Haryana

Karnal

CC/167/2021

Navita Gupta - Complainant(s)

Versus

Sahara Q Shop Unique Product Range Limited - Opp.Party(s)

Soooresh Khanna

29 Sep 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                     Complaint No.167 of 2021

                                                     Date of instt. 22.03.2021

                                                     Date of decision 29.09.2022

 

Navita Gupta daughter of Shri O.P. Garg, resident of house no.1170, sector 7, Urban Estate, Karnal.

      …….Complainant 

                                        Versus

 

1.     Sahara Q Shop Unique Product Range Limited, through its Branch Manager Kunjpura Road, Karnal.

 

2.     Sahara Q Shop Unique Products Range Limited, Sahara India Bhawan 1, Kapoorthala Complex, Aliganj, Lucknow-226024.

 

    …..Opposite Parties.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

               

Before   Sh. Jaswant Singh……President.       

      Sh.Vineet Kaushik ………..Member

              Dr. Rekha Chaudhary…..Member

 

 Present: Shri Sooresh Khana, counsel for complainant.

Shri Sunil Sinha Manager on behalf of OPs

alongwith Shri Vikas Yadav Advocate.

 

                (Jaswant Singh President)

ORDER:  

                 

                 The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant opened recurring deposit account @ Rs.5000/- per month with the OP no.1 through Mr. Gagan Anad, Introducer an agent of the company. The recurring deposits were made out of monthly salary of the father of the complainant in order to safeguard her future studies. At the time of maturity of the recurring deposits, i.e. in January, 2013, the representative of the OP no.1, Shri Sunil Kumar Sinha at Karnal Branch informed that payments cannot be made as the company was running into heavy losses. The complainant was compelled to convert the deposits into FDR for which the complainant had to agree as there was no other alternative. The said Mr. S.K. Sinha issued FDR certificate no.562001057971 dated 12.05.2012, receipt no.71019085967 for Rs.153650/-. The FDR in the name of the complainant were thus issued for the period of six years. A printed chart “Investment Plan In Q Shop Plan H” was also supplied to the complainant, showing appreciation of Rs.235.40% within a period of six years. The FDRs matured in January, 2018. The complainant contacted Mr. Sunil Kumar Sinha, Branch Manager to encash the FDRs but Mr. Sinha showed his inability to make any payment saying that there were no funds available with the company and assured to credit the amount within three months alongwith upto date interest. Since Mr. Sinha tried to misguide the complainant to invest the FDR maturity amount with upto date interest @ 235.40% for another thirty months and handed over a bunch of documents i.e. application for pre-maturity /loan against deposit and maturity claim form no.651 028277389 and Super AB (contribution form) no.295002237528. However, complainant did not invest the said FDRs in the fresh scheme. On 02.04.2019, Mr. Sinha was again approached and he was requested to make payment of maturity amount as the complainant was not interested to invest in the new scheme as mentioned above, but he showed his inability to make payments at that stage and told that he would contact the higher authorities and till then complainant should wait for some time. Thereafter, complainant requested several times to Mr. Sinha to issue account statement in respect of FDRs but all the times he replied that their server is out of order and he did not issue the account statement. The complainant was to get Rs.4,77,862/-maturity in the year 2018 as under:-

FDR no.              Date of              Amount of      Date of        Interest         Total amt.

                         FDR                   FDR              Maturity      amount         on maturity

562001057971   12.05.2012           1,53,650/-       11.05.2018    208042        361692

562002211749    06.09.2012             49,350/-       05.09.2018     66820/-      116170

 

Besides Rs.477862/-, another payment of Rs.212565/- as interest amount up to filing of complaint is to be paid by the OPs but OPs did not pay the said amount after repeated visits and requests. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OPs appeared and filed written version, raising preliminary objections with regard to maintainability; jurisdiction: cause of action; mis-joinder of necessary party and concealment of true and material facts.. On merits, it is pleaded that the OPs have never allured their customer/complainant to make the investment in the company and he was promised to return the amount after the completion of six years with agreed amount, whereas under Q Plan-H scheme, the complainant has to purchase the products of Sahara Q Shop Unique Products Range Limited Company and as per the terms and conditions of the scheme there is no provision of payment of pre-maturity or maturity.  As per clause-2 of scheme, no interest is payable over the advance amount. As per the terms and conditions during the tenure of the scheme the customer can get Loyalty Bonus Points on the purchase of the products of the company. Q shop scheme is not a policy or fixed deposit scheme. Complainant did not make advance to get the interest over the same, rather he had advanced to purchase the products. The claim of the complainant is against the terms of the agreement. It is further pleaded that the OP is a society, if the complainant who is a member of the society has any grievance or dispute with the society, he is bound to refer their dispute before Arbitrator as per Arbitration Agreement under clause 18 of the scheme Super AB.. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint with costs.

3.             The parties then led their respective evidence.

4.             Learned counsel for complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of certificate no.562001057971 Ex.C1, copy of certificate no.5620022211749 Ex.C2, copy of chart of investment plan Ex.C3, copy of application for prematurity claim form Ex.C4, copy of Super AB application form Ex.C5, copy of letter dated 24.06.2020 Ex.C6, copy of letter dated 11.02.2021 Ex.C7 and closed the evidence on 15.12.2021 by suffering separate statement.

5.             On the other hand, OP has tendered into evidence affidavit of Sunil Kumar Sinha, Manager as Ex.OP1/A and closed the evidence on 18.07.2022 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of complaint, has vehemently argued that complainant has deposited an amount of Rs.1,53,650/-on 12.05.2012 and Rs.49,350/- on 06.09.2012 for the period of six years with the OPs and after maturity of the said amount, the complainant was entitled for refund of aforesaid amount alongwith interest. On maturity of the said amount, the complainant approached the OPs to refund the maturity amount, then OPs firstly tried to linger on the matter on one pretext or the other and finally refused to pay the same and prayed for allowing the complaint.

8.             Per contra, learned counsel for OPs, while reiterating the contents of written version, has vehemently argued that under the terms and conditions of the scheme, there is no provision of payment of pre-maturity or maturity. He further argued that this Commission has no jurisdiction to try and decide the present complaint as the OPs are a Society and only the Registrar of Cooperative Society has jurisdiction to try and entertain the present complaint, therefore, the dispute is to be entertained before Arbitrator as per arbitration agreement under clause 18 of the scheme Super AB, which is reproduced as under:-

        Clause 18. Arbitration:-

        All dispute between Society and Member the same shall be subject to arbitration as per the provisions of Section 84 of the “Multi State Co-operative Society Act, 2002 as amended from time to time.”  Learned counsel for OPs relied upon the judgment of Hon’ble National Commission in case titled as Ms. Anjana Abraham Chembethil Versus The Managing Director, The Koothattukulam Farmers Service Cooperative Bank Ltd. NCDRC759 of 2013 (4) and lastly prayed for dismissal of the complaint.

9.             The first question for consideration before us whether the present complaint is maintainable before this Commission or not.

10.           The OPs have taken a plea that OPs are a society so this Commission has no jurisdiction to entertain the present complaint. In this regard, we are of the considered view that the OPs have not placed on record any Arbitration Agreement or any document that OPs are a society. Therefore, this plea is not tenable in the eyes of law.  Furthermore, if for the sake of argument it may be considered that OPs are a society and there exists an arbitration agreement between the OPs and the complainant, in that case also this Commission has jurisdiction to try and entertain the present complaint as it is a settled proposition of law that complaint under Consumer Protection Act, being an additional remedy, despite there being an arbitration agreement, the proceedings before Consumer Commission have to go on. The remedy under Consumer Protection Act is a remedy provided to a consumer when there is a defect in any goods or services. In this regard, we place reliance on the case titled “M/s Emaar MGF Land Limited Versus Aftab Singh, review petition © Nos.2629-2630 of 2018 (SC), wherein Hon’ble Supreme Court of India held in para no.55 as under:-

“We may, however, hasten to add that in the event a person entitled to seek an additional special remedy provided under the statutes does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration.”

  

                Further, similar view was taken by Hon’ble National Commission in case titled as Sanjay Gopinath Versus M/s IREO Grace Realitech Pvt. Ltd. (bunch of the cases) decided on 31.08.2021 wherein Hon’ble National Commission while placing reliance on the judgment of Hon’ble Supreme Court of India titled as M/s Emaar MGF Land Limited Versus Aftab Singh-I (2019) CPJ 5 (SC) has held that an Arbitration clause in the Agreement does not bar the jurisdiction of Consumer Fora to entertain the complaint. Hence, the objection raised by the learned counsel for the opposite party that the clause of Arbitration bars this commission from entertaining the complaints is unsustainable.

11.           Hence, keeping in view the above discussion and ratio of the law laid down in the above judgments, this Commission has jurisdiction to entertain and try the present complaint.

12.           The next plea taken by the OPs, is that as per terms and conditions of the scheme, there is no provision of payment on pre-maturity or maturity and no interest is payable over the advanced amount, rather only customer can get loyalty bonus points on the purchase of products of the company. In this regard, except the affidavit Ex.OP1/A, OPs have not placed on record any document to prove that the complainant had taken any membership to purchase the product under the scheme. As per the pleadings itself it has been well proved that the OPs’ officials have not provided any kit or any product to the complainant till date and it is within the knowledge of the OPs that complainant has not purchased any product. In that situation, OPs should have given a notice to the complainant that their amount has not been utilized or they should have refunded the amount to the complainant. But the same has not been done by the opposite parties. On the other hand, complainant has placed on record document Ex.C3, Investment Plan in Q shop Plan H and as per plan, the deposited amount is refundable after six years but same has not been refunded to the complainant till date.

13.           It is evident from the receipt dated 12.05.2012 Ex.C1 an amount of Rs.1,53,650/- and receipt dated 06.09.2012 Ex.C2 and amount of Rs.49350/- were deposited by the complainant with the OPs. Receipts Ex.C1 and Ex.C2 bear the stamp/sealed of the OPs and as per copy of chart of investment plan Ex.C3, on maturity it becomes Rs.477862/-, which has not been disputed by the OPs in their pleadings

14.            In view of the matter, credence can be given to this documents and the complainant is held to be entitled for Rs.4,77,862/-. Needless to mention here, the complainant did not avail any kind of services of the OPs and has also not taken cash back, therefore, complainant is certainly and definitely entitled to the deposited amount as above. Hence, the act of the OPs for non-honouring their own scheme, non-explaining the terms and conditions thereof to the complainant to provide the benefit of the same for six 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.

15.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to refund the amount of Rs.4,77,862/- (Rs.four lakhs seventy seven thousand eight hundred sixty two only) to the complainant alongwith interest @ 9% per annum from the date of maturity of the FDRs till its realization. We further direct the OPs to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expense. This order shall be complied with within 45 days from the date of receipt of copy of this order till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:29.09.2022                                                                     

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

(Vineet Kaushik)           (Dr. Rekha Chaudhary)

                     Member                        Member