DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 105/2015
Date of Institution : 08.06.2015
Date of Decision : 01.10.2015
Raghbir Kaur aged about 57 years wife of Kapoor Singh resident of #BXI/1736, Shakti Nagar, Gali No. 2, Ward No. 18, 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. Shri Karnail Singh : Member
3. Ms. Vandna Sidhu : Member
ORDER
(SHRI S.K. GOEL PRESIDENT):
The complainant Raghbir Kaur wife of Kapoor Singh (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 complainant has filed the present complaint on the grounds that she invested Rs. 30,000/- in cash with the opposite parties through installments at the rate of Rs. 2,760/- half yearly from 30.8.2008 and it was agreed between them that the opposite parties will pay an estimated amount of Rs. 43,600/- to the complainant on 28.2.2014 and opposite parties also issued a policy cum registration letter bearing No. U017086255.
3. It is further averred that on 21.3.2014 the complainant submitted the registration letter cum policy in the office of the opposite parties for the release of Rs. 43,600/- as stipulated and a receipt was duly issued by the opposite party No. 2 in this regard. Moreover the Manager of the opposite party No. 2 told the complainant that the payment would be made within few days and after some days the complainant 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 but the Manager asked the complainant to visit on the next week. Thereafter, the complainant again visited the office of the opposite party No. 2 but invain. Hence, it is alleged that it is a case of unfair trade practice and deficiency in service on the part of the opposite parties. It is also pleaded that the office of the opposite party No. 2 is at Barnala from where the complainant took the policy, therefore, the complaint is within the territorial jurisdiction of this Forum. Hence the present complaint is filed to seek the following reliefs against the opposite parties.-
1) To make payment of Rs. 43,600/- alongwith interest.
2) To pay Rs. 5,000/- as compensation due to humiliation and harassment and Rs. 3,000/- as litigation expenses.
4. Upon notice, the opposite parties filed a joint written statement taking preliminary objections interalia that firstly the opposite party is neither the financial establishment nor the banking financial and insurance company. Company is neither collecting/accepting the deposit from the public by promising lucrative high rate of interest nor issuing any kind of receipt against the premium, policy and maturity etc. but the opposite party is a real estate company and engaged in the business of sale and development of land/plot across the country and allot the land to its customer. Secondly, the complaint does not fall under the Act as there is no deficiency in service on the part of the opposite party and complaint is liable to be dismissed. Thirdly, the company did not receive any deposit from the complainant as it receives advance consideration for purchase of land/plot as per the terms and conditions of the agreement executed between them. Fourthly, the complainant's claim is based on the agreement executed between them and there is an arbitration clause in the agreement according by which the parties should invoke arbitration proceedings for the redressal of their grievances in accordance with the Arbitration and Conciliation Act, 1996 and therefore this Forum has no jurisdiction to entertain the present complaint. Fifthly, there is no cause of action has arisen in favour of the complainant and against the opposite parties to file the present complaint.
5. On merits, it is submitted that Balour Singh entered into an agreement bearing registration No. U017086255 with the opposite parties for purchasing plot of land and agreed to pay consideration amount but later on said Balour Singh transferred the agreement bearing registration No. U017086255 in the name of the complainant. As per agreement the complainant deposited a sum of Rs. 30,000/- with the opposite parties. However, it is submitted that the opposite parties never promised to pay any amount to the complainant but they promised that if the complainant is not keen to take her plot in that case the opposite parties will arrange for sale of her plot and she will receive only estimated realizable value. It is further submitted that Central Bureau of Investigation has freezed the bank accounts of the opposite parties in case Crime No. R.C.BD 1/2014/E/2004 and the opposite parties approached the Hon'ble Delhi High Court against the orders of the CBI which is pending for adjudication. It is further averred that due to this reason the opposite parties are helpless to make refund/payment to its customers and such delay in refund of the complainant is neither intentional nor deliberate but the same is for the reasons stated which were beyond the control of the opposite parties. They have denied the other allegations of the complainant and finally prayed for the dismissal of the complaint.
6. In order to prove her case, the complainant has tendered into evidence her own affidavit Ex.C-1, copy of receipt dated 21.3.2014 alongwith Plan Ex.C-2 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.
9. 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.
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 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-2 copy of acknowledgment issued by the opposite party No. 2 dated 21.3.2014 indicating the deposit of the original copy of registration letter to the opposite party No. 2 under the name of buy back letter. The complainant has also placed on record photocopy of Plan showing the maturity value as Rs. 43,600/-. 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. 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 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.
14. Now coming to the case on merits, firstly it is to be seen whether the complainant has paid the amount in question. To support her case the complainant has specifically stated in her detailed affidavit Ex.C-1 that she invested Rs. 30,000/- in cash through half yearly installments of Rs. 2,760/- from 30.8.2008. She further stated that the opposite parties agreed to pay Rs. 43,600/- to her on 28.2.2014 i.e. on maturity date and the opposite parties issued a policy cum registration letter bearing No. U017086255. On the other hand it is submitted by the opposite parties that agreement bearing No. U017086255 was entered by one Balour Singh with the opposite parties but it is admitted by the opposite parties that later on said Balour Singh transferred the agreement No. U017086255 in the name of complainant and thereafter as per agreement the complainant deposited a sum of Rs. 30,000/- with the opposite parties. Thus, there is no denial by the opposite parties that the investment of Rs. 30,000/- has been made by the complainant. It is also relevant to refer the para No. 7 of the affidavit of Varinder Singh Ex.OP-1 filed by the opposite parties wherein he stated that opposite parties are helpless to make refund/payment to its customers and delay in refund to the complainant is neither intentional nor deliberate but due to the reasons beyond the control of the opposite parties. Apart from the affidavit it is also relevant to refer the copy of the buy back letter and Payment Plan Ex.C-2 which shows that the complainant deposited the policy documents with the opposite party No. 2 on 21.3.2014. It is also relevant to refer payment plan under IPP which is part of Ex.C-2. Perusal of the same shows that against the consideration of Rs. 30,000/- the estimated value is mentioned as Rs. 43,600/-. The said payment plan is issued by the opposite parties and there is no denial of truthfulness of this document. On the other hand the opposite parties have not placed on record any document to show that the maturity value has not become Rs. 43,600/-. It is also worth mentioning here that the complainant is a small depositor and she has invested her hard earned money for earning her 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, 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. 30,000/- with the opposite parties in half yearly installments and the maturity amount was due on 28.2.2014 to the tune of Rs. 43,600/-. As we have already held that the opposite party 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. 43,600/- 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. 43,600/- at the rate of 10% per annum from the date of maturity i.e. 28.2.2014 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 of ours shall be complied with within 45 days from the date of the receipt of copy 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:
1st Day of October 2015
(S.K. Goel)
President
(Karnail Singh)
Member
(Vandna Sidhu)
Member
