BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 29^th JULY 2016

PRESENT

        SMT. ASHA SHETTY           :  HON’BLE PRESIDENT

        SMT.LAVANYA M. RAI        :   HON’BLE MEMBER                                         

ORDER IN

   C.C. No 195/2016

(Admitted on 10.06.2016)

Mrs. Rosy Pinto,

Wife of Paul John Pinto,

Aged about 63 years, 

Residing at 3 Star Villa, Behind Radhakrishna

Temple, Kolambe Village,

Kinnikambla Post,

Mangalore. D.K. 574151.     

                                                                 …… COMPLAINANT

(Advocate for complainant by Sri  Thimmayya.P.)    

VERSUS

1. The South Kanara Agriculturists Co

     Operative Marketing Society Ltd. No. 3901.

     APMC Building, P.B. No. 159, Mission Street,

     Mangalore D.K. 575001.

     Represented by its Managing Director. 

2. The Liquidator/ The SKACMS. Ltd

     The Assistant Registrar of Co Operative Societies.

     Janatha Bazar Building.

     G.H.S. Road. Mangalore 575001.              ….........Opposite Party

(Opposite Party No.1 in person)

(Opposite Party No.2 Ex-parte)

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. ASHA SHETTY:

I.       1. The above complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the common Opposite Parties claiming reliefs.   

The brief facts of the case are as under:

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

Complainant stated that, she has invested her hard earned money in Opposite Party co-operative society under the fixed deposit receipts for the stipulated period mentioned in the respective fixed deposit receipts and the Opposite Parties in turn agreed to pay interest mentioned in the certificates. Further it is stated that, the Opposite Parties in spite 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 Complainant 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 complaint is 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 her and also sought for compensation and cost of the proceedings.

II.      1. Version notice served to the Opposite Parties by RPAD. Opposite Party no.2 inspite of receiving version notice neither appeared nor contested the case before this FORA. Hence we have proceeded ex-parte as against the opposite party No.2. The acknowledgment marked as court document.

 However, the Opposite Party No.1 appeared in person filed version and stated that the Complainant deposited the amount but in the year 2013 the society could not form administrative group. And therefore the official liquidator appointed and he had taken all the charge of the society.  The society owns certain immovable properties and the liquidator has to take measure to dispose off the above said property and out of the amount so received may be paid to the deposit holders.  It is stated that the liquidator is responsible and not this opposite party and denied the deficiency of service alleged against him and sought for dismissal of the complaint.

III.     1. In support of the above complaint, Complainant is examined as CW 1 and produced documents got marked under the Ex.C series detailed in the annexure here below. The opposite parties not led any evidence.

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

1. Whether the complaint proves that the opposite parties committed deficiency in service?
2. If so, whether the Complainant is entitled for the reliefs claimed?
3. What order?

           We have considered the arguments submitted by the learned counsel and also considered the materials that was placed before this Forum and answer the points are as follows

             Point No.(i) & (ii): Affirmative.

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

REASONS

IV. 1.  POINTS No. (i) to (iv): 

In the instant case, the Complainant in order to substantiate her complaint filed evidence on affidavit supported by fixed deposit receipts i.e. Ex.C series in the complaint mentioned in the annexure in detail. The Complainant sworn affidavit 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 Complainant is entitled for the amount mentioned in the Fixed Deposit Receipts and 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 Complainant deposited the hard earned money under the Fixed Deposit Receipts with the Opposite Parties and the Opposite Parties in-turn 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 are  obliged to perform in that Order. No doubt the Complainant invested certain sum of money under the Fixed Deposit Receipts for a particular period with the Opposite Parties and the Opposite Parties in-turn received the invested amount from the Complainant 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 Complainant on the date of maturity because the Opposite Parties made use of the money pertaining to the Complainant 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 Complainant without any demand.  As we know, the financial institutions are facing financial crunches and caused problems to the depositor and keep on seeking/postponing the payment by giving the one or the other reasons are common in a case of like this nature.  By considering the transactions involved in the above case, we are of the opinion that, cause of action will be continued till the payment invested under the certificate are received by the Complainant.  It is not the case of the Opposite Parties that, they have offered the payment on the date of maturity or subsequent dates till this date. Apart from the above, we also observed that, the opposite party took a contention that in similar case the complaint is not maintainable in view of the Co-operative Societies Act 1959 as per Section 70.  It is 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 the complaint there is no dispute that the complainant 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 complainant has got right to file complaint against the co operatives societies, the harmonious construction of these two provisions will clearly establish that the complaint filed by the complainant is 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 shall pay the entire amount mentioned in the Fixed Deposit Receipts along with contractual rate of interest from the respective date of deposits till the date of maturity to the complainant and thereafter Opposite Party shall pay interest at the rate of 12% per annum from the respective date of maturity till the date of payment. And also pay Rs.3,000/ (Rupees three thousand only) towards the cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

In the present cases, 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 Party shall pay the entire amount mentioned in the Fixed Deposit Receipts Ex.C1 and C2 along with contractual rate of interest from the respective date of deposits till the date of maturity to the complainant and thereafter Opposite Party shall pay interest at the rate of 12% per annum from the respective date of maturity till the date of payment. And also pay Rs.3,000/  (Rupees three thousand only) towards the 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.

The copy of this order as per the statutory requirements be forwarded to the parties and therefore the file be consigned to record.

(Page No.1 to 8 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 29^th day of July 2016.)

PRESIDENT                                      MEMBER

 (SMT. ASHA SHETTY)                     (SMT. LAVANYA M.RAI)

D.K. District Consumer Forum                      D.K. District Consumer Forum

     Mangalore.                                                 Mangalore.        

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW 1: Mrs. Rosy Pinto                                

Documents produced on behalf of the Complainant:

Ex C1 and C2     Original F.D. Receipt

1.  23.01.2013    Original fixed deposit number 004662 for a sum of Rs. 87,000/ issued by the opposite party.

2. 13.08.2013    Original fixed deposit number 000464 for a sum of Rs.30,000-00/ issued by the opposite party.

 Witnesses examined on behalf of the Opposite Parties:

 Nil 

Documents produced on behalf of the Opposite Parties:    

  Nil 

Dated: 29.07.2016.                         PRESIDENT