BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHABAD.
Complaint No.: 186 of 2015. Date of Instt.: 31.08.2015. Date of Decision: 04.01.2016.
Ram Bhateri wife of Rajender Singh, resident of village Malapur, Tehsil and District Hisar.
…Complainant.
Versus
PACL Ltd., Near Wadhwa Hospital, Model Town, Fatehabad, Tehsil and District Fatehabad through its Branch Manager.
...Opposite Party.
Complaint U/s 12 of the Consumer Protection Act, 1986.
Before: Smt. Pushpa Mehta, Presiding Member. Sh. Ranbir Singh Panghal, Member.
Present: Sh. Rohtash Bishnoi, counsel for the complainant Sh. Raman Sardana, counsel for the opposite party.
ORDER BY SH.R.S.PANGHAL, MEMBER:
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite party.
2. It is stated in the complaint that complainant out of her hardship saving deposited a total sum of Rs.15,000/- under cash down payment plan of the opposite party for a period of seven years vide FDR registration No. U038053987 on 30.4.2007 and on 30.4.2014 after maturity, the amount of Rs.34,210/- was to be paid to the complainant. It is further stated that in proof of deposit, the opposite party issued registration letter in favour of the complainant by duly mentioning the maturity value of the registration and date of maturity. It is further stated that after the date of maturity, the opposite party did not make the payment despite several visits and requests of the complainant. The act and conduct of the opposite party clearly amounts to deficiency in service on its part. The complainant is entitled to maturity value of Rs.34,210/- alongwith interest @18% per annum from the date of maturity till actual realization from the opposite party. She is also entitled to compensation of Rs.20,000/- on account of harassment. Hence, this complaint.
3. Upon notice, opposite party appeared and filed its reply in which several preliminary objections such as cause of action and maintainability etc. have been taken. It has been further submitted 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 regarding this an agreement was executed between the parties. There is an arbitration clause in the agreement and according to which the matter/dispute shall be settled in accordance with the arbitration and conciliation Act, 1996, therefore, this Forum has no jurisdiction to try and entertain the present complaint. It has been further submitted that the opposite party did not receive any deposit from the complainant and the amount received was an advance consideration for the purchase of land/plot and the same is received as per the terms and conditions of the agreement executed between the parties. The Central Bureau of Investigation has freezed the Bank accounts of the opposite party and now the matter is fixed for 5.11.2015, therefore, the opposite party is helpless to make the payment of its customers and as such the delay in making the payment is neither intentional nor deliberate. There is no deficiency in service on the part of opposite party. Other pleas made in the complaint have been controverted and prayer for dismissal of the complaint has been made.
4. Both the parties have adduced their evidence. The complainant has tendered affidavit Annexure C1 and document as Annexure C2. On the other hand, the opposite party has tendered affidavit as Annexure R1. Evidence of both the parties have been closed.
5. Arguments advanced on behalf of both the parties have been heard and the documents placed on the file have also been perused carefully.
6. It is established on the case file that the complainant deposited Rs.15,000/- with the opposite party on 30.4.2007 for a period of seven years vide registration No.U038053987. The date of commencement of plan was 30.04.2007 and date of maturity was 30.04.2014. It is also proved on record that on maturity, an amount of Rs.34,210/- was to be paid to the complainant by the opposite party as is evident through Annexure C2. It is also not disputed that the opposite party has not made the payment to the complainant even after maturity. Nor any kind of plot/land has been allotted to the complainant. Moreover, the complainant in her affidavit has testified that SEBI has already directed the opposite party on 2.8.2014 to make payment of the deposited / maturity amount to the customers and the appeal filed by the opposite party against the said order has also been dismissed on 12.8.2015 but despite that till today the amount has not been paid by the opposite party. The above said factum has not been denied by the opposite party. So, the complainant is entitled to the abovesaid amount of Rs.34,210/- from the opposite party. The plea taken by the counsel for the opposite party that the matter should have been referred to the Arbitrator for redressal has not enough force to satisfy this Forum because it is the prerogative of the complainant to get redressed her grievance as per his/her wishes and the opposite party cannot take the shelter of this by saying that the matter should have been sent to the arbitrator for redressal. On this point reliance can be taken from case laws titled as National Seeds Corporation Vs. M.Madhusudhan Reddy & Anr. II (2012) SLT 51=I, Satish Kumar Pandey & Anr. Vs. Unitech Limited III (2015) CPJ 440 (NC), Bhairathan Vs. HCL Infosystems Limited and others 2007 (1) CPJ 319 and National Seeds Corporation Limited Vs. PV Krishna Reddy, 2009 (1) CPJ 99 wherein Hon’ble Supreme Court of India and Hon’ble National Commission has held that Section 8-Additional remedy- Arbitrator Clause-Existence of Arbitration Clause in agreement is no bar to the entertainment of complaint by the Consumer Forum, which is an additional remedy under CP Act and in case of deficiency in services rendered to him by service provider as adoption of unfair trade practice by him.
7. The opposite party has taken another plea that this Forum has no jurisdiction to entertain and try the present complaint as the parties have entered into an agreement and as per agreement, only the Civil Court at Delhi has jurisdiction to entertain the suit. The submission of learned counsel for the opposite party in this regard being devoid of merit is not accepted as in case titled as Associated Road Carriers Ltd. Vs. Kamlender Kashyap and Ors., 2008 (2) CLT 36 (NC) it was held by the Hon’ble National Commission, New Delhi that “a clause of Jurisdiction, by way of an Agreement, between the parties, could not be made applicable to the consumer complaints, filed before the Consumer Foras, as the Foras are not the Courts and complaint could be filed at a place, where a part cause of action arose, according to Sections 11/17 of the Act.” The said authority is fully applicable to the present case. In the present case, since the payment under the scheme was made at Fatehabad by the complainant, so this Forum has jurisdiction to entertain and decide the complaint. The material available on the case file clearly indicates that there is deficiency in service on the part of the opposite party and it cannot take the shelter of the plea that its account has been freezed in another case by the CBI. Moreover, no document/ evidence has been produced in this regard by the opposite party. The complainant has been able to prove her case by leading cogent and reliable evidence, therefore, the complaint deserves acceptance. We order accordingly. The opposite party is directed to pay Rs.34,210/- to the complainant alongwith interest @ 6 % per annum from the date of maturity till realization of the amount. The opposite party is further directed to pay a sum of Rs.2,000/- in lump sum as compensation to the complainant on account of mental agony, harassment and litigation expenses. This order be complied within 30 days of receipt of copy of order, failing which complainant will be at liberty to initiate proceedings under Section 25/27 of Consumer Protection Act against the opposite party. Copy of this order be supplied to both the parties free of cost. File be consigned after due compliance.
ANNOUNCED IN OPEN FORUM Dt.04.01.2016
(Pushpa Mehta) Presiding Member, District Consumer Disputes Redressal Forum, Fatehabad.
(R.S.Panghal) Member
