Date of filing :7.12.2017
Judgment : Dt.29.3.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Amita Gupta alleging deficiency in service on the part of the opposite parties (referred as OPs hereinafter) namely (1) The Director, Alchemist Infra Realty Ltd., (2) The Branch Manager, Alchemist Infra Realty Ltd., Thakurpukur.
Case of the Complainant in brief is that having been satisfied with the goodwill of OP No.1, the Complainant deposited Rs.1,00,000/- only with the OP No.1 through the OP No.2 by cash as MIS deposit on 3.1.2013 for a period of 36 months and the OP No.2 handed over a certificate to the Complainant being No.AIRL/RX00036243 d.24.1.2013. The Complainant have stated that the OPs paid Rs.1,000/- per month towards interest for 35 months out of 36 months. It is, further, stated by the Complainant that she wrote a letter on 16.9.2017 to OPs enclosing the certificate being No.AIRL/RX00036243 for treating the certificate a surrendered and to refund the deposited amount of Rs.1,00,000/-. However, the letter had not been delivered upon OP No.2 though the OP No.1 had duly received the same but did not return the maturity amount so the Complainant, by filing the instant petition of complaint, has prayed for direction upon OPs to return the maturity value of Rs.1,00,000/-, to pay Rs.1,000/- towards interest for one month, to pay Rs.30,000/- towards compensation and Rs.20,000/- towards litigation cost.
Notices were served but the OPs did not turn up so the case was proceeded ex-parte against OPs vide Order No.5 dt.13.2.2018 and, accordingly 8.3.2018 was fixed for ex-parte hearing. On that day Ld. Advocate on behalf of OP filed a petition challenging maintainability of this complaint case and since he raised some points on law the same is taken into consideration.
The Complainant adduced affidavit-in-chief and annexed photocopies of certificate of property dt.3.1.2013, the Complainant’s letter to the OP No.1 dt.16.9.2017 and Aadhar Card.
Points for determination
- Whether the complaint is maintainable under the C.P.Act, 1986
- Whether there is deficiency in service on the part of the OPs
- Whether the Complainant is entitled to get relief as prayed for
Decision with reasons
Point No.1
The Complainant has stated that she deposited a sum of Rs.1,00,000/- in MIS Scheme with the OP No.1 through the OP No.2 for a period of 36 months on 3.1.2013. The Complainant has annexed a copy of certificate wherefrom it is evident that the Alchemist Infra Realty Ltd. issued a certificate of property in favour of the Complainant conveying vide Indenture dt.3.1.2013 executed between the Company and the Certificate holder a proportional undivided share in land admeasuring an area of 1762.20 Kanal, at Behanta & Tila, Tehsil Kolaras, Dt.-Shivpuri, Madhya Pradesh. The original whereof has been deposited with the Company in terms of Development Agreement dt.3.1.2013 executed by and between the certificate holder an Company whereunder the certificate holder has paid Rs.1,00,000/- (inclusive of development charges). The estimated value of the said undivided share after development is expected to be not less than Rs.1,00,000/- on expiry of tenure on 3.1.2016.
The petition filed by the OP has been taken for consideration.
The OP by filing the instant petition has challenged maintainability of this consumer complaint on the ground that the consumer complaint is related to a plot of land and will not come within the domain of C.P.Act.
In support of his averment OP relied upon the decision-
- High Court Calcutta in C.O. 2216 of 2017 [Dipankar Basu vs Rita Bera] wherein the Hon’ble High Court pleased to hold that the Complainant in the consumer complaint is not consumer under the OP and, further, it is elementary that a company that is wound up cannot be proceeded without reference to the official liquidator and without the leave of High Court which passes order of winding up. However, in the instant case the said decision is not applicable since the same is of different context.
- Reported in (2014) 14 Supreme Court cases 773 [Ganeslal VS Shyam] wherein the Hon’ble Supreme Court hold that sale of a plot of land the selling act as sale simplicitor and does not involve in a consumer transaction and thus such sale simplicitor cannot come under the jurisdiction of Consumer Forum.
- Case No.15 of 1999 decided on 20.3.2002 decided by SCDRC, W.B. [Banko Enterprise VS Padmavati Mercantile (P) Ltd. & Ors.]
The Complainant filed objection to the instant petition.
The decision/ruling relied upon by the OP is not applicable to the instant case since in Dipankar Basu V. Rita Bera case Hon’ble High Court, Calcutta, dealt regarding territorial jurisdiction of the District Forum.
In Ganeslal V. Shyam Hon’ble Supreme Court pleased to hold that no service was involved in the plot of land. In the instant case it is mentioned in the ertificate of sale that the OP would deliver a plot of land after developing the same.
In Banko enterprise Hon’ble SCDRC, W.B., observed that it was not clear that whether any agreement has been executed between the parties. However, in the instant case there is no denial regarding the agreement executed by and between the parties. Hence, the said decision is not applicable to the instant case.
On perusal of the petition of complaint, it appears that the Complainant deposited a sum of Rs.1,00,000/- with the OP No.2 for a period of 36 months. It further appears that Alchemist Infra Realty issued a certificate of property in favour of the Complainant dt.3.1.2013 executed between the company and the certificate holder for allotment of a plot.
The OP has raised the question that how the Complainant is to be considered as a consumer under the OP since the Complainant ‘invested’ the money with the OP to sale/possession of a plot of land.
As per Section 2(1)(O) of C.P.Act Banking matters are included as ‘service’. Term deposit, Fixed deposit are also included in Banking service which in nature are depositing a certain amount with the Bank for a fixed period. It is, therefore, clear that intention of legislation was to allow such type of deposits as ‘service’. Having such interpretation of the statute, we are inclined to hold that the Complainant availed ‘service’ provided by the OP in respect of the deposit be it mentioned as ‘investment’. Mere the word ‘investment’ cannot debar the Complainant is to be considered as Consumer.
In the instant case service of development in respect of a land and development is involved and the Complainant agreed to avail the service of development to be provided by the OPs in respect of a plot of land. Thus by making payment of consideration has become Consumer.
It is therefore evident that the instant case is related to a plot of land is maintainable under the C.P.Act, 1986.
Petition dt.13.2.2018 is considered and rejected.
Point No.1 is decided accordingly. Thus the petition filed by OP challenging maintainability is disposed of.
Point Nos.2 & 3
It is evident that the Complainant deposited an amount of Rs.1,00,000/- with the OPs for 36 months is an MIS Scheme on 3.1.2013.
The Complainant has alleged that the OPs have failed to disburse the promised amount after expiry of 36 months in spite of sending intimation to them vide letter dt.16.9.2017. The Complainant has stated in the petition of complaint that the said letter had been returned to the Complainant with postal remark – Item delivery attempted – addressee absent – intimation served and ‘Intimation served’ amounts to good service. However, considering the evidence adduced by the Complainant and copies of documents annexed thereto, it is clear that the OPs certified regarding to that effect that the Complainant has deposited a sum of Rs.1,00,000/- in respect of a plot of land which is to be developed by the OPs and after development of the said plot the value of the land would not be less than Rs.1,00,000/- as on 3.1.2016. Therefore, as per their certification the OPs are bound to settle the claim in favour of the Complainant.
Under such state of affairs as mentioned hereinabove, the OPs are to disburse an amount of Rs.1,00,000/- in favour of the Complainant.
No documents have been annexed showing that the Complainant had not received the interest. Therefore, we are not inclined to pass such order for payment of interest.
Considering the circumstances, we are not inclined to pass any order as to compensation and cost.
Point Nos.2 & 3 decided accordingly.
In the result, the Consumer Complaint succeeds.
Hence,
ordered
That CC/694/2017 is allowed ex-parte in part.
The OPs are directed to pay Rs.1,00,000/- to the Complainant within one month from the date of communication of this order to the OPs failing which the entire amount will carry interest @ 9% p.a. for the default period.
