BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,FATEHABAD.
Complaint No.: 166 of 2016.
Date of Instt.: 30.06.2016.
Date of Decision: 12.09.2017.
Suresh Kumar son of Sh. Lakhmi Chand, resident of village Saniyana, Tehsil Tohana, District Fatehabad.
Complainant.
Versus
- Sai Parsad Corporation Ltd. Empire Estate Building, C.B.1 Office No.202 and 203, Chinchwad Pune- 411019 Maharashtra, Bharat through Managing Director.
- Rakesh Kumar son of Sh. Ram Lal, resident of village Saniyana, Tehsil Tohana, Distt. Fatehabad (Agent Sai Parsad Corporation Ltd.).
Opposite Parties.
Complaint U/s 12 of the Consumer Protection Act, 1986.
Before: Sh. Raghbir Singh, President. Sh. Ranbir Singh Panghal, Member. Smt. Ansuya Bishnoi, Member
Present: Complainant in person.
Sh. Bhal Singh, Advocate for opposite party No.2.
Opposite party no.1 already exparte.
ORDER:
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties.
2. In brief, the case of the complainant is that opposite party no.2 while saying that he is agent of op no.1 allured him to invest money in the company of opposite party no.1. He asked him that he has to pay the amount in installments and on maturity, he will be paid the amount with 12% per annum interest or he can get a plot from the company and when the installment will be started, a policy will be issued to him by the company and his amount will be secured and they will be liable to pay his amount. On every type of assurance given by op no.2, the complainant started depositing an amount of Rs.750/- per month with op no.2 and op no.2 gave a policy issued by op no.1 to him. It is further averred that complainant regularly paid the installments from 1.7.2013 till December, 2015. It is further averred that when in January and February, 2016, op no.2 did not come to him for taking installments, then op no.2 told him that there is some problem in the company so the installment could not be deposited and when the company will start the work, then he will got deposited his installments. That thereafter complainant several times contacted with the op no.2 and officials of company at Tohana, not did not receive any satisfactory reply and finally it was told to him that there is heavy loss to the company, so his amount will not be refunded. That due to act and conduct of the ops, the complainant has suffered mental harassment, agony as well as financial loss. That as the office of op no.1 is situated in Tohana and policy was also issued from Tohana, so this Forum has territorial jurisdiction to entertain and try the present complaint. Hence, this complaint for a direction to the opposite parties to refund the amount of Rs.15750/- alongwith interest @12% per annum and also to pay a sum of Rs.50,000.- as compensation for harassment and litigation expenses.
2. On notice, none appeared on behalf of opposite party no.1 and therefore, op no.1 was proceeded against exparte.
3. Opposite party no.2 appeared and filed reply in which several preliminary objections such as cause of action and maintainability etc. have been taken. It has been further submitted that the opposite party is a real Estate Company and engaged in the business of sale and development of Agriculture land/plot across the country and regarding this an agreement was executed between the parties. There is an arbitration clause in the agreement and according to which the matter/dispute shall be settled in accordance with the arbitration and conciliation Act, 1996, therefore, this Forum has no jurisdiction to try and entertain the present complaint. It has been further submitted that the opposite party did not receive any deposit from the complainant and the amount received was an advance consideration for the purchase of land/plot and the same is received as per the terms and conditions of the agreement executed between the parties. The Securities and Exchange Board of India and other investigation agency have freezed the Bank accounts of the opposite party “SPCL” and enquiry and investigation is pending, therefore, the company and answering op is helpless to make the payment of customers. Although, the complainant is not at all entitled to the amount as claimed in the complaint prior to the termination of the contract as entered into between the parties, but still when the position is ease, necessary orders in this regard shall be passed strictly as per terms and conditions of the agreement. The complainant has violated the terms and conditions of the agreement. As per terms and conditions, complainant would have been entitled to amount on the maturity of the policy had he deposited the installments regularly. There is no deficiency in service on the part of answering opposite party. Other pleas made in the complaint have been controverted and prayer for dismissal of the complaint has been made.
4. Learned counsel for complainant tendered affidavit of complainant as Annexure C1 and documents Annexures C2 to C13. On the other hand, learned counsel for op no.2 tendered affidavit of op no.2 as Annexure RW/1 and documents Annexures 2 to 14.
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. Although, the opposite party no.2 in his affidavit has admitted that he is authorized agent of op no.1 but denied the fact that complainant has taken any policy of op no.1 through him but op no.2 has taken an altogether stand from the reply in his affidavit and therefore, there is no substance in his affidavit. Moreover, it is settled principle of law that evidence beyond the pleadings cannot be looked into. The factum of deposit of installments of Rs.750/- per month with the opposite party no.1 by the complainant is proved on record. It is evident from the copy of participation certificate Annexure C2 that complainant was to deposit an amount of Rs.750/- per month in 60 installments i.e. he was to pay total amount of Rs.45,000/- to Sai Prasad Corporation ltd. i.e. op no.1 and the opposite party no.1 was to refund expected sum of Rs.65250/- to the complainant. This document was issued to the complainant at Tohana. It has come on record that complainant has deposited total amount of Rs.15,750/- with the opposite party no.1 in 21 installments of Rs.750/- each as is evident from documents Annexures C3 to C13 and it is the case of the complainant that thereafter ops stopped taking installments from him. So, the complainant is entitled to refund of the amount of Rs.15,750/- alongwith interest from the opposite party no.1. The plea taken by the opposite party no.2 that the matter should have been referred to the Arbitrator for redressal has not enough force to satisfy this Forum because it is the prerogative of the complainant to redress his grievance as per his/her wishes and the opposite party cannot take the shelter of this by saying that the matter should have been sent to the arbitrator for redressal. On this point reliance can be taken from case laws titled as National Seeds Corporation Vs. M.Madhusudhan Reddy & Anr. II (2012) SLT 51=I, Satish Kumar Pandey & Anr. Vs. Unitech Limited III (2015) CPJ 440 (NC), Bhairathan Vs. HCL Infosystems Limited and others 2007 (1) CPJ 319 and National Seeds Corporation Limited Vs. PV Krishna Reddy, 2009 (1) CPJ 99 wherein Hon’ble Supreme Court of India and Hon’ble National Commission has held that Section 8-Additional remedy- Arbitrator Clause-Existence of Arbitration Clause in agreement is no bar to the entertainment of complaint by the Consumer Forum, which is an additional remedy under CP Act and in case of deficiency in services rendered to him by service provider as adoption of unfair trade practice by him.
7. The another plea of op no.2 that this Forum has no jurisdiction to entertain and try the present complaint has also no force because the above said certificate of op no.1 was issued to complainant at Tohana and payment was also being received from the complainant at Tohana, so this Forum has jurisdiction. Moreover, the opposite party no.1 to whom the payment in installment was being made by the complainant has not bothered to appear before this Forum rather opted to be proceeded against exparte. The complainant has been able to prove his case against op no.1 by leading cogent and reliable evidence, therefore, the complaint qua op no.1 deserves acceptance. However, no liability of any kind of op no.2 is made out as the payment was made to op no.1 only and op no.2 is only an agent of op no.1.
8. Keeping in view of our above discussion, we allow the present complaint qua opposite party no.1 and direct the opposite party no.1 to refund the amount of Rs.15,750/- alongwith interest @9% per annum to the complainant from the date of filing of present complaint i.e. 30.6.2016 till actual payment. However, the complaint qua op no.2 is dismissed. The opposite party no.1 is directed to comply with this order within a period of 45 days from the date of receipt of copy of this order, failing which the complainant will be at liberty to initiate proceedings under Section 25/27 of Consumer Protection Act against the opposite party no.1. Copy of this order be supplied to the parties free of cost. File be consigned after due compliance.
ANNOUNCED IN OPEN FORUM Dt.12.09.2017
(R.S.Panghal) (Ansuya Bishnoi) (Raghbir Singh)
Member Member President
District Consumer Disputes Redressal Forum, Fatehabad
