DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 94/2015
Date of Institution : 19.05.2015
Date of Decision : 26.08.2015
Vikash Kumar S/o Bhim Sain resident of H. No. B-XI/668, Backside Pharwahi Bazar, Barnala Tehsil and District Barnala.
…Complainant
Versus
PACL Limited, SCF-1,2,3, Bhai Mani Singh Nagar, 25 Acre Scheme, 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):
Vikash Kumar son of Bhim Sain (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 businessman. It is further averred that after reading the pamphlet of the opposite party, the complainant approached the office of the opposite party and the opposite party explained various schemes of savings and assured the complainant that the investment made in the above said company will fetch a handsome interest. On the assurance of the opposite party, the complainant chose RD/IPP scheme in which half yearly installment of Rs. 2,070/- was to be deposited by the complainant for five years and six months and on maturity the opposite party will pay Rs. 22,500/- alongwith interest and other benefits accrued on the said amount. The complainant accepted the proposal of the opposite party for the betterment of his life and on the ground that the amount will use by him in future and said investment is not a commercial transaction. It is further pleaded that the said RD/IPP was commenced on 20.8.2009 and matured on 20.2.2015. The complainant has regularly deposited the installments of Rs. 2,070/- with the opposite party and on the maturity the complainant has deposited all the relevant documents alongwith photocopy of RD/IPP with the opposite party on 28.2.2015 and opposite party issued a receipt QRC No. C201/720150228104205 Registration No. U017123045 to the complainant. The opposite party also assured the complainant that the cheque of the entire amount will be sent to him through post within 15 days. However, the opposite party failed to pay the said amount but continued to linger the matter on one pretext or the other. Thus the opposite party is guilty of deficiency in service. Hence the present complaint is filed seeking a direction to the opposite party.-
1) The opposite party be directed to pay the amount of Rs. 22,500/- 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 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.
4. On merits, the opposite party has submitted that the complainant entered into an agreement bearing registration No. U017123045 with the opposite party for purchase of land/plot and deposited Rs. 22,770/- with the opposite party according to the terms and conditions of agreement which was executed between them. It is further submitted that the opposite party had not received any deposit from the complainant and the amount received from him is an advance consideration for purchase of land/plot. Company never promised to pay any money to the complainant and if the complainant is not came to take the plot in that case they would arrange for sale of his plot and he would receive only estimated plot 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 the opposite party already approached the Hon'ble Delhi High Court against the orders of the CBI which is pending for adjudication. It is further submitted that the answering opposite party is not able to make payment to its customers and such delay in refund to the complainant is neither intentional nor deliberate. Hence this is no deficiency of service. The opposite party has denied the other pleas of the complainant and finally prayed for the dismissal of the complaint.
5. In order to prove his case, the complainant has tendered into evidence copy of receipt Ex.C-1, copy of IPP Plan Ex.C-2, affidavit of Vikash Kumar complainant Ex.C-3, copy of acknowledgment Ex.C-4 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 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 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-1 showing the deposit of amount and expiry date is shown as 09.03.2015. The complainant has also placed on record photocopy of IPP Plan Ex.C-2 showing the maturity value is Rs. 54,600/-. The complainant has placed on record acknowledgment issued by the opposite party Ex.C-4 dated 28.02.2015 indicating the deposit of the original copy of registration letter to the opposite party under the name of buy back letter. 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.
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. To support his case the complainant has placed on record his detailed affidavit Ex.C-3, wherein he has stated that the complainant obtained the policy bearing No. U017123045 on 20.08.2009 and the said policy was matured on 20.02.2015 and he paid all the required payments. The complainant further stated that the maturity amount is Rs. 32,700/- but the same was not returned by the opposite party despite requesting them again and again. Ex.C-1 is the receipt issued by the opposite party showing the detail of the deposit amount and maturity date. Ex.C-2 is the photocopy of the IPP Plan issued by the opposite party showing the maturity amount and Ex.C-4 is the copy of acknowledgment issued by the opposite party. On the other hand the opposite party has 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 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 and even admitted by the opposite party in their written version that the complainant deposited Rs. 22,770/- with the opposite party in half yearly installments and the maturity amount was due on 20.02.2015 to the tune of Rs. 32,700/-. 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. 32,700/- 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. 32,700/- at the rate of 10% per annum from the date of maturity i.e. 20.02.2015 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. 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:
26th Day of August 2015
(S.K. Goel)
President
(Karnail Singh)
Member
(Vandana Sidhu)
Member
