DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 114/2015
Date of Institution : 08.06.2015
Date of Decision : 17.09.2015
Manmeet Sharma aged about 37 years son of Haridev Sharma son of Jagan Nath Sharma resident of Shakti Nagar, Street No. 2, Barnala, 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. Dhiraj Kumar counsel for the complainant
Sh. Rajneesh Kumar Bansal counsel for the opposite parties
Quorum.-
1. Shri S.K. Goel : President.
2. Sh. Karnail Singh : Member
ORDER
(SHRI S.K. GOEL PRESIDENT):
The complainant Manmeet Sharma (hereinafter referred as complainant) has filed the present complaint under Consumer Protection Act (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 father of the complainant paid a sum of Rs. 2,00,000/- through fixed deposit on 28.2.2011 and it was agreed between them that the opposite parties will pay an estimated amount of Rs. 4,13,690/- to the complainant on 28.2.2017 and the opposite parties issued a policy cum registration letter in this regard bearing No. U017185959. It is further averred that in the meanwhile father of the complainant died on 22.12.2014. The father of the complainant appointed the complainant as his nominee in this policy.
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 the estimated value of Rs. 4,13,690/- on 28.1.2015 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. After few days the complainant alongwith respectable persons visited the office of the opposite party No. 2 for collecting the said amount. However, the opposite party No. 2 told to pay the amount 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 was alleged that it is the case of unfair trade practice and deficiency in service on the part of the opposite parties. Hence the present complaint is filed seeking a direction to the opposite parties.-
1) To make payment as per agreement of Rs. 4,13,690/- alongwith interest.
2) To pay Rs. 15,000/- as compensation and Rs. 10,000/- as litigation expenses.
4. Upon notice, the opposite parties filed a joint written statement taking preliminary objections interalia on the ground that the opposite party is 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.
5. On merits, it is submitted that father of the complainant entered into an agreement bearing registration No. U017185959 with the opposite parties for purchase of land and he had deposited total amount of Rs. 2,00,000/- with the opposite parties. However, the opposite parties never promised to pay any money to the complainant but promised for the plot and land, if the complainant is not keen to take his plot in that case they would arrange for sale of his plot and he will receive only estimated realizable value. It is further submitted that complainant has made claim for settlement in respect of agreement registration No. U017185959 which is going to expire on 28.2.2017, so the claim of the complainant is premature. The claim of the complainant shall entertain by the opposite parties only after the expiry of agreement i.e. 28.2.2017. Hence there is no deficiency of service and cause of action. They have denied the other allegations of the complainant and finally prayed for the dismissal of the complaint.
6. In order to prove his case, the complainant has tendered into evidence his own affidavit Ex.C-1, copy of death certificate of Haridev Sharma Ex.C-2, copy of receipt dated 28.1.2015 alongwith Plan Ex.C-3 and closed the evidence.
7. To rebut the case of the complainant the opposite parties have tendered affidavit of Varinder Singh CSC Incharge Barnala Ex.OP-1 and closed the evidence.
8. We have heard the learned counsel for the parties and have gone through all the record on the file carefully.
9. Before adverting to the matter on merits, it is relevant to deal with preliminary objections raised by the opposite party. 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.
10. 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.
11. 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 father of 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-3 copy of acknowledgment issued by the opposite parties dated 28.1.2015 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 Plan showing the maturity value is Rs. 4,13,690/-. 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.
12. 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.
13. Now coming to the case on merits, firstly it is to be determined whether the complainant has paid the amount in question. Ex.C-1 is the affidavit of the complainant in which it is specifically mentioned that the father of the complainant invested Rs. 2,00,000/- in cash with the opposite parties on 28.2.2011 and it was agreed between the parties that the opposite parties will pay the amount of Rs. 4,13,690/- to the father of the complainant on 28.2.2017, which fact is also admitted by the opposite parties in their written version and in affidavit of Varinder Singh CSC Incharge Barnala Ex.OP-1. Thus the father of the complainant has paid Rs. 2,00,000/- to the opposite parties. It is also proved by the complainant that his father died on 22.12.2014 during the pendency of this policy vide copy of death certificate Ex.C-2.
14. 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. Therefore, complainant also deposited the original policy with required documents with the opposite party on 28.1.2015 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.”
15. 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 father of the complainant deposited Rs. 2,00,000/- with them on 28.2.2011 but their only plea is that as the expiry of agreement is on 28.2.2017 so complaint is premature. There is nothing on the record to indicate that the opposite party is entitled to retain the invested amount of Rs. 2,00,000/-. 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 till its maturity. 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 till its maturity. It is important to mention here that the complainant has not placed on record any document to show that he is the nominee of his father Haridev Sharma and he is the only legal heir of said Haridev Sharma who is the original policyholder of the opposite parties.
16. As a result of the above discussion we are of the considered opinion that the present complaint is partly allowed and the opposite party is directed to refund the amount of Rs. 2,00,000/- to the complainant alongwith other legal heirs of Haridev Sharma the original policyholder of the opposite parties 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 after its due completion be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
17th Day of September 2015
(S.K. Goel)
President
(Karnail Singh)
Member
