Date of filing : 18.5.2018

Judgment : Dt.9.1.2020

Mrs. Sashi Kala Basu, Hon’ble President

            This complaint is filed by the Complainant namely Mrs. Poonam Burman under Section 12 read with Section 13 of the Consumer Protection Act alleging deficiency in service and unfair trade practice on the part of the opposite parties namely (1) Manager, EBix Cash World Money Ltd. and (2) M/s EBix Cash World Money Ltd.

            Case of the Complainant in short is that the opposite parties carry business of Foreign Exchange Management. Complainant was scheduled to go to Europe on 14.05.2017 and was in need of Foreign Currency of 2000 ‘Euro’. So, Complainant contacted OP prior to journey and on advice by OP, Complainant issued a cheque in favour of Centrum Direct Ltd via cheque No.000033 drawn on HDFC Bank, for an  amount of Rs.1,42,600/-. Said amount was transferred from her Bank Account on 11.05.2017 to Centrum Direct Ltd. via reference No.FT-DR 12190330000033. OP assured to handover a Centrum Multi Currency Card containing 2000 Euros for the said tour. But, due to changed circumstances, the date to start the tour was fixed on 27.05.2017. So, Complainant approached to the OP on 24.05.2017 for 1000 Euros and OP thus issued a sale memo dt.24.5.2017 and Complainant was handed over a Centrum Multi Currency Card being No.4201 3405 0080 5002 totaling Rs.73,960 with further assurance by the OP that the rest of Indian Money would be returned in the Complainant’s Bank Account being No.00081050166153 with the HDFC Bank. On 26.05.2017 when Complainant checked the balance in the said Centrum Multi Currency Card and finding Nil Balance, she approached OP but on being assured that the amount would be transferred very soon, Complainant proceeded to Europe on 27.05.2017 but it was found that the said Multi Currency Card was not activated and Complainant could not utilize the said Card during the Europe Tour. Complainant returned on 13.6.2017. Soon after return, Complainant contacted the OP over phone, who assured that entire money of Rs.1,42,600/- would be returned to the Complainant’s Bank Account but the money was not returned and thus the present complaint has been filed praying for directing the OPs to pay Rs.142,600/- to the Complainant’s account, to pay compensation of Rs.3,00,000/- and litigation cost of Rs.15,000/-.

            Complainant has annexed with the complaint, copy of the bank account being No.00081050166153, copy of sale memo dt.24.05.2017 Xerox copy of Centrum Multi Currency Card, copy of e-mails, regarding complaint sent by the Complainant to OP on 23.07.2017 and 21.08.2017 respectively.

            OPs have contested the case by filing written version denying and disputing the allegation contending inter alia that there is no due from the OPs to the Complainant in as much as the balance amount of Rs.68,640/- had been adjusted against the shortfall of INR, payable to the OP by Sanjoy Burman, the husband of the Complainant for the  foreign exchange (Swiss Franc) sold to him on 11.5.2017 as because there was no payment of INR by him. An amount of INR Rs.3,61,630/- was payable by the Complainant’s husband, but was not fully paid by him. So, the amount of Rs.68,640/- had been adjusted towards due amount from him and still Rs.2,19,000/- is due from the said husband of the Complainant. OP had paid EUROs and was received by the Complainant. So, as the Complainant is not entitled to any money, OPs have prayed for dismissal of the complaint.

            During the course of trial, Complainant filed affidavit-in-chief, followed by filing of questionnaire by the OP and reply by the Complainant. But, OP did not file any affidavit-in-chief and thus date was fixed for argument. On repeated dates fixed for argument, OP did not take any step. Thus, Ld. Advocate for Complainant was heard, who also filed the brief-notes of argument and cited the case law reported in 2017(3) CPR 13(NC) (M/S Good luck Developer’s VS Vignesh Shanbhag), in support of his argument that since OP has not adduced any evidence, the allegations made in the complaint is deemed to be admitted as correct.

            Ld. Advocate has also cited another case law reported in 2017(3) CPR 57 (NC) that Complainant is entitled to the compensation as claimed.

            So, the following points require to be determined :-

            (1) Whether there has been unfair trade practice and deficiency in service on the part of the opposite parties?

            (2) Whether the Complainant is entitled to the relief as prayed for?

            Decision with reasons

            Both the points are taken up together for a comprehensive discussion.

            At the very outset, it may be pertinent to point out that initially complaint was filed against the Manager of Centrum Direct Ltd. and the company M/s Centrum Direct Ltd. but on appearance, Ld. Advocate for the OP submitted by filing a certificate issued by Registrar of Companies, ROC-Mumbai that name of the Company has been changed from Centrum Direct Ltd. to Ebix Cash World Money Ltd. with effect from 03.10.2018. So, the said name of the OP was incorporated by an amendment sought for by the Complainant.

            In support of his claim that an amount of Rs.1,42,600/- was paid by the Complainant to OP’s account, Complainant has filed the copy of her Bank account being A/C No.0081050166153  wherefrom it appears that the said account stands in the joint name of the present Complainant and her husband namely Sanjoy Burman. It further appears that an amount of Rs.1,42,600/- was paid to the OP on 11.5.2017 through FT-DR 12190330000033. The OP has mainly contended that the foreign exchange, Swiss Franc, was sold to the husband of the Complainant to an amount of INR of Rs.3,61,630/-. Since he had not made the full payment, the balance amount of Rs.68,640/- was adjusted against the said shortfall of INR payable to the OP. In support of the claim of the OPs, they have also filed a cash memo dt.11.5.2017 showing selling of foreign exchange of Rs.3,61,630/-. According to the OP, the said foreign exchange was Swiss Franc. In this case as already highlighted above that the OP has not adduced any evidence in order to substantiate said claim as made out in the written version. It is somehow strange that the said cash memo was issued by OP of Rs.3,61,630/- for selling the foreign currency as stated therein without receiving the equivalent Indian Currency. The cash memo suggest that the said foreign currency was sold on receipt of the INR of Rs.3,61,630. So far as foreign currency EURO is concerned, a separate cash memo is filed by the Complainant issued by he OP in he name of the Complainant for 1000 EURO on receiving  INR of Rs.73,800/-. Issurance of the said cash memo in the name of the Complainant has not been denied by the OP. So, apparently,  Rs.1,42,600/-  was paid by the Complainant from the joint account to the OP. Cash memo issued by the OP in the name of husband of the Complainant and foreign currency (Swiss Franc) of Rs.3,61,630/- was sold without payment of the said entire amount by the husband of Complainant, could not be established by the OP  . No document has been filed by the OP, in order to establish that at any point of time, they sent any letter either to Complainant or her husband demanding said amount which according to them was not paid by the husband of the Complainant. Neither they have intimated anytime in writing to the Complainant about adjusting the amount of Rs.68,640/- for non-payment of any amount by her husband as alleged in the written version. So, the contention of the OP about adjustment or non-payment of amount by the husband appears to be an afterthought and subsequent development for the purpose of this case.

It has been claimed by the Complainant that the Centrum Multi Currency Card issued by the OP of Rs.73,800/- was not activated during the tour and so was not utilized. Thus the said amount is due to be paid by the OP. OPs have not filed any document in order to show  that the  said amount of Rs.73,800/- was utilized by the Complainant during tour and the said Card was activated. So, in the absence of any document from the OP, the claim of the Complainant that the entire amount of Rs.1,42,600/- has not been paid by the Complainant in spite of assurance, cannot be disbelieved and thus the Complainant is entitled to the relief of deposit of the said amount in the joint account of the Complainant with her husband. Complainant is also entitled to an amount of Rs.50,000/- towards harassment and mental agony and litigation cost of Rs.10,000/-.

            Hence

                                    Ordered

            CC/301/2018 is allowed on contest. Opposite parties are directed to pay an amount of Rs.1,42,600/- and compensation of Rs.50,000/- as well as litigation cost of Rs.10,000/- in the joint account of Complainant with her husband being Account No.00081050166153 with the HDFC Bank, Stephen House Branch, Kolkata, within two months from this date failing which the entire sum shall carry interest @ 9% p.a. till realization.