DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 69/2015
Date of Institution : 22.04.2015
Date of Decision : 18.08.2015
Sukhwinder Kaur wife of Sh. Kewal Chand resident of V.P.O. Himmatpura Tehsil Nihal Singh Wala District Moga-142038.
…Complainant
Versus
PACL Limited, SCF-24, Improvement Trust, Barnala, through its Branch Head.
…Opposite Party
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. Rajiv Goyal counsel for the complainant
Sh. Rajneesh Kumar Bansal 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):
Sukhwinder Kaur wife of Kewal 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 party).
2. The facts emerging from the present complaint are that the complainant is a housewife. After reading the pamphlet of the opposite party she went to the office of the opposite party where the branch head of the opposite party explained various schemes of savings of the opposite party and further assured the complainant that the investment made in the said company will fetch a handsome interest and on his assurance the complainant choose RD/IPP scheme in which half yearly installment of Rs. 5,330/- was to be deposited by the complainant for six years and on maturity the opposite party will pay Rs. 62,500/- alongwith interest and other benefits accrued on the said amount. It is further averred that the complainant accepted the proposal of the opposite party for the betterment of her life from the amount so received by her in future. It is further averred that the said RD was commenced on 9.11.2011 and matured on 9.11.2017 and she had regularly deposited the installment of Rs. 5,330/- till 26.5.2014. It is further averred that the complainant has deposited all the relevant documents with the opposite party on 8.11.2014 but the opposite party had not issued any receipt. However the opposite party assured the complainant that the cheque of the entire amount would be sent to her within 15 days through post but till today the amount of Rs. 31,980/- alongwith interest has not been paid by the opposite party. Hence the present complaint is filed seeking a direction to the opposite party.-
1) To pay the amount of Rs. 31,980/- alongwith interest.
2) To pay Rs. 25,000/- as compensation and Rs. 5,500/- as litigation expenses.
3. Upon notice the opposite party appeared and filed written statement taking preliminary objections interalia on the ground that the present complaint is based on false, frivolous and baseless allegations and complainant has intentionally not disclosed material facts. 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. Thirdly, 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 to entertain the present complaint. Fourthly no cause of action has been arisen in favour of the complainant to file the present complaint. It is further in the preliminary objections that the opposite party is a real estate company, neither an insurance company nor involved in any such kind of activities and engaged only in the business of sale, purchase, development and allotment of land to its customers. Further, the opposite party admitted that Sukhwinder had entered into an agreement with the opposite party vide registration No. U017206626 dated 9.11.2011 and she was well conversant with the terms and conditions of the agreement and both the parties are bound by the terms and conditions of the agreement.
4. On merits, it is pleaded that the opposite party company is a real estate company and engaged in the business of sale, purchase, development and allotment of land to its customers. It is further submitted that Mrs. Sukhwinder Kaur approached the opposite party for purchase of land and she had entered into an agreement for purchase of land. The cost of the plot was to be paid in 12 installments of Rs. 5,330/- half yearly but Mrs. Sukhwinder Kaur deposited only 6 installments i.e. Rs. 31,980/- out of total 12 installments. It is further submitted that complainant failed to abide by the terms and conditions of the agreement. It is further averred that complainant is only entitled to get deposited amount after deducting various costs and other incidental expenses as per the terms and conditions of the agreement. It is further submitted that complainant never met to the opposite party for repayment of the said amount. It is also submitted that Central Bureau of Investigation has freezed the bank accounts of the PACL Ltd. in case Crime No. R.C.BD 1/2014/E/2004 and the opposite party approached the Hon'ble Delhi High Court against the orders of the CBI which is pending before the Hon'ble High Court. In view of the above the opposite party is helpless to make refund/payment to its customers and as such delay in payment of the complainant is neither intentional nor deliberate but the same is for the reasons mentioned above which are beyond the control of the opposite party. They have denied the other allegations of the complainant and finally prayed for the dismissal of the complaint.
5. In order to prove her case, the complainant has tendered into evidence copies of receipts Ex.C-1 to Ex.C-6, copy of IPP Plan Code No. 54 Ex.C-7, affidavit of complainant Ex.C-8, copy of ID card Ex.C-9 and closed the evidence.
6. To rebut the case of the complainant the opposite party has 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 party. Firstly, the learned counsel for the opposite party 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 party is that the complainant has no cause of action as the opposite party 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 party 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 copies of receipts Ex.C-1 to Ex.C-6 showing the deposit of amount and expiry date is shown as 9.11.2017. The complainant has also placed on record photocopy of registration letter cum policy showing the expiry date as 9.11.2017 and the maturity value is Rs. 96,300/-. On the other hand the opposite party has not rebutted these documents and moreover these documents have been issued by the opposite parties. Therefore, by stretch of any imagination the opposite party 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.
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 has 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 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. Ex.C-1 is the policy in favour of the complainant showing the payment of Rs. 5,330/- dated 9.11.2011 indicating that the complainant has invested the money for 6 years and in 12 installments of Rs. 5,330/-. Vide Ex.C-2 to Ex.C-6 the complainant has paid five more installments of Rs. 5,330/-. Thus the complainant has paid Rs. 31,980/- vide the aforesaid six installments.
14. During arguments the learned counsel for the complainant has contended that the public has lost faith in the opposite party company and more they are not returning the money of the various depositors even after maturity date. It is further submitted that moreover no receipt is being issued by the office in case the installment is deposited. Therefore, it is no fun to continue to deposit the installments. Moreover it is submitted by the learned counsel for the complainant that an order has been passed by The Securities and Exchange Board of India passed in the month of August 2014 against the PACL, in which the PACL was directed as under.-
“PACL Limited, its promoters and directors, shall wind up all the existing Collective Investment Schemes of PACL Limited and refund the monies collected by the said company under its schemes with returns which are due to its investors... within a period of three months.”
15. Principles of natural justice and equity also provide that no innocent person should suffer or lose his/her hard earned money from any powerful businessman, builder, real estate company or financial institution. Moreover in the written statement the opposite party has specifically mentioned in para No. 3 that “complainant is only entitled to get deposit amount after deducting various cost and other incidental expenses as per the terms and conditions of the agreement. There is nothing on the record to indicate that the opposite party is entitled to deduct certain amount from the invested amount of Rs. 31,980/-. No terms and conditions has been placed on record by the opposite party to indicate the quantum of such deductions. In the absence of any such terms and conditions it cannot be held that the opposite party is competent to make deductions from the investment made by the complainant.
16. As a result of the above discussion we are of the considered opinion that the present complaint is partly allowed and the opposite party is directed to refund the amount of Rs. 31,980/- to the complainant alongwith interest at the rate of 9% per annum from the date of deposit till realization. However no order as to costs or compensation. 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 August 2015
(S.K. Goel)
President
(Karnail Singh)
Member
(Vandana Sidhu)
Member
