DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 36/2015
Date of Institution : 06.02.2015
Date of Decision : 13.07.2015
Tinku Kumar son of Jagdish Rai (Ghunsan Wale), resident of Model Town, Tapa, Tehsil Tapa, District Barnala.
…Complainant
Versus
1. The Branch Manager, PACL India Ltd., Branch Office SCF 24, Near Improvement Trust, Barnala.
2. The Managing Director, PACL India Ltd., Registered Office 22, 3rd Floor, Amber Tower, Sansar Chand Road, Jaipur.
3. The Corporate Manager, PACL India Ltd., Corporate Office 7th Floor, Gopaldas Bhawan, 28 Barakhamba Road, New Delhi-110001.
…Opposite Parties
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. NK Garg 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 Tinku Kumar son of Jagdish Rai has filed the present complaint against the PACL India Limited (in short the opposite parties) under Section 12 of the Consumer Protection Act 1986 (hereinafter referred as Act).
2. The facts emerging from the present complaint are that the complainant deposited an amount of Rs. 21,000/- approximately with the opposite parties vide different installments on quarterly basis of Rs. 934/- each commencing from 16.5.2009 for the period of 5 years 6 months and in this regard opposite parties issued a policy No. U017111927 dated 16.5.2009 matured on 16.11.2014 to the complainant and estimated realization value of the said policy is Rs. 29,094/-. It is further averred that the said policy was matured on 16.11.2014 and therefore, the complainant approached to the opposite party No. 1 for the payment of Rs. 29,094/- but the opposite partyNo. 1 put off the matter on one pretext or the other and demanded unnecessary documents such as blank affidavit of Rs. 25/-, revenue stamp etc and said that the amount will be paid after one year. It is further pleaded that thereafter the complainant approached the opposite parties No. 2 and 3 through telephonically and requested them to pay the aforesaid amount. However, opposite parties No. 2 and 3 did not hear the complainant and ultimately refused to pay the said amount. Thus the act and conduct of the opposite parties amounts to unfair trade practice which comes within the definition of deficiency in service. Hence the present complaint is filed directing the opposite parties.-
1) To pay Rs. 69,094/- i.e. Rs. 29,094/- being estimated value of the said policy alongwith interest at the rate of 18% per annum from the date of its purchase.
2) Further directions be issued to pay Rs. 30,000/- as compensation on account of mental harassment, agony and also direction be issued to pay Rs. 10,000/- as litigation expenses.
4. Upon notice, the opposite parties appeared and contested the complaint interalia on the grounds 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. U017111927 with the opposite parties for purchase of land unit and deposited Rs. 20,548/- 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 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. It is admitted that the consumer law is applicable. 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 affidavit of Pankaj Kumar Ex.C-1, his own affidavit Ex.C-2, copy of policy Ex.C-3, copy of last receipt/installment No. 22 dated 21.8.2014 Ex.C-4 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 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. On the other hand the complainant has placed on record receipt Ex.C-3, which shows that the complainant has to deposit Rs. 20,000/- in quarterly installments of Rs. 934/- each for five and half years and the expiry date was mentioned as 16.11.2014 and the realization value is Rs. 29,094/-. As per version the opposite parties admitted that the complainant deposited Rs. 20,548/- with the opposite parties. 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-2, wherein he has stated that he obtained the policy bearing No. U017111927 on 16.5.2009 and the said policy was matured on 16.11.2014 and he paid all the required payments. The complainant further stated that the maturity amount is Rs. 29,094/- but the same was not returned by the opposite parties despite requesting them again and again. Ex.C-3 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. 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. 20,548/- with the opposite parties and the maturity amount was due on 16.11.2014 to the tune of Rs. 29,094/-. 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. 29,094/- 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. 29,094/- at the rate of 10% per annum from the date of maturity i.e. 16.11.2014 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:
13th Day of July, 2015
(S.K. Goel)
President
(Karnail Singh)
Member
(Vandana Sidhu)
Member
