Haryana

Karnal

CC/158/2019

Jai Kishore Aggarwal - Complainant(s)

Versus

Sahara Q Shop Unique Products Limited - Opp.Party(s)

S.L. Nirwania

21 Oct 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL  COMMISSION, KARNAL.

 

                                                          Complaint No. 158 of 2019

                                                          Date of instt.18.03.2019

                                                          Date of Decision 21.10.2021

 

1. Jai Kishore Aggarwal.

2. Ritu Aggarwal @ Ritu Raghuvanshi d/o Shri Jai Kishore Aggarwal and wife of Rajesh Singh.

3. Ekansh @ Ekansh Raghuvanshi son of Smt. Ritu Aggarwal and Shri Rajesh Singh, all residents of House no.1318, Adjacent Oriental Bank of commerce, Sadar Bazar, Karnal.

 

                                                …….Complainants.

                                              Versus

 

1. Sahara Q Shop Unique Products Limited, Sahara India Bhawan 1, Kapoorthala Complex, Aliganj, Lucknow (UP) through its authorized representative.

2. Sahara Q Shop Unique Products Limited, C-38, 39 G Block, 15^th floor, Parinee Crescendo (opposite MCA Ground) Bandra Kurla Complex (East) Mumbai-400051.

3. Sahara Q Shop Unique Products Limited, through its Branch Manager Branch Office near Vishal Mega Mart, Kunjpura Road, Karnal.

                                                                      …..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

       

 Argued by: Shri S.L.Nirwania counsel for complainants.

                    Shri Vikas Yadav counsel for the OPs.

 

                (Jaswant Singh President)

ORDER:   

                

                        The complainants have 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 as to ‘OPs’) on the averments that in the year 2012, the representatives of OPs contacted complainant no.1 and represented that the OPs’ company owns and operate consumer merchandise retail stores in India, offering range of products, that in case complainant no.1 invests his savings with the OPs’ company, the OPs’ company shall give lucrative returns on the investment. Allured by the representation of the OPs company/its representatives, complainant no.1 invested a sum of Rs.12,250/- in his (complainant no.1) name and in the name of his daughter (complainant no.2), vide receipts dated 23.03.2012 (receipt no.71001603632) in “advance for consumer merchandise-SQSUPRL” scheme. As per the said scheme, the complainants no.1 and 2 were entitled to purchase consumer merchandise products of the OPs’ company against the amount advanced to the OP company and in case no such purchase is made, the complainants were entitled to refund of the amount invested by them alongwith return at the rate of 2.35%.

2.             Further, in the month of July, 2012, the representative of the OPs approached the complainant no.1 and allured him to invest more money with the OPs in its “Q shop Plan H”. The representative of the OPs handed over a schedule of return on the investment/s made in the aforesaid scheme of the OPs. As per the said scheme, an investor was to invest with the OPs for a minimum period of three years and after three years, the OPs were to return the investment of the investor alongwith return, as per the return schedule. The maximum period of such investment was six years. Apart from the return on his/her investment, the investor was also entitled to certain privileges/rebates in case he/she make some purchases from the Q shop set up by the OPs at various places. Believing the representation of the OPs, complainant no.1 deposited a sum of Rs.5,15,000/-on 30.07.2015, vide receipt bearing no.71014147058 and a sum of Rs.1,28,750/- vide receipt dated 30.07.2012 bearing no.7014147057. Since the complainant no.1 is senior citizen, about 92 years old, who decided to transfer some of his aforesaid investments in favour of complainants no.2 and 3. Then, complainants approached the OPs at Karnal, for said transfer. Complainant no.1 transferred his investment of Rs.5,15,000/- in favour of his daughter  (complainant no.1). Similarly, complainant no.1 transferred his investment of Rs.1,28,750/- his grandson (complainant no.3). The investment of Rs.12,250/- made on 23.03.2012 continued to be in the name of complainants no.1 & 2.

3.             Further, there was lock-in-period of three years for an investor, to claim refund of his investments alongwith return from the OPs. Since the complainants had made investments with the OPs in the year 2012, the said lock-in-period expired in the year 2015. After expiry of said period of three years, the complainants approached the OPs and requested to refund their investments but OPs lingered the matter on one pretext or the other and lastly refused to accede the genuine request of the complainants and no amount has been refunded by the OPs till date. The maximum period of investment was six years, which expired on 30.07.2018 but inspite of expiry of the said period, OPs have failed to refund the amount invested by the complainants. As per return schedule, OPs are liable to pay Rs.28,787/- against the amount invested, vide receipt no.71001603632 dated 23.03.2012, a sum of Rs.12,12,490/- against the amount invested vide receipt no.71014147058 and a sum of Rs.3,03,122/- against the amount invested, vide receipt no.71014147057, but no amount whatsoever has been repaid by the OPs after repeated requests and notices made by the complainants. Instead of refund the amount, OPs pressurized the complainants to renew their investments. The complainants also lodged a complaint against the OPs with the Ministry of Corporate Affairs at its online portal but the grievance of the complainants is still unredressed. The OPs are under legal, contractual obligations to return back the amount invested by the complainants with them alongwith assured return but the OPs have failed to do the needful and as such, there is deficiency in service and unfair trade practice on the part of the OPs. Hence complainants filed the present complaint.

4.             On notice, OPs appeared and filed written version, raising preliminary objections with regard to maintainability; cause of action and mis-joinder of necessary party. On merits, it is pleaded that complainants are claiming refund of paid receipts no.71001603632, 71014147058 and 71014147057 through which he had advanced Rs.28,787/-, Rs.12,12,490/- & Rs.3,03,122/- respectively, under consumer merchandise-SQSUPRL scheme to purchase the products of Sahara Q Shop Unique Products Range Limited Company. 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. 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. The claim of the complainants is against the terms of the agreement. There is no deficiency in service on the part of the OPs. It is further pleaded that OP no.1 has no concern with the transaction. The company is a part of Sahara India Group which does not enjoy any legal rights; it is not a legal entity rather it is only a Symbolic name of Group of Companies. So, no suit or complaint is maintainable against those which are not legal entity. It is further pleaded that under Q shop plan H which is opted by the complainants, they will get the benefit on the purchase. It is clear from the terms and conditions Q shop policy, clause no.1 of the Q shop plan-H “you are paying an advance for buying complete range of goods of our company chosen form the brochures. Our board categories of goods includes complete range of food products, Processed food and beverages, personal care home care hospitality product general merchandise gold/gold jewellary, diamond jewellary handicraft product and multi branch goods. Clause no.5 of the same scheme is providing “LBPs Loyalty Bonus Points “You will get LBPs on your purchase. The benefit of LBPs may very as per advance given by you and also on the quantum of different kind of goods. You also have an eligibility to buy hospitality room nights subject to maximum of 2 times of yours advance amount.” It is further pleaded that there is no provision of maturity payment or double amount investment scheme under the terms and conditions of this scheme and no interest is payable over advance amount. Further, the tenure of the scheme is six years and before completion of tenure no relief can be claimed against the advance amount or balance advance amount. It is further pleaded that there is no relation of consumer and service provider between the complainants and the OPs. 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.

5.             The parties then led their respective evidence.

6.             Complainants tendered into evidence, affidavit of Jai Kishore Aggarwal complainant no.1 Ex.C1, receipts for Rs.12,250/- Ex.C2, receipt for Rs.1,28,750/- Ex.C3, receipt for Rs.10/- Ex.C4, receipt for Rs.5,15,000/- Ex.C5, receipt for Rs.10/- Ex.C6, investment plan H Ex.C7, copy of letters dated 16.01.2016, 18.01.2016, 30.03.2016 Ex.C8 to Ex.C10, postal receipts dated 28.01.2016 Ex.C11 and Ex.C12, copy of investor complaint forms Ex.C13 and Ex.C14, postal receipts dated 31.03.2016 Ex.C15, copy of letter dated 16.05.2016 Ex.C16, postal receipt dated 18.05.2016 Ex.C17, copy of letter dated 16.05.2016 Ex.C18, copy of letter dated 08.02.2017 Ex.C19 and closed the evidence on 20.11.2019 by suffering separate statement.

7.             On the other hand, OPs tendered into evidence affidavit of Sunil Sinha, Manager Ex.OPW1/A and closed the evidence on 26.02.2021 by suffering separate statement.

8.             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.

9.             Learned counsel for complainants, while reiterating the contents of complaint, has vehemently argued that complainants had invested Rs.6,56,000/- with the OPs with the condition that complainants  were entitled to purchase consumer products from the OPs for the aforesaid amount and in case no such purchase  was made, the complainants were entitled for refund of aforesaid amount alongwith interest @ 2.35%. The complainants did not purchased any product of the advanced amount from the OPs and  when the complainants 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, hence prayed for allowing the complaint.

10.           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.”

 In this regard, we are of the considered view that the OPs have not placed on record any Arbitration Agreement or any document that OPs 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 OPs is a society and there exists an arbitration agreement between the OPs and the complainants, 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 judgments, the plea taken by the OPs is having no force. Thus, this Commission has jurisdiction to entertain and try the present complaint.

12.           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, we are of the considered view that except the affidavit Ex.OPW1/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 was within the knowledge of the OPs that complainant has not purchased any product. In that situation OPs should give any notice to the complainants that their amount has not been utilized or they should have refund the amount to the complainants. But the same has not been done by the opposite parties. On the other hand, as per document Ex.C7, Investment Plan in Q shop Plan H placed on record by the complainant, the amount is refundable after six years but same has not been refunded to the complainants till date.

13.           It is evident from the receipt Ex.C2 dated 23.02.2012 an amount of Rs.12,250/-, vide receipt Ex.C3 dated 30.07.2012, an amount of Rs.1,28,750/- and vide receipt Ex.C5 dated 30.07.2012, an amount of Rs.5,15,000/- were deposited by the complainants to the OPs. Receipts Ex.C2 to Ex.C5 bears the stamp/sealed the OPs, which has not been disputed by the OPs in their pleadings. In view of the matter, credence can be given to that documents and the complainants are held entitled to Rs.6,56,000/-. Needless to mention here, the complainants did not avail any kind of services of the OPs and have also not taken cash back, therefore, they are certainly and definitely entitled to the deposited amount as above. Hence, the act of the OPs for non-honouring their own scheme, non-explaining the terms and conditions thereof to the complainants so that they could get benefit of the same for 6 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 complainants.

14.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to refund the amount of Rs.6,56,000/-(six lacs fifty six thousand only) to the complainants alongwith interest @ 9% per annum from the date of deposition of amount with the OPs till its realization. We further direct the OPs to pay Rs.25,000/- to the complainants on account of mental agony and harassment suffered by them 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:21.10.2021                                                                     

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

 

(Vineet Kaushik)          

                     Member