| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA C.C. No. 82 of 19-03-2015 Decided on : 06-10-2015 Manohar Lal S/o Om Parkash R/o H. No. 28358, Gali No. 1, Multania Road, Near DD Mittal Towers, Bathinda. …... Complainant Versus PACL India Limited, SCF No. 39-40, Near Bibiwala Chowk, Bharat Nagar, Batinda, through its Branch Manager PACL India Limited, having its registered office at 22, Third Floor Ambar Tower, Sansar Chand Road, Jaipur (Rajansthan), through its MD/authorized person
.......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. Rajesh Kumar, counsel for complainant For the opposite parties : Sh. N K Singla, counsel for OPs. O R D E R Jarnail Singh, Member This complaint has been filed by Manohar Lal 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'). Briefly stated, the case of the complainant is that he adopted a scheme of the opposite parties on 20-06-2010 for five years and six months and Rs. 120/- were to be paid per month. Expiry date of agreement is 26-12-2015 and registration No. is U-018198262. It is pleaded that complainant has regularly paid installments upto December, 2013 i.e. for total 43 months. After that a dispute has arisen with regarding to financial capacity of opposite party, as such they did not accept the installments from the complainant and opted to refund the money. It is alleged that complainant approached the opposite parties several times and requested them to refund the amount of installments deposited by him, but opposite parties did not pay any heed to the request of the complainant. It is pleaded that there is deficiency in service on the part of the opposite parties. The complainant has claimed refund of Rs. 5160/- deposited by him alongwith interest thereon @ 18% P.A. from the date of deposit till payment and Rs. 10,000/- as damages in addition to Rs. 5,000/- as litigation expenses. 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 allots 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. On merits also, it is pleaded that complainant entered into agreement bearing registration No. U018198262 with the opposite parties for purchase of land/plot. After receiving the sale consideration amount land/plot to be allotted to complainant. According to agreement the complainant adopted monthly installment plan and face value of the property was sum of Rs. 10,910/- to be pain in 66 installments (Rs. 120 each installment). The complainant deposited only 42 installments i.e. Rs. 5040/- only out of total 66 installments. It is pleaded that opposite parties neither never gave assurance to complainant that advance land consideration amount will be refunded after stipulated period. The complainant did not obey term and conditions of the agreement and want to take benefit of his own wrong. According to agreement in case of installment payment plan, if customer makes a default by not paying on or more installments for a period of 12 consecutive months from the due date, such default shall be treated as breach of agreement, if such breach occurs before allotment of plot, the payment received under plan before the allotment shall be refunded after the expiry of 12 months from the due date of last installment only on furnishing specific written request. After deducting 6.25% of total consideration comprising various cost and other incidental expenses. There is no deficiency in service and complainant has no cause of action. It is also pleaded that there is an agreement between the parties that any dispute pertaining to the said agreement will be referred to the arbitrator for resolution of the dispute. The complainant should have invoked arbitration proceedings for the redressal of his grievances in accordance with the Arbitration and Conciliation Act, 1956. After controverting all other averments, the opposite parties prayed for dismissal of complaint. Both the parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence his affidavit dated 30-07-2015 (Ex. C-1), photocopy of letter (Ex. C-2) and photocopies of receipts (Ex. C-3 to Ex. C-16) In order to rebut this evidence, opposite parties have tendered into evidence affidavit dated 14-8-2015 of Joginder Singh (Ex. OP-1/1). We have heard learned counsel for the parties and gone through the record. Learned counsel for complainant has reiterated his version as pleaded in the complaint and detailed above. It is further submitted by learned counsel for the complainant that version of the complainant is duly corroborated by the documents. Receipt/policy Ex. C-2 proves the case of the complainant. This receipt was issued on 26-06-2010. As per this receipt the amount was to be paid in monthly installments of Rs.120/- and on expiry i.e. 26-12-2015, the complainant was to get Rs. 10,900/-. The complainant deposited 43 installments of Rs. 120/ each but thereafter dispute has arisen with regard to the financial capacity of the opposite parties and they did not accept the installments from the complainant and complainant opted to get refund of money. In written version, the opposite parties have also admitted the deposit of amount of Rs. 5040/-. The opposite parties have pleaded that this amount was deposited for land consideration, but no agreement is brought on file to prove that the amount deposited by complainant was for land consideration. The opposite parties have not produced any document to show that they were having any land which was to be offered/allotted to the complainant. Hence, the complainant is entitled to the refund of the aforesaid amount with interest from the date of deposit. On the other hand, the learned counsel for the opposite parties have submitted that no doubt the complainant has deposited the amount with the opposite parties but the said amount is received as advance consideration for purchase of land/plot as per terms and conditions of the agreement executed between the parties for sales and development of plot. Moreover according to agreement in case of installment payment plan, if customer makes a default by not paying one or more installments for a period of 12 consecutive months from the due date, such default shall be treated as breach of agreement. If such breach occurs before allotment of plot, the payment received under plan before the allotment was to be refunded after the expiry of 12 months from the due date of last installment only on furnishing specific written request after deducting 6.25% of total consideration comprising various cost and other incidental expenses. We have carefully gone through the record and have considered the rival contentions. The complainant has claimed that he has deposited Rs. 43 installments of Rs. 120/- each whereas the opposite parties have admitted in their written version that complainant has deposited 42 installments of Rs. 120/- each totalling to Rs. 5040/-. To prove his version, complainant has placed on file receipts Ex. C-3 to Ex. C-16, but a perusal of these receipts reveals that some of the receipts have been shown to be issued on the same date. In such circumstances, it is held that complainant is entitled to the refund of the amount admitted by the opposite parties. Admittedly, the complainant has not deposited all the installments. The complainant has stated that opposite parties did not accept the installments due to some dispute. Since the dispute has arisen, opposite parties were bound to refund the money got deposited from the complainant, which they failed to do so. As discussed above, as per receipts produced on file, the complainant has deposited the amount of many installments together instead of monthly basis as per settled condition of the receipt Ex. C-2. Hence, this Forum is of the considered opinion that complainant is not entitled to the interest from the date of deposit. In the result, this complaint is partly accepted with Rs. 1,000/- as cost and compensation. The opposite parties are directed to refund Rs. 5040/- with interest @ 15% per annum w.e.f 19-03-2015 (from the date of filing of complaint) till realization. The compliance of this order be made within 45 days from the date of receipt of the copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. 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
| |
