DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 22/2015
Date of Institution : 14.01.2015
Date of Decision : 07.07.2015
Sudarshan Kumar aged about 39 years S/o Sh. Raja Ram R/o H. No. B-XIV/334, Santa Wali Gali, Janda Wala Road, 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 Responsible Person/ Authorized Signatory/Managing Director.
2. PACL India Limited (Pearls), 25 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
3. Ms. Vandna Sidhu : Member
ORDER
(SHRI S.K. GOEL PRESIDENT):
The complainant namely Sudarshan Kumar son of Raja Ram has filed the present complaint under Consumer Protection Act, 1986 (in short the Act) against the PACL India Limited (in short the opposite parties).
2. The facts of the case are that the complainant has availed the services of opposite parties by taking a plot of 1250 Square yards on 30.6.2009 and paid a sum of Rs. 64,000/- in this regard in installments @ Rs. 1,000/- per month and it was agreed between the parties that the opposite parties will pay an amount of Rs. 90,920/- to the complainant on 30.12.2014. The opposite parties issued a policy cum registration letter in this regard bearing No. BQ B 5912311 and registration No. U017117705, so the complainant is a consumer of the opposite parties.
3. The complainant paid his 64 installments out of 66 installments and he was also ready to pay the remaining two installments but opposite parties themselves told the complainant that there is no need to deposit remaining two installments and opposite parties got surrender the policy from the complainant on 30.12.2014 against acknowledgment. The complainant submitted the registration letter-cum-policy in the office of opposite parties and Manager of opposite party No. 2 told the complainant that the payment will be made within three days. On 2.1.2015, complainant visited the office of opposite party No. 2 but Manager of opposite party No. 2 again told the complainant to come on 5.1.2015 and when on 5.1.2015 he visited the office of opposite party No. 2 they again lingered on the matter on one pretext or other. Thus with these broad allegations the complainant prayed to this Forum to allow his complaint directing the opposite parties.-
1) To make the payment as per agreement of Rs. 88,920/-.
2) To pay Rs. 50,000/- on account of mental agony, harassment and Rs. 30,000/- as litigation expenses.
4. Upon notice, the opposite parties appeared through their counsel and filed their written version wherein preliminary objections were taken interalia 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 admitted the complaint to the extent that the complainant entered into an agreement bearing registration No. U017117705 with the opposite parties for purchase of land unit and deposited Rs. 64,000/- but the opposite parties never gave assurance to the complainant that land advance consideration will be refunded after prescribed period. It is further submitted that due to dispute with SEBI and CBI, SEBI has passed arbitrary order and stopped the business activity of opposite parties and Central Bureau of Investigation has freezed the bank accounts of the opposite parties in case Crime No. R.C.BD 1/2014/E/0004 and opposite parties approached the Hon'ble Delhi High Court against the orders of Central Bureau of Investigation, which is pending for disposal before Hon'ble High Court and in view of this the opposite parties are helpless to make refund/payment to its customers, so such delay is neither deliberate nor intentional. The opposite parties have denied all the other pleas of the complainant and finally prayed for the dismissal of this complaint.
5. In order to prove his case, the complainant has tendered his affidavit Ex.C-1, copy of policy Ex.C-2, copies of amount deposit receipts Ex.C-3 and Ex.C-4, copy of policy deposit receipt Ex.C-5 and closed the evidence.
6. To rebut the evidence 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 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 parties have entered into an agreement and there is specific clause that in case of any dispute the matter will be referred to the Arbitrator. Thus, it was contended that 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 the fora is not barred by Arbitration Clause. After hearing the learned counsel for both 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 but received advance for purchase of land/plot. This contention of the learned counsel for the opposite parties is untenable as no agreement or document has been placed on record by the opposite parties to indicate that the deposit was received by them as advance for purchase of land. Further, the complainant has placed on record receipts Ex.C-4 and Ex.C-5, which shows that the complainant has deposited Rs. 64,000/- on different dates between 30.6.2009 to 30.9.2014 and this deposit was for five and half years and the expiry date was mentioned as 30.12.2014 and in Ex.C-2 the realization value is shown as Rs. 90,920/-. The opposite parties have not rebutted this document and moreover this receipt/document has been issued by the opposite parties. Therefore, by no stretch of any imagination the opposite parties cannot take the plea that this amount was an advance 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/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. 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 of 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 he obtained the policy bearing No. U017117705 on 30.6.2009 and the said policy was matured on 30.12.2014 and he paid 64 installments out of 66 installments as opposite parties themselves refused to take last two installments. The complainant further stated that the maturity amount is Rs. 90,920/- but the same was not returned by the opposite parties despite requesting them again and again. Ex.C-2 is the receipt issued by the opposite parties showing the detail of the deposit amount, maturity amount and maturity date. Ex.C-5 is the acknowledgment issued by the opposite parties showing the receiving of the documents. 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/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 that the complainant deposited Rs. 64,000/- with the opposite parties and he himself admitted in his complaint that he deposited 64 installments out of 66 installments as the opposite parties themselves refused to receive the last two installments and complainant is ready to take Rs. 88,920/- as maturity amount due on 30.12.2014 instead of Rs. 90,920/- after deducting his two installments of Rs. 1,000/- each and this plea of the complainant has not rebutted by the opposite parties. Moreover, the opposite parties have also not denied this fact. 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. 88,920/- 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. 88,920/- at the rate of 10% per annum from the date of maturity i.e. 30.12.2014 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:
7th Day of July, 2015
(S.K. Goel)
President
(Karnail Singh)
Member
(Vandana Sidhu)
Member
