LinkBack URL
About LinkBacks
Nilgiri Plantation 1.Shri Deepak U. Palyekar 2.Shri Arjun R. Kharutkar
3.Shri Gangaram S. Devsekar
4.Shri Ganesh Gangaram Devsekar
5.Shri Vassudev Gangaram Devsekar
6.Shri Avdoot Gangaram Devsekar
7.Shri Pandurang Gangaram Devsekar
8.Shri Shantaram S. Devsekar
9.Shri Peter Fernandes
10.Shri Baburao Adpoikar
11.Shri Shubangi Baburao Adpoikar
12.Shri Patil Mohan Balaram
13.Shri Vasant R. Naik
14.Shri Rajan Kamat
15.Smt. Revati Rajan kamat
16.Smt. Deepa Deelip Dessai
17.Shri Gajanan S. Wagle
18.Shri Vijay S. Wagle
19.Smt. S.B. Joshi
20.Shri Laxman Satardekar
All R/o. C/o. Shri Deepak U. Palyekar,
H.No. 38, Near Govt. High School,
Bogda, Vasco-da-Gama Goa 403 802. ….. Complainants
V/s.
1. Shri Pedro A. Almeida,
Chief Promoter/Chairman/President,
Nilgiri Plantation Project II,
H.No. 437, Shanti Nagar,
Near Sanjay Engineering,
Shanti Nagar,
Vasco-da-Gama, Goa 403 802
2. Shri Bhujaballi A.A.,
Vice Chairman/Vice President,
Nilgiri Plantation Project II,
Near Sanjay Engineering,
Shanti Nagar,
Vasco-da-Gama, Goa 403 802 ….. Opposite Parties
Advocate Shri Mohan A. Redkar for the Complainants
Advocate Shri Subhash N. Kerkar for the O.Ps
Dated: 15/04/2009
O R D E R(Per Shri Jagdish Prabhudesai)
The brief facts of the case are as follows:
I.It is alleged in the complaint that somewhere on 15.12.1991 the O.P. called a meeting at Natraj Theatre Vasco at about 3.30 p.m. inviting the Complainants among other people gathered at the said meeting with the object of launching a project by name “Nilgiri Plantation II” hereinafter referred to as the ‘said project’ and the O.P.No.1 in the capacity of Chief Promoter of the said project convened the said meeting.
II.It is alleged in the complaint that at the aforesaid meeting the O.P. No.1 circulated the hand-bills/Circulars to the Complainants inviting them to invest a sum of Rs. 10,000/- per head inn the said project and promised that their said investment would yield them five times more returns i.e. amount Rs. 64,620/- per head after the completion of seven years.
III.It is also alleged that the aforesaid circulars promised to the Complainants the yield of returns on their minimum monetary investment of Rs. 10,000/- in the said project in the manner described at para no. 3 of the complaint.
IV.It is further alleged that they bonafidely believing the representation made by the O.P.No.1 at the aforesaid meeting and the representation contained in the said circular to be true invested their hard earned money being Rs. 10,000/- each in the said project on the promise given by the O.Ps that they are minimum investment of Rs.10,000/- as aforesaid would yield them high returns in the manner stated at para 3 of the complaint.
3
V.It is further alleged that the O.Ps represented to the Complainants that their investment of Rs. 10,000/- per head was secured inter-alia by acquiring rights in the landed property situated at Jamboti/Gunji Taluka Khanapur District Belgaum State Karnataka, the said property admeasuring an area of 1,89,500 sq.mts and further promised that from the produce of the said land the returns to the Complainants in the manner hereinabove stated would be accordingly paid.
VI.It is alleged that relying upon the statements contained in the said circular and the representation made during the time of the aforesaid meeting the Complainants invested a sum of Rs. 10,000/- each in the said project on the high hope and aspiration that their invested hard earned earnings would be duly rewarded in the manner stated above after the completion of the stipulated time period of seven years.
VII.It is alleged that towards consideration as above the O.Ps issued to the Complainants a letter of allotment in lieu of membership certificate to each of the Complainant herein and further received from them a yearly maintenance contribution for the purpose of maintenance of the abovesaid landed property wherein the Complainants had acquired proprietary rights as abovesaid, which contribution was in addition to the initial investment of Rs. 10,000/-. The said letter of allotment issued in the name of the said project was duly signed by the O.P. No.1 and 2 in the capacity of Chairman and Vice-Chairman respectively.
VIII.It is further alleged that after completion of the stipulated time of 7 years, in 1999 the Complainants were entitled to receive their promised yield of returns as aforesaid. The O.Ps did not make any effort to fulfill their promises despite the repeated requests made to
…4/-
4
them. Hence the Complainants held a meeting with the O.Ps on 26.03.2000 when the O.Ps promised to pay the said maturity dues to the Complainants at the earliest possible date. However the O.Ps failed to honour the said promises.
IX.At the request of the Complainants O.Ps called on another meeting on 25.11.2001 where once again the O.Ps promised to pay the respective dues to the Complainant by selling the aforesaid property together with the crops attached thereto and the produce therefrom. However, till the date of filing this complaint the O.Ps have failed and neglected to pay to the Complainant the said sum of Rs. 64,620/- per person despite the completion of the said stipulated period.
X.It is further alleged in the complaint that the Complainants are low income group and coming from low income families and that they have been defrauded by the O.Ps apart from monetary loss and hardships and mental tension to each of the Complainants for which they are entitled to be compensated.
XI. Based on the said cause of action the Complainants prayed for the following reliefs:
i. That the O.Ps be ordered and directed to pay to each of the Complainant herein a sum of Rs. 64,620/- (Rupees fifty four thousand only) together with interest @ 18% p.a. from the date of maturity of the said scheme till final payment and/or realization of the entire amount.
ii. For costs inclusive of professional costs.
iiii. Any other reliefs which this Hon’ble Court may deem fit and proper.
Upon receiving the notices from this Forum, the O.Ps filed their reply vide Written version dated 09.02.2004 and oppose the case of the Complainant on the following amongst other grounds:
…5/-
5
1.The O.Ps have raised the preliminary objections that the purported dispute is not a consumer dispute and that the O.Ps are not the manufacturers, producers, suppliers of any goods as such nor are the Complainants’ Consumers and further that the purported claim is of commercial nature and therefore falls outside the ambit of the Consumer Protection Act, 1986.
2. The O.Ps have alleged in their written version that it is the Complainant No.1, 2 and 14 who took the initiative to form the group and launched a project to earn profit by undertaking plantation. It was a self motivating project aimed for profit and livelihood. The O.Ps denied that they were Chief Promoter/Chairman/President or vice Chairman, Vice President or vice-chief promoter as alleged in the cause title. The O.Ps were merely members of the project. It was denied that the said O.Ps called a meeting on 15.12.1991 for the purpose of launching a Project –III.
3. The O.Ps denied the contentions of para nos. 2 and 3 of the complaint. The O.Ps denied that each of the Complainant invested the amount of Rs. 13,600/- including the penalty and fees or any other amount.
4. Para nos. 4 to 6 of the complaint were denied in the written version. It was alleged that the O.Ps were no way concerned with the alleged meeting. The O.Ps stated that they were asked to supervise the plantation in the property by the Complainant Nos 1, 2 and 14.
5. It was alleged in the written version that the Complainant Nos. 1, 2 and 14 with ulterior motive formed a committee of six members and asked the O.Ps to sign certain certificates, letters, invoices alongwith others. The O.Ps contented that all the purported documents relied on by the Complainant were false. So also para nos. 8 and 9 of the complaint were denied. It was alleged in the written version that the Complainants Nos. 1, 2 and 14 were alone managing the entire project and that the said
…6/-
6
O.Ps were entitled to receive the share amount from the above investments as they were land members. The O.Ps contended that they did not make any promise nor any amount was due and payable by them to anyone of the Complainant. A false and frivolous complaint has been filed to counter attack the claim of the O.Ps to claim their share.
6. The O.Ps therefore prayed that the present complaint be dismissed.
The Complainants filed their Affidavit-in-evidence inter-alia confirming the contents of the Complaint. The O.P. Nos. 1 and 2 also filed separately their respective Affidavits-in-evidence inter-alia adopting their case as set out by them in their written version.
After going through the documents on record and the written submissions put on record, we now proceed to record our findings arising out of the issues in the present case as would contained hereinbelow:
1)At the outset it is noted that the Complainants have produced on record the letter of allotment and various receipts of the payments made. The said letter of allotment mentions the names of the O.Ps. We further hold that the receipts for different payments made by the Complainants from time to time have also been validly issued by the concerned O.Ps from time to time in their official capacity.
2)The cause of action has arisen within the territorial and pecuniary jurisdiction of this Forum, in as much as both the parties are residing at Vasco-da-Gama, payments were made at Vasco-da-Gama and the receipts were issued by the concerned O.Ps at Vasco-da-Gama. Hence this Forum has jurisdiction to try and entertain the present complaint.
3)We are unable to agree with the contention of the O.Ps that the present dispute is not a consumer dispute and that the Complainants are not the consumers. The truth of the matter is that the documents on record clearly indicate that there is valid transaction by and between the
…7/-
7
parties hereto creating the legal relationship between the parties as consumer and service provider within the meaning of Consumer Protection Act 1986. We also do not agree with the contention of the O.Ps that the transaction entered into was for commercial purpose as the affidavitory evidence of the Complainants clearly mention that they have invested the money with the O.Ps out of their hard earned money and to get the benefit under the project as agreed by and between the parties. Hence we have no hesitation to reject the aforesaid preliminary objections raised by the O.Ps in their written version at this final stage in view of our aforesaid observations.
4)It is observed from the record that the Complainants have relied upon the following documents:
i. Letter of allotment in lieu of membership certificate bearing No. 001189.
ii. Receipt dated 11.11.1992 issued by the concerned O.P. for the amount of Rs. 5000/- towards land membership.
iii. Similar receipts issued on different dates by the concerned O.Ps for different Complainants.
iv. The receipt for the payment of Rs.500/- dated 15.06.1995 issued by the concerned O.P. from Shri Rajan Vaikunth Kamat and the receipts issued on different dates for different amounts received from the said Rajan V. Kamat.
v. Similar letters of allotment with similar names of all other complainants.
5) Apart from the aforesaid documents the Complainant has also produced on record the Circular pertaining to Nilgiri Plantation Project, launching of scheme III. It is observed that the said circular among other things, contains the following :
“INTRODUCTION: - Shri P.A. Almeida was seized of an idea of agricultural farming on the large scale which he thought was possible by collective effort. The idea of the project was hatched in
…8/-
8
his mind, and as Chief Promoter of the project, he set out to put it into practice. The project report which meant a projected scheme was placed before the interested enthusiasts in September, 1990. The response was favourable and at the first meeting a Group of 49 members contributed their subscriptions to set the project into motion. The purchase of land was the first item before the Committee headed by Shri P.A. Almeida and others. The land was acquired and the development was begun. The project went into plantation in June, 1990 and the first scheme has today on its rolls 49 members – 80,000 sq.m of land – 60,00 Nilgiri Plants – 83 Mango plants – 25 chickoo plants – 1000 teak wood plants – 500 silverwood plants – 500 Cyprus plants.
The entire work of purchase of plant, development of land, procurement of plants, and plantation was the team work of Shri P.A. Almeida and A.A. Bhujballi – President and Vice-President of Committee.
The Scheme I being thus successful, in the year 1991 – Scheme II was launched and the response to this scheme was overwhelming. This scheme as on today has 120 members on its roll, and has gone into acquisition of 1,85,000 sq.m of land, and has completed 1,25,000 Nilgiri Plants, 2000 teakwood plants, 1000 silverwood and 1000 Cyprus plants. Out of four plots acquired by this scheme, three plots have been brought under cultivation and the fourth plots will go into cultivation in 1993. Both the projects having been successfully completed, this project is now pleased to launch Scheme III, which envisages enrolment of 50 members and plantation of 50,000 plants.
The promoters are confident that this scheme will go into cultivation In June 1993, alongwith the left over plot of Scheme II.”
The said circular of Nilgiri Plantation Project further gives the projected statement of expenses and source of funds inclusive of the statement pertaining to the return on investment, contents of which are self explanatory. The O.Ps in their respective Affidavits-in-evidence have not challenged the above aspects.
6) We have perused the letter addressed to one of the Complainant dated 10.06.1993 by Shri P.A. Almeida, President of the Project inter-alia stating as under:
“ Sir, You have contributed towards the Scheme III and paid the 1st installment of Rs. 6,000/-. The scheme is progressing and the plantation is to be completed during the current monsoon season.
We would request you to kindly remit the second installment of Rs. 6000.00 (Rupees six thousand only) to the credit of S.B. Account No. 22376 with Bank of India Vasco-da-Gama before 25.06.1993 and obtain a receipt from this office.”
…9/-
9
7) From the aforesaid two documents amongst other documents produced by the Complainants, we record our findings that the contention of the O.Ps that Mr. P.A. Almeida has never acted in his capacity as President, is not acceptable to this Forum since it is abundantly clear that the said Shri Almeida has signed his correspondence with the parties hereto in his capacity as a President. We also hold that both the O.Ps were acting in their stipulated official capacity on behalf of the Project.
8) It is also abundantly clear that each Complainant in the present case has made the specific payment of Rs. 6000/- to the O.Ps herein towards the Nilgiri Scheme-III and that the O.Ps have declared for time and again that the said scheme was progressing and the Nilgiri Plantation Project was to be in the offing during the current monsoon season and further that even the O.Ps went on receiving further installments due from each of the Complainant from time to time which amount has been paid to the O.Ps from time to time as demanded by them.
9) We have gone through the statement on record showing the trial balance for the year ending 31.03.1994 where the details of the debit and credit are given.
Be it as it was, we also observe that the contention of the O.Ps that no meeting was held between them and the Complainants at any point of time, is also devoid of any substance. In fact the Complainants have put on record the cyclostyled copy of the notice dated 07.07.1994 issued by one of the O.Ps informing the Complainant No.1 that the meeting of the Managing Committee shall be held on 11.07.1994 at 11 hours at Vasco-da-Gama inorder to discuss the agenda mentioned in the said notice and inter-alia requesting all members to attend the said meeting. Enclosed to the said notice was the statement of receipts and payments account from 01.04.1994 to 31.03.1995.
10)Though the O.Ps have denied any further meeting with the Complainants, the Complainants have put on record the cyclostyled
…10/-
10
notice dated 15.05.1995 addressed to the concerned O.P. to the Complainant No.1 which was the notice of the General Body Meeting to be held on 28.05.1995 at Vasco-da-Gama to discuss the agenda in the said meeting.
Interestingly the agenda as contained in the aforesaid notice also included the matters like annual report, maintenance contribution, membership certificate, etc. It may be noted here that vide notice dated 31.05.1995 the Chairman of the O.Ps informed the members about the various decisions taken in the General Body Meeting held on 28.05.1995 including liability of the members to pay the maintenance contribution inter-alia containing foot-note that the members who have not collected their certificates were requested to collect them from the office. Enclosed to the said notice were the statements showing the cost of cultivation account as on 31.03.1995, balance sheet as on 31.03.1995 and details of closing balance etc. Also put on record are the letters written on various dates by the President of Nilgiri Plantation Project to other members of the Project who are other Complainants herein.
11) Our attention is also invited to the contents of notice dated 02.01.2002 issued by the O.Ps captioned as notice of General Body Meeting Project-III to be held on 20.01.2002 at A.A. Bhujbali’s House, Mangor-Airport Road, Shantinagar, Vasco-da-Gama inorder to discuss the agenda including sale of plants, sale of land and any other matter. In our opinion this last notice dated 02.01.2002 speaks volume about the validity of cause of action based on which the Complainants have filed the present complaint within the time frame provided by the Consumer Protection Act, 1986.
12) In our considered opinion the O.Ps have failed to prove their contentions in their Affidavits-in-evidence that they were merely members of the said project floated/marketed by the Complainants No. 1 and 5 and others. The said O.Ps have also failed to prove that
…11/-
11
they were in any way concerned with the alleged meetings and subsequent calling any of the Complainants to invest the money. The said Ops have also failed to prove that they were only asked to supervise the plantation of the property by Complainants No.1 and 5. It appears that the said O.Ps have blindly and mechanically denied the contents of the complaint. However, as said earlier, the Complainants with documentary evidence have proved their contentions made in the complaint as regards various aspects of transactions, payments made from time to time, meetings conducted and participated by the parties herein and the overall nexus of the O.Ps that the cause of action with the present case.
13) It is also observed that the failure of the Complainants to cross-examine the O.Ps as allowed by this Forum, by itself, does not and cannot falsify the claim of the Complainants. They have proved their case by other convincing corroborative documentary evidence put on record.
14) It may be noted here that the Complaints are coming before this Forum as common sufferers and common victims having same interest in the subject matter of the present dispute.
15) In view of the observations made herein above we are of the opinion that all the Complainants herein have succeeded in proving the alleged acts on the part of the O.Ps which in our opinion clearly amounts to ‘deficiency-in-service’ as denied under the Consumer Protection Act, 1986 and hence the O,.Ps herein are held jointly and severally liable to comply with the direction as would contain hereinbelow.
We therefore pass the following order:
…12/-12O R D E R
It is hereby Ordered that the present Complaint dated 25.11.2003 filed by the Complainants herein against the O.Ps herein, hereby stands allowed in terms of prayer (i) of the complaint. Accordingly both the O.Ps herein are jointly and severally directed to pay to each of the Complainant herein a sum of Rs. 64,620/- (Rupees sixty four thousand six hundred twenty only) together with interest at the rate of 12% per annum from the date of the maturity of the said scheme till final payment, within 30 days from the date of receipt of this Order.
Submit Complaint..
