KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.676/03 JUDGMENT DATED.19.3.2010 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.M.K.ABDULLA SONA -- MEMBER 1. Joseph George, President, Uzhavoor Service Co-operative Bank Ltd., Uzhavoor, Kottayam. 2. Abraham, Secretary, -- APPELLANTS Uzhavoor Service Co-operative Bank Ltd., Uzhavoor, Kottayam (B Adv.P.K.M.Hassan & Ors.) Vs. Balakrishnan Nair, Kulangarattu, -- RESPONDENT Uzhavoor (East) P.O, Kottayam. (Adv.G.S.Kalkura) JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER The above appeal is preferred from the order dated 11th July 2003 passed by CDRF, Kottayam in OP.318/02. The complaint therein was filed by the respondent herein as complainant against the appellants as opposite parties alleging deficiency in service on the part of the opposite parties in not disbursing the amount of Rs.5,25,000/- deposited by the complainant in the Uzhavoor Service Co-operative Bank Ltd., Uzhavoor, Kottayam. The first opposite party Joseph George was the then President and the second opposite party Abraham was the then Secretary of Uzhavoor Service Co-operative Bank Ltd; Uzhavoor, Kottayam. The complainant prayed for getting the deposited amount of Rs.5,25,000/- with compensation of Rs.2 lakhs. Thus, the complainant in OP 318/02 claimed a total of Rs.7, 25,000/-. 2. The opposite parties entered appearance and filed joint written version before the forum below. They contended that there was no deficiency in service on their part in not disbursing the amount of Rs.5,25,000/- deposited by the complainant in the said bank and that they failed to disburse the said amount to the complainant because of the oral as well as written instructions received from the Sub Inspector of Police, Kuravilangadu Police Station in Kottayam District. Thus, the opposite parties prayed for dismissal of the complaint. 3. Before the forum below A1 to A9 documents were marked on the side of the complainant. No document was marked on the side of the opposite parties. Both the complainant and opposite parties filed proof affidavits. The complainant had also filed affidavits of 2 witnesses by name Anil and Santhosh. On an appreciation of the available evidence on record, the forum below passed the impugned order dated 11th July2003 directing the opposite parties to pay compensation of Rs.25,000/- with cost of Rs.1000/-. The opposite parties were made jointly and severely liable to pay the compensation with costs. Aggrieved by the said order the present appeal is filed by the opposite parties therein. 4. We heard both sides. 5. The learned counsel for the appellants (opposite parties) submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that the complaint in OP.318/02 was not maintainable as the said claim was barred by limitation and that the forum below namely, CDRF, Kottayam had no pecuniary jurisdiction to entertain the said complaint in OP.318/02. It is further submitted that the complaint is also barred under the provisions of section 69 (h) of the Co-operative Societies Act. It is also submitted that the opposite parties had filed 5 documents along with their written version but the forum below did not consider those documents and that the complainant had not filed any witness list, but produced proof affidavits of 2 witnesses. The counsel for the appellants has also argued for the position that there was no deficiency in service on the part of the appellants/opposite parties in not disbursing the amount of Rs.5,25,000/- which was in the SB account of the complainant. Thus, the appellants prayed for setting aside the impugned order passed by the forum below. 6. The learned counsel for the respondent/complainant submitted that there was no evidence to show that the claim was barred by limitation. He also admitted the fact that at the relevant time the forum below had no pecuniary jurisdiction to entertain the complaint filed for realization of Rs.7,25,000/-. It is submitted by the learned counsel for the respondent/complainant that the appellants/opposite parties cannot be justified in not disbursing the amount which was in the SB account of the complainant and that they simply relied on the oral as well as written instruction received from the S.I of Police. Thus, the respondent/complainant supported the finding of the forum below that there was deficiency in service on the part of the appellants/opposite parties. 7. The points that arise for consideration are:- 1. Whether the complaint in OP.318/02 on the file of CDRF, Kottayam was barred by limitation? 2. Whether the forum below had the pecuniary jurisdiction to entertain the complaint in OP.318/02? 3. Whether the complaint in OP.318/02 was maintainable in law? 4. Whether the forum below can be justified in finding the appellants/opposite parties deficient in rendering service to the respondent/complainant being the customer of Uzhavoor Service Co-operative Bank Ltd;? 8. POINTS 1 TO 3:- There is no dispute that the complainant in OP.318/02 claimed a total of Rs.7,25,000/- from the opposite parties (appellants) on the ground of deficiency in service on their part. Admittedly, the forum below (CDRF, Kottayam) had no pecuniary jurisdiction to entertain a complaint with respect to a claim for more than Rs.5 lakhs. If that be so, it can very safely be concluded that the forum below had no pecuniary jurisdiction to entertain the complaint in OP.318/02. The question of jurisdiction being a question of law the opposite parties (appellants) can very well raise the said issue at this appellate stage. The forum below was bound to look into the aspect as to whether the forum below had the jurisdiction to entertain the complaint in OP.318/02. Unfortunately, the forum below failed to consider that aspect. We have no hesitation to hold that the complaint in OP.318/02 ought not to have been entertained by the forum below because the forum below had no pecuniary jurisdiction to entertain the said complaint claiming a total of Rs.7,25,000/-. 9. The respondent/complainant deposited Rs.5,25,000/- with the opposite party bank namely, Uzhavoor Service Co-operative Bank Ltd. The said deposit was on 17.5.2000. Admittedly, the respondent/complainant approached the Uzhavoor Service Co-0perative Bank on 19.5.2000 for withdrawing the said sum of Rs.5,25,000/- which was in the SB account of the complainant. Admittedly, the said amount was not disbursed to the complainant on 19.5.2000. The complainant again approached the opposite parties on 20.5.2000 on that day also it was not disbursed. The case of the opposite parties is that they were not in a position to disburse the said amount in the SB account of the complainant because of the oral as well as the written instruction received from the Sub Inspector of Police, Kuruvilangadu Police Station. So, the cause action for the complaint had arisen on 17.5.2000; there after on 19.5.2000 and 20.5.2000. But the complaint in OP.318/02 was filed on 16.7.02. There is nothing on record to support the case of the complainant that he presented a cheque for encashment on 18.7.2000. There can be no dispute that the complaint ought to have been filed within 2 years of the cause action, or part of the cause of action. In this case the complaint ought to have been filed on or before 20.5.02. Unfortunately, the complaint in OP.318/02 was filed on 16.7.02. If that be so, the said complaint was barred by limitation. It is a settled position that it is the duty of the Consumer Forum to consider the issue regarding question of limitation. It has been held by the Hon. Supreme Court [(92003) 9 SCC-50] that the question of limitation is to be considered by the Consumer Forum before entertaining a complaint filed under the Consumer Protection Act. 10. Thus, we have no hesitation to hold that the complaint in OP.318/02 was barred by limitation. Admittedly, the complainant failed to file any petition to get the delay condoned. 11. The appellants have also got a case that the forum below had no jurisdiction to entertain the complaint in OP.318/02 as the same is barred under Section 69 (h) of the Co-operative Societies Act. It is as follows:- 69 (1) (h):- Notwithstanding anything contained in any law for the time being in force, if a dispute arises, - between the society; and a creditor of the society, such dispute shall be referred to the registrar for decision, and no court shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute. 12. The aforesaid section 69 (1) (h) would make it clear that only the jurisdictions of courts are barred under the said provisions of Section 69 (1)(h). It is to be noted that the agencies constituted under the Consumer Protection Act, 1986 are not courts envisaged under Section 69 (1)(h) of the Co-operative Societies Act. More over, Section 3 of the Consumer Protection Act, 1986 would make the position more clear. It is specified that the provisions of the Consumer protection Act are an additional remedy available to a consumer. So, the provisions of Section 69 (1)(h) of the Co-operative Societies Act would not take away the jurisdiction conferred upon the Consumer Forums constituted under the Consumer Protection Act, 1986. Moreover, the service rendered by the opposite party Co-operative Bank can be considered as a service as defined under Section 2 (1) (O) of the Consumer Protection Act, 1986. So, the Consumer Forum can very decide the issue regarding the alleged deficiency in rendering such services. So, the aforesaid argument advanced by the learned counsel for the appellants regarding the jurisdiction of the Forum below to entertain the complaint under Consumer Protection Act, 1986 cannot be up held. These points are answered accordingly. 13. POINT NO.4:- This issue is regarding the deficiency in service on the part of the appellants/opposite parties. It has been held by this State Commission that the Forum below had no pecuniary jurisdiction to entertain the complaint in OP.318/02. It has also held that the claim was also barred by limitation. This issue regarding deficiency in service does not arise for consideration. So, the finding of the forum below that there was deficiency in service on the part of the opposite parties cannot be up held as the forum below had no pecuniary jurisdiction to entertain the complaint in OP.318/02. More over, the claim preferred in OP.318/02was also barred by limitation. This point is answered accordingly. In the result, the appeal is allowed to the extent as indicated above. The impugned order dated 11th July 2003 passed by CDRF, Kottayam in OP. 318/02 is set aside as the forum below had no pecuniary jurisdiction to entertain the complaint in the said OP.318/02. More over, the claim preferred in the complaint in OP.318/02 was also barred by limitation. Considering the facts and circumstance of the case, the parties are directed to suffer their respect costs through out. M.V.VISWANATHAN -- JUDICIAL MEMBER M.K.ABDULLA SONA -- MEMBER s/L | 
