DATE OF DISPOSAL: 01.07.2024

PER:  SMT. SARITRI PATTANAIK, MEMBER (W)

The factual matrix of the case is that the complainant has filed this consumer complaint Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Party (in short the O.P.) and for redressal of his  grievance before this Commission.

2. The complainant deposited the amount as per motivation of the opposite parties to get lucrative returns of such deposits in future through their agent to deposit the amount for the period of 18 months and in return the O.Ps assured that the complainant will get lucrative matured amount in future purpose under a Scheme: Sahara. A select on different following dates as mentioned below in Table-1 at authorized center i.e. at O.P.mo.2 and the O.Ps also declared that this shall bear fixed interest as per rules of the society and deposits can be withdrawal within one month of matured period.

                                      TABLE-1

When the complainant demanded to refund the matured amount on said deposit as mentioned in Table-1 on 01.06.2017, the O.P.No.2 asked the complainant to come after 30 to 35 days and when the complainant approached on lapse of said period of 35 days, the O.P.No.2 denied to give the said matured amount. Thereafter, till date, the complainant approached the O.P.No.2 for refund of the matured amount with delayed interest in regular interval in person and some time through her friends and relatives but O.P.No.2 paid deaf ear. Law is well settled that, when a company or a firm invites deposits on promise of attractive rates of interest and prompt repayment of principal and interest on the expiry of the stipulated period with full security for the investment of the company or firm, it is essence of an offer by the company providing to interest persons a safe avenue for investment of their funds with an assurance of prompt repayment and full security of investment. The consideration for the arrangement consisted of the fact that the company or firms is enabled to use the funds deposited with it for the purposes of its business. Such transaction is clearly one of providing service for consideration and the depositor is clearly a consumer under the Consumer Protection Act. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to pay the matured amount of Rs.4,63,740/- with 12% interest per annum, Compensation of Rs.5000/-, Miscellaneous Cost of Rs.3000/-  and litigation cost of Rs.23,187/- in the best interest of justice.

3. The O.Ps filed written version through his advocate. It is stated that Narayan Patro, complainant has been filed by complaint for the payment of the maturity without submitting of required documents before concerned branch office against his 8 numbers of sahara policy receipt numbers total maturity amount of Rs.4,63,740/- only is based on false and baseless grounds. The applicant had opened the said fixed deposits on dated 01.12.2015 and date of maturity on 01.06.2017.  After expiry of 2 years from the date of maturity, the complainant files the case. So the cause of action arise is time barred and the court should not proceed with the application.  At the outset the contents of the complaint are baseless, false and fabricated not tenable in law, deserves to be dismissed with compensatory cost. The complainant has suppressed the material of facts in respect of this matter and is not entitled for any relief of any nature and no cause of action has even arisen. As the complainant has already entered into the arbitration agreement with the O.P. at the time of opening that accounts that if any disputes arises between the company and members of account holder the matter shall be referred for adjudication by a sole arbitrator shall be final and binding on the party or person claiming under the proceeding of arbitration, Act, 1996 of Section 8. In regard to arbitral proceeding the law is well settled by the Supreme Court of India in the case of M/s B.P. & Co. versus Patel Engineering Ltd. (2005) 8 SCC 618. If any agreement is executed between the parties for settlement of dispute through arbitration neither of the parties can ignore the arbitration proceeding and same shall be decided by the arbitrator. In the case of M/s Sri Laxmi Knits & Women’s and others on 23 January 2007 the learned apex court held if any agreement exists between the parties to refer the disputes. At the time of investment the complainant had entered into the contractual liabilities with the O.Ps wherein he has agreed to abide the terms and conditions of the scheme of the company. The complainant has failed to establish the facts as alleged by him in complaint and has filed this false complaint deliberately with ulterior motives to blackmail and extort money. Hence such complaint is liable to be dismissed with cost. Hence the O.Ps prayed to dismiss the present complaint with costs in the interest of justice.

            4. The complainant has condoned the delay under section 24-A of the Act, 1986 by issue an advocate notice dated 06.03.2019 on 23.03.2019 which was refused to receive by the O.P.No.2 and acknowledged by the O.P.No.1. The law is well established on the principle of ‘continuous or recurring cause of action’ laid down by the Hon’ble Supreme Court of India in Shakti Bhog Food Industries Ltd. Versus the Central Bank of India and another, in Civil Appeal No. 2514/2020 and C.A.No. 2515/2020 where the Hon’ble Court held that, “the cause of action continuous as long as the amount is not refunded”. The said principle of law is applicable in the present case. Hence the present complaint is in time as the opposite parties have not refunded the matured amount till filling of the case.

            5. On the date of hearing of the consumer complaint, the advocates for both the parties were present. The Commission heard argument from them at length and perused the complaint petition, written version, written argument and materials placed on the case record. It reveals that the complainant had deposited Rs.3,93,000/- on dated 01.12.2015 and entitled to receive the Rs.4,63,740/- on 01.06.2017 from the O.Ps. Hence, taking the materials on the case record as well as the sole testimony of the complainant in to consideration, we hold that the O.Ps are negligent in rendering proper service to the complainant as such we hold that there is deficiency in service on the part of the O.Ps. Further Law is well settled in case of Mrs. Puneet Kaur versus Hindustan Financial Management Ltd. and others reported in 2003(1) CPR 274 where in the Hon’ble National CDR Commission, New Delhi has held that “Non-payment of fixed deposit amount on its maturity by Financial Institution constitutes deficiency in service”. In another case when a company or a firm invites deposits on promise of attractive rates of interest and prompt repayment of principal and interest on the expiry of the stipulated period with full security for the investment in the shape of the assets of the company or firm, it is in essence of an offer by the company providing to interested persons a safe avenue for investment of their fund with an assurance of prompt repayment and full security of investment. The consideration for the arrangement consists of the fact that the company or firm is enabled to use the funds deposited with it for the purposes of its business. Such a transaction is clearly one of providing service for consideration and depositor is clearly a consumer under the Act. The Opposite Party was directed to repay the guaranteed value of the deposits with interests @ 12% per annum till payment and to pay the cost- Shanker Lal Rathi Versus Neha Leasing & Holdings ltd. 1996 (2) CPR 90.  Moreover in another case the Hon’ble National Consumer Commission held in Adelkar Prathibha B. (Mrs.) & Ors V. Shivaji Estate Livestock and Farms Pvt. Ltd. & Ors reported in II (2015) CPJ 221 (NC) that “Complainant hired or availed services of O.P. for investing their savings in schemes floated by O.P. and deposited money with it for investing on their behalf in Goat Farming and allied activities- Complainant are consumers, Remedy before Consumer Forum is primarily a civil remedy- Complaint maintainable. Failure on parts of financial establishment to honour its commitment- Deficiency in service – Unfair trade practice- OP is directed to refund the investment made by complainant in scheme floated by it”. The objection of O.Ps is that the complainant cannot ignore the arbitration clause to settle the dispute between the parties. The objection of O.Ps is that the complainant cannot ignore the arbitration clause to settle the dispute between the parties. But in the instant case, the O.Ps did not submit any supportive document regarding pending of case before any arbitrator or agreement paper before the Commission. The citations relied upon by the O.Ps are not applicable in the present case. The complainant can file the C.C. as per precedent. Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, there the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act as reported in the case of M/S. Emaar Mgf Land Limited v. Aftab Singh in R.P.No. 2629-2630 of 2018 in C.A. No. 23512-23513 of 2017 held by the Hon’ble Supreme Court of India.

On foregoing discussion and in view of the clear position of law the complainant’s case is partly allowed on contest against the O.P no.2 and dismissed against OP No.1. The Opposite Party no.2 is directed to pay the maturity value of Rs.4,63,740/- only along with 6% interest per annum to the complainant within 45 days from receipt of this order. Further the O.P. no.2 is also directed to pay Rs.5,000/- as costs of litigation to the complainant within the above stipulated period failing which all the dues shall carry 9% interest per annum till its actual date of realization from the date of filing of this case i.e. on 18.05.2019 and the complainant is at liberty to take appropriate steps in accordance to the Consumer Protection Act, 2019 for realization of all dues. This case is disposed of accordingly.

The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.

A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019.

The file is to be consigned to the record room along with a copy of this Judgment.

Pronounced on 01.07.2024.