DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 100/2015
Date of Institution : 04.06.2015
Date of Decision : 21.09.2015
Surjit Singh son of Gurbachan Singh resident of Laxmy Jewellers, Gurdwara Ramsar Road, Dhanaula, Tehsil and District Barnala natural guardian of Arzoo aged about 13 years minor daughter of Surjit Singh son of Gurbachan Singh of Dhanaula.
…Complainant
Versus
Pearls, PACL Limited SCF-1, 2 and 3, 25 Acre Scheme, Bhai Mani Singh Nagar, Barnala through its Branch Manager.
…Opposite Party
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. Anuj Mohan 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 Arzoo minor daughter of Surjit Singh through her father (hereinafter referred as complainant) has filed the present complaint under Consumer Protection Act (hereinafter referred as Act) against PACL Limited (hereinafter referred as opposite party).
2. The facts emerging from the present complaint are that the complainant through his father on assurance of the Branch Head of the opposite party chosen a Recurring Deposit Scheme of monthly installment of Rs. 1,000/- for 66 months and on maturity the opposite party will pay Rs. 93,000/- alongwith interest and other benefits accrued on the said amount. The father of the complainant accepted this proposal of the opposite party for the betterment of the complainant for her future. The opposite party issued a policy cum registration letter in this regard bearing No. U017090786 to the complainant which was commenced on 18.10.2008 and matured on 18.4.2014. The complainant through her father regularly deposited all the installments of Rs. 1,000/- with the opposite party.
3. It is further averred that on the maturity the complainant through her father deposited all the relevant documents with original RD with the opposite party on 15.4.2014 and a receipt was duly issued by the opposite party and assured the father of complainant that the cheque of the whole amount will be sent to her through post within 15 days. After few days the complainant through her father made repeated requests to the opposite party to pay the aforesaid amount of Rs. 93,000/- alongwith interest but the payment was not made. Even a legal notice dated 7.11.2014 was also sent but to no effect. Thus, it is alleged that it is a case of unfair trade practice and deficiency in service on the part of the opposite party. Hence the present complaint is filed seeking a direction to the opposite party.-
1) To pay the amount of Rs. 93,000/- alongwith interest.
2) To pay Rs. 25,000/- as compensation and Rs. 11,000/- as litigation expenses.
4. Upon notice, the opposite party filed written statement taking preliminary objections interalia on the ground that the opposite party is neither collecting deposit from the public by promising lucrative high rate of interest nor issuing any kind of policy, rather it is a real estate company and engaged in the business of sale and development of agriculture land/plot across the country and allot the land to its customer. Secondly, the complaint does not fall under the Consumer Protection Act as there is no deficiency in service as defined under Section 2 (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 did not receive any deposit from the complainant and it only received advance consideration for purchase of land/plot as per the terms and conditions of the agreement executed between the parties. 5. On merits, it is submitted that the complainant entered into an agreement bearing registration No. U017090786 with the opposite party for purchase of land in the name of her daughter and had deposited total amount of Rs. 66,000/- as land consideration. However, the opposite party never promised to pay any money to the complainant but promised for the plot and land, if the complainant is not keen to take her plot in that case they would arrange for sale of his plot and she will receive only estimated realizable value. It is further submitted that Central Bureau of Investigation has freezed the bank accounts, properties and title deeds of the PACL Ltd. in case Crime No. R.C.BD 1/2014/E/2004 and they already approached the Hon'ble Delhi High Court against the orders of the CBI which is pending for adjudication before the Hon'ble High Court. The opposite party also challenged the arbitrary orders of SEBI before SEBI Appellant Tribunal, Bombay which is also pending for adjudication. It is further averred that due to this reason the opposite party is helpless to make refund/payment to its customers and such delay in refund of the complainant is neither intentional nor deliberate and beyond the control of the opposite party. Hence this is no deficiency of service and cause of action. They have denied the other allegations of the complainant and finally prayed for the dismissal of the complaint.
6. In order to prove her case, the complainant has tendered into evidence affidavit of Surjit Singh Ex.C-1, copy of pamphlet Ex.C-2, copies of receipts Ex.C-3 to Ex.C-66, copy of acknowledgment Ex.C-67, copy of legal notice Ex.C-68 and closed the evidence.
7. To rebut the case of the complainant the opposite party has tendered affidavit of Varinder Singh CSC Incharge Barnala Ex.OP-1 and closed the evidence.
8. We have heard the learned counsel for the parties and have gone through all the record on the file carefully.
9. Before adverting to the matter on merits, it is relevant to deal with 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.
10. 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.
11. 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 part had not received any deposit from the father of the complainant as it only received advance consideration for purchase of land/plot as per 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 copy of receipt Ex.C-67 copy of acknowledgment issued by the opposite party dated 15.4.2014 indicating the deposit of the original copy of registration letter to the opposite party under the name of buy back letter. The complainant has also placed on record photocopy of Plan showing the maturity value is Rs. 90,920/-. Further, the complainant has placed on record copies of Ex.C-3 to Ex.C-66 which proves that the installments were regularly deposited by the father of the complainant with the opposite party. On the other hand the opposite party has not rebutted these documents and moreover these documents have been issued by the opposite party. 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.
12. 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.
13. The third objection taken by the opposite party is that Central Bureau of Investigation has freezed the bank accounts of the opposite parties in case Crime No. R.C. BD1/2014/E/2004 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 and opposite party also challenged the arbitrary orders of SEBI before SEBI Appellant Tribunal, Bombay which is also pending. 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 have not placed on record any orders of the CBI or Hon'ble Delhi High Court or SEBI, 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.
14. Now coming to the case on merits, firstly it is to be seen whether the complainant through her father has paid the amount in question. To support her case the complainant has specifically stating in the affidavit of her father Ex.C-1 that her father paid Rs. 66,000/- through monthly installments of Rs. 1,000/- from 18.10.2008 and the opposite party promised to pay Rs. 93,000/- on 18.4.2014 i.e. on maturity date. There is no specific denial regarding this deposit by the opposite party in the written version filed by it. Even in para No. 7 of the affidavit Ex.OP-1 filed by the opposite party it is clearly mentioned that the complainant entered into an agreement bearing registration No. U017090786 on 18.10.2008 with the opposite party for purchasing of land unit and deposited Rs. 66,000/- with the opposite party. In the same para it is also mentioned that the answering opposite party is helpless to make refund of its customers and such delay is beyond its control. Apart from the affidavit it is also relevant to refer the copy of the buy back letter Ex.C-67 and Payment Plan Ex.C-2 which shows that the complainant deposited the policy documents with the opposite party on 15.4.2014 and under plan shows that on deposit of Rs. 66,000/- through monthly installments of Rs. 1,000/- the estimated value at the end shown as Rs. 90,920/-. Thus the plea of the complainant regarding the payment of Rs. 66,000/- through monthly installments which has become due on 18.4.2014 to the value of Rs. 90,920/- has been proved. To contradict this plea the opposite party has not filed any document. Only affidavit Ex.OP-1 clearly shows that the opposite party never denied the receiving of deposit from the complainant to the tune of Rs. 66,000/- but has also showed helplessness in making refund of the same due to pending proceedings. Moreover, the plan Ex.C-2 was issued by the opposite party and therefore the genuineness of the same cannot be questioned. In the absence of any contrary evidence it cannot be said that the maturity value has not become Rs. 90,920/-. It is also worth mentioning here that the complainant is a small depositor and her father has invested his hard earned money for betterment of her future. 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.
15. 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 and even admitted by the opposite party in its written version that the complainant deposited Rs. 66,000/- with the opposite party in monthly installments and the maturity amount was due on 18.4.2014 to the tune of Rs. 90,920/-. 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. 90,920/- to the complainant. Since the amount remained with the opposite party, who has earned interest on it, therefore, the opposite party is also directed to pay interest to the complainant on this maturity amount of Rs. 90,920/- at the rate of 10% per annum from the date of maturity i.e. 18.4.2014 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. 3,000/- 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. The opposite party is directed to get issued a FDR of the above mentioned amounts from a nationalized bank in the name of complainant Arzoo till she attains the majority under the guardianship of her father Surjit Singh. However, the said complainant Arzoo is entitled to encash the said FDR after she attains the majority. 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 be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
21st Day of September 2015
(S.K. Goel)
President
(Karnail Singh)
Member
(Vandna Sidhu)
Member
