DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 343/2015
Date of Institution : 14.08.2015
Date of Decision : 27.01.2016
Kulwant Singh S/o Sh. Sikander Singh VPO Phullewala Tehsil Phull, District Bathinda.
…Complainant
Versus
PACL Limited, SCF-1,2,3, Bhai Mani Singh Nagar, 25 Acre Scheme, Improvement Trust, Barnala through its Branch Head.
…Opposite Party
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. Rajiv Goyal 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 Kulwant Singh (hereinafter referred as complainant) has filed the present complaint under Consumer Protection Act (in short as Act) against PACL India Limited (hereinafter referred as opposite party).
2. The facts emerging from the present complaint are that the complainant paid a sum of Rs. 61,500/- in cash to the opposite party through installments from 13.5.2009 and it was agreed between them that the opposite parties will pay an estimated amount of Rs. 90,920/- on 13.11.2014 and the opposite parties issued a policy cum registration letter in this regard bearing No. U017111494.
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 for the release of Rs. 90,920/- on 27.12.2014 and a receipt was duly issued by the opposite party. The opposite party told the complainant that the payment will be made within a few days. Thereafter, the complainant visited the office of the opposite party 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. 90,920/- alongwith interest.
2) To pay Rs. 25,000/- as compensation on account of harassment and Rs. 5,500/- as litigation expenses.
4. Upon notice, the opposite party filed 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. U017111494 dated 13.5.2009 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 party 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 party complainant has deposited a sum of Rs. 64,240/- 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 party 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.
7. In order to prove his case, the complainant has tendered into evidence his own affidavit Ex.C-1, copy of policy deposit receipt alongwith plan Ex.C-2 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 party. Firstly, the learned counsel for the opposite party 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 party in case Crime No. R.C. BD1/2014/E/2004 and the opposite party has 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 party is not tenable. Firstly, the opposite party has 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. 61,500/- through installments from 13.5.2009 and the opposite party promised to pay Rs. 90,920/- on 13.11.2014 i.e. on maturity date. In reply filed by the opposite parties there is no specific 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. 64,240/- with the company. In the last para of this affidavit it is specifically mentioned by the opposite party 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 these circumstances. Apart from the affidavit it is also relevant to refer the copy of the buy back letter Ex.C-2 which shows that the complainant deposited the policy documents with the opposite party on 27.12.2014 and copy of plan part of Ex.C-2 is also issued by the opposite parties which is un-rebutted shows the maturity amount as Rs. 90,900/- and maturity date as 13.11.2014. In fact the case of the complainant is un-rebutted qua the deposit made by the complainant as well as the maturity value and maturity date. It is also worth mentioning here that the complainant is a small depositor and has invested his hard earned money for earning his livelihood. Law is crystal clear that no innocent person should suffer or lose his/her hard earned money from any powerful businessman, builder, real estate company or financial institution.
15. In view of the above discussion, the present complaint is accepted and the opposite party is directed to pay the maturity amount of Rs. 90,900/- to the complainant. Since the amount remained with the opposite party, who has earned interest on it, therefore, the opposite party is also directed to pay interest to the complainant on this maturity amount of Rs. 90,900/- at the rate of 9% per annum from the date of maturity i.e. 13.11.2014 till realization. The opposite party has caused mental agony and physical harassment to the complainant, therefore, the opposite party is also directed to pay Rs. 3,000/- to the complainant on account of compensation. Further, the opposite party is also directed to pay Rs. 1,100/- to the complainant as litigation expenses. 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:
27th Day of January 2016
(S.K. Goel)
President
(Karnail Singh)
Member
(Vandna Sidhu)
Member
