DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 73/2015
Date of Institution : 24.04.2015
Date of Decision : 11.08.2015
Rajesh Kumar aged about 32 years son of Sh. Partap Chand, resident of Near Gurudwara, Village Salabatpura, PIN Code-151108, Tehsil Phul and District Bathinda.
…Complainant
Versus
1. PACL India Ltd., Branch Office (Customer Service Centre), SCF 24, 22 Acre, Near Improvement Trust Office, 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. GP Singh 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
3. Ms. Vandna Sidhu : Member
ORDER
(SHRI S.K. GOEL PRESIDENT):
Sh. Rajesh Kumar son of Sh. Partap Chand (hereinafter referred as complainant) has filed the present complaint under Consumer Protection Act (hereinafter referred as Act) against PACL India Limited (hereinafter referred as opposite parties).
2. The facts emerging from the present complaint are that the opposite parties offered a 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 installments of Rs. 1,750/- quarterly (Rs. 600/- monthly) to the opposite party No. 1 for 5 years and 6 months and as a security the opposite parties shall register one plot of 750 Square Yards in the name of the complainant. It is further averred that at the end of the term the complainant has an option to take Rs. 54,550/- as maturity amount from the opposite parties on deposit of the said registration letter. As per the said representation of the opposite parties the complainant paid the amount of Rs. 600/- to the opposite party No. 1 as first monthly installment at Barnala and accordingly to the same the policy under the said plan was commenced from 29.11.2008 vide registration No. U017094124 under Payment Plan No. I-1 for the term of 5 years and 6 months and the same was to be expired on 29.5.2014. It is further averred that the registration letter-cum-receipt of first installment dated 29.11.2008 was issued by the opposite party No. 1 in favour of the complainant. All the regular installments were deposited by the complainant to the opposite party No. 1 at Barnala.
3. It is further averred that the said policy was to be expired on 29.5.2014, therefore, the complainant opted to take Rs. 54,550/- as maturity amount and deposited back the original copy of said registration letter to the opposite party No. 1 on 18.6.2014 at its office at Barnala under the name of “Buy Back Letter” and the printed acknowledgment regarding the same was given to the complainant. It is further averred that on 18.6.2014 the opposite party No. 1 told that the maturity amount of Rs. 54,550/- would be disbursed to the complainant within next 10 to 15 days. However the said amount was not disbursed till today. Therefore, the said act/omission clearly amounts to 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 pay the amount of Rs. 54,550/- the maturity amount alongwith up to date interest from 29.5.2014 to the complainant.
2) To pay Rs. 10,000/- as compensation for causing physical pain, mental agony, inconvenience and to pay Rs. 10,000/- as litigation expenses.
4. Upon notice of this complaint the opposite parties filed a joint written statement taking preliminary objections interalia on the ground that the opposite party is neither the financial establishment nor the non banking financial company and is not collecting/accepting deposit from the public by promising lucrative high rate of interest whereas the opposite party is a real estate company and engaged in the business of sale and development of agriculture land/plot across the country and to allot the land to its customers. Secondly, the complaint does not fall under the Consumer Protection Act as there is no deficiency in service as defined under Section 2 (d) of unfair trade practice and 2 (g) of the Act, therefore, complaint is liable to be dismissed. Thirdly, the company did not receive any deposit from the complainant as it only received advance consideration for purchase of land/plot as per the terms and conditions of the agreement. Fourthly, 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 and lastly no cause of action has been arisen in favour of the complainant. On merits, the opposite parties have submitted that the complainant entered into an agreement bearing registration No. U017094124 with the opposite parties for purchase of land unit and complainant deposited land consideration amount of Rs. 38,800/- under IPP Plan. However the opposite parties did not receive any deposit from the complainant and the amount so received is an advance consideration for purchase of land unit and the same was received as per the terms and conditions of the agreement executed between them. Moreover the opposite parties never gave assurance to the complainant that land advance consideration would be refunded after prescribed period. It is further submitted that Central Bureau of Investigation has seized the various documents including deeds and freeze the bank accounts of the PACL Ltd. in case Crime No. R.C.BD 1/2014/E/0004 and the opposite parties approached the Hon'ble Delhi High Court and the matter is pending for de-freezing the account. It is further submitted that the opposite parties also challenged the arbitrary order dated 22.8.2014 passed by SEBI before SEBI Appellant Tribunal Bombay and date of hearing is 6.7.2015. In view of the above the opposite parties are helpless to make refund/payment to its customers and such delay is neither intentional nor deliberate. They have denied the other allegations of the complainant and finally prayed for the dismissal of the complaint.
5. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.C-1, copies of receipts Ex.C-2 to Ex.C-25, copy of aadhaar card Ex.C-26, copy of acknowledgment Ex.C-27, copy of receipt Ex.C-28 and closed the evidence.
6. To rebut the case of the complainant the opposite parties have 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 the 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 asper 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 receipts Ex.C-2 to Ex.C-25 and Ex.C-28 showing the deposit of installments and expiry date is shown as 29.5.2014. The complainant has placed on record acknowledgment issued by the opposite parties Ex.C-27 dated 18.6.2014 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 estimate showing the expiry date as 29.5.2014 and the policy submission on 18.6.2014 and the maturity value is Rs. 54,550/-. 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 any stretch of imagination the opposite parties cannot take the plea that the amount was an advance for purchase and development of the plot and the complainant was not having any right to ask for the refund of this amount alongwith interest on the expiry of the maturity amount.
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/0004 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. The opposite parties further submitted that the opposite parties also challenged the order dated 22.8.2014 passed by SEBI before SEBI Appellant Tribunal Bombay. 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 and SEBI Appellant Tribunal Bombay. 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, Hon'ble Delhi High Court, SEBI or of SEBI Appellant Tribunal Bombay, 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 he obtained the policy bearing No. U017094124 on 29.11.2008 and the said policy was matured on 29.5.2014 and he paid all the required payments. The complainant further stated that the maturity amount is Rs. 54,550/- but the same was not returned by the opposite parties despite requesting them again and again. Ex.C-28 is the receipt issued by the opposite parties showing the detail of the deposit amount and maturity date. 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 and SEBI Appellate Tribunal Bombay. 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/her 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 version that the complainant deposited Rs. 38,800/- with the opposite parties and the maturity amount was due on 29.5.2014 to the tune of Rs. 54,550/-. 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. 54,550/- 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. 54,550/- at the rate of 10% per annum from the date of maturity i.e. 29.5.2014 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 after its due completion be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
11th Day of August 2015
(S.K. Goel)
President
(Karnail Singh)
Member
(Vandana Sidhu)
Member
