DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 269/2014
Date of Institution : 28.11.2014
Date of Decision : 18.06.2015
Veer Bhan Bansal, aged about 38 years, s/o Sh. Sham Lal, V.P.O. Chatha Nanhera, Near Chhahar Wala Darwaja, Tehsil Sunam, District Sangrur.
…Complainant
Versus
PACL India Ltd., Bhai Mani Singh Chowk, Near Lifeline Hospital, Barnala, District Barnala through its Branch Manager.
…Opposite Party
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. SK Kotia Advocate counsel for the complainant
Sh. Rajneesh Kumar Bansal Advocate counsel for the opposite party.
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 Veer Bhan Bansal son of Sh. Sham Lal has filed the present complaint under Consumer Protection Act, 1986 (in short the Act) against the PACL India Limited (in short the opposite party).
2. The facts of the case are that the complainant had obtained a policy bearing No. U017100292 dated 31.01.2009 from the opposite party and this policy was obtained only for the purpose of saving. He has paid all the required payments to the opposite party and nothing was due against him. The said policy was to mature on 31.7.2014. The complainant further pleaded that on 15.7.2014 he approached the opposite party for releasing the maturity amount of Rs. 72,735/- and in lieu of this he deposited all the required documents with the opposite party. The opposite party got the signatures of the complainant on some blank forms/receipts and then a receipt of acknowledgment dated 15.7.2014 was issued to him and also told him to come up after one month for the collection of the maturity amount. After the expiry of one month, the complainant again approached the opposite party and requested them to release the maturity amount but the opposite party put off the matter on one pretext or the other and further told the complainant that they would release the payment after 4-5 months and did not disclose any reason for the delay in payment. Even, the opposite party failed to release the maturity amount till now.
3. It is alleged that due to the act and conduct of the opposite party the complainant is suffering a lot of mental agony, tension and harassment at their hands and as such there is deficiency in service, negligence and unfair trade practice on their part. It is further pleaded that the complainant approached the officers of the opposite party many a times and requested them to release the maturity amount but in vain. Thus with these broad allegations the complainant prayed to this Forum to allow his complaint directing the opposite party:-
1) To release the maturity amount of Rs. 72,735/- alongwith interest at the rate of 12% per annum from the date of maturity with other benefits.
2) To pay Rs. 20,000/- on account of mental agony, harassment and litigation expenses.
4. Upon notice, the opposite party appeared through their counsel and filed their written version wherein preliminary objections were taken interalia that 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 (1) (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, no cause of action has been arisen in favour of the complainant. On merits, the opposite party has admitted the complaint to the extent that the complainant entered into an agreement bearing registration No. U017100292 with the opposite party for purchase of land but the opposite party 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 party in case Crime No. R.C.BD 1/2014/E/2004 and opposite party 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 party is helpless to make refund/payment to its customers, so such delay is neither deliberate nor intentional. It is further alleged 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 parties should invoke arbitration proceedings and therefore, this Forum has no jurisdiction. The opposite party has 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, statement of installments Ex.C-2, copy of acknowledgment Ex.C-3, copy of voter card Ex.C-4 and closed the evidence.
6. To rebut the evidence of the complainant the opposite party has tendered affidavit of Manoj Kumar 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 party. Firstly, the learned counsel for the opposite party 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 party is that the complainant has no cause of action as the opposite party had not received any deposit but received advance for purchase of land/plot. This contention of the learned counsel for the opposite party is untenable as no agreement or document has been placed on record by the opposite party 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 statement of installments/receipt Ex.C-2, which shows that the complainant has deposited Rs. 50,600/- on different dates between 31.1.2009 to 30.12.2013 and this deposit was for five years and six months and the expiry date was mentioned as 31.7.2014 and the realization value is shown as Rs. 72,735/-. The opposite party has not rebutted this document and moreover this receipt/document has been issued by the opposite party. Therefore, by no stretch of any imagination the opposite party 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 party is that Central Bureau of Investigation has freezed the bank accounts of the opposite party in case Crime No. R.C. BD1/2014/E/2004 and the opposite party 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 party is not tenable. Firstly, the opposite party has not placed on record any stay order from any Competent Authority restraining this Forum not to proceed further. Moreover, the opposite party has 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. U017100292 on 31.1.2009 and the said policy was matured on 31.7.2014 and he paid all the required payments. The complainant further stated that the maturity amount is Rs. 72,735/- but the same was not returned by the opposite party despite requesting them again and again. Ex.C-2 is the receipt/ statement of installments issued by the opposite party showing the detail of the deposit amount, maturity amount and maturity date. Ex.C-3 is the acknowledgment issued by the opposite party showing the receiving of the documents. On the other hand the opposite party has placed on record only affidavit of one official Manoj Kumar 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 the purpose of saving. 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 party is bound to refund the amount to the complainant from all its available sources and assets. It has been proved that the complainant deposited Rs. 50,600/- with the opposite party on different dates between 31.1.2009 to 30.12.2013 and the maturity amount was due on 31.7.2014 to the tune of Rs. 72,735/-. 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 party is directed to pay the maturity amount of Rs. 72,735/- to the complainant. Since the amount remained with the opposite party, who have earned interest on it, therefore, the opposite party is also directed to pay interest to the complainant on this maturity amount of Rs. 72,735/- at the rate of 10% per annum from the date of maturity i.e. 31.7.2014 till realization. The opposite party has caused mental agony and physical harassment to the complainant, therefore, the opposite party is also directed to pay Rs. 5,000/- to the complainant on account of compensation. Further, the opposite party is 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:
18th Day of June, 2015
(S.K. Goel)
President
(Karnail Singh)
Member
(Vandana Sidhu)
Member
