BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 12  June 2014

PRESENT

    SMT. ASHA SHETTY           :  HON’BLE  PRESIDENT

                        SMT.LAVANYA M. RAI       :   MEMBER

CC.No.90.2014

Admitted on 21.3.2014

1. Smt.P.Padma D.Kamath,

Aged 63 years,

Wo Late P. Damodar Kamath,

Rat IV Floor,  Abhiman Srinivas,

New Field Street, Dongerkery Ward,

Mangalore 1.

2. G. Manjunath Kamath,

Aged 54 years,

So Late G.Krishnananda Kamath,

Ro. Sri Durga Kripa, Temple Square,

Mangalore 1.                                                          …… COMPLAINANTS

(Advocate for the Complainants Sri.M.R.Ballal)

     VERSUS

1. The South Kanara Agriculturists Co-

    Operative Marketing Society Ltd., No.3901,

    Sahakari Mahal, P.b. No.159,

    Mangalore-575 001, by its Secretary.

2. Managing Director,

    The South Kanara Agriculturists Co-

    Operative Marketing Society Ltd., No.3901,

    Sahakari Mahal, P.b. No.159,

    Mangalore 575 001.                           …. OPPOSITE PARTIES

(Opposite Parties: Appeared in person)

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. ASHA SHETTY:

I.          1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs. 

The brief facts of the case are as under:

The Complainants are deposited certain sum of money with the Opposite Parties and the Opposite Parties are the registered society having its registered office in the above address. The details of the amounts deposited with the Opposite Party finance mentioned in detail herein below:-

The Complainants stated that, they have invested their hard earned money in Opposite Parties co-operative society under the fixed deposit receipt for the stipulated period mentioned in the respective Fixed deposit receipts and the Opposite Parties inturn agreed to pay interest mentioned in the certificates.  Further it is stated that, the Opposite Parties inspite of agreed to refund the aforesaid amount on the date of maturity mentioned in the respective F.D. Receipts not refunded the amount till this date.

It is stated that, the Complainants have approached the Opposite Parties, the Opposite Parties have been indefinitely postponing the money payable under the F.D. Receipts without assigning any valid reasons which amounts to deficiency in service and hence the above complaints are filed before this Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay the entire Deposited amount invested by them respectively mentioned above along with interest at 14% from the date of deposit till payments and also sought for compensation and cost of the proceedings.

II.        1. Version notice served to the Opposite Parties No.1 and 2 by R.P.A.D.. The Opposite Parties appeared in person and filed version stated that the complaints filed by the complainants are not maintainable as per Section 70 of the Co-operative Societies Act 1959 and sought for dismissal of the complaints.

III.       1.        In support of the complaint, one Sri.G.Manjunath Kamath (CW1) i.e. complainant No.2 filed affidavit reiterating what has been stated in the complaint and got marked Ex C1 to C4. Opposite Parties except the version nothing has been filed on behalf of them.

In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainants proved that the Opposite Parties committed deficiency in service?

2. If so, whether the Complainants are entitled for the reliefs claimed?

3. What order?

             We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:     

             Point No.(i): Affirmative.

                         Point No.(ii) & (iii): As per the final order.           

REASONS

IV.  1.  POINTS No. (i) to (iii): 

In the instant case, the Complainants in order to substantiate their complaint filed evidence on affidavit supported by fixed deposit receipts i.e. Ex.C1 to C4 in the above complaint.  The Complainant No.2 sworn affidavits stating that, the Fixed Deposits are matured but the Opposite Parties keep on assured to refund the amount by giving one or the other excuses and postponing the payment without valid reasons.  However, now the point for consideration is that, whether the Complainants are entitled for the amount mentioned in the Fixed Deposit Receipts and thereby without paying the aforesaid amount the Opposite Parties have committed deficiency in service?

On perusal of the oral as well as documentary evidence available on record, we find that, the Complainants deposited the hard earned money under the Fixed Deposit Receipts with the Opposite Parties and the Opposite Parties inturn agreed to refund the amount along with the interest on the date of maturity mentioned in the respective F.D. Receipts.  We are of the considered opinion that, in a case of like this nature reciprocal promises were enshrined in the contract certificate entered issued between the parties, both the parties were obliged to perform in that ‘Order’.  No doubt the Complainants invested certain sum of money under the Fixed Deposit Receipts for a particular period with the Opposite Parties and the Opposite Parties inturn received the invested amount from the Complainants and agreed to refund the aforesaid amount along with the interest on the date of maturity.  When that being so, it is the obligation on the part of the Opposite Parties Co-operative society to refund the amount to the Complainants on the date of maturity because the Opposite Parties made use of the money pertaining to the Complainants in their society and agreed to refund the amount with interest.  When that being the position, the Opposite Parties society should have refunded the amount to the Complainants without any demand.  As we know, the financial institutions are facing financial crunches and caused problems to the depositors and keep on seeking postponing the payment by giving the one or the other reasons. 

However, we observed that, the Complainants invested certain sum of money under the Fixed Deposit Receipts and Opposite Parties agreed to repay the amount along with the interest on the date of maturity but failed to pay the said amount till this date or within reasonable time amounts to deficiency in service as well as unfair trade practice.

Apart from the above, we also observed that the opposite parties took a contention that the complaint is not maintainable in view of the Co-operative Societies Act 1959 as per Section 70.  It is a settled position of law that, Section 3 of the Consumer Protection Act 1986 not in derogation of any other law inforce, we mean to say Karnataka Co-operatives Societies Act 1959 too, 

In this connection we have referred a citation - THE TRINITY HOUSE BUILDING CO-OPERATIVE SOCIETY LTD.  ANR. VS WILSON PETERS decided on 30.11.1995 reported in 1996 Vol-I CPR 679 held as under:-

Consumer Protection Act, 1986 – Section 3  Act, not in derogation of any other law  Karnataka Co-operative Societies Act, 1959 – Section 70  Complainant about neither allotment of housing site nor refund by OP/appellant Allowed by DF Appeal against  Whether Section 70 of Kar. Co-op-Soc. Act bars jurisdiction of Consumer Forum ?  (No)  Complaint is maintainable under COPRA (PARA 18)   4 ½ YEARS LAPSING SINCE DEPOSIT  No allotment D.F. rightly ordered refund with interest (para 19).

Section 70 of Karnataka Co-operative Societies Act, 1959 is not a bar to a complaint seeking relief for loss and injury suffered due to negligence of D.P. in deficiency in the performance of service viz. Allotment of housing site within a reasonable time after deposit of amount.

Similarly even in this complaint there is no dispute that the complainants deposited amounts with the opposite parties as averred by them in the complaint seeking refund of the amount.  The opposite parties did not refund the amount till this date. Therefore, we hold that there is no substance in the version filed by the opposite parties even the co-operative societies also falls within the purview Section 3 of the Consumer Protection Act, 1986. A person includes a Co-operative Society, the complainants have got right to file complaints against the co-operatives societies, the harmonious construction of these two provisions will clearly establish that the complaint filed by the complainants are maintainable under the Consumer Protection Act 1986.

By considering the above aspects, we hold that, on failure to pay the aforesaid amount on the date of maturity  till this date amounts to deficiency in service as well as unfair trade practice as stated supra. Therefore, we hereby directed the Opposite Parties are jointly and severally shall pay Rs.4,00,000(Rupees Four lakhs only)  under the F.D. Receipts i.e. Ex.C1 to C4 along with respective rate of interest (contractual rate) from the respective date of deposit till the date of maturity and further pay interest at 12% per annum from the date of maturity till the date of payment to the complainant and also pay Rs.2,000 (Rupees Two thousand only) as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.

In the result, we pass the following             

ORDER

The complaint is allowed. Opposite Parties are jointly and severally shall pay Rs.4,00,000 (Rupees Four lakhs only)  under the F.D. Receipts i.e. Ex.C1 to C4 along with respective rate of interest (contractual rate) from the respective date of deposit till the date of maturity and further pay interest at 12% per annum from the date of maturity till the date of payment to the complainant and also pay Rs.2,000 (Rupees Two thousand only) as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

The F.D.R. if any deposited by the Complainant be returned fourth with by substituting the certified.

Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.

 (Page No.1 to 12 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 12^th day of JUNE 2014.)

PRESIDENT                                      MEMBER