Haryana

Karnal

CC/26/2021

Garvit - Complainant(s)

Versus

Sahara India Real Estate Corporation Limited - Opp.Party(s)

Vishav Nath

07 Nov 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 26 of 2021

                                                        Date of instt.13.01.2021

                                                        Date of Decision:07.11.2022

 

Garvit son of Shri Virender resident of House no.7/562, near Raghunath Mandir, Ibrahim Mandi, Karnal.

 

                                               …….Complainant.

                                              Versus

 

Sahara India Real Estate Corporation Limited, opposite Onida Showroom, Kunjpura Road, Karnal through its authorized signatory.

 

                                                                   …..Opposite Party.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary….Member

 

 Argued by: Shri Shshat Sharma, counsel for the complainant.

Shri Sunil Sinha Manager alongwith Shri Vikas

Yadav Advocate.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of Consumer Protection Act, 2019 against the opposite party(hereinafter referred to as ‘OP’) on the averments that complainant had purchased a abode bond worth Rs.5000/- from the OP through agent Vinod Kumar on 03.03.2010, vide no.220010323201 for which complainant had to get Rs.15,530/- after ten years i.e. on 02.03.2020. After passing the period of ten years, complainant approached the OP and submitted all the concerned documents and demanded Rs.15,530/- by showing the matured receipt but the officials of the OP started lingering the matter on one pretext or the other by making false excuse and lastly refused to disburse the said amount. Then complainant sent a legal notice dated 18.12.2020 to OP but it also did not yield any result. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; locus standi; cause of action and concealment of true and material facts. On merits, it is pleaded that OP has not withheld the amount of the complainant. It is further pleaded that SEBI has filed petition against the OP before the Hon’ble Supreme Court of India in which order dated 16.09.2016 has been passed vide which the OP has been directed to deposit Rs.300/- crores with the SEBI and the OP is held entitled to sell moveable properties owned by them subject to the condition that the entire sale consideration received by them is deposited in SEBI Sahara Account and the list of the properties so sold and the consideration received against the same is fled in this court. So, in view of the said reason the OP is helpless to make payment of the complainant. However, after settlement of entire dispute with SEBI the OP would proceed to pay the amount of the beneficiaries. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Complainant has tendered into evidence his affidavit Ex.CW1/A, copy of abode bond of Rs.15530/- Ex.C1, copy of abode bond of Rs.5000/- Ex.C2, copy of legal notice Ex.C3, postal receipt Ex.C4, tracking report Ex.C5, copy of Aadhar card of complainant Ex.C6 and closed the evidence on 23.02.2022 by suffering separate statement.

5.             On the other hand, OP has tendered into evidence affidavit of Sunil Kumar Sinha, Manager as Ex.OP1/A and closed the evidence on 17.08.2022 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 complainant had purchased an abode bond of Rs.5,000/-on 03.03.2010 for the period of ten years from the OPs. After maturity of the said bond, the complainant was entitled for refund of the amount of Rs.15530/-. The complainant approached the OPs to refund the invested amount alongwith interest, then OPs firstly tried to linger on the matter on one pretext or the other and finally refused to pay the same and  prayed for allowing the complaint.

8.             Per contra, learned counsel for OP, while reiterating the contents of written version, has vehemently argued that S.E.B.I. has filed petition against the OP before the Hon’ble Supreme Court of India, vide order dated 16.09.2016 the OP has been directed to deposit Rs.300 crores with the SEBI and the OP is held entitled to sell moveable properties owned by them subject to the condition that the entire sale consideration received by them is deposited in SEBI Sahara Account and the list of the properties so sold and the consideration received against the same is filed in this court. So, in view of the above said reason the OP is helpless to make payment of the complainant. However, after settlement of entire dispute with SEBI the OPs would proceed to pay the amount of the complainant. He further argued that this Commission has no jurisdiction to try and decide the present complaint as the OP is 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.             The first question for consideration before us whether the present complaint is maintainable before this Commission or not.

10.           The OP has taken a plea that OP is a society so this Commission has no jurisdiction to entertain the present complaint. In this regard, we are of the considered view that the OP has not placed on record any Arbitration Agreement or any document that OP is a society. Therefore, this plea is not tenable in the eyes of law.  Furthermore, if for the sake of argument it may be considered that OP is a society and there exists an arbitration agreement between the OP and the complainant, in that case also this Commission has jurisdiction to try and 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 place 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.

11.           Hence, keeping in view the above discussion and ratio of the law laid down in the above judgments, this Commission has jurisdiction to entertain and try the present complaint.

12.           It is evident from the abode bond Ex.C2 dated 03.03.2010, complainant deposited an amount of Rs.5000/- with the OP for the period of ten years. It is also evident from the abode bond Ex.C1 on maturity it becomes Rs.15530/-. The said bond bears the stamp/sealed of the OP, which has not been disputed by the OP in their pleadings

13.           In view of the matter, credence can be given to that documents and the complainant is entitled to Rs.15,530/-. Needless to mention here, the complainant did not avail any kind of services of the OP and has also not taken any cash back, therefore, he is certainly and definitely entitled to the deposited amount as above. Hence, the act of the OP for non-honouring their own scheme, non-explaining the terms and conditions thereof to the complainant so that they could get benefit of the same for ten years, proves deficiency in service and their indulgence into unfair trade practice, which not only resulted in the present unnecessary litigation, but has certainly caused unprecedented harassment to the complainant.

14.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP to refund the amount of Rs.15,530/- to the complainant alongwith interest @ 9% per annum from the date of maturity of the bond till its realization. We further direct the OP to pay Rs.4,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.2200/- 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:07.11.2022                                                                       

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

 

(Vineet Kaushik)           (Dr. Rekha Chaudhary)

                     Member                        Member