Date of Filing             :    05 February, 2021.

Date of Judgement    :    26 September, 2023.

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This case arises when Sri Om Prakash Kothari, hereinafter called the Complainant, filed a complaint under Section 35 of the Consumer Protection Act, 2019 (the Act) against (1) the Branch Manager, Shibpur Branch, (2) the Area Manager and (3) the Chairman, all of M/s. Sahara Q Shop East, hereinafter called the Opposite Parties or OPs, alleging deficiency in service occurred from the part of the OP arising out of non-payment of maturity amount by the OPs.

            The facts as stated in the complaint petition supported by documents attached with it are that the Complainant invested on 31/03/2014 an amount of Rs.25,000/- in a scheme of  the OPs which was stated as a Global Advance in the Certificate issued by the OP-1 on that date. Complainant stated in his complaint that according to these certificates this amount was meant for buying goods/products from the wide range of goods chosen from the available broachers of the OPs within plan period of 6 years. Complainant alleged that the OPs were unable to deliver any goods or products as per their specifications.  It is also alleged by the complainant that after the expiry of 6 years he tried to deposit the original certificate and relevant documents to the OP-1.  But the OP-1 did not receive the documents, rather they assured the complainant that after some months they would process his documents for issuing releasing his payable maturity amount.  But the complainant could not get back the maturity amount as the OPs failed to refund it.  He then sent a letter on 04/01/2021 to all the OPs requesting them to refund the maturity amount.  This time also he could not get the amount and ultimately, finding no other way, he filed this instant complaint praying to direct the OP company (a) to pay compensation of Rs.1,00,000/- for his physical and mental harassment caused due to negligent act of the OPs, (b) to return Rs.25,000/- paid by him as per the their rules with interest from date of payment till realisation,  (c) simple rate of interest upon all dues till realisation,  (d) litigation cost of Rs.40,000/- and any other relief or reliefs as this Commission deem fit and proper as per law.

            Complainant filed a copies of: (i) Certificate bearing no. 893002902106 and Receipt bearing no. 573003668538 issued by the OP-1 on 31/03/2014 and (ii) one letter issued by him to all the OPs on 04/01/2021 as annexure to the complaint petition.

            Notices were served upon all the OPs after admission to appear and contest the case by filing their written version.  OPs appeared through their Ld. Advocate and filed their written version. Then the complainant filed his Evidence on Affidavit. But the OPs failed to file any questionnaire, nor had they filed their Evidence. Ultimately argument was heard in full and the complainant filed his Brief Notes on Argument.  We have now come to the position to deliver the Final Order in this case.  We have to decide whether the OP is deficient in rendering proper service to the complainant for which he is entitled to get relief as prayed for. 

DECISION WITH REASONS

             The factual matrix of this case, as emerged from the complaint petition and from the annexed documents, are that the complainant had deposited an amount of Rs.25,000/- on 31/03/2014 at the OP company’s authorised Centre at Shibpur.  The OP company, i. e. M/s. Sahara Q Shop East, having its office at Sahara India Sadan, 2A Shakespeare Sarani, Kolkata – 700 071, issued a Receipt bearing no. 573003668538 and a Certificate bearing no. 893002902106 on that date with Custoner ID: 815854001301. It is stated in the receipt and in the certificate that this amount was received as a Global Advance.  In the Certificate it is written that a sum of ‘Global Advance’ of Rs.25,000/- was received from Shri Om Prakash Kothari ‘for the period and as per the Terms & Conditions of Q shop purchase Advance Plan’.  It is also stated in the Certificate that ‘Total accumulated LBP Benefit shall be 2.13/2.26/3.84/3.97 times of Global Advance subject to certain/specific consumption patterns of their broad categories of goods which include a wide range of items of food products, processed foods & beverages, personal care,’ etc. It is also stated in this Certificate that the customer may opt for world class recreation, leisure activity, healthcare & wellness, etc.  This advance, as is stated there, would be adjusted against the purchases as mentioned in the enrolment form.  This is also stated in this certificate that the customers shall get redemption of LBPs at the end of specific period. From this citation we find that, as there is no other documents provided by the complainant, the main intention of this Plan was to sell various products to the payee/customer.  The amount the complainant deposited as stated in these receipts as a Global Advance would be adjusted against the purchase of the customer. A redemption option is also there which depends on the LBPs. Certain terms and conditions are written on the reverse page of the receipt where the LBP benefits has been explained.  But, the statement of the complaint petition says that the OPs were unable to deliver goods/products as per their specification for which he opted for redemption of his deposits or simply the maturity amount.  As there is a redemption option which, I think, the complainant was intended to avail of.

            In their written version OP denied all the allegations made in the complaint petition. They alleged that the complainant failed to submit the KYC and other documents for his claim for the maturity amount. The OP stated that this complaint was imaginary and liable to be dismissed.  But they failed to establish their statement by explaining it with reasons.  No document has been filed by them in support of their claim.  Here, it is to be noted that the OPs have confessed in their written version about the maturity amount which was to be disbursed to the depositor/complainant.  So, the complainant/depositor must expect the ‘maturity amount’ after the time period fixed for this scheme. Here, according the complaint, the OP company failed to provide him their goods/products and the complainant’s repeated efforts to get back the maturity amount from the OP company became fruitless. Complainant alleged that despite his repeated requests the OP company did not disburse the maturity amount of in his favour and thereby this case has arisen.

            A question now arises whether the complainant is a Consumer as defined in the Consumer Protection Act, 2019?  The facts state that complainant deposited some money in a specific scheme of the OP company and the OPs assured a higher return which implies that the OPs promised to give service to the depositor in the form of monetary benefit in the form of purchasing goods.  This implies that the complainant/depositor is a “Consumer” as defined under Section 2(7) of the Consumer Protection Act, 2019 who availed the “Service”, as defined under section 2(47) of this Act, of the OP company.  There is an array of judgements of the Hon’ble Apex Court as well as the Hon’ble National Commission where it is stated that when a person availed or hired a service of a bank or a non-banking financial company (NBFC) for a consideration then the person can be called as a Consumer under the C. P. Act to that bank or NBFC.  Here the bank or the NBFC, as the case may be, is the Service Provider as defined in the Act whose service is availed by the Consumer.  So, a Consumer Commission has the jurisdiction to try a dispute arising out of a n financial transaction like this case. However, we do not know whether the OP company is a registered banking company or an NBFC as there is no documents filed in this case regarding this matter, but the OP company took deposit of the said amount for a particular scheme with a promise to return higher amount after a particular period of time if they failed to deliver goods/products to the depositor.  Complainant deposited his money with a hope to get return of higher amount from the OP company who were running their business with such offers.  So question of commercial transaction does not arise.  Complainant stated that he visited the office of the OP company frequently to get back the maturity amount but failed. Whether the OP company had issued notice to the complainant after the date of maturity to follow the withdrawal procedure or not is not clear as the OP company did not contest this case after filing their written version, nor the complainant had stated anything on this matter in his complaint petition as well as in his evidence on affidavit and B.N.A.

            In conclusion of the discussion as stated above this can be said that the complainant has deposited his money in a specific Plan/Scheme of the OP company. The OP company failed to provide goods/products or return the money according to the Plan to the complainant. No evidence has been filed by the OPs to establish that the complainant failed to submit KYC and other necessary documents for disbursement of the maturity amount whereas the complainant himself stated that he tried to deposit all the papers and documents hoping to get return of his deposited money but failed. This means that there is a deficiency in service from the part of the OPs which they must compensate. The OPs are also liable to return the amount of money in accordance with the plan. It is stated in the certificate that total accumulated LBP Benefits shall be 2.13/2.26/3.84/3.97 times of the Global Advance. A table is given on the reverse page of the Certificate wherein it is stated that the redemption value of LBP of Advance of Rs.20,000/- would be Rs.47,087/- after 6 years but this table has no authentication. But the specific time period has not been stated in this certificate for which this scheme is valid. But complainant claimed simple interest on his deposited amount from the date of deposit along with compensation of Rs.1,00,000/-. But claim of compensation along with interest is not justified keeping in mind the judgement passed by the Hon’ble Supreme Court in  DLF Homes Panchkulla Pvt. Ltd.  –Vs.– D. S. Dhanda & Others [II (2019) CPJ 117 (SC);  Civil Appeal Nos. 4910 – 4941 of 2019]. I think payment of the deposited amount together with a simple interest @ 9% on the deposited amount from the date of deposit, i. e. from 31/03/2014, will serve the purpose in this case. The OPs are also liable to pay Rs.8,000/- to the complainant as litigation cost as the complainant was compelled to knock at the door of this Commission to get his grievance be redressed.

            Hence,  it is

ORDERED

            that the Complaint Case bearing No. CC/48/2021 allowed on contest against the Opposite Parties.

            The Opposite Parties are directed to pay the complainant Rs.25,000/- together with a simple interest @ 9% per annum on this amount with effect from 31/03/2014 till the date of this order within 60 days from the date of this order.  The OPs are also directed to pay Rs.8,000/- to the complainant as litigation cost within the abovementioned time period failing which the entire sum shall carry 9% simple interest per annum till full and final realisation.

            Let a copy of this order be issued to both the parties free of cost.

Dictated and corrected by me

            Member.