IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Saturday the 30th day of April 2022.
Filed on 30. 4. 2021
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. P R Sholy, B.A., LLB (Member) In
CC/No.104/2021
between
Complainant:- Opposite parties:-
1. Smt. Lusy Martin, 1. The Secretary,
W/o. Thomas Martin Cherthala Fisheries
Chongamtharayil, Co-operative Society
CMC – 13, Ltd No.2201, Arthunkal
Cherthala. 2. The President,
(Adv. Vijayakumar) Cherthala Fisheries
Co-operative Society,
Ltd No.2201, Arthunkal.
(Rep.Ops 1&2 Adv.Manu Harshakumar )
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019
Material averments briefly discussed are as follows: -
1. Opposite parties are the secretary and president respectively of Malsya Vyavasaya Sahakarana Sangam Ltd. 2201. They were collecting savings deposit and accordingly they contacted complainant and requested to deposit amount for which they offered attractive interest. Accordingly on 03.09.2016 complainant deposited an amount of Rs.2/- lakhs for a period of one year. Opposite parties had assured that they will pay interest @ 10% per year. Opposite parties issued a receipt having FD No.271.
2. When the complainant demanded the amount it was not returned on lame excuses. On 10.12.2020 complainant directly approached the opposite parties and demanded the amount but it was not returned. Though on 23.03.21 complainant sent a lawyer’s notice there was no reply this amounts to deficiency of service. The act of opposite parties caused much difficulty to the complainant. Hence the complaint is filed for realizing an amount of Rs.2,91,014/- being the principal amount of Rs.2/- lakhs along with interest @ 10%. Complainant is also seeking an amount of Rs.1/- lakh as compensation.
Opposite parties filed a joint version mainly contenting as follows:-
3. The complaint is not maintainable. The dispute is between the society and a creditor of the society. The Co-operative Arbitration Court or the Registrar of the Co-operative societies ought to have been the authority to be approached in occurrence of these kinds of disputes as per Sec. 69 of the Co-operative Societies Act. No other court have jurisdiction to entertain such a complaint.
4. Opposite party co-operative society was formed on 25.11.1952 and regulated by fisheries department for the welfare and development of fishermen. When an existing investor approached the society for withdrawing his FDs or other investments the prior society members and board used to find new investors and return the amount. Accordingly one P.R Joseph approached the complainant and made her to deposit the money. The present secretary and president of the society were elected on 27.02.18 and 28.06.18 respectively. During the time of fixed deposit these opposite parties were not members of the society.
5. After election of new office bearers and board it was realized that earlier secretary and other members had looted money from the society and vigilance enquiries were initiated against the former secretary. The disputed FD was during the period of former secretary. Currently the society does not have enough bank balance to pay off the disputed FD amount. These opposite parties have no intention to defraud the complainant. It was informed to the complainant that at present the society is insolvent and as and when the society starts functioning amount will be repaid. These opposite parties had not deliberately or intentionally with held the amounts payable to the complainant and so there is no unfair trade practice or deficiency of service. Hence the complaint may be dismissed.
6. On the above pleadings following points were raised for consideration:-
- Whether the complaint is maintainable before this Commission?
- Whether there is any deficiency of service from the part of opposite parties as alleged?
- Whether the complainant is entitled for refund of Rs.2,91,014/- along with interest from the opposite parties as prayed for?
- Whether the complainant is entitled to realise an amount of Rs.1,00,000/- as compensation ?
- Reliefs and cost?
7. Evidence in this case consists of the oral evidence of PW1 and Exts.A1 from the side of the complainant. Opposite parties have not adduced any evidence either oral or documentary.
Point No.1 to 4
8. PW1 is the complainant in this case. She filed an affidavit in tune with the complaint and marked Ext.A1.
9. The case of PW1, the complainant is that on 3/9/2016 as per Ext.A1 receipt she deposited an amount of Rs.2/- lakh as Fixed Deposit with the Cherthala Matsya Vyvasaya Co-operative society No. 2201. It was for a period of one year and the due date was on 3/9/2017. Though she demanded the amount several times it was not returned. Finally on 23/3/2021 she issued a lawyers notice demanding the amount. Since it was not returned, inspite of several demand and lawyers notice the complaint is filed for realizing an amount of Rs.2,91,014/- and future interest. She is also claiming an amount of Rs.1/- lakh as compensation for deficiency of service, mental agony etc. 1st opposite party is the secretary and the 2nd opposite party is the president respectively of the society. Opposite parties filed a joint version contenting that this commission has no jurisdiction to entertain such a complaint. Since the dispute between creditor and the society it is either to be resolved by arbitration or by the Registrar of Co-operative societies, U/s 69 of the Societies Act. Receipt of FD is admitted. It was contented that the present office bearers took charge only on 27/2/2018 and on 28/6/2018. The amount was collected by the earlier secretary by name Smt. Maria Philomina. As there were some misappropriation of funds, the society became indebted to several persons and only day to day management is being done. Hence it was contented that complainant has no right to sue against the present secretary and president. Complainant got examined as Pw1 and marked Ext.A1. The learned counsel appearing for the complainant filed argument note.
10. The first contention taken by the learned counsel appearing for the opposite party is that this Commission has no jurisdiction to entertain such a complaint and the complainant ought to have resolved the dispute through arbitration or approached the registrar of co-operative societies. But such a contention is unsustainable in view of the decision of the Hon’ble National Consumer Disptues Redressal Commission in Smt. Kalavathi and Ors. Vs. M/s United Vaish Co-operative Thrift & Credit Society Ltd. (RP Nos. 823 to 826 of 2001). It was held
“Co-operative societies do come under the purview of the Consumer Protection Act and hence the District Forum can exercise jurisdiction over them”
It was held by the Hon’ble Supreme Court in Imperia Structures Limited vs. Anil Patni (AIR 2021 SC 70)
“Consumer Protection Act, 1986 – The remedies available under the provisions of the Consumer Protection Act are additional remedies over and above the other remedies including those made available under any special statues; and that the availability of an alternate remedy is no bar in entertaining a complaint under the Consumer Protection Act.”
11. PW1 gave evidence in support of the contentions and to prove the deposit Ext.A1 Fixed Deposit was marked. The contention taken by opposite parties is that the deposit was made during the tenure of earlier secretary. It is to be noted that opposite parties who are present secretary and president respectively were made parties as their official capacity representing the society. Hence the contention that the amount was collected by the earlier secretary and the present office bearers are not liable is unfounded. The fact that the amount was received and that it was not returned is not in dispute. Though opposite parties filed a version running into 4 pages they did not enter the witness box to prove their case on oath. As held by the Hon’ble Surpeme Court in AIR 1999 SC 1441(Vidhyadhar Vs Manikrao)
“WHERE a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”
12. Though PW1 was cross examined at length nothing was brought out to discredit her testimony. Hence assessing the evidence as a whole it can be safely concluded that complainant is entitled to realize an amount of Rs.2,91,014/- along with future interest.
13. Complainant is seeking an amount of Rs.1/- lakh as compensation for deficiency of service and mental agony. It has come out in evidence that the amount was deposited on 3/9/2016 and it was not returned though we are now in 2022. Definitely one will sustain mental agony if the Fixed Deposit amount is not returned in time. In said circumstances PW1 is entitled for compensation and considering the entire circumstances we are allowing an amount of Rs.20,000/- being 10% of the Fixed Deposit amount as compensation. These points are found accordingly.
Point No.5
14. In the result complaint is allowed in part.
A) Complainant is allowed to realize an amount of Rs.2,91,014/- along with interest @ 9% per annum on the principle amount of Rs.2/- lakhs from the date of complaint ie, on 30/4/2021 till realization from the opposite parties.
B) Complainant is allowed to realize an amount of Rs.20,000/- as compensation from the opposite parties.
C) Complainant is allowed to realize an amount of Rs.3000/- as cost.
The order shall be complied within one month from the date of receipt of this order
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 30th day of April, 2022.
Sd/-Sri.S.Santhosh Kumar (President)
Sd/-Smt. Sholy P R (Member)
Appendix:-
Evidence of the complainant:-
PW1 - Smt. Lusy Martin (Complainant)
Ext.A1 - Copy of Original fixed deposit bond
Evidence of the opposite parties:- NIL
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:-Br/-
Compared by:-
