DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 198/2015
Date of Institution : 17.07.2015
Date of Decision : 23.11.2015
Bhola Ram aged about 60 years son of Lachhman Das resident of Near Telephone Exchange, Cheema, 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. Chander Bansal 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 Bhola Ram (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. 1,87,500/- in cash to the opposite parties through installments of Rs. 8,760/- quarterly from 15.12.2009 and it was agreed between them that the opposite parties will pay an estimated amount of Rs. 2,72,800/- on 15.6.2015 and the opposite parties issued a policy cum registration letter in this regard bearing No. U017132770.
3. It is further averred that the complainant in compliance of the terms and conditions submitted the registration letter cum policy in the office of the opposite party No. 2 for the release of Rs. 2,72,800/- on 7.7.2015 and a receipt was duly issued by the opposite party No. 2. Moreover the Manager of the opposite party No. 2 told the complainant that the payment will be made within a few days and after some days the complainant again visited the office of the opposite party No. 2. However, the Manager told the complainant that the amount will be paid on the next week. 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. 2,72,800/- alongwith interest.
2) To pay Rs. 5,000/- as compensation on account of harassment and Rs. 2,000/- 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. U017132770 dated 15.12.2009 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 the opposite parties the complainant has deposited a sum of Rs. 69,165/- only with the 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, the complainant has tendered into evidence his own affidavit Ex.C-1, copy of policy Ex.C-2, copy of policy deposit receipt Ex.C-3 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 second objection taken by the learned counsel for the opposite parties is that the complainant has no cause of action as the opposite parties had not received any deposit from the complainant as it only received advance consideration for purchase of land/plot as per the conditions of the agreement. However this contention of the learned counsel for the opposite parties is untenable as no agreement or document has been placed on record to indicate that the deposit was received by them as advance for purchase and development of land/plot. The complainant has placed on record copy of acknowledgment Ex.C-3 issued by the opposite party dated 7.7.2015 indicating the deposit of the original copy of registration letter to the opposite party under the name of buy back letter. The complainant has also placed on record photocopy of policy Ex.C-2 showing the maturity value is Rs. 2,72,800/-. On the other hand the opposite parties have not rebutted these documents and moreover these documents have been issued by the opposite parties. Therefore, by stretch of any imagination the opposite parties cannot take the plea that the amount was an advance for purchase and development of the plot only and the complainant was not having any right to ask for the refund of this amount alongwith interest.
13. In case titled Y. Kanaka Reddy Versus Smt. D. Lakshmamma & Ors. Reported in I (2003) CPJ-232 (NC), it was observed that when the amount deposited under scheme and lumpsum payable and promised amount not paid then it was observed that deficiency in service proved and opposite party was held liable to refund deposited amount with interest.
14. The third 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. Moreover, the opposite parties have not placed on record any orders of the CBI or SEBI or Hon'ble Delhi High Court, so as this Forum may be in a position to assess the gravity of the proceedings and the consequential effects upon the proceedings pending in this Fora. In the absence of any document in this regard it cannot be held that the matter is subjudice.
15. Further, 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.
16. 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. 1,87,500/- through installments of Rs. 8,760/- quarterly from 15.12.2009 and the opposite parties promised to pay Rs. 2,72,800/- on 15.06.2015 i.e. on maturity date. In reply filed by the opposite parties there is 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. 69,165/- 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.
17. 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. It is further submitted that moreover no receipt is being issued by the office in case the installment is deposited. Therefore, it is no fun to continue to deposit the installments. Therefore, complainant also deposited the original policy with required documents with the opposite party on 7.07.2015 vide receipt Ex.C-3. 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.”
18. 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. Moreover it is admitted by the opposite parties that the complainant deposited Rs. 69,165/- with them through installments from 15.12.2009. There is nothing on the record to indicate that the opposite party is entitled to retain the invested amount of Rs. 69,165/-. No terms and conditions has been placed on record by the opposite party to indicate that they are entitled to retain the deposited amount of any customer. In the absence of any such terms and conditions it cannot be held that the opposite party is competent to retain the invested amount of the complainant.
19. 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. 69,165/- 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:
23rd Day of November 2015
(S.K. Goel)
President
(Karnail Singh)
Member
(Vandna Sidhu)
Member
