DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 82/2015
Date of Institution : 30.04.2015
Date of Decision : 28.08.2015
Makhan Lal son of Madho Ram, resident of Near D.C. Office, Barnala, Tehsil and District Barnala.
…Complainant
Versus
1. PACL India Ltd., Branch Office (Customer Service Centre), SCF-24, 22 Acre, Near Improvement Trust, Barnala, Tehsil and District Barnala, through its Authorized Signatory.
2. PACL India Ltd., Corporate Office, 7th Floor, Gopaldas Bhawan, 28, Barakhamba Road, New Delhi-110001 through its Managing Director/Authorized Signatory.
…Opposite Parties
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. DS Dhaliwal counsel for the complainant
Sh. Rajneesh Kumar Bansal counsel for opposite parties
Quorum.-
1. Shri S.K. Goel : President.
2. Sh. Karnail Singh : Member
3. Ms. Vandna Sidhu : Member
ORDER
(SHRI S.K. GOEL PRESIDENT):
Makhan Lal son of Madho Ram (hereinafter referred as complainant) has filed the present complaint under Consumer Protection Act, 1986 (hereinafter referred as Act) against PACL India Limited and another (hereinafter referred as opposite parties).
2. The facts emerging from the present complaint are that the opposite party No. 1 working under the opposite party No. 2 being a business branch has been rendering the banking services to the general public by offering the various investment schemes including Installment Payment Plan (Recurring Deposit Plan. The opposite party No. 1 offered the Installment Payment Plan to the complainant and relying upon the same the complainant accepted the said plan and it was agreed that the complainant shall pay the installment of Rs. 480/- monthly to the opposite party No. 1 for 5 years and 6 months and as a security the opposite party shall register one plot measuring 600 Square Yards in the name of the complainant and at the end of the said term the complainant has an option to take Rs. 43,640/- as the maturity amount from the opposite parties on deposit of the said registration letter to the opposite party No. 1. As per this representation of the opposite parties the complainant paid the amount of Rs. 480/- to the opposite party No. 1 as first installment vide receipt No. F0725189 dated 31.12.2008 at Barnala and according to the same the policy under the said plan was commenced from 31.12.2008 vide registration No. U017096794 under the payment plan No. I-1 for the term of 5 years 6 months and the same was to be expired on 30.6.2014. It is further averred that the registration letter cum receipt of first installment dated 31.12.2008 was issued by the opposite party No. 1 in favour of the complainant. All the regular installments were being deposited by the complainant at Barnala. It is further averred that the term of the said policy was expired on 30.6.2014, therefore, the complainant opted to take Rs. 43,640/- as maturity amount and deposited back the original copyof the said registration letter on 26.6.2014 at its office at Barnala under the name of Buy Back Letter and the printed acknowledgment regarding the same was given to the complainant. On 26.6.2014 it was told by the opposite party No. 1 that the said maturity amount of Rs. 43,640/- would be disbursed to the complainant within next 10/15 days but the said amount was not disbursed to the complainant by the opposite party No. 1 till now despite repeated requests by the complainant and personal visits to the office of the opposite party No. 1. Therefore, the said act/omission clearly amounts to deficiency in service on the part of the opposite parties and it clearly comes within the scope of the Consumer Protection Act, 1986. Hence the present complaint is filed seeking the following reliefs.-
1) To pay jointly and severally the maturity amount of Rs. 43,640/- alongwith interest from 26.6.2014.
2) To pay Rs. 10,000/- as compensation and Rs. 10,000/- as expenses of litigation.
3. Upon notice, the opposite parties appeared and filed written statement taking preliminary objections interalia on the ground that the opposite parties are neither collecting deposit from the public by promising lucrative high rate of interest nor issuing any kind of policy, rather it is a 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. Secondly, the complaint does not fall under the Consumer Protection Act as there is no deficiency in service as defined under Section 2 (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. It is further in the preliminary objections that the opposite party did not receive any deposit from the complainant and it only received advance consideration for purchase of land/plot as per the terms and conditions of the agreement executed between the parties.
4. On merits, the opposite parties have submitted that the complainant entered into an agreement bearing registration No. U017096794 with the opposite party for purchase of land/plot and deposited Rs. 31,680/- with the opposite party according to the terms and conditions of agreement which was executed between them. It is further submitted that the opposite party had not received any deposit from the complainant and the amount received from him is an advance consideration for purchase of land/plot. Company never promised to pay any money to the complainant and if the complainant is not came to take the plot in that case they would arrange for sale of his plot and he would receive only estimated plot realizable value. It is further submitted that Central Bureau of Investigation has freezed the bank accounts, properties and title deeds of the PACL Ltd. in case Crime No. R.C.BD 1/2014/E/2004 and the opposite party already approached the Hon'ble Delhi High Court against the orders of the CBI which is pending for adjudication. It is further submitted that the answering opposite parties are not able to make payment to its customers and such delay in refund to the complainant is neither intentional nor deliberate. Hence this is no deficiency of service. The opposite parties have denied the other pleas of the complainant and finally prayed for the dismissal of the complaint.
5. In order to prove his case, the complainant has tendered affidavit of Makhan Lal Ex.C-1, copy of registration letter dated 31.12.2008 Ex.C-2, copy of legal notice dated 31.10.2014 Ex.C-3, postal receipt Ex.C-4, copy of acknowledgment dated 26.6.2014 Ex.C-5, copy of renewal subscription slip Ex.C-6, copy of agreement Ex.C-7 and closed the evidence.
6. To rebut the case of the complainant the opposite party has tendered affidavit of Amit Kapila CSC Incharge Barnala Ex.OP-1 and closed the evidence.
7. We have heard the learned counsel for the parties and have gone through all the record on the file carefully.
8. Before adverting to the matter on merits, it is relevant to deal with preliminary 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.
9. 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.
10. The second preliminary 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 receipt Ex.C-6 showing the deposit of amount and expiry date is shown as 30.6.2014. The complainant has placed on record acknowledgment issued by the opposite parties Ex.C-5 dated 26.6.2014 indicating the deposit of the original copy of registration letter to the opposite parties under the name of buy back letter. Apart from this the complainant has also placed on record photocopy of registration letter cum policy Ex.C-2 showing the expiry date as 30.6.2014 and the maturity value is Rs. 43,640/-. 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.
11. 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.
12. The third objection taken by the opposite parties 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 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.
13. Now coming to the case on merits, firstly it is to be determined whether the complainant has paid the amount in question. To support his case the complainant has placed on record his detailed affidavit Ex.C-1, wherein he has stated that the complainant obtained the policy bearing No. U017096794 on 31.12.2008 and the said policy was matured on 30.06.2014 and he paid all the required payments. The complainant further stated that the maturity amount is Rs. 43,640/- but the same was not returned by the opposite parties despite requesting them again and again. Ex.C-5 is the copy of acknowledgment issued by the opposite parties. Ex.C-2 is the photocopy of the registration letter cum receipt issued by the opposite parties showing the maturity amount. On the other hand the opposite parties have placed on record only affidavit of one official Amit Kapila Ex.OP-1. Even, perusal of the affidavit Ex.OP-1 clearly shows that they have never denied the receiving of the deposit from the complainant but has shown helplessness in making refund of the same due to the pending proceedings in the Hon'ble Delhi High Court. It is also worth mentioning here that the complainant is a small depositor and he has invested his hard earned money for earning his livelihood. Law is crystal clear that no innocent person should suffer or lose his hard earned money from any powerful businessman, builder, real estate company or financial institution.
14. In view of the above discussion, this Forum is of the considered opinion that the opposite parties are bound to refund the amount to the complainant from all its available sources and assets. It has been proved and even admitted by the opposite parties in their written version that the complainant deposited Rs. 31,680/- with the opposite parties in monthly installments and the maturity amount was due on 30.06.2014 to the tune of Rs. 43,640/-. As we have already held that the opposite parties company is bound to return the promised amount, therefore, the present complaint is accepted and the opposite parties are directed to pay the maturity amount of Rs. 43,640/- to the complainant. Since the amount remained with the opposite parties, who have earned interest on it, therefore, the opposite parties are also directed to pay interest to the complainant on this maturity amount of Rs. 43,640/- at the rate of 10% per annum from the date of maturity i.e. 30.06.2014 till realization. The opposite parties have caused mental agony and physical harassment to the complainant, therefore, the opposite parties are also directed to pay Rs. 3,000/- to the complainant on account of compensation. Further, the opposite parties are also directed to pay Rs. 2,100/- 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:
28th Day of August 2015
(S.K. Goel)
President
(Karnail Singh)
Member
(Vandna Sidhu)
Member
