Haryana

Karnal

CC/121/2020

Meena Garg - Complainant(s)

Versus

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

Vishal Goel

29 Jul 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL  COMMISSION, KARNAL.

 

                                                         Complaint No. 121 of 2020

                                                          Date of instt.25.02.2020

                                                          Date of Decision 29.07.2022

 

Meena Garg wife of Shri Rakesh Garg, resident of house no.1668-B, Sector-7, Urban Estate, Karnal.

                                                …….Complainant.

                                              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

      Dr. Rekha Chaudhary…..Member

       

 Argued by: Shri Vishal Goel, counsel for complainant.

                    Shri Vikas Yadav counsel for the OPs.

 

                    (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 as to ‘OPs’) on the averments that in the year 2012, the representatives of OPs contacted complainant and represented that the OPs’ company owns and operate General merchandise retail stores in India, offering complete range of products, process food, beverages, hospitality, personal and home care, gold and diamond jewellary. The representative had allured the complainant to invest money with the OP 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 i.e. there was a loc-in-period and after three years, the OPs were to return the investment of the investor alongwith return, as per the returnable 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 deposited a sum of Rs.20,000/-on 29.06.2021, vide receipt bearing no.71031672396 and a sum of Rs.32680/- vide receipt dated 04.10.2012 bearing no.71037250009 but no amount whatsoever has been repaid by the OP to the complainant. It is further averred that there was lock-in-period of three years for an investor, to claim refund of his investments alongwith return from the OPs. Since the complainant had made investments with the OPs in the year 2012 and the maximum period of plan is for six years i.e. till 2018. After expiry of maximum period of plan, the complainant approached the OP 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 complainant and no amount has been refunded by the OPs till date. The maximum period of investment was of six years, which expired on 25.09.2018 for policy bearing receipt no.71031672396 dated 29.06.2012 and for policy bearing receipt no.71037250009 dated 04.10.2012 the maximum period expired on 03.10.2018 but inspite of expiry of the said period of six years, the OP has failed to refund the amount invested by the complainant. As per return schedule, OPs are liable to pay Rs.40,000/- against the amount invested, vide receipt no.71031672396 dated 29.06.2012 and a sum of Rs.64000/- against the amount invested, vide receipt no.71037250009 dated 04.10.2012 but no amount whatsoever has been repaid by the OPs after repeated requests and notices made by the complainant. Instead of refunding the amount, OPs pressurized the complainant to renew their investments with them for another two years but looking at the conduct of OPs, the complainant refused to renew her investment. The OPs are under legal, contractual obligations to return back the amount invested by the complainant 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 complainant filed the present complaint.

2.             On notice, OPs appeared and filed written version, raising preliminary objections with regard to maintainability; jurisdiction: cause of action and mis-joinder of necessary party. On merits, it is pleaded that the OPs have never allured their customer to deposit/invest any kind of amount in their plans, rather the customer himself shared the amount. It is further pleaded that the complainant has signed the documents after listening and understanding of all the documents. The complainant approached the OPs as he admitted that fact and deposited advance under Q Shop Goods Plan-H & society scheme respectively. OPs never promised the complainant to pay any amount after 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. 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 complainant and the OPs. It is further pleaded that all the disputes shall be resolved by arbitration under the Arbitration and Conciliation Act, 1996 by a sole arbitrator only to be appointed by the company. 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.             The parties then led their respective evidence.

4.             Learned counsel for complainant has tendered into evidence, affidavit of complainant Ex.CW1/A, copy of receipt no.71031672396 dated 29.06.2012 Ex.C1, copy of receipt no.71037250009 dated 04.10.2012 Ex.C2, copy of Investment Plan in Q Shop Ex.C3 and closed the evidence on 18.08.2021 by suffering separate statement.

5.             On the other hand, OPs tendered into evidence affidavit of Sunil Sinha, Manager Ex.OP1/Aand closed the evidence on 05.05.2022 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 invested Rs.52,680/- with the OPs with the condition that complainant was entitled to purchase consumer products from the OPs for the aforesaid amount and in case no such purchase  was made, the complainant was entitled for refund of aforesaid amount alongwith interest. The complainant did not purchase any product of the advanced amount from the OPs and  when he 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 lastly 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.” and prayed for dismissal of the complaint.

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

10.           Admittedly, the complainant has invested Rs.52,680/- 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 case 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.C3, Investment Plan in Q shop Plan H 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.C1 29.06.2012 an amount of Rs.20,000/- and vide receipt Ex.C2 an amount of Rs.32,680/- were deposited by the complainant to the OPs. Receipts Ex.C1 and Ex.C2 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 these documents and the complainant is held to be entitled for Rs.1,04,000/- 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, non-explaining the terms and conditions thereof to the complainant 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 complainant.

16.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to refund the amount of Rs.1,04,000/-(Rs.one lakh four thousand only) to the complainant 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.20,000/- to the complainant on account of mental agony and harassment suffered by her and Rs.5500/- 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:29.07.2021

President,

                                                      District Consumer Disputes

                                                      Redressal Commission, Karnal.

 

 

                        (Vineet Kaushik)        (Dr. Rekha Chaudhary)      

                                Member                 Member