DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the  31^st  day of March  2016

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                              

               : Shri.V.P.Anantha Narayanan, Member              Date of filing: 13/11/2015

                                                      (C.C.No.176/2015)       

Bejoy.N.V

S/o.Late Viswanathan,

Navagraha, Namboorichalla,

Vilayodi Post,

Chittur, Palakkad – 678 103                            -        Complainant

(By Adv.V.R.Sivadasan) 

Vs

1.The Manager,

    PACL Limited,

    4^th Floor, Grand Mall,

    Sankar Iyer Road Jn.

    West Fort, Poothole, Trichur

(By Adv.I.A.Aravindakshan)

2. PACL India Limited,

     Registered Office 22, 3^rd Floor,

     Amber Tower, Sansar Chand Road,

    Jaipur, Rajasthan – 302 004

    (Rep.by its Manager)

3.Girija.K.

    W/o.Suresh, Kuttikkalchalla House,

    Kannimari Post, Vandithavalam,

    Palakkad – 678 534

    (Agent of PACL Ltd.)                                  -          Opposite parties

O R D E R

By Smt.Shiny.P.R.  President.

Brief facts of complaint.

Complainant submitted that opposite parties are doing the business of receiving funds from general public on a condition that the double the amount will be given back within a stipulated period.   The 3^rd opposite party is the agent of the 1^st  opposite party. 3^rd opposite party approached the complainant and introduced 1^st opposite party’s attractive plans for depositing the money. 

On the basis of representation, advertisement and offers made by the opposite parties and also on the basis of assurance given by the opposite parties that the deposited amount will be doubled within the stipulated period the complainant has deposited amount with 1^st opposite party. Thus the 3^rd opposite party collected an amount of Rs.6825/- on 30/04/09 as first yearly installment from the complainant. After receiving the amount receipt and certificate as Registration No.U145526461 was issued on 06/5/2009 by the 1^st opposite party in favour of Bejoy.N.V Subsequently entire installment amount were paid by the complainant as per the terms of the plan and plan was matured on 30/10/2014 and realizable value at the end of the term was Rs.54,550/-

Another amount of Rs.6,825/- was collected on 30/4/2009  by the 3^rd opposite party from the complainant as first yearly installment. For which also first opposite party issued certificate as Registration No.U145526459 dated 06/05/2009 in favour of Bejoy.N.V. Subsequently entire installments paid by the complainant as per the terms of the plan and the plan was matured on 30/10/2014 and realizable value at the end of the term was Rs.54550/- Complainant submitted that till this date the matured amount was not paid by the opposite parties. The complainant had suffered a lot of mental stress, strain and agony due to the deficiency in service of the opposite parties. 

Complainant prayed for an order directing opposite parties to pay a total amount of Rs.1,52,192/- to complainant with interest @12% per annum from the date of maturity and  cost of proceedings.

Complaint was admitted and notices were issued   to opposite parties.  After receiving the notice 2^nd opposite party did not appeared before the forum. Hence set exparte. 1^st opposite party appeared before the forum and filed version contending that following:-

Complainant did  not come  under the purview of Consumer Protection Act  1986. There is no deficiency  in service on the part of opposite parties as defined under section 2(d) of unfair trade practice and under section 2(g) of said act. PACL Ltd. is a Real Estate Company and engaged in the business of sale and development of agriculture land / plot across the country and allots the land to customer. The Company did not receive any deposit from the complainant; it only received advance consideration for purchase of land / plot as per the terms and conditions of the agreement executed between the parties. The complainant’s claim is based on the agreement executed between the parties and there is an arbitration clause in the agreement, according to which the parties should invoke arbitration proceedings for the redressal of their grievances in accordance with the Arbitration and Conciliation Act 1996. Hence this Hon’ble Forum has no jurisdiction to entertain the complaint. No cause of action has arisen in favour of the complainant and against the opposite parties to file the complaint. Thus, the complaint is liable to be dismissed.

The opposite party admitted that complainant entered into an agreement bearing registration No. U145526461 and U 145526459 with opposite party for purchase of land / plot and received Rs.109100/- from the complainant according to terms and conditions of agreement.  Company never promised to pay any money to the complainant, instead opposite party  promised plot of land and if he is not keen to take his plot, opposite party will arrange for sale of his plot and he will receive only estimated realizable value. 1^st opposite party further contended that Central Bureau of Investigation (CBI) has freeze the bank accounts and property/title deeds of the “PACL LTD” in crime No.R.C.BD1/2014/E/0004. Then opposite parties approached before Hon’ble Delhi High Court against the arbitrary orders of the CBI which is pending for adjudication. In these circumstances opposite parties are not able to make payment to the customers and such delay in refund of the complainant is neither intentional nor deliberately but the same is for the reason beyond the control of opposite party. So deficiency of service and cause of action not arise against opposite parties. 

Complainant filed his chief affidavit. Exts.A1 to A.7 are marked from the side of the complainant. No affidavit was filed by the 1^st opposite party.

The following issues are considered

1.Whether there is any deficiency in service on the part of opposite parties?

2.If so, what is the relief?

Issues 1& 2

Heard. We have perused the documents filed before the forum.1^st Opposite party admitted that complainant had entered into an agreement with 2^nd opposite party for purchase of land / plot and they have received an amount of Rs.109100/- as advance for the consideration of the purchase of land /plot. It is true that opposite parties have taken back all the original registration certificates from the complainant.  Ext.A5 and A6 proved these facts. Opposite party contended that Central Bureau of Investigation (CBI) has freeze the bank accounts and property/title deeds of the “PACL LTD” in crime No.R.C.BD1/2014/E/0004. It is an admitted fact that  they were not in a position to make payment to the customers.  On verification of Exts A1 and  A2 it is revealed that the 2^nd opposite party received an amount of Rs.109100/- from the complainant.  In the above circumstances we are of the opinion that complainant is entitled to get an amount of Rs.109100/- along with interest from the opposite parties. From the available information nonpayment of the amount was beyond the control of opposite parties.  Hence we cannot attribute deficiency in service on the part of opposite parties. However, opposite parties are liable to pay the Rs.109100/- along with interest to the complainant. In the complaint, complainant stated that no relief was sought against 3^rd  opposite party. Hence we exonerate 3^rd opposite party from the liability.

  In the result complaint is partly allowed. 1^st and 2^nd Opposite parties are jointly and severally liable to refund an amount of Rs.1,09,100/-      (Rupees  One lakh  nine  thousand  and one hundred  only)   along with   interest at the rate of 12% per annum from 30-10-2014 till date of order   and Rs.1,000/- as cost of proceedings to the complainant.

Order shall be complied within a period of one month from the date of receipt of the order, failing which complainant is eligible for 9% interest per annum for the whole amount from the date of order, till realization. 

Pronounced in the open court on this the 31^st  day of March  2016.

                                                                                                Sd/-

                      Shiny.P.R.

                      President   

                           Sd/-

                      Suma.K.P.

                      Member

                          Sd/-

V.P.Anantha Narayanan,

              Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 –  Photocopy of Registration No.U145526461 dt.30/04/2009

Ext.A2 -  Photocopy of Registration No.U145526459 dt.30/04/2009

Ext.A3 -  Renewal Subscription Receipt No.R94/2581 dated 18/6/2011 issued by

              the 1^st opposite party to complainant

Ext.A4 -  Renewal Subscription Receipt  No.R94/2584 dated 18/6/2011 issued

              by the 1^st opposite party to complainant

Ext.A5 -  Renewal Subscription Receipt  dated 16/6/2012 issued by the 1^st

              opposite party to complainant

Ext.A6 -  Renewal Subscription Receipt  No.R2159808 dated 16/6/2012 issued

              by the 1^st opposite party to complainant

Ext.A7 – Receipt dated 6/11/14 issued by 1^st opposite party to the complainant

Exhibits marked on the side of  Opposite parties

Nil

Cost   

Rs.1,000/- as cost of the proceedings.