Order by:

Sh.Amrinder Singh Sidhu, President

1.       Sh.Rakesh Tandon, complainant  has filed the instant complaint under section 12 of  the Consumer Protection Act, 1986 (as amended upto date) on the allegations that in the month of October, 2012 one agent of Opposite Parties  came to the house of the Complainant and told regarding the gold scheme of the Opposite Parties  and on the assurance of the agent and goodwill of the Opposite Parties, the Complainant purchased a gold coin of 112.000 Grams (22 carat) against receipt No.912001959841, having serial No.092001408820 dated 15.10.2012 bearing booking ID 60344700017. The Complainant alleges that according to the terms and conditions of the policy, the total amount of the scheme was Rs.3,36,000/- and the Opposite Parties  gave discount of Rs.1,26,000/- to the Complainant and received Rs.2,10,000/- from the Complainant and after the completion of the scheme, the Opposite Parties  agreed to pay Rs.3,36,000/- to the Complainant, as per the detail given below:

The Complainant further alleges that after completion  of the time of the scheme, he approached the officials of the Opposite Parties at Moga, who directed the Complainant to go to Ludhiana office to complete the necessary requirement and to receive the order of sanction of amount. On the asking of the officials of the Opposite Parties of Moga, the Complainant went to Ludhiana office of Opposite Parties, but there nobody attended the Complainant nor provided any sanction letter, rather they are lingering on the matter. Thereafter, the Complainant visited the office of Opposite Parties  at Moga as well as Ludhiana, but at last, they refused to pay the amount of the Complainant without any reasonable cause. As such, there is deficiency in service and unfair trade practice on the part of the Opposite Parties and the Complainant is left with no other alternative but to file the present complaint.  Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Parties may be directed to make the amount of Rs.3,36,000/- alongwith interest.. 

b)      The amount of Rs.50,000/- be allowed to be paid by the opposite parties on account of deficiency in service and Rs.50,000/- on account of mental tension and harassment caused by the complainant.

c)       The cost of complaint amounting to Rs.22,000/- may please be allowed.

d)      And any other relief to which this Commission may deem fit be granted.       

2.       Opposite Parties  appeared through counsel and contested the complaint by filing  the written version taking preliminary objections therein inter alia that the Complainant has arrayed Sahara India Pariwar as Opposite Parties  No.3 and 4 whereas Sahara India Pariwar is not a legal entity and it does not enjoy any legal right. Sahara India Pariwar is not a registered company or firm rather it is mere symbolic name of Group of Companies. Sahara India Pariwar can not be sued and no suit or complaint is maintainable against it, therefore, the present complaint is defective for impleadment of unnecessary party and is liable to be dismissed on this ground alone.  The company has not been arrayed as Opposite Parties  through its local office at Moga, rather the office at Mumbai and Lucknow has been impleaded, therefore, this Commission has no jurisdiction to entertain the present complaint. At the time of advance booking of gold, the terms and conditions of the scheme were read over and explained to the Complainant in vernacular, who after fully understanding the same had agreed to abide with the terms and conditions and entered into agreement with the company, wherein and where under Arbitration Agreement found place as clause-16  and the parties are bound by the Arbitration agreement to refer any dispute with regard to the said advance booking. Hence, as per the arbitration agreement,  the Complainant is bound to get redressal of  dispute, if any, through arbitration. On merits, the Opposite Parties allege that the Complainant himself approached the company office to avail the benefit of goldbank plan. Moreover, the Complainant had not purchased gold coins rather had booked 112 grams gold having its value of Rs.3,36,000/-.  Q Gold Bank plan scheme is not a policy.  Briefly alleges that the Complainant launched Q Goldbank scheme with its specific terms and conditions mentioned overleaf of the Goldbank purchase form. The Complainant approached the company to avail the benefit of Goldbank plan, who was explained the terms and conditions of the scheme in vernacular and the Complainant after fully understanding the same showed willingness to book gold as per the terms and conditions of the scheme and accordingly, the Complainant filled the Goldbank purchase form and in declaration to abide with the terms and conditions, put his signatures over it.  The relevant terms and conditions of the scheme are reproduced as under:-

Clause -1: The tenure of this plan is 5 years. Gold will be delivered after 5 years from the date of purchasing/ booking.

Clause -2: Under this plan a customer can book/ purchase minimum 4 grams and above gold quantity by paying 62.5% of the actual market value of booked/ purchased gold quantity. Deliver of the booked quantity of gold shall be made after 5 years. Title in the booked/ purchased gold shall be transferred at the time of delivery.

Example: The market price of 16 gms gold is Rs.44,880/-. The customer will get discount of 37.5% on the market value and book/ purchase the said quantity of gold by pay Rs.28,000/-.

Clause-3: Gold coin sold under this plan will be 22 Kt (916 purity).

Clause-4: Gold purchased will be booked at the rate prevailing on the date and time of the payment.

Clause-6: there shall be a lock-in-period of one year from the date of first booking and no request for cancellation/ closure by the customer will be entertained by the company during lock-in-period. This plan is not transferable.

Clause-10: The Customer may select gold coin or gold jewellery from the company catalogue released from time to time.

Clause-11: the company shall be entitled to discontinue the plan. In such case, the customer’s account shall be settled by giving notice and compensating the customer in the manner and fashion as mentioned below:-      

*Note: Compensation calculation is based on the basis of booked/ purchased quantity of gold. It will increase or decrease on the basis of quantity of gold booked.

Clause-12: If at all there is severe hardship of any customer, company at its discretion may refund the amount paid by the customer. However, the company will deduct administrative, processing, promotional and development charges. 

Clause16: All disputes shall be resolved through arbitration in accordance to the (Indian) Arbitration and Conciliation Act, 1996 and rules thereunder or any succeeding enactment by a Sole Arbitrator appointed solely by the company.

As per the above conditions,  the Complainant agreed to pay 62.5% of the actual market value of booked gold quantity at the rate prevailing on the date of payment; as such, got discount of 37.5% on the market value of booked quantity of gold with tenure of the plan of 5 years and after a period of 5 years from the date of booking the customer can get the gold coin or gold jewellery from the company. In this way, after understanding all the conditions of the plan on 15.10.2012, the Complainant had booked 112.000 gm 22 kt gold at that time the value of the same was Rs.3,36,000/-, so as per the conditions of the scheme, the Complainant paid 62.5% of Rs.3,36,000/- i.e. Rs.2,10,000/- only and as such he received discount of 37.5% of Rs.3,36,000/- i.e. Rs.1,26,000/-. On request  of the Complainant, he was being paid Rs.3,23,400/- which includes Rs.2,10,000/- deposited advance amount and Rs.1,13,400/- interest after deducting income tax Rs.12,600/- over interest amount Rs.1,26,000/- as per the provisions of section-194(A) of Income Tax Act. But the Complainant wilfully refused to receive Rs.3,23,400/- and has claimed tax amount also. It is submitted that total Rs.3,36,000/- (Rs.2,10,000/- principle +Rs.1,26,000/- interest ) is not payable. Whereas, both the company and the Complainant are bound by the Statutory Provisions of Income Tax Act and deduction of Tax before making payment is mandatory for the company. If the company fails to deduct the tax it shall have to face consequences as per the provisions of section-201 of Income Tax Act, therefore, the company is bound to deduct the income tax and hence, there is no deficiency in service on the part of the Opposite Parties. The Complainant is not entitled to any other amount, interest, compensation or litigation costs  except the payable amount of Rs.3,23,400/-. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.

3.       In order to  prove  his  case, the complainant has placed on record  his affidavit Ex.CW1, copy of Aadhar Card Ex.C1, copy of receipt Ex.C2, copy of application form Ex.C3 and Ex.C4..

4.       On the other hand,  to rebut the evidence of the complainant,  Opposite Parties also placed on record the copies of conditions Ex.Ops1 to Ex.Ops3, affidavits of Sh.Jatinder Goel Ex.OPs4 and Ex.OPs5.

5.       We have heard the ld.counsel for the parties and gone through the documents placed  on record.

6.       During the course of arguments, both the ld.counsel for the Complainant as well as Opposite Parties  have mainly reiterated the facts as narrated in the complaint as well as in written reply respectively.    It is not disputed that the Complainant purchased a gold coin scheme of 112.000 Grams (22 carat) against receipt No.912001959841, having serial No.092001408820 dated 15.10.2012 bearing booking ID 60344700017 and  according to the terms and conditions of the policy, the total amount of the scheme was Rs.3,36,000/- and the Opposite Parties  gave discount of Rs.1,26,000/- to the Complainant and received Rs.2,10,000/- from the Complainant and after the completion of the scheme i.e. after 5 years, the Opposite Parties  agreed to pay Rs.3,36,000/- to the Complainant.

7.       On the other hand, ld.counsel for the Opposite Parties  has contended that first of all, this Hon’ble Commission has got no jurisdiction to entertain the present complaint under the Consumer Protection Act, 1986 because as per the terms and conditions of the scheme, the parties are bound by the Arbitration agreement to refer any dispute with regard to the said advance booking. Hence, as per the arbitration agreement,  the Complainant is bound to get redressal of  dispute, if any, through arbitration. But we do not agree with the aforesaid contention of the Opposite Parties  because section 3 of the Consumer Protection Act, 1986 provides as under:-

“as per section 3 of the Consumer Protection Act, the Act not in derogation of any other law – The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

In case titled Associated Road Carriers Ltd. Versus Kamlender Kashyap & Ors reported in I (2008) CPJ-404 (NC), it was observed that additional remedy is provided under Section 3 of the Act and jurisdiction of fora is not barred by Arbitration Clause. Further in case titled Pasumarthi S.N. Murthi (Dr.) Versus Nischint Constructions reported in I (2003) CPJ-399 (A.P.), it was observed that Fora is at liberty to proceed with matters rather to relegate to arbitration since the Act intends to relieve consumers of cumbersome arbitration proceedings. Keeping in view the citations as referred to above this complaint is maintainable in this Commission and the  complainant has a right to get his grievances redressed through this channel of Consumer Protection Act, 1986.  Further, in this regard, it is relevant to mention that the Hon’ble National Commission in case WESTERN RAILWAY v. VINOD SHARMA, I (2017) CPJ 279 (NC), while discussing the various provisions of the Act and by relying upon the judgments of the Hon’ble Supreme Court, in which it was observed that having due regard to the scheme of the Consumer Protection Act and purpose sought to be achieved to protect the interest of the consumers, the better provisions are to be interpreted broadly, positively and purposefully to give meaning to additional/extended jurisdiction, particularly when Section '3' seeks to provide remedy under the Act in addition to other remedies provided under other Acts, unless there is clear bar; held in Para Nos.17 to 19 as follows:

“17. A plain reading of the provisions quoted above from the Railways Act, 1989 and the Railway Claims Tribunal Act, 1987 indicates that an elaborate mechanism has been laid down for providing compensation in the event of accidents, untoward incidents and allied matters, during the course of the operations, carried out by the Railways and for that purpose, the jurisdiction, powers and authority of the Claims Tribunal have been laid down. It is to be determined, however, whether keeping in view the above provisions, the consumer fora shall also have the jurisdiction to deal with the matters, involving railway accidents. The issue has come up for consideration from time to time before the Hon'ble Apex Court and this Commission as well. It has been observed that the Consumer Protection Act is a special legislation, enacted to provide better protection for the interests of consumers in diverse fields. It is true that for specific sectors such as banking, finance, insurance, supply of electricity, entertainment etc., appropriate mechanism has been laid down in the respective statute, to provide suitable relief to the consumers as per requirements. However, the Consumer Protection Act is a beneficial legislation, specially enacted for the protection of the consumers and provides an additional remedy in the shape of Section '3' of the Consumer Protection Act, which clearly lays down that the provisions of the Act shall be in addition to, and not in First Appeal No.334 of 2018 10 derogation of the provisions of any other law for the time being in force. A harmonious construction of the provisions contained in the Consumer Protection Act and the Railways Act etc. shall indicate that the jurisdiction of the consumer fora cannot be barred, even if the provisions to provide compensation are laid down in the Railway legislation. The Hon'ble Supreme Court in their order in Secretary, Thirumurugan Cooperative Agricultural Credit Society vs. M. Lalitha (dead) through LRs, I (2004) CLT 20 (SC) and in Trans Mediterranean Airways vs. Universal Exports, IV 2011 CPJ 13(SC) observed that, "having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, the better provisions are to be interpreted broadly, positively and purposefully to give meaning to additional/extended jurisdiction, particularly when Section '3' seeks to provide remedy under the Act in addition to other remedies provided under other Acts, unless there is clear bar.

18. In State of Karnataka vs. Vishwabarathi House Building Co-op. Society, I (2003) CPJ 1 (SC), the Hon'ble Supreme Court observed, that by reasons of the provisions of Section '3' of the Act, it is evident that remedies provided thereunder are not in derogation of those provided under other laws. The said Act supplements and not supplants the jurisdiction of the Civil Courts or other statutory authorities.

19.       Based on the discussion above, it is held that the consumer fora do have the jurisdiction to deal with the present case and hence, the consumer complaint cannot be dismissed on the ground of lack of jurisdiction by the consumer fora.”

Hence, in view of the law laid down by the Hon’ble Supreme Court as well as the National Commission as discussed above, the aforesaid contention of the appellants/opposite parties is rejected, holding that the Consumer Forum/District Forum/ Commission is duly authorized and competent to decide the dispute between the parties and the District Forum/ Commission duly exercised the jurisdiction under law. Not only this, recently our own Hon’ble State Consumer Commission, Punjab, Chandigarh in First Appeal No. 334 of 2018 decided on 06.06.2018 titled as Divisional Railway Manager Vs. Malkit Singh also held so.

8.       The second plea of the Opposite Parties  is that the Complainant himself approached the company office to avail the benefit of goldbank plan. Moreover, the Complainant had not purchased gold coins rather had booked 112 grams gold having its value of Rs.3,36,000/-.  Q Gold Bank plan scheme is not a policy.  Briefly alleges that the Complainant launched Q Goldbank scheme with its specific terms and conditions mentioned overleaf of the Goldbank purchase form. The Complainant approached the company to avail the benefit of Goldbank plan, who was explained the terms and conditions of the scheme in vernacular and the Complainant after fully understanding the same showed willingness to book gold as per the terms and conditions of the scheme and accordingly, the Complainant filled the Gold bank purchase form and in declaration to abide with the terms and conditions, put his signatures over it.  As per the terms and conditions, the Complainant agreed to pay 62.5% of the actual market value of booked gold quantity at the rate prevailing on the date of payment; as such, got discount of 37.5% on the market value of booked quantity of gold with tenure of the plan of 5 years and after a period of 5 years from the date of booking the customer can get the gold coin or gold jewellery from the company. In this way, after understanding all the conditions of the plan on 15.10.2012, the Complainant had booked 112.000 gm 22 kt gold at that time the value of the same was Rs.3,36,000/-, so as per the conditions of the scheme, the Complainant paid 62.5% of Rs.3,36,000/- i.e. Rs.2,10,000/- only and as such he received discount of 37.5% of Rs.3,36,000/- i.e. Rs.1,26,000/-. On request  of the Complainant, he was being paid Rs.3,23,400/- which includes Rs.2,10,000/- deposited advance amount and Rs.1,13,400/- interest after deducting income tax Rs.12,600/- over interest amount Rs.1,26,000/- as per the provisions of section-194(A) of Income Tax Act. But the Complainant wilfully refused to receive Rs.3,23,400/- and has claimed tax amount also. It is submitted that total Rs.3,36,000/- (Rs.2,10,000/- principle +Rs.1,26,000/- interest ) is not payable. Whereas, both the company and the Complainant are bound by the Statutory Provisions of Income Tax Act and deduction of Tax before making payment is mandatory for the company. If the company fails to deduct the tax it shall have to face consequences as per the provisions of section-201 of Income Tax Act, therefore, the company is bound to deduct the income tax and hence, the  Complainant is not entitled to any other amount, interest, compensation or litigation costs  except the payable amount of Rs.3,23,400/-. We fully agree with the aforesaid contention of the Opposite Parties because  both the complainant as well as company are bound by the Statutory Provisions of Income Tax Act and deduction of Tax before making payment is mandatory for the Opposite Parties- Sahara Company.

9.       It is not disputed that the total amount payable to the Complainant by the Opposite Parties  after 5 years tenure is Rs.3,36,000/- which includes Rs.2,10,000/- deposited advance amount and Rs.1,13,400/- interest after deducting income tax Rs.12,600/- over interest amount Rs.1,26,000/- as per the provisions of section-194(A) of Income Tax Act.

10.     Resultantly, we partly allow the complaint  of the complainant. The Opposite Parties are jointly or severally directed to make the payment of Rs.3,23,400/-  (Rupees three lacs twenty three thousands four hundred only)  i.e. (Rs.3,36,000/- minus Rs.12,600/- on account of  TDS) alongwith interest @ 8% per annum from the date of its maturity i.e. 15.10.2017  till its actual realisation.   The Opposite Parties are also directed to pay lump sum compensation  of Rs. 10,000/- (Rupees Ten thousands only)  on account of harassment, mental tension  and litigation expenses, to the Complainant. The Opposite Parties are further directed to produce on record of this Commission the certificate after depositing the aforementioned  TDS amount with the Income Tax Department. The compliance of this order be made by the Opposite Parties within 45 days from the date of receipt of copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Commission Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

11.     Reason for delay in deciding the complaint.

This complaint could not be decided within the prescribed period because the government has not appointed any of the two Whole Time Members in this Commission since 15.09.2018. Moreover, the President of this Commission is doing additional duties at District Consumer Commission, Faridkot. There is only one working day in a week when the quorum of this Commission remains complete.  

Announced in Open Commission.

Dated: 13.08.2021.