Judgment : Dt.10.4.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Mita Roy alleging deficiency in service on the part of the opposite parties namely (1) The Director, Alchemist Infra Realty Ltd., (2) The Director, Alchemist Township India Ltd. and (3) The Branch Manager, Alchemist Infra Realty Ltd., Thakurpukur.
Case of the Complainant in brief is that having been satisfied with the goodwill of the opposite party No.1 (referred hereinafter as OP No.1) the Complainant deposited Rs.60,000/- only with the OP No.1 through OP No.3 as MIS deposit on 21.01.2012 for a period of three years for assured maturity amount of Rs.60,000/- with monthly interest @ 12% p.a. i.e. Rs.600 per month on 20.1.2015 and accordingly the OP No.3 handed over a certificate of property No.AIRL/RXX0060579 dt.21.2.2012 to the Complainant. It is further stated by the Complainant that on July, 2015 the opposite party No.3 collected the original certificate issued by Alchemist Infra Realty Ltd. from the Complainant for for returning the maturity amount of Rs.60,000/- and on 21.7.2015 the OP No.3 handed over a cheque bearing No.375487 dt.21.7.2015 for Rs.60,000/- issued by the OP No.2 to the Complainant. The OP No.3 also issued another two cheques along with aforesaid cheque.The Complainant has stated that she deposited the cheques but those were dishonoured on the ground insufficient fund. The Complainant sent letter dt.17.4.2017 to the OPs demanding Rs.60,000/- which was received by the OP but in spite of receiving the same the OPs failed, omitted and neglected to release the maturity value of certificate which resulted in suffering monetary loss, harassment and mental agony by the Complainant and accordingly she has prayed for direction upon the OPs to return the principal amount of Rs.60,000/- to pay Rs.20,000/- towards compensation for harassment and Rs.10,000/- towards cost of litigation.
The OP Nos.1 & 2 contested the case by filing written version denying and disputing all the material allegation as made out in the petition of complaint.
The OP No.1 specifically stated that the instant case is not maintainable before this Forum and further stated that the relevant document of the Complainant’s claim is being examined by them for disbursement of the matured amount and as such they have no intention to deprive the Complainant from his legitimate right.
The Complainant adduced evidence on affidavit and the OP Nos.1 & 2 cross examined her by filing questionnaire and the Complainant replied to that.
The opposite parties did not file evidence.
In course of argument Ld. Advocate for the Complainant narrated the facts which are stated in the petition of complaint.
Ld. Advocate for the OP relied upon the decisions –
- (2014) 14 Supreme Court cases 773 [Ganeshlal Vs Shyam]
- High Court Calcutta in C.O. 2216 of 2017 [Dipankar Basu VS Rita Bera]
- (2003 CPJ 113(WB)[Banko Enterprise Vs. Padmavati Merecantiles (P) Ltd. and Ors.]
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.60,000/- with the OP No.2 for a period of three years under terms of getting the matured amount of Rs.60,000/- as on 21.1.2015. The Complainant has annexed copy of the said 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.21.1.2012 executed between the company and the certificate holder a proportionate and undivided share in land admeasuring an area of 1762.2 Canal, at BEHANTA and TILA, Tehsil-Kolaras, Dist.-Shibpur, Madhya Pradesh. The original whereof has been deposited with the company in terms of Development Agreement dt.2.2.2011 executed between the certificate holder and company whereunder the certificate holder has prayed Rs.60,000/- (inclusive of development charges). The estimated value of said undivided share after development is expected not less than Rs.60,000/- on expiry of tenure 21.1.2015 under the said agreement.
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, pleased to hold that a Company that wound up cannot proceed without reference to the official liquidator and without the leave of High Court. But in this case no documents or evidence of liquidation have been filed by the OP.
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 certificate of sale that the OP would deliver a plot of land after developing the same.
In Banko enterprise Hon’ble SCDRC, WB, 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.
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.
Ld. Advocate for the OP further stated that the Complainant has not deposited the amount in MIS Scheme moreover the investment depends upon appreciation in the value of Real Estate.
In this regard, it is observed that the Complainant has annexed photocopies of interest payment advice which is encashable through inter office payment. Therefore, it cannot be said that the investment is not made in MIS.
In the instant case service of development in respect of a land and construction service in respect of villa/Apartment is involved and the Complainant agreed to avail the service of construction/development to be provided by the OPs in respect of a villa/Apartment 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/ villa/ Apartment and is maintainable under the C.P.Act, 1986.
Point Nos.2 & 3
Both points are taken up together for comprehensive discussion and decision.
Admittedly, the Complainant on 21.1.2012 deposited an amount of Rs.60,000/- with the OPs for a period of three years and after completion of the said period of time the matured amount would be Rs.60,000/- as on date of maturity on 21.1.2015.
The Complainant has alleged that the OPs have failed to disburse the said matured amount in spite of sending intimation to them vide letter dt.17.4.2017. The OP No.2 denied to have received or refused such letter. In this regard, in reply to the question No.18 of the questionnaire put by the OP No.2 the Complainant has stated the Postal Track Report (of the said correspondence) is enclosed with the plaint. On perusal of the Postal Track consignment it appears that on 7.07.2017 an item delivered to the Director – Alchemist Infra Realty Ltd. The Complainant has filed the instant case on 13.06.2017. However, as regards the letter dt.17.4.2017 the Complainant herself has stated in her petition of complaint that the said letter had been returned to the Complainant with postal remark ‘left’. “Left” does not amount to good service.
Hence, it is evident that the intimation regarding disbursement of maturity amount was served after filing the instant case. The OP No.2 in paragraph No.8 of their written version has stated that the papers relating to the deposit of the Complainant is being examined and they will disburse the amount if the same is payable. 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.60,000/- in respect of a plot of land which to be developed by the OPs and after development of the said plot the value of the land would not be less than Rs.60,000/- as on 21.1.2015. Therefore, as per their certification, the OPs are bound to settle the claim in favour of the Complainant.
Under the state of affairs as mentioned hereinabove the OPs are to disburse an amount of Rs.60,000/- in favour of the Complainant.
The OPs compelled the Complainant to file the instant complaint. Therefore, the Complainant is entitled to cost of Rs.5,000/-.
Considering the circumstances, we are not inclined to pass any order as to compensation.
Point Nos.2 & 3 are decided accordingly.
In the result, the Consumer Complaint succeeds.
Hence,
Ordered
that CC/312/2017 is allowed on contest with cost.
The OPs are directed to pay Rs.60,000/- to the Complainant against submission of original certificate within one month from the date of this order failing which the entire amount will carry interest @ 9% p.a. for the default period. The OPs are further directed to pay Rs.5,000/- to the Complainant within aforesaid period.
