DISTRICT CONSUMER DISPUTES REDRESSAL FORUM; BHADRAK
……………….
C.D.Case No.32 of 2011
Sri Nrusingha Charan Nayak, aged about 50 years
S/o: Late Nidhi Nayak
Vill: Charampa, PO: Baralapokhari,
PS:Bhadrak( R), Dist:Bhadrak
……………………….Complainant
(Vrs.)
- The Branch Manager,
Balasore-Bhadrak Central Co-op. Bank Ltd.,
Bhadrak Branch,
At/PO/Dist: Bhadrak
2. The Secretary,
Balasore-Bhadrak Central Co-op. Bank Ltd.,
O.T. Road, Balasore
Dist: Balasore
………………………….Opp.Parties
Order No.60 dt.27.05.2016:
In nut-shell the case of the Complainant is that he had opened a current account bearing No.335 in O.P.No.1-Bank. According to Complainant he had deposited three numbers of cheques, drawn on Union Bank of India, Bhadrak, bearing No.0048420 dt.16.08.2000 for Rs.1,07,115.85, No.0048421 dt.1,00,000/- and No.0068784 dt.29.09.2000 for Rs.1,00,000/- in the O.P.No.1-Bank(date of submission and the account no. has not been mentioned). After long lapse of time, the Complainant came to know that the amount mentioned in the cheques has not been credited to his current account No.335. Complainant has further stated that the O.P.No.1 told that the amount will be credited to his account after enquiry and obtaining permission from O.P.No.2. After long lapse of time, when no positive response was received from the side of O.Ps, the Complainant served Advocate’s Notice to O.P.No.2 by Regd.Post with A/D on 25.09.2010. As the O.Ps remained silent, the Complainant filed this case on 15.03.2011 alleging deficiency of service against the O.Ps. The Complainant has prayed for a direction to O.Ps to credit Rs.3,17,115.85 paise towards value of three cheques with interest from the date of deposit and for payment of compensation of Rs.50,000/- to him.
O.P.No.1 filed written version challenging the maintainability of the present dispute on the ground that Sec.68 of Odisha Co-operative Societies Act bars the jurisdiction of this Forum, the case is barred by Limitation and this Forum is not competent to adjudicate the matter relating to fraud and collusion. According to O.P.No.1, the Complainant had three accounts bearing No.335, 420 and another M.T.N.A. Loan Account. The Complainant was operating these three accounts during the period 2000 to 2010. The current account No.335 was closed in the year 2004. After that, the current account No.402 was opened in 2004. Even though the Complainant alleges to have deposited the cheques in the year 2000, he has failed to produce the pay-in-slip and its counter foil to prove the relevant deposit. Those cheques were of United Bank of India and presented in the Bank for collection of funds. However, those amounts were collected and as there was no pay-in-slip, those amounts were credited towards cash credit loan account of M/s.Baba Traders, Prop: R.K.Swain. During Audit, this wrong entry was detected by Audit Party of O.P.-Bank. As such, the O.P.-Bank directed R.K.Swain, the Proprietor of Baba Traders to return those cheque amounts to the account of Nrushingh Charan Nayak. As per direction of O.P.-Bank the proprietor of Baba Traders starting from 30.10.2000 till 29.10.2001 had deposited Rs.1,40,000/- on different dates and those amounts were credited to the current account No.335 of Nrusingh Ch.Nayak(Complainant). Similarly, R.K.Swain deposited Rs.2,35,000/- towards the account No.402 of Nrusingh Charan Nayak on different dates from 16.08.2004 to 07.03.2004. By then the Current Account No.335 of Nrusingh Ch.Nayak was closed and inoperative. In the above manner, the O.P.-Bank has credited in total Rs.3,75,000/- with interest to the current accounts and loan account of Complainant. The total Rs.3,75,000/- has been credited to the M.T.N.A.Loan account of Complainant and his loan account has been closed. At the time of finalization of loan amount, as per negotiation, the Complainant has got Rs.17,751/- rebate from Bank. Further, the Complainant has given in writing on 26.02.2005 in a stamp paper that he has no claim in connection to above three cheques against the O.P.-Bank. Hence, the O.P.No.1 prayed for dismissal of the complaint as the loan account has been closed on negotiation between the Complainant and the O.P.-Bank.
O.P.No.2 filed the written version on the self-same grounds supporting the version of O.P.No.1 and prayed for dismissal of complaint.
We have heard the Ld.Cousel for the O.Ps and perused the documents filed by both sides. Before entering into the merits of the case, it is to be decided at the outset whether the present complaint is maintainable before this Forum in view of provisions contained u/s.68 of the Co-operative Societies Act as contended by O.Ps? Sec.68 of Odisha Co-operative Societies Act,1962 provides that any dispute touching to the business of a Society needs to be adjudicated in the Court of Registrar of Co-operative Societies. This issue is well settled by a number of judgments of the Hon’ble National Commission as also of the Hon’ble Supreme Court including in Secy., Thirumurugan Coop. Agricultural Credit Society Vs. M. Lalitha – (2004) 1 SCC 305 that the provisions of the Consumer Protection Act is in addition to and not in derogation of any other provisions of any other law for the time being in force. In other words, Section 3 of the C.P.Act provides an additional platform to a consumer for seeking relief. Section 3 of CPA provides as under:
“3. Act not in derogation of any other law.- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”
Section 3 is worded in widest terms and leaves no one in doubt that the provisions of CPAct shall be in addition and not in derogation of any other law for the time being in force. Thus even if any other Act provides for any remedy to a litigant for redressal of that remedy a litigant can go to District Forum if he is a ‘consumer’ under CPA. That remedy exists in any other law which creates the right is no bar to District Forum assuming jurisdiction. We may also refer to a judgement of the Supreme Court in the case of Marine Container Services South Pvt. Ltd. vs. GO Go Garments - (1998) 3 SCC 247 where the Supreme Court said with reference to Section 3 of CPA that Contract Act would nevertheless apply to the complaints filed under CPA and that Section 3 could not mean to say that it overrides other provisions of law. Further, the Complainant as a member of the Society he has certain rights in the society like attending its meeting and right to vote. A member is a separate entity from the Co-operative Society which is just like a shareholder as in the Company registered under the Companies Act, 1986. The Co-operative society provides loan , invites deposits and pays interest and refunds the amount with interest on maturity etc.. Society provides facilities in connection with financing and is certainly rendering services to its members and here is a member who avails of such services. In this connection, we rely on a decision of the Hon’ble National Commission in Revision Petition Nos. 823 to 826 of 2001(Smt. Kalawati & Ors. Vrs. M/s. United Vaish Co-operative Thrift & Credit
Society Ltd.) As such, the present complaint is maintainable under the C.P.Act and the Complainant is a “consumer” within the meaning of C.P.Act.
The next question raised by O.Ps is that the present case is barred by Limitation and the issues relating to fraud and collusion is not entertainable under the provisions of the C.P.Act. Admittedly, nowhere in the complaint petition the Complainant has whispered a single word that fraud and foul has been played by the O.Ps. So we are inclined to hold that the present case is maintainable before this Forum.
The last but not least issue raised by the O.Ps is that the case is barred by Limitation. In the instant case the Complainant neither has specifically mentioned in the complaint the date of submission or deposit of those disputed three cheques nor filed the pay-in-slip to know the date of deposit besides the name of the account. It is the case of O.Ps that the Complainant had maintained three accounts bearing No.335, 420 and another M.T.N.A. Loan Account with the O.P.No.2-Bank from the year 2000 to 2010. The current account No.335 was closed in the year 2004. After that, the current account No.402 was opened in the year 2004. It is found from record that the Complainant has suppressed the fact of having two other accounts in the O.P.No.2-Bank for the reason best known to him. As such, the Complainant has not come to the Forum in clean hand. Whatever it may be, the question is whether the present complaint is barred by Limitation? Sec.24A of the C.P.Act envisages that the District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. The Complainant alleges to have deposited the above cheques in his current account No.335 in the year 2000 and after long lapse of time, he came to know that amount mentioned in the disputed cheques has not been credited to his current account No.335. It is a fact that the Complainant had three accounts in the O.P.No.2-Bank and he was transacting the same regularly. But it is really astonishing as to how the Complainant could not know whether the amount mentioned in the cheques were credited to his current account No.335 or not for a long period i.e. from the date of deposit in the year 2000 till sending of Advocate’s Notice on 25.09.2010. This is not a small amount and it is a matter of lakhs of rupees. It has been stated by the Complainant that he has requested several times to the O.Ps to credit the amounts mentioned in the cheque to his current account but the O.Ps failed to do so. So, finding no other alternative the Complainant served legal notice on the O.Ps on 25.09.2010 and filed the present case on 15.03.2011. According to Complainant the cause of action of this case arose on 18.09.2010 when the Advocate’s Notice was served on the O.Ps. Merely sending Advocate Notice at a belated stage would not bring the cause of action to file the case. Hence, the present case is hopelessly barred by Limitation.
In the result, the complaint is dismissed as barred by Limitation. Parties to bear their own costs.
