665 in the name of Naib Singh giving all details of deposit and repayable amount with date of payment to Naib Singh.

3. It is further pleaded that Naib Singh also deposited Rs. 50,000/- with the opposite parties on 27-05-2008 vide receipt No. F0744652 for a period of six years three months. The opposite parties issued registration No. U018093110 and agreed to pay Rs. 1,04,500/- as on 27-08-2014 to Naib Singh. Naib Singh nominated the complainant in the said transaction. The opposite parties issued certificate S. No. YF 23 A 3636663 in the name of Naib Singh giving all details of the deposit and repayable amount with date of payment to Naib Singh.

4. Naib Singh also deposited Rs. 50,000/- twice on 27-5-2008 and 20-05-2008 vide receipts F0744650 and F0737658 respectively for a period of six years three months. The opposite parties issued registration No. U018093108 and U018092295 and certificates No. YF 23 A 3636662 and XU 45 A 5931831 respectively and agreed to pay Rs. 1,04,500/- against each deposit on 27-08-2014 and 20-08-2014.

5. As per complainant, her brother Naib Singh expired on 14-12-2013 at village Har Rai Pur, District Bathinda. The complainant has pleaded that she submitted all the original certificates, death certificates of Naib Singh, nomination papers and all other documents with opposite party No. 1 on 23-08-2014, which were duly acknowldged by opposite party No. 1. At the time of submission of original certificates and other documents, opposite party No. 1 assured the complainant that entire realized amount as on due dates with upto date interest @ 18% p.a. shall be paid to the complainant within few days. The complainant requested the opposite party No. 1 time and again for payment of due amount but the officials of the opposite parties are postponing the matter on one pretext or the other.

6. On this backdrop of facts, the complainant has claimed different due amounts as detailed above with interest @ 18% p.a. from due date till the date of payment. She has also claimed Rs. 2,00,000/- as compensation on account of mental tension and agony in addition to cost of Rs. 10,000/-.

7. Upon notice, opposite parties appeared through authorized representative Joginder Singh and contested the complaint by filing joint written version. In written version, the opposite parties raised preliminary objections that PACL Ltd. is neither the financial establishment nor non-banking financial and insurance company. It is not collecting/accepting deposit from the public by promising lucrative high rate of interest nor issuing any kind of policy, premium and maturity etc., It is Real Estate Company and engaged in the business of sale and development of agriculture land/plot, across the country and allot the land to its customer. The complainant does not fall under the definition of 'consumer' in the 'Act'. Since perusal of complaint shows that there is no deficiency in service on the part of the opposite parties as defined U/S 2(d) and unfair trade practice U/S 2( g) of the 'Act', therefore the complaint is liable to be dismissed. The company did not receive any deposit from the complainant. It only received advance consideration for purchase of land/plot as per the terms and conditions of the agreement executed between the parties for sale and development of land/plot. The complainant's claim is based on the agreement executed between the parties 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 this Forum has no jurisdiction to entertain the present complaint. That no cause of action has arisen in favour of the complainant against the opposite parties and the complaint is liable to be dismissed.

8. On merits also, the opposite parties controverted all the material averments and reiterated their version as taken in preliminary objections and detailed above. As per opposite parties, the complainant entered into agreement bearing registration No.U018093115 with opposite parties for purchase of land/plot unit and deposited Rs. 2,50,000/- under CDDP plan against the said registration number. It is also admitted that complainant deposited Rs. 1,50,000/- against three registration numbers under CDDP plan i.e. U018093110, U018093108 and U018092295 for purchasing of plot of land. It is also pleaded that the opposite parties never promised to pay any money to the complainant. They promised plot of land and if complainant is not keen to take her plot, in that case, opposite parties will arrange for sale of hers plot and she will receive only estimated realizable value of land.

9. It is further pleaded that due to dispute with SEBI and CBI, CBI has freezed the bank accounts and also seized various documents including of opposite parties in criminal case. The opposite parties have approached Hon'ble High Court of Delhi against the arbitrary orders of CBI. The complainant is fully aware that due to this reason, opposite parties are not refunding estimated realizable value of land. After controverting all the averments, opposite parties prayed for dismissed of complaint.

10. Parties were afforded opportunity to produce evidence. In support of her claim, complainant has tendered into evidence her affidavit dated 11-06-2015 (Ex. C-9), photocopy of policy (Ex. C-1 to Ex. C-4), photocopy of acknowledgement (Ex. C-5), photocopy of correction (Ex. C-6), photocopy of death certificate (Ex. C-7) and photocopy of Adhar Card (Ex. C-8).

11. In order to rebut this evidence, opposite parties have tendered into evidence affidavit dated 13-07-2015 of Sh. Naib Singh (Ex. OP-1/1).

12. We have heard learned counsel for the parties and gone through the record .

13. Learned counsel for complainant has reiterated his stand as set up in the complaint and as detailed above. It is submitted by learned counsel for the complainant that material facts are not in dispute. It is not disputed that Naib Singh, brother of complainant invested Rs. 2,50,000/- and Rs. 1,50,000/- (three amounts of Rs. 50,000/- each). Receipts Ex. C-1 to 4 prove deposit of amount by Naib Singh, brother of complainant. The opposite parties were to refund Rs. 5,22,500/- against deposit of Rs. 2,50,000/- and Rs. 1,04,500/- each against deposit of Rs. 50,000/- each on 27-08-2014 and 20-08-2014 respectively. Admittedly the opposite parties have not paid this amount. The deposit of amounts is also not disputed by the opposite parties. Of course the stand of the opposite parties is that they have promised plot of land but no agreement in this regard is brought on record. No details of the plot allegedly agreed to be allotted to Naib Singh is revealed in the written version. Moreover, in the affidavit Ex. OP-1/1 rather it is stated that opposite parties are not refunding the amount as the account is freezed by CBI. From this stand of the opposite parties, it is admitted that Naib Singh has deposited the amount and the opposite parties have failed to repay this amount. As such, the complainant is entitled to refund of the amount alongwith interest @18% P.A. It is also submitted by the learned counsel for the complainant that although as per promise of the opposite parties, the rate of interest was more than 24%, but still the complainant has claimed interest @ 18% P.A. which is not unreasonable.

14. On the other hand, the learned counsel for the opposite parties has submitted that complainant has concealed material facts. The complainant has not produced the entire record. As such, she is not entitled to any relief for this reason. In receipts Ex. C-1 to Ex. C-4 it is clearly mentioned that terms of booking and allotment shall be governed by the terms of Agreement and general terms and conditions printed overleaf. The complainant has withheld the documentary evidence. Moreover as per receipts also, opposite parties promised for allotment of plot measuring 5000 Sq. Yds in case of deposit of Rs. 2.50 Lacs and plot measuring 1000 Sq. Yds in case of deposit of Rs. 50,000/- each. The estimated realizable value mentioned at the end of term was only regarding plot to be allotted to Naib Singh. It cannot be termed promise of refund. From all angles, complainant cannot claim refund of the amount. Therefore, complaint is liable to be dismissed.

15. It is further submitted by leaned counsel for the opposite parties that complainant has claimed interest @ 18% which is on excessive side. Even banks and financial institution advance the loans on interest @ 10% p.a. Hence, complainant is entitled to interest @ 18% p.a. as claimed by him.

16. We have carefully gone through the record and have considered the rival contentions.

17. The undisputed facts are that Naib Singh was brother of complainant. He deposited Rs. 2.50 Lacs and Rs. 1.50 Lacs (three amounts of Rs. 50,000/- each) with the opposite parties. The receipts Ex. C-1 to Ex. C-4 proves this fact. Of course it is mentioned in the receipts that terms of booking and allotment shall be governed by terms of agreement and general terms and conditions mentioned overleaf. Neither complainant nor the opposite parties have brought on record any such agreement containing these terms. The opposite parties were supposed to be in possession of the agreement, but they have failed to produce agreement. In receipts the estimated realizable value is mentioned as Rs. 5,22,000/- against deposit of Rs. 2.50 Lacs and Rs. 1,04,500/- each against 3 amounts of Rs. 50,000/-. The stand of the opposite parties is that this amount was for allotment of plot, but there is nothing on record to prove that opposite parties have allotted or offered to allot any plot to Naib Singh. In the affidavit Ex OP-1/1 rather it is mentioned that opposite parties are unable to refund the amount as the account is freezed. This version of the opposite parties also proves two facts. Firstly Naib Singh deposited various amounts with the opposite parties and secondly opposite parties were to repay this amount. Therefore, the case of the complainant stands proved from both angles. Admittedly, the opposite parties have not repaid the amounts. Therefore, the complainant, being nominee of Naib Singh is entitled to refund of the amounts.

18. Now coming to the rate of interest. It is not disputed that as per calculation, the rate of interest offered by the opposite parties to the complainant was more than 24% p.a. The complainant has claimed interest @ 18% p.a. but this claim of the complainant is considered on the excessive side. As such, the complainant is held entitled to the interest @ 15% p.a. from due dates.

19. For the reasons recorded above, complaint is partly accepted with cost and compensation of Rs. 5,000/-. The opposite parties are directed to refund the amount of Rs. 5,22,000/- plus Rs. 2,09,000/-with interest @ 15% p.a. w.e.f. 27-08-2014 and Rs. 1,04,500/- with interest @ 15% p.a. w.e.f. 20-08-2014,(i.e. From due dates of payment) till realization, to the complainant within 30 days from the date of receipt of copy of this order.

20. The complaint could not be decided within the statutory period due to heavy pendency of cases.

21. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced :

    06-10-2015

    (M.P. Singh Pahwa )

    President

     

     

    (Sukhwinder Kaur)

    Member

     

     

    (Jarnail Singh )

    Member