Haryana

Karnal

CC/170/2020

Purshotam Bansal - Complainant(s)

Versus

Sahara Credit Cooperative Society Limited - Opp.Party(s)

Kanv Deep Singh

02 Sep 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                    Complaint No.170 of 2020

                                                     Date of instt. 18.03.2020

                                                     Date of decision 02.09.2022

 

Purshotam Bansal son of late Shri Durga Dass, resident of House no.2052/13, Urban Estate, Karnal.

      …….Complainant.

                                        Versus

 

1.     Sahara Credit Cooperative Society Limited, Registered office: Sahara India Bhawan, I, Kapoorthala Complex, Aliganj, Lucknow-226024 (UP) through its Managing Director.

 

2.     Sahara India Pariwar, opposite Onida Showroom, near Chandrachal Banquent Hall, Kunjpura Road, Karnal through its Branch Manager/authorized signatory Shri Sunil Sinha.

 

    …..Opposite Parties.

 

Complaint Under section 12 of the Consumer Protection Act, 1986 as amended Under Section 35 of Consumer Protection Act, 2019.

               

Before   Sh. Jaswant Singh……President.       

      Sh.Vineet Kaushik ………..Member

              Dr. Rekha Chaudhary…..Member

 

 Present: Shri Kanav Deep, counsel for complainant.

Shri Sunil Sinha Manager on behalf of OPs

alongwith Shri Vikas Yadav Advocate.

 

                (Jaswant Singh President)

ORDER:  

                 

                 The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that OPs are running a finance company and offering the public at large various finance scheme like Recurring Deposit, FDR etc. through their authorized agent. The authorized agent of the OPs contacted the complainant and told about the best scheme launched by OPs and told about the goodwill of the OP no.1 and assured that OPs will give handsome interest on the deposit amount and also assured that on maturity, they will return the deposit amount alongwith interest well in time without any delay or hardship to the complainant. On the abovesaid assurance of the representative of the OPs, the complainant opened an Investment Plan/Fixed Deposit amounting to Rs.4,45,300/- on 21.07.2012, vide account no.822002000536 in his own name with the OP no.2 alongwith assurance chart (year wise) according to which after six years, the maturity amount was to be to the tune of Rs.10,48,236.20 on 21.07.2018. In this regard, OPs had issued a bond in the name of the complainant pertaining to the said amount, account, maturity amount. In the year 2014, OPs company was going a rough phase, at that time, complainant approached the no.2 , then OP no.2 in his own hand writing has given an assurance that whatever  happens to the OP no.1 company, the amount deposited by the complainant is safe with them. On its assurance complainant became satisfied and continued to wait till the expiry of period assigned to the fixed deposit. It is further averred that on expiry of maturity, complainant approached the OP no.2 and requested to make the maturity amount, but OPs did not bother to make the payment of abovesaid Fixed Deposit amount alongwith interest till date to the complainant. Due to this act and conduct of OPs complainant has suffered a lot of mental shock, pain and agony, harassment as well as financial loss. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OPs appeared and filed its written version raising preliminary objections with regard to maintainability; jurisdiction; non-joinder and mis-joinder of necessary party; concealment of true and material facts and jurisdiction as the OP is a society and they are bound to refer their dispute before Arbitrator as per Arbitration Agreement under clause 18 of the scheme Super AB. On merits, it is pleaded that the complainant has wrongly alleged that he was allured to make the investment in the company (OP) and he was promised to return the amount after the completion of six years with agreed amount, whereas under Q Shop Plan-H scheme, the complainant has to purchase the products of Sahara Q shop Unique Products Range Limited Company and as per the terms and conditions of the scheme there is no provision of payment of pre-maturity or maturity. As per clause-2 of scheme no interest is payable over the advance amount. As per the terms and conditions during the tenure of the scheme the customer can get Loyalty Bonus Points on the purchase of the products of the company. Q Shop scheme is not a policy or fixed deposit scheme. Complainant did not make advance to get the interest over the same, rather he had advanced to purchase the products. The claim of the complainant is against the terms of the agreement. As per the law laid down by the Hon’ble Supreme Court of India as well as Hon’ble National Commission, wherein it is held that courts are expected to give paramount importance to the terms of contract into between the parties. It is further pleaded that OP has no concern with the alleged party “Sahara India” and no application is maintainable against the company through Sahara India Real Estate Corporation Limited. It is further pleaded that the present concerned issue related to Q shop hence the OP deals with real estate. Therefore, due to mis-joinder of necessary party, the present complaint is not maintainable. It is further pleaded that the complainant has signed the documents after listening and understanding all the documents. It is denied that OPs assured the maturity amount of Rs.10,48,236/- after six years. The representative of OPs only has given the information regarding deposited amount of Rs.4,45,300/- on 21.07.2012. It is further pleaded that complainant never approached the OPs regarding the maturity amount. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint with costs.

3.             Parties then led their respective evidence.

4.             Learned counsel for complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of certificate of given by official of OPs regarding deposition of amount of Rs.4,45,300/-with the OPs Ex.C1, copies of receipts Ex.C2, copy of Super B.B. Contribution Form Ex.C3, copy of investment Plan Ex.C4, copy of receipt in total Ex.C5 and closed the evidence on 23.12.2021 by suffering separate statement.

5.             On the other hand, OPs have tendered into evidence affidavit of Sunil Sinha, Manager Ex.OP1/A and closed the evidence on 15.06.2022 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of complaint, has vehemently argued that on 21.07.2012 complainant had invested Rs.4,45,300/- with the OPs in fix deposit for six years, the date of maturity was 21.07.2018 and on maturity it becomes Rs.10,48,236.20/-, but OPs have failed to release said amount to the complainant after maturity of the same, hence prayed for allowing the complaint.

8.             Per contra, learned counsel for OPs while reiterating the contents of written version, has vehemently argued that under the terms and conditions of the scheme, there is no provision of payment of pre-maturity or maturity. As per clause 2 of scheme no interest is payable over the advance amount, whereas as per terms and conditions, during the tenure of scheme, the customer can get loyalty bonus points on the purchase of the products of the company. Q shop scheme is not a policy or fixed deposit scheme. He further argued that this Commission has no jurisdiction to try and decide the present complaint as the OPs are a Society and only the Registrar of Cooperative Society has jurisdiction to try and entertain the present complaint, therefore, the dispute is to be entertained before Arbitrator as per arbitration agreement under clause 18 of the scheme Super AB, which is reproduced as under:-

        Clause 18. Arbitration:-

        “All dispute between Society and Member the same shall be subject to arbitration as per the provisions of Section 84 of the “Multi State Co-operative Society Act, 2002 as amended from time to time.” Learned counsel for OPs relied upon the judgment of Hon’ble National Commission in case titled as Ms. Anjana Abraham Chembethil Versus The Managing Director, The Koothattukulam Farmers Service Cooperative Bank Ltd. NCDRC759 of 2013 (4) and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, the complainant has invested Rs.4,45,300/- in the scheme of the OPs i.e. “Q Shop Plan H”. It is also admitted that OPs have failed to return the said amount after expiry of its maturity period i.e. six years.

11.           The first question for consideration is that whether the present complaint is maintainable before this Commission or not, in view of the Arbitration Agreement under clause 18 of the scheme Super AB?

12.           In this regard, we are of the considered view that the OPs have not placed on record any Arbitration Agreement or any document proving that OPs is a society. Therefore, this plea is not tenable in the eyes of law.  Furthermore, for the sake of argument if it is to be considered that OPs is a society and there should exist an arbitration agreement between the OPs and the complainant. Even in existence of arbitration agreement also this Commission has jurisdiction to entertain the present complaint as it is a settled proposition of law that complaint under Consumer Protection Act, being an additional remedy, despite there being an arbitration agreement, the proceedings before Consumer Commission have to go on. The remedy under Consumer Protection Act is a remedy provided to a consumer when there is a defect in any goods or services. In this regard, we have placed reliance on the case titled “M/s Emaar MGF Land Limited Versus Aftab Singh, review petition © Nos.2629-2630 of 2018 (SC), wherein Hon’ble Supreme Court of India held in para no.55 as under:-

“We may, however, hasten to add that in the event a person entitled to seek an additional special remedy provided under the statutes does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration.”

  

        Further, similar view was taken by Hon’ble National Commission in case titled as Sanjay Gopinath Versus M/s IREO Grace Realitech Pvt. Ltd. (bunch of the cases) decided on 31.08.2021 wherein Hon’ble National Commission while placing reliance on the judgment of Hon’ble Supreme Court of India titled as M/s Emaar MGF Land Limited Versus Aftab Singh-I (2019) CPJ 5 (SC) has held that an Arbitration clause in the Agreement does not bar the jurisdiction of Consumer Fora to entertain the complaint. Hence, the objection raised by the learned counsel for the opposite party that the clause of Arbitration bars this commission from entertaining the complaints is unsustainable.

13.           Hence, keeping in view the above discussion and ratio of the judgments, the plea taken by the OPs has no force. Thus, this Commission has jurisdiction to entertain and try the present complaint.

14.           The next plea taken by the OPs, is that as per terms and conditions of the scheme, there is no provision of payment on pre-maturity or maturity and no interest is payable over the advanced amount, rather only customer can get loyalty bonus points on the purchase of products of the company. In this regard, except the affidavit Ex.OP1/A, OPs have not placed on record any document to prove that the complainant had taken any membership to purchase the product under the scheme. As per the pleadings itself it has been well proved that the OPs’ officials have not provided any kit or any product to the complainant till date and it is within the knowledge of the OPs that complainant has not purchased any product. In that situation, OPs should have given a notice to the complainant that their amount has not been utilized or they should have refunded the amount to the complainant. But the same has not been done by the opposite parties. On the other hand, as per document Ex.C4, Investment Plan in Q shop Plan H has been placed on record by the complainant, the deposited amount is refundable after six years but same has not been refunded to the complainant till date.

15.           It is evident from the receipt Ex.C5 dated 21.07.2012 an amount of Rs.4,45,300/- was deposited by the complainant to the OPs. Receipts Ex.C5 bears the stamp/sealed the OPs, which has not been disputed by the OPs in their pleadings. It is also evident from the document Ex.C4, after six years, deposited amount vide receipt Ex.C5 becomes Rs.10,48,236/-.  In view of the matter, credence can be given to these documents and the complainant is held to be entitled for Rs.10,48,236/-. Needless to mention here, the complainant did not avail any kind of services of the OPs and has also not taken cash back, therefore, complainant is certainly and definitely entitled to the deposited amount as above. Hence, the act of the OPs for non-honouring their own scheme and by non-explaining the terms and conditions thereof to the complainant, proves deficiency in service and their indulgence into unfair trade practice, which not only resulted in the unnecessary litigation, but has certainly caused unprecedented harassment to the complainant. The act of non-payment of the amount of fix deposit after the date of maturity by the OPs to the complainant is deficiency in service as well as unfair trade practice. Hence, complainant is entitled for the maturity amount alongwith interest, compensation and litigation expenses.

16.           The authority cited by the learned counsel for the OPs is not applicable to the facts of the present complaint.

17.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to refund the amount of Rs.10,48,236/- (Rs. ten lakhs forty eight thousand two hundred thirty six only)  to the complainant alongwith interest @ 9% per annum from the date of maturity of amount i.e. 21.07.2018 till its realization. We further direct the OPs to pay Rs.20,000/- to the complainant on account of mental agony and harassment suffered by her and Rs.11,000/- for the litigation expense. This order shall be complied with within 45 days from the date of receipt of copy of this order till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:02.09.2022

    President,

                                                          District Consumer Disputes

                                                          Redressal Commission, Karnal.

 

            (Vineet Kaushik)       (Dr. Rekha Chaudhary)                                          

                     Member                    Member