Date of Filing             :    02 January, 2020.

Date of Judgement    :    27 February, 2024.

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This case arises when Sri Ramchandra Agarwal, since deceased and substituted by the legal heirs namely (i) Sri Sumit Agarwal, (ii) Smt. Seema Agarwal and (iii) Sangeeta Agarwal, Son and daughters of the deceased, hereinafter called the Complainant(s), filed a complaint under Section 12 of the Consumer Protection Act, 1986 (the Act) against (1) the Branch Manager, (ii) the Zonal Manager and (iii) the Charman, all of M/s. Sahara Q Shop Unique Products Range Ltd., hereinafter called the Opposite Parties or OPs, alleging deficiency in service occurred from the part of the OPs arising out of non-payment of maturity amount after the expiry of the plan period.

            The factual Matrix of the complaint, as emerged from the complaint petition and documents annexed with it, is that one near relative of the Complainant, Smt. Sweta Agarwal, deposited on 07/09/2012 an amount of  ₹84,150/- in a scheme of the OPs. After receiving this amount the OP-1 issued a certificate on that date for purchasing chosen products from a range of goods of the OPs. Later said Smt. Sweta Agarwal transferred this certificate in the name of Late Ramchandra Agarwal for which the necessary transfer fee of ₹10/- was received and issued a Receipt bearing No. 071037960652, dated 20/05/2013. Complainant stated that the OPs failed to deliver any goods/products to the complainant as per their specification within the plan period of 6 years.  Complainant alleged that after the expiry of 6 years he visited the office of the OP-1 to deposit the original certificate and other relevant documents. But the OP-1 did not receive the certificates, but insisted him to reinvest the maturity amount which he refused. He frequently requested the OPs to refund the maturity amount but failed to receive.  Some months had passed but he could not get back the maturity amount as the OPs failed to refund. He then sent a letter to all the OPs on 02/09/2019 requesting them to return the maturity amount which also yielded no result though the OPs received his letter.  Finding no other way to get back his money complainant filed this instant complaint praying to direct the OPs: (a) to pay compensation of ₹1,00,000/- for his physical and mental harassment caused due to negligent act of the OPs, (b) to refund ₹84,150/- paid by him together with interest from the date of deposit till realisation, (c) simple rate of interest upon all dues till realisation,  (d) litigation cost of ₹20,000/- and any other relief or reliefs as this Commission may deem fit and proper as per law.

            Complainant filed copies of (i) the certificate issued by the OP-1 being no. 562005340654, dated 07/09/2012, (ii) receipt bearing No. 071037960652, dated 20/05/2013 issued by the OP-1 for Transfer Fee  and (ii) the letter dated 02/09/2019 issued by him to the OPs along with the postal track reports 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. Advocates and filed their written version.  Then the complainant filed her Evidence on Affidavit.  OPs did not file any questionnaire, nor did they file their evidence for which the case proceeded ex parte. Due to death of the complainant his legal heirs which are his son and daughters are substituted as the complainants.  At this the OPs took no step and the substituted complainants then filed their Evidence.  Ultimately argument was heard in full and the substituted complainants filed their 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 OPs are deficient in rendering proper service to the complainant for which she is entitled to get relief as prayed for. 

DECISION WITH REASONS

            Before starting our discussion we take note that the original complaint petition was filed by the deceased Ramchandra  Agarwal who acquired the Certificate in dispute from the original owner of the certificate, namely Smt. Sweta Agarwal, through transfer.  After his death his legal heirs, who are the son and daughters of the deceased complainant, stepped into this case as substituted complainants.  For the sake of simplicity throughout our discussion we will proceed collectively taking the present complainants as a unit.

            The material facts of this case as emerged from the complaint and the annexed documents are that the complainant had acquired a certificate by transfer from the Smt. Sweta Agarwal who deposited ₹84,150/- on 07/09/2012 at the office of OP-1. The OP-1 issued a certificate to the depositor on that date on behalf of their company, i. e. M/s. Sahara Q Shop Unique Products Range Ltd., having its registered office at Sahara India Bhawan, 1, Kapoorthala Complex, Aliganj, Lucknow – 226024, bearing the Certificate No. 562005340654, dated 07/09/2012 with Customer ID: 815852008296. Later on 20/05/2013 this certificate was transferred in the name of the complainant receiving a transfer fee of ₹10/- vide Receipt No. 071037960652, dated 20/05/2013.

            It is stated in this certificate that ‘Received from Customer Shri/Smt/Miss SWETA AGARWAL    A sum of Global Advance ₹84,150/- Under “Q shop Plan-H [“PLAN-H”] for the period and as per the Terms & Conditions of the Plan’.  In this certificate it is also stated that ‘total accumulated LBP Benefit shall be 2.13/2.26/2.35/3.84/3.97/4.06 times of Global Advance and it is based on certain/specific consumption pattern of “Q Shop Plan-H” Goods and or Hospitality Products’. On the reverse page of the certificate there is an explanation about the ‘LBP Earning and Benefit’ wherein it is stated as an example that if an esteemed customer has given ₹20,000/- as a Global Advance then the benefit of earned LBP in 72 months would be ₹22,654/- subject to purchasing the Hospitality products of the OP company and the Advance will be adjusted for such purchase.  According to this explanation, the total Benefits under “Plan-H” on consumption/purchase of Sahara Q Shop Hospitality product would amount to ₹42,654/-, i. e. 2.13 times of Global Advance Amount.  But as per the complainant’s allegation the OPs failed to provide any goods or products to the depositor/complainant, so we are not going to discuss further in this matter. [Emphasis provided.]

            In their written version OPs denied all the allegations made in the complaint petition. They alleged that the complainant failed to submit the KYC and other documents for her claim for the maturity amount. The OP stated that this complaint was imaginary and liable to be dismissed.  They also stated in this written version that there was a dispute between the SEBI and the Sahara Group which was pending before the Hon’ble Supreme Court and the Hon’ble Supreme Court imposed Embergo on the Movable and Immovable properties of the Sahara Group.  The Saraha Group moved before the Hon’ble Supreme Court praying to lift the Embargo which was dismissed later on.  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 to the complaint, the OP company failed to provide him their goods/ products and the complainant’s repeated efforts to get back the amount after the expiry of the time period became fruitless. Complainant alleged that despite his repeated requests the OPs did not disburse the maturity amount after the expiry of the time period in his favour and thereby this case has arisen.

            A question now arises whether the complainant is a Consumer as defined in the Consumer Protetion Act, 2019?  The facts state that the predecessor of the complainant deposited some money in a specific scheme of the OPs 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/maturity amount.  This implies that the complainant/depositor is a “Consumer” as defined under Section 2(1)(d) of the Consumer Protection Act, 1986 [Sec. 2(7) of the Consumer Protection Act, 2019] who intended to avail the “Service”, as defined under Section 2(1)(o) of the C. P. Act, 1986 [Sec. 2(47) of the C. P. Act, 2019], of the OP company.  There is an array of judgements of the Hon’ble Apex Court as well as the Hon’ble National Commission wherein 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 under the Act whose service is availed by the Consumer.  So, a Consumer Commission has the jurisdiction to try a dispute arising out of a 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 within which they have failed to provide goods/products to the customer.  So, question of commercial transaction does not arise.  Complainant stated that he visited the office of the OP-1 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 our discussion as stated above we are of the view that the complainant has deposited his money in a specific Plan/Scheme of the OPs. The OPs 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 to the OP-1 and also sent letter to all the OPs with a hope to get back 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 liable to return the amount of money in accordance with the plan. It is stated in the certificate that total accumulated LBP Benefit shall be 2.13/2.26/2.35/3.84/3.97/4.06 times of the Global Advance.  But the specific time period has not been stated in this certificate. The complainant claimed simple interest on the deposited amount from the date of deposit along with compensation of ₹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]. We think payment of the deposited amount together with a simple interest @ 9% on the deposited amount from the date of deposit, i. e. from 07/09/2012, will serve the purpose in this case. The OPs are also liable to pay ₹8,000/- to the complainant as litigation cost as the complainant has been 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/14/2020 allowed on contest against the Opposite Parties.

            The Opposite Parties are directed to pay the complainants ₹84,150/- together with a simple interest at the rate of 9% per annum on this amount with effect from 07/09/2012 till the date of this order within 60 days from the date of this order.  The OPs are also directed to pay ₹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.