Chandigarh

DF-II

CC/551/2020

Kishna - Complainant(s)

Versus

Sahara Q Shop North - Opp.Party(s)

Devinder Kumar

13 Oct 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	551/2020
Date of Institution	:	15.10.2020
Date of Decision	:	13.10.2022

 

                                               

                                                         

Krishna wife of late Sh.Shiv Partap Yadav, aged about 50 years resident of H.No.2606, Dadu Majra Colony, Sector 38, West, Chandigarh.

          ...  Complainant.

Versus

1. Sahara Q Shop North, Office : Sahara India Complex, C-2, C-3, C-4, Sector 11, Noida 201301 through its Managing Director.
2. Sahara Q Shop North, SCO 1110-1111, Sector 22-B, Chandigarh through its Regional Manager Sh.Arun Kumar Singh.
3. Sahara Credit Co-operative Society Ltd., 541/2, Kesho Ram, Complex, Burail, Chandigarh through its Branch Manager, Sh.Hari Krishan.

…. Opposite Parties.

 

BEFORE:  

 

SMT.PRITI MALHOTRA, PRESIDING MEMBER

SHRI B.M.SHARMA, MEMBER

 

Argued by:-

 

                   Sh.Devinder Kumar, Adv. for the complainant

                   None for the OPs.

 

PER PRITI MALHOTRA, PRESIDING MEMBER

1.           By dint of this common order, we propose to dispose of two (2) connected consumer complaints in which common questions of law and fact are involved. The particulars of the case and the details of the amount deposited by the complainant (s) in the scheme of the OPs is as under:-

1	2	3	4	5	6
Sr. No.	C.C. No.	Complainant’s Name	Certificate No.	Amount Deposited (In Rs.)	Date of Deposit
	551/2020	Krishna	583000194620 933000189010	60000/- 60000/-	15.07.2013 15.07.2013
	553/2020	Veena Rani	583000735581 933000452778	50000/- 50000/-	20.02.2014 20.02.2014

2.           The facts are gathered from C.C.No.551/2020- Krishna Vs. Sahara Q Shop North & Others.
3.           Brief facts of the case, as alleged by the complainant, are that the complainant was enticed by stating that if she invests the amount in their company scheme then the complainant will get more than double of the invested amount after six years. On the assurances of the agent of the OPs, the complainant invested the aforesaid amounts against various certificates as mentioned in the table above.  After the date of maturity, the complainant requested the OPs to release the maturity amount of Rs.1,39,800/- by submitting the requisite documents but the same has not been released despite repeated requests and rather the complainant was asked to reinvest the said amount in another scheme of the OPs to which the complainant refused. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the instant complaint. 
4.           The OPs contested the consumer complaint, filed their written reply and, inter alia, raised the preliminary objections that the complaint is wholly misconceived and vexatious; there is no relationship of consumer and service provider inter se the complainant and the OPs and that this Commission has no jurisdiction to entertain the complaint and the same is liable to be referred to the arbitrator as per Clause of the terms and conditions of the contribution scheme. It has further been pleaded that the relationship between the complainant and the OPs is of Member and Society and therefore, for any dispute between the society and the Member, consumer complaint is not maintainable.  It has been pleaded that Q Shop is not a fixed deposit scheme and no FDR was ever issued by the Company to the Complainant. The Complainant had simply made advance to purchase the products of the company. The account opened by the Complainant is related to Q Shop Scheme to purchase the products of Sahara Q Shop Unique Product Range Limited Company. Q Shop Scheme relates to purchase of products through which customer can purchase the products of company in every month for a period of six years as per his requirement through that money which is advanced by the customer at the time of entering into the scheme. There is no provision of payment of maturity amount and also no interest is payable over the advance amount. Thus, pleading that there is no deficiency in service or unfair trade practice on their part, Opposite Parties No.1 & 2 have prayed for dismissal of the complaint.
5.           The complainant filed rejoinder to the written reply of the OPs controverting their stand and reiterating his own.

4.           Parties led evidence by way of affidavits and documents.
5.           We have heard the learned Counsel for the complainant and gone through the record as well as the written submissions of the OP.
6.           The first plea of the OPs is that the instant consumer complaint is not maintainable under provisions of the Consumer Protection Act, 1986 as relation between the complainant and OPs is of member and the Society. However, we do not find any weight in this submission as it is not a pure dispute between members of the cooperative Society regarding its governance. In fact, it is a dispute with regard to deposit of amount under the scheme of the OPs for a particular period and refund of the same along with benefits. As such, the same certainly amounts to rendering of ‘service’ as defined under the Act. There is element of ‘deficiency in service’ as well as ‘unfair trade practice’ due to non-performance of the contract, whereby service of the OPs has been hired by the complainant by depositing the above said amount with them. Besides this, it is well settled law that remedy before the Consumer Forum is in addition to and not in derogation to the provisions of any other law for the time being in force. Here we are also strengthened by the judgment of the Hon'ble Supreme Court of India in "Secretary, Thirumurugan Co-operative Agricultural Credit Society Versus M. Lalitha (Dead) through LRs and others", 2004(1) CLT 456 in which it was held as under:-

“11.   From the statement of objects and reasons and the scheme of 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi judicial forums are set up at the district, State and National level with wide range of powers vested in them. These quasi judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever 'appropriate, compensation to the consumers and to impose penalities for non-compliance of their orders.

12.    As per Section 3 of the Act, as already stated above, the provisions of the Act shall be in addition to and not in derogation to any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, better the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clear bar."

7.           Further, the Hon’ble Supreme Court of India in Virender Jain Vs. Alaknanda Co op Group Housing Society Ltd., Civil Appeal No.64 of 2010 and connected matters, decided on 13.04.2013 had also widened the scope of CPA by holding that disputes between members and their Society can be decided by the Consumer Fora. The principle of law laid down in the aforesaid judgments is squarely applicable to the facts of the case in hand. Hence, it is     held that the instant consumer complaint is maintainable against   the OPs and this Commission has got jurisdiction to entertain        and decide the same under the provisions of the Consumer Protection Act.
8.           The next plea taken by the OPs is that the dispute between the parties is liable to be referred to arbitration. In this respect, it needs to be mentioned that the Larger Bench of the Hon’ble National Commission, vide order dated 13.07.2017, passed in Consumer Complaint No.701 of 2015 titled as Aftab Singh v. EMAAR MGF Land Limited & Anr., held that an Arbitration Clause in the afore-stated kind of Agreements between the Complainants and the Builder cannot circumscribe jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act, 1996. The Civil Appeal No.(s) 23512-23513 of 2017 (M/s EMAAR MGF Land Limited & Anr. Vs. Aftab Singh) filed against the said order of the Hon’ble National Commission has also been dismissed by the Hon’ble Apex Court vide order dated 13.02.2018. Even Review Petition (C) Nos.2629-2630 of 2018 filed against above said order was also dismissed by the Hon’ble Supreme Court vide judgment dated 10.12.2018. Consequently, it is held that existence of Arbitration Clause in the agreement is not a bar to resolve the present dispute by this Commission. Thus, this objection of the opposite parties is also rejected.
9.           It is well admitted by the OPs in their written statement that the complainant paid advance under the scheme in question and the OPs are ready to refund the advance so received but the complainant is persisting for refund of the advance along with interest.  However, they are not liable to pay any interest on the advance/amount. The complainant can get back only the amount that she had advance with the company, no interest is payable. The  Opposite Part  never refused to refund the advance amount but it is the complainant who made demand of interest and she herself refused to get the advance amount.    To substantiate their stand, the OPs are alleging that the complainant had agreed to certain terms and conditions of the scheme by filling up certain prescribed forms, as per which the complainant is not entitled for interest as it is not an investment under the FDR. We are of the considered view that the stand so taken by the OPs deserves to be outrightly rejected on the ground that they have failed to place on record any copy of the alleged form duly signed by the complainant containing the alleged terms and conditions of the scheme.  The OPs have also failed to place on record any documentary evidence to prove that the complainant was ever supplied the terms and conditions of the said scheme at any point of time.  The complainant is, thus, not bound by the alleged terms and conditions of the scheme of the OPs.
10.           Undoubtedly, the Opposite Parties have admitted that they possessed advance paid by the Complainant for a long period of 6 years on which certainly they must have availed the interest. It is an admitted fact that the Complainant did not avail any kind of services of the Opposite Parties. Hence, the act of the Opposite Parties for non-honouring their own Scheme, non-explaining the terms & conditions thereof or supplying copy thereof to the Complainant so that the complainant could get benefit of the same for 6 years, proves deficiency in service and their indulgence into unfair trade practice, which not only resulted in the present unnecessary litigation, but has certainly caused unprecedented harassment to the Complainant.  To our mind, the Opposite Parties must have refunded the amount to the Complainant along with interest, compensation and costs of the present proceedings.    
11.           Similar facts have been pleaded in another connected complaint and similar evidence has been led in it.  Therefore, in both these cases, deficiency in service as well as unfair trade practice on the part of the OPs is proved.
12.         For the reasons recorded above, we are of the opinion that both the Complaints must succeed. The same are accordingly partly allowed. The OPs are, jointly and severally, directed as under:-

[a]    To refund the deposited amount (s) i.e. Rs.1,20,000/- to the Complainant  in C.C. No.551/2020 and Rs.1,00,000/- in C.C.No.553/2020 along with interest @ 9% p.a. from the respective date(s) of receipt, till it is paid;

[b]     To pay Rs.15,000/- as compensation on account of deficiency in service, unfair trade practice and causing mental and physical harassment to the Complainant  in each complaint; 

[c]    To pay Rs.11,000/- as cost of litigation in each           complaint;

13.           This order be complied with by OPs within 45 days from the date of receipt of its certified copy, failing which the amount at Sr.No.(b) shall also carry interest @ 9% per annum from the date of this order till its actual payment besides compliance of other directions.
14.           The remaining application, if any, stands disposed of accordingly.
15.           Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

13.10.2022                                                                      

Sd/-

(PRITI MALHOTRA)

PRESIDING MEMBER

 

Sd/-

(B.M .SHARMA)

MEMBER