RADHA SHAMPRAKASH DAMLE vs GOLDEN GLADES LTD.

COMPLAINANT has filed the complaint claiming sum of Rs. 6,91,002/- from both the O.Ps. with interest @ 18% p.a. w.e.f. 20.10.2000 till realization, plus sum of Rs. 1,029/- being the amount debited by the bankers of the complainant into her account on account of negotiation of the cheques issued by the O.Ps. in favour of the complainant and which were bounced.

FEW relevant facts: The transaction being the subject-matter of the dispute herein dates back to the year 1997 and the subject-matter of the dispute herein is a plot of land which O.Ps. agreed to deliver to the complainant for constructing residential house. It is noticed that the scheme was mooted by the O.Ps. called as "double money option" in which the complainant participated and paid diverse payments amounting Rs. 3,45,501/- as her full share payable under the said scheme, which was to be treated as a consideration for providing the plot in question. In the said scheme, there was also an option available to the complainant to claim a double amount paid by her, 10% extra after expiry of 36 months from the O.Ps.

It is noticed that the complainant exercised the said option and O.Ps. at one stage issued post-dated cheques, which the complainant accepted. They issued 3 post-dated cheques of total sum of Rs. 6,91,000/- to the complainant towards the full and final settlement of her claim in the scheme in question.

HOWEVER, as is the case, the cheques got bounced and after protracted correspondence the complainant is required to approach the Consumer Fora claiming refund of the amount in the term as mentioned hereinabove. Complainant has made available along with the complaint relevant documents, including receipts showing the payments, as also dishonoured cheques paid by the O.Ps.

IT is noticed that both the O.Ps. were served with the process of the District Forum as required under Section 13 of Consumer Protection Act, 1986 and both the O.Ps. responded to the said process by filing their replies. On perusal of the written statements filed, on one hand, the case as presented by the complainant in the complaint about floating of the scheme, its operation, partcipation of the complainant, as also fulfilment of her obligation of payment of requisite amount, all these facts have not been denied and disputed. Factum of O.Ps. issuing their cheques to the complainant as noticed hereinabove and subsequently bouncing of the same, all these facts have not been seriously disputed.

CONTENTION taken is about certain proceedings adopted before the Special Court established and constituted under M.P.I.D. (Maharashtra Protection of Interest of Depositors Act) and certain steps at the behest of the police, which had proceeded to taken action against the assets and liabilities of the O.Ps.

IT is further submitted that since the Special Court is seized with the matter, the complaint as filed cannot be proceeded with. Following points would arise for our consideration: 1. Whether complainant proves deficiency against the O.P. in not honouring their commitment of refund of the amount on the basis of option provided in their scheme and which was exercised by the complainant claiming refund? 2. Whether complainant is entitled to the relief as claimed in the complaint for refund of Rs. 6,91,002/-? 3. What order?

Our findings on the above points are as under: 1. Yes. 2. Yes. 3. As per final order.

IT is stated that the material made available in the dispute herein basically comprises pleadings of the parties and correspondence exchanged prior to the filing of the complaint, which forms also part of annexure to the pleadings. We have also heard the learned Advocates of the parties as above.

O.P. No. 2 although filed the written version is not present, but we have also perused his written statement, which practically proceeds on the line as that of O.P. No. 1. Reasons: Point Nos. 1 and 2 : We propose to take point Nos. 1 and 2 above for consideration together to avoid overlapping of discussion. As noticed while adverting to the case of the complainant as reflected in the pleadings and which is also supported by the pleadings as filed by the O.Ps. in their written statement that the scheme was floated by the O.Ps. which was to operate in the manner as has been stated by the complainant. Participation of the complainant in the scheme in question, as also of her requisite contribution to the extent of Rs. 3,45,501/- paid to the O.Ps., all these aspects have not been denied. Apart therefrom, said payment made by the complainant is well documented and the receipts issued by the O.Ps. acknowledging payment have been made available being the annexures to the complaint. The scheme in question provided option to the complainant, which complainant has also duly exercised by discharging obligation thereunder in toto which was accompanied with O.Ps. issuing their cheques for sum of Rs. 6,91,000/- to the complainant being her entitlement in respect thereof. This would show that O.Ps. practically accepted the case and claim of the complainant as set out in the complaint. In this respect, reference be made to the letters dated 28.4.2001 and 10.5.2001 addressed by O.Ps. to the investors, like the complainant herein and it needs to be stated that there is clear admission on the part of O.P. No. 2 they having taken over the project and the scheme, issuance of the cheques as also their inability to fulfil their obligations. All these facts are clearly indicative of the fact that the claim of the complainant as made in the complaint has not only been disputed by the O.Ps., but in the correspondence, in particular, 2 letters referred to hereinabove, there is clear admission on their part to refund the amount to the complainant as she has claimed. Now with regard to point sought to be agitated by the O.Ps. to the effect that Special Court is seized with the matter, we wish to state that the claim in the matter herein is a legitimate claim, which would squarely fall within the ambit of Consumer Fora being a consumer dispute. Complainant has approached this Commission alleging deficiency on the part of the O.Ps. and in view thereof as provided under Section 3 of Consumer Protection Act, 1986, the remedy available before Consumer Fora being in addition to remedy, which would be available before the conventional Court, we do not find any merits in the contentions raised. At this stage, the Commission enjoying the status of Consumer Fora has been only adjudicating the claim of the complainant/consumer and if the same is not done at this stage, with a lapse of time, the same may get time-barred and which will be immensely jeopardised the interest and right of the cosumer. That being so, we held that the failure on the part of the O.Ps. to discharge their obligation vis-a-vis the complainant and in particular not ensuring the clearance of the cheques issued by them for discharging their contractual obligation to the complainant would certainly constitute deficiency in service within the meaning of Section 2(1)(g) of Consumer Protection Act, 1986. We held accordingly and point Nos. 1 and 2 stands answered in affirmative. Point No. 3: Since the complainant succeeds in establishing deficiency, she will be entitled to for grant of reliefs as claimed in the complaint. At this stage, learned Advocate Mr. Patwardhan for O.P. No. 1 submitted that as a result of allowing the complainant to exercise the option of payment of amount, which is higher than what she has invested, she is adequately and reasonably compensated and that being so, O.Ps. should not be saddled and burdened with payment of interest and other benefits as the complainant has claimed in the complaint. Mr. Baphna, learned Counsel for the complainant submits that complainant is leaving these aspects to the Commission. Therefore, as far as monetary claim as claimed by the complainant are concerned, vide prayer Clauses (a) and (b), in our view would be required to be granted with variation that the interest claimed @ 18% p.a. is being waived and as such is not being disallowed. Hence the following order: ORDER 1. O.Ps. are held being deficient in rendering services to the complainant. 2. O.Ps. jointly and severally ordered to pay sum of Rs. 6,91,002/- to the complainant, plus Rs. 1,029/- aggregating to Rs. 6,92,031/- to the complainant. 3. Interest claimed stands waived. 4. O.Ps. shall pay jointly and severally cost of this proceeding to the complainant quantified at Rs. 1,500/-. 5. We are providing 8 weeks'' time from today to the O.Ps. for the compliance of the order. 6. On failure on the part of the O.Ps. for compliance of the order within stipulated time as above, amount as awarded will carry interest @ 9% p.a. till realization. 7. Copies of the order herein to be furnished to the parties. 8. M.A. No. 1403/2004 in view of disposal of complaint same has rendered infructuous and to be treated as disposed of.

Complaint disposed of.