Date of Filing: 18-03-2016 Date of Final Order: 17/05/2017
Sri Gurupada Mondal, President.
This is a case U/S 12 of the C.P. Act, 1986 filed by the Complainant, Shikha Lodh against the O.P, Smt. Ruma Ganguly and others praying for direction to the O.Ps to pay Rs.36,304/- as the maturity amount, Rs.25,000/- as compensation for mental pain & agony, harassment and litigation cost.
The case of the Complainant in short is that she invested Rs.25,000/- on 19/02/2013 through Smt. Ruma Ganguly, Agent of the Unitech Company for the period of three years on condition that the O.P shall pay interest @ 12.5% P.A. and the O.P paid interest up to 31/03/2015. Thereafter, the O.P did not pay interest. The said fixed deposit was matured on 23/02/2016 and then in order to get the matured money, the said original fixed deposit was sent to the Unitech Ltd. by Speed Post on 10/02/2016 i.e. the O.P. No.2. The matter was informed to the O.P. No.1 for her help but she expressed her inability. Accordingly, the Complainant has brought this case against the O.Ps for proper redressal.
Summons upon the O.P. No.2 was duly served by Speed Post but the O.P. No.2 did not turn up to contest the case. As such the case is heard in Ex-parte against the O.P. No.2.
The O.P. No.1 in contesting the case has filed Written Version, denying all material allegations contending inter-alia that the instant case is not maintainable and the Complainant has no lucas standi to file this case.
Specific case of the O.P. No.1 is that she is the agent of well known Unitech Ltd. and the Complainant invested money knowing it well and she was never forced by anybody to invest money and the investor invested money according to their capacity. The Complainant issued cheque in favour of Unitech Ltd. not upon a particular person. The investment method is a direct pay method.
Further it is the case of the O.P. No.1 that the Company is a reputed Registered Company and all investors were very much aware before making their investment. The O.P. No.1 had no responsibility as the cheque was issued in favour of Unitech Ltd. On the basis of the aforesaid facts, the O.P. No.1 prays for dismissal of the case.
In the light of the contention of the both parties, the following moot points are necessarily come up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service as alleged by the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully and perused the documents along with evidence on affidavit of the parties. Heard the argument at a length as advance by the Ld. Adv. for the Complainant and the O.P. No.1.
Point No.1.
The Complainant invested Rs.25,000/- in favour of the O.P. No.2 by issuing an A/C Payee cheque bearing No.785753 dated 19/02/2013. The O.P. No.1 was the agent of the O.P. No.2. As per documents, it reveals to us that the O.P. No.2 after receiving the amount by cheque assured the Complainant to give higher return. Therefore, the Complainant is a consumer. It is established that the Complainant is a consumer of the O.Ps as per Provision U/S 2 (1)(d) of the C.P. Act, 1986.
Point No.2.
The O.P. No.2 is the Company and the cause of action took place at Cooch Behar. Therefore, we hold that this Forum has territorial jurisdiction to try this case. The Complainant has prayed for refund the amount of Rs.36,304/- and also pray for compensation of Rs.25,000/-. The pecuniary jurisdiction of this Forum is Rs.20,00,000/- but the claim of refund plus compensation is much less than this Forum can try.
Hence, we hold that this Forum has territorial as well as pecuniary jurisdiction to try this case. Therefore, this point is decided in favour of the Complainant.
Point No.3 & 4.
Both the points are taken up together for the convenience of discussion as well as the points are related with each other.
From the documents and evidence filed by the Complainant, it appears to us that the Complainant issued a cheque being No.785753 dated 19/02/2013 payable at Central Bank of India, Cooch Behar Branch in favour of the O.P. No.2. The O.P. No.1 was the Broker/Agent of the O.P. No.2. On the basis of the said investment, the O.P. No.2 issued a Fixed Deposit Receipt being No.1210659 in favour of the Complainant. The rate of interest was 12.5% P.A. The said F.D.R was issued in favour of the Complainant under certain terms & conditions. After issuing the Fixed Deposit Certificate, the Complainant used to receive monthly interest as per rules and received interest up to 31/03/2015. The fixed deposit was matured on 23/02/2016. After the maturity, the Complainant sent the original copy of the Fixed deposit Receipt to the O.P. No.2 through Speed Post on 10/02/2016. The O.P. No.2 received the said F.D.R but did not pay anything to the Complainant. The Complainant made several communications with the O.P. No.2 but all efforts went in vain. It is evident from the evidence of the Complainant that the matter was informed to the O.P. No.1 verbally and shout her help but she expressed her inability.
Therefore, from the evidence on record it reveals to us that the Complainant deposited Rs.25,000/- in favour of the O.P. No.2 by issuing an A/C Payee cheque. The O.P. No.2 received the said amount and issued Fixed Deposit Receipt being No.1210659 of Rs.25,000/- in favour of the Complainant and the rate of interest was 12.5% P.A. At the initial stage, the Complainant used to receive the interest quarterly and received the interest up to 31/03/2015. It is established by evidence that the F.D was matured on 23/02/2016. After the maturity, the Complainant sent the original Certificate to get return the matured amount. But the O.P. No.2 did not return the matured amount. It amounts to deficiency in service. Therefore, the Complainant is entitled to get decree as prayed for.
The Ld. Advocate for the Complainant submits that the O.P. No.1 is equally responsible to pay the claim amount to the Complainant. The O.P. No.1 has filed Written Version where she denied her responsibility to pay the fixed deposit amount. It is fact that the O.P. No.1 is/was the Broker/Agent of the O.P. No.2. Therefore, it can be presumed that the O.P. No.1 collected the cheque from the Complainant and then handed over the cheque to the O.P. No.2. We can also presume that the O.P. No.1 received commission from the O.P. No.2.
Let us see how far the O.P. No.1 is liable to pay the F.D amount to the Complainant. From the documents as filed by the O.P. No.1, it reveals to us that the O.P. No.1 being a Broker/Agent of the O.P. No.2, made several communications with the O.P. No.2 to get the return of matured F.D. The O.P. No.1 has filed some documents before this Forum. From the said documents it reveals to us that the O.P. No.1 deposited Rs.5,00,000/- on 18/11/2013 in favour of the O.P. No.2, the rate of interest was 11.5% P.A. and the maturity value was Rs.6,60,830/- as on 18/11/2014. The O.P. No.1 made another Fixed Deposit of Rs.2,00,000/- on 18/01/2013 and the rate of interest was 12.5% P.A. and the date of maturity was 16/01/2016. The O.P. No.1 made another F.D of Rs.1,00,000/- before the O.P. No.2. The O.P. No.1 made F.Ds in favour of the O.P. No.2. After the maturity, the O.P. No.1 sent F.Ds to the O.P. No.2 but did not get any return. As such the present O.P. No.1 filed a case being No. CC/24/2016 against the O.Ps. The Said Broker/Agent, Smt. Ruma Ganguly obtained a decree against the O.P. If the present Agent/Broker i.e. the O.P. No.1 had ill intention to deceive the present Complainant, she must not invest money in the O.P. No.2 Company. Therefore, we hold that the O.P. No.1 had no ill intention to ask the Complainant to invest money in favour of the O.P. No.2.
The Ld. Advocate for the Complainant submits that the O.P. No.1 is the agent of the O.P. No.2 and she is equally responsible with the O.P. No.2 to pay the dues. The Ld. Advocate for the Complainant further submits and cites a case decision passed in Case No. CC/65/2014 of this Forum, where in this Forum held that the Agent is equally responsible to pay the dues. We have to consider how far as the case decision of Case No. CC/65/2014 is applicable here. As per Stamp given in the application paper for Fixed Deposit, the O.P. No.1 is a Broker not an Agent. In the cited case Samapti Saha was the agent of the O.P. Company bearing Code No.CBW136743 for which she could not evade her liability. The Ld. Forum further observed that the O.P. Company was a fake one and is not affiliated to any organization and having no license at all to collect money from the consumers in any way.
But in this case, Unitech Ltd. (Real Estate Division), Unitech House, L Block, South City 1, Gurgaon, Haryana is a financial organization, having its license to collect money from the public. A large numbers of persons made an application before the National Company Law Tribunal at New Delhi for getting their F.Ds return and the National Company Law Tribunal was pleased to accept the under taking of the O.P. No.2 that six parcels of land in Kochi, Hyderabad, Chennai and Maharastra be sold and the sale proceeds would be deposited in IDBI Bank and shall be used only to liquidate the liability towards the present applicants. Therefore, the O.P. No.2 is a large financial institution and has the every right to collect investment from the public.
On the other hand, the Ramel Industries Ltd., the O.P of the Case No. CC/65/2014 is fake one and not affiliated to any organization and having no license to collect money for the consumers. Moreover, we find that the O.P. No.3 (Agent) used to collect money in cash and she did not deposit the whole collected money in favour of the Ramel Industries Ltd. The O.P. No.3 of the cited case misused some money in her favour. Therefore, we hold that case decision of the Complaint Case No. CC/65/2014 is not applicable here.
In another case decision passed by this Forum in Case No. CC/58/2015, where in this Forum held that the agent has no liability to refund the deposited amount on behalf of the Company to the depositor.
In this case, the O.P. No.1 is the broker of the O.P. No.2 and we can be presumed that the O.P. No.1 received commission for obtaining the F.Ds. The Complainant issued cheque in favour of the O.P. No.2 and the O.P. No.1 may collect the cheque in favour of the O.P. No.2. The O.P. No.2 after receiving the cheque, issued Fixed Deposit Receipt in favour of the Complainant. The O.P. No.2 promised to pay the maturity amount to the Complainant. The O.P. No.1 did not give any promise to pay the Complainant after the maturity of fixed deposit. Therefore, we hold that the O.P. No.1 has no responsibility to pay the maturity amount. But the O.P. No.2 promised to pay the maturity amount to the Complainant. Both the points are disposed of accordingly.
Hence,
Ordered,
That the present Case No. CC/27/2016 be and the same is allowed in Ex-parte against the O.P. No.2 with cost of Rs.10,000/- and dismissed on contest against the O.P. No.1 without any cost.
The O.P. No.2 is hereby directed to pay Rs.36,304/- to the Complainant as the maturity amount and Rs.25,000/- as compensation for causing mental pain & agony and also for deficiency in service.
The O.P. No.2 is hereby further directed to comply with the above order within 30 days from this date, failing which the O.P. No.2 shall have to pay Rs.100/- per day for each day’s delay and the amount so accumulated shall be deposited in the Consumer Legal Aid Account.
Let plain copy of this Final Order be made available and be supplied free of cost to the concerned party/Ld. Advocate by hand/Registered Post with A/D forthwith for information and necessary action, as per Rules.
Dictated and corrected by me.
