BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL
FORUM, FEROZEPUR.
C.C. No. 09 of 2015 Date of Institution: 06.01.2015
Date of Decision: 16.07.2015
Savita Rani wife of Satish Kumar son of Murari Lal resident of House No.56A, Bazar No.3, Ferozepur Cantt. 8557939669.
....... Complainant
Versus
1. PACL India Limited, through its Manager/ M.D. Tara Chand, Jimidara Building, Above IDBI Bank, Near Amar Hospital, Ferozepur Cantt.
2. Balwinder Singh Bagga, Additional Manager of PACL India Limited, Jimidara Building, Above IDBI Bank, Near Amar Hospital, Ferozepur Cantt.
3. PACL India Limited through its M.D/authorised person, 7th Floor, Gopaldas Bhawan, 28 Barakhamba Road, New Delhi-110001.
........ Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
* * * * *
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PRESENT :
For the complainant : Sh. Deepak Khullar Advocate
For the opposite parties : Sh V.D.Madhar Advocate
QUORUM
S. Gurpartap Singh Brar, President
Smt. Inderjeet Kaur, Member
ORDER
GURPARTAP SINGH BRAR, PRESIDENT:-
Brief facts of the complaint are that the complainant invested her amount with the opposite parties by purchasing two policies of the PACL company regarding land, vide registration No.U039059103 dated 27.08.2012 and No. U039059151 dated 30.08.2012 respectively. The complainant has paid six quarterly instalments for the above said policies of Rs.3290/- each, which comes to be Rs.19,740/-. It has been further pleaded that the complainant does not want to continue the above said policies and she approached the opposite parties and requested them to refund the above said amount, which was deposited by her with the opposite parties. But the opposite parties did not pay any heed to the request of the complainant. In this regard, the husband of the complainant moved applications on 07.10.2014 and 22.10.2014 before SSP, DC Ferozepur as well as Securities and Exchange Board of India, but all in
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vain. The complainant served a legal notice dated 15.12.2014 upon the opposite parties, but to no effect. Pleading deficiency in service and unfair trade practice on the part of the opposite parties, the complainant has prayed that the opposite parties be directed to pay Rs.19,740/- pertaining to policy No.U039059103 dated 27.08.2012 and No. U039059151 dated 30.08.2012 respectively alongwith interest @18% per annum on the claimed amount. The opposite parties be further directed to pay Rs.50,000/- as compensation for causing mental agony, pain and harassment and Rs. 5500/- as litigation expenses.
2. Upon notice, the opposite parties appeared and filed written reply to the complaint. The opposite parties took some preliminary objections interalia that the opposite party M/S PACL Limited is a registered company under the Companies act 1956; that there is no deficiency in service on the part of the opposite parties; that the opposite parties neither the Financial Establishment nor non-banking financial company; that there is an agreement between the parties and any dispute pertaining to the said agreement would be referred to the Arbitrator for resolution of the dispute and that the complainant has no cause of action. On merits, it has been pleaded that the company did not receive any deposit from the complainant it only received from advance consideration for purchase of land/plot as per the terms and conditions of the agreement
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executed between the parties. Further it has been pleaded that the complainant entered into an agreement bearing registration No.U039059103 dated 27.08.2012 and No. U039059151 dated 30.08.2012 with opposite parties for purchase of land unit. It has further been pleaded that the opposite parties never assured at the time of agreement that the deposited amount would be refunded to her. At that time the opposite parties assured that they will arrange for sale of her plot and she will receive only estimated realizable value. It has been pleaded that according to agreement in case of instalment payment plan, if customer makes a default by not paying one or more instalments for a period of twelve consecutive months from the due date, such default shall be treated as breach of agreement, if such breach occurs before allotments of plot, the payment received under plan before the allotment shall be refunded after the expiry of twelve months from the due date of last instalment only on furnishing specific written request therefore, by the customer, after deducting 6.25% of total consideration comprising various cost and other incidental expenses. It has been further pleaded that as per the arbitration clause of the agreement that any dispute of difference whatsoever arising between the parties out of or relating to the construction, meaning scope, operation or effect of this agreement or the validity or the breach thereof, shall be referred for arbitration to any
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retired judicial officer as the sole arbitrator and shall be settled in accordance with the arbitration and Conciliation Act, 1996. Other allegations of the complaint have been denied and dismissal of the complaint has been prayed for.
3. Learned counsel for the complainant tendered into evidence Ex.C-1 to Ex.C-17 and closed evidence on behalf of the complainant. On the other hand, learned counsel for the opposite parties tendered into evidence Ex.O.P.Nos.1 to 3/1and closed evidence on behalf of the opposite parties.
4. On the basis of the evidence on record, the learned counsel for the complainant has vehemently contended that the complainant invested her amount with the opposite parties by purchasing policies of the PACL company regarding land, vide registration No.U039059103 dated 27.08.2012 and No. U039059151 dated 30.08.2012 respectively and paid six quarterly instalments for the above said policies of Rs.3290/- each, which comes to be Rs.19,740/-, copies of the receipts account for Ex.C-2 to Ex.C-7. Copies of applications written to S.S.P., Ferozepur, D.C.Ferozepur as well as Securities and Exchange Board of India by the complainant have also been placed on record Ex.C-11 to Ex.C-13. It is, therefore, contended that the opposite parties may be directed to pay Rs.19,740/- alongwith interest @18% per annum on the claimed amount
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besides making an order for compensation to the tune of Rs.50,000/- on account of mental agony and harassment and Rs.5500/- as litigation expenses.
5. On the other hand, the learned counsel for the opposite parties has vehemently contended that the company did not receive any deposit from the complainant it only received from advance consideration for purchase of land/plot as per the terms and conditions of the agreement executed between the parties. The complainant deposited an amount of Rs.19,740/- with the opposite parties. It has been contended that the opposite parties never assured at the time of agreement that the deposited amount would be refunded to her. At that time the opposite parties assured that they will arrange for sale of her plot and she will receive only estimated realizable value. It has been further contended that according to agreement in case of instalment payment plan, if customer makes a default by not paying one or more instalments for a period of twelve consecutive months from the due date, such default shall be treated as breach of agreement, if such breach occurs before allotments of plot, the payment received under plan before the allotment shall be refunded after the expiry of twelve months from the due date of last instalment only on furnishing specific written request therefore, by the customer, after deducting 6.25% of total consideration comprising various cost and other
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incidental expenses. It is therefore, contended that the complaint being false and frivolous is liable to be dismissed.
6. We have carefully gone through the pleadings of the parties, arguments advanced by the counsel for the parties and have appreciated the evidence produced on record by both the parties with the valuable assistance of the learned counsel for the parties.
7. It is case of the complainant that she deposited an amount of Rs.19,740/- with the opposite parties. There is also no denying the fact that the complainant invested her amount with the opposite parties by purchasing policies of the PACL company regarding land, vide registration No. U039059103 dated 27.08.2012 and No. U039059151 dated 30.08.2012 respectively and paid six quarterly instalments for the above said policies of Rs.3290/- each.Copy of receipts account for Ex.C-2 to Ex.C-7. There is only dispute of the opposite parties that according to agreement in case of instalment payment plan, if customer makes a default by not paying one or more instalments for a period of twelve consecutive months from the due date, such default shall be treated as breach of agreement, if such breach occurs before allotments of plot, the payment received under plan before the allotment shall be refunded after the expiry of twelve months from the due date of last instalment only on furnishing specific written request therefore, by the
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customer, after deducting 6.25% of total consideration comprising various cost and other incidental expenses. It is further admitted by the opposite parties in their version that, payment will be given to any customer after selling the plot. The main objection of the opposite parties regarding the claim of the complainant is that, as the complainant has committed breach of agreement and caused loss to the opposite parties so the amount would be returned to him as per the terms and conditions of the agreement. But the opposite parties have not produced any document to prove that complainant committed a breach of agreement. It is proved on the file from Ex.C-2 to Ex.C-7 that the complainant deposited an amount of Rs.19,740/- with the opposite parties pertaining to No. U039059103 dated 27.08.2012 and No. U039059151 dated 30.08.2012 respectively. In this way, it is clearly proved on the file that, complainant in total paid an amount of Rs.19,740/-. It is admitted by the complainant in her complaint that, thereafter, complainant has not paid any installment to the OPs except the above mentioned installments. It is further proved on the file that complainant many a times requested the opposite parties for the refund of her amount and also issued a legal notice Ex.C-14 for this purpose, which was sent vide postal receipt Ex.C-15 to Ex.C-17, but instead of that, opposite parties did not pay any amount to the complainant. It is a clear case of the opposite parties that an agreement
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was executed between the parties. The agreement has been withheld by the opposite parties. It was the best piece of evidence for deciding the controversy between the parties.Withholding of original agreement by OP seems to be intentional and anadverse inference is required to be drawn against opposite parties. Further, to meet the objection of the opposite parties we have perused an order of 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.”
8. In view of the aforementioned facts, circumstances and order of The Securities and Exchange Board of India passed in the month of August 2014, we allow the present complaint and the opposite parties are directed to refund an amount of Rs.19,740/- - to the complainant within a
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period of 30 days from the date of the receipt of the copy of this order, failing which the opposite parties are directed to refund this amount alongwith interest at the rate of 9% per annum from the date of order till realization of the amount. This order is directed to be complied with within a period of thirty days from the date of receipt of its copy. A copy of the order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced
16.07.2015
(Gurpartap Singh Brar)
President
(Inderjeet Kaur)
Member
