IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the   8^th  Day of  August 2022

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

       Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                   Sri.Stanly Harold, B.A.LLB, Member

                                                    CC.49/2017

Rajan Pillai.B                                                       :         Complainant

Sree Bhavan

Thamarakudy P.O

Kalayapuram,

Kottarakkara, Kollam Dist.

[By Adv.Sumit.M]

V/s

Thamarakudi service Co-operative Bank Ltd          :         Opposite party

No.2815,

Thamarakudi P.O

Kottarakkara, Kollam Dist, Pin:691560

Represented by the Convenor,

Administrative Committee.

[By Adv.N.Sasankan Pillai]

FINAL   ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

                This  is a case based on a complaint filed U/s 12 of the Consumer Protection Act.1986.

          The averments in the complaint in short are as follows:-

          The complainant who is an Ex Service man now working as part time security staff in a private firm made the following Fixed Deposits in the opposite party Service Co-operative Bank.

The opposite party bank has issued FD receipts in respect of each deposit in favour of the complainant acknowledging  the liability.

The complainant also maintained two savings bank account with the opposite party bank.  The details of which are shown below:-

SB A/c No.2933   Balance amount pending on 18.12.2014 is Rs. 41853/-

SB A/c No.934               Balance as on 11.11.2019 is  Rs.83379/-

SB A/c No.934 is a joint account.  The complainant was not allowed to withdraw the amount from his accounts by the opposite party bank stating that there is shortage of funds due to some kind of misappropriation happened in the opposite party bank.  On maturity of the above mentioned fixed deposits the complainant approached the opposite party bank requesting for the repayment of the amount deposited along with interest due.  But unfortunately opposite party bank was not ready to repay the said amount to the complainant and requested to wait for some time for making payment.  Believing the words of the opposite party the complainant waited for so long hoping that money deposited by the complainant in the above mentioned fixed deposits and savings bank account will be repaid by the opposite party.  But even after repeated requests and demands made by the complainant there was no response from the opposite party bank.  While so the attitude of the opposite party suddenly changed and they are not willing to repay the money deposited by the complainant.  It is reliably understood by the complainant that the managing committee of the opposite party bank was dismissed by the concerned authorities and an administrative committee is in charge of the affairs of  the bank.  The said committee has started disbursing money to the account holders without making any criteria and solely on the basis of their financial and political influence.  The complainant is entitled to get the amount deposited by him in the FD’s and SB A/c’s mentioned above from the opposite party along with agreed interest till date.  Even though sufficient fund is available with the opposite party they are purposefully and unlawfully withholding the hard earned money of the complainant.  Opposite party is not having any right or authority to withhold the money of the complainant unlawfully.  On 02.12.2016 the complainant had given a written request to the opposite party for repayment of the money due to the complainant.  But there was no response from the opposite party bank.  The above said illegal act of the opposite party bank the complainant has sustained severe mental agony and disappointment.  The complainant and his family is suffering from immense financial constraints and hardship because a large part of his savings are being withheld by the opposite party bank.  Hence the complaint.

Opposite party filed version resisting the averments in the complaint by raising the following contentions.  The complaint is not maintainable as this Forum lacks jurisdiction to entertain the same.  The opposite party is a Co-operative Society registered under the Co-operative Societies Act and as per Section 69 (1)(h)of the said Act any disputes between a society and a creditor of the society in the case on a non monitory dispute, the Registrar and in the case of a monitory dispute the Arbitration Court or Registrar as the case may be, shall decide such dispute and no other Court or other Authority shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute.  Hence this Forum lacks jurisdiction and the complaint is only to be dismissed inlimini.  There is no consumer trade relationship between the complainant and the opposite party.  The complainant is a share holder member of the opposite party society which conducts the bank and the relationship between the parties fiduciary in nature and the complainant cannot raise the plea of deficiency in service or unfair trade practice against the bank. The present complaint is bad for non joinder  of necessary parties.  The State Government appointed the opposite party as the convener of the Administrative Committee  since the function of the Co-operative bank was found to be not in order.  Crores of rupees due to the bank has to be realized from creditors.  The bank has having payoffs to be honored.  The allegation of the complainant is one among such case in which administrative committee has to prob on and recommend the higher officials nature of  actions  to be taken.  Anyhow admittedly  the complainant has not approached the bank till 02.12.2016 after the alleged fixed deposits are became matured on 14.11.2013.  This petition has been filed after 2 years from the date of  cause of action and hence barred by limitation.  The complainant is having alternative efficacious remedy through the procedure contemplated under Co-operative societies Act and without availing the course he is not legally eligible to file this original petition claiming deficiency in service.  There is no deficiency in service on the part of the opposite party administrative committee.  There is no consumer trade relation between the parties.  The allegations contained in the original petition are false and hence denied.  Opposite party further prays to dismiss the complaint with costs.

In view of the above pleadings the points that arise for consideration are:-

1. Whether the complaint is hit by Section 69 of the Co-operative Societies Act?
2. Is the complaint bad for non joinder of necessary parties?
3. Whether the complaint is barred by limitation?
4. Whether there is any deficiency in service or any unfair trade practice on the part of the opposite party bank?

5.Whether the complainant is entitled to recover Rs.4,86,762/- with  interest as from the opposite party bank claimed in the complaint?

6.  Whether the complainant is entitled to get compensation and costs as claimed?

7.  Reliefs and costs

     Evidence on the side of the complainant consists of the oral evidence of PW1 and Ext.A1 to A6 documents.  The evidence on the side of the opposite party consists of the oral evidence of DW1 and Ext.D1 series documents.  The learned counsel for the complainant has filed notes of argument. Heard the counsel for the complainant.  The learned counsel for the opposite party has  neither turned up and advanced any oral argument not filed any notes of argument, though sufficient opportunity was granted.

Point No.1

The specific case of the complainant is that he is a consumer of the opposite party Service Co-operative bank that he deposited three FD’s of various amounts and has been maintaining  two SB A/c’s with the bank.  But when he approached the bank for closing the FD and withdrawing the cash from the SB A/c the bank authorities refused to pay the same and direct him to wait.  The complainant waited indefinitely and at last  he filed a written complaint.  Even then the opposite party bank has not repaid the FD amount nor allowed him to withdraw the amount from the SB A/c.

The opposite party raised many fold contentions.  The main contention of the opposite party bank is that  the complainant is not a consumer.  Since the complainant is a member of the Society the present complaint is hit U/s 69 of the Co-operative Societies Act.  The opposite party along with version filed I.A.19/17 challenging maintainability of the complaint mainly on the following grounds.

1. There is a bar under Section 69 of the Co-operative Society’s Act.
2. Complainant is a share holder/member of the society which conducts the bank and there is no consumer trader relationship between the complainant and the opposite party bank and the complainant being a member/share holder  is not expected to raise any deficiency in service or any unfair trade practice against the opposite party bank.

After hearing both sides the above I.A has been dismissed  repelling all the above contentions and by finding that the complainant is a consumer, that by virtue of Section 3 of the Consumer Protection Act 1986 this Forum has ample jurisdiction to entertain and decide the complaint vide order dated 13.07.2018.  The above order has become final since no revision or appeal has been filed against that order.

The learned counsel for the complainant has   produced and got marked Ext.A7 order passed by the Hon’ble State Commission in RP.37/18 against the order passed by this Forum by  repelling similar contentions raised in CC.227/17 on the file of this Forum.  In the circumstances there is no need to discuss the above aspects again in this order as the finding regarding maintainability and connected issues rendered in IA.19/17 has become final.  The points answered accordingly.

Point No.2

Another contention of opposite party is that the complaint is bad for non joinder of necessary party.  Though such a contention is raised in the written version  the opposite party has not stated who are all the parties required to be impleaded as proper parties.  Admittedly the opposite party bank is now under the administrative control of a committee and the convener of the committee is responsible for the day today affairs of the bank.  At present there is no Managing Committee, Secretary or President in the bank.  It is also clear from the materials available on record that the convener of the bank has authorized to represent the bank before any authority.  The convener has been carrying out all the functions of the bank and also involved in all activities of the bank.  In the circumstances we are of the view that proper party is there in the party array and the complaint is not bad for non  joinder  of  necessary party. Point answered accordingly.

Point  No.3

Yet another contention of the opposite party bank is that the complaint is hopelessly barred by limitation and hence not maintainable.  In view of the facts and circumstances of the case we find little force in the above contention.  Admittedly the opposite party bank has not released the FD amount on maturity nor permitted to withdraw the amount from the SB A/c.  According to the complainant the bank authorities have asked him to wait till solving the problem occurred in the bank.  Accordingly the complainant waited patiently.  In the mean while he visited the bank frequently and demanded to encash the amount withdraw the amount from the SB A/c.  But the bank authorities refused to pay.  Hence the complainant on 02.12.2016 made a written request to the opposite party bank seeking to repay the amount due.  It is also brought out in evidence that the complainant has been approaching the Bank Authorities on almost all days, orally made his request and when such demand and request failed he filed Ext.A6 written complaint.  The complaint has been seen filed the present complaint within 70 days from the date of written request.  Even otherwise the complainant is entitled to encash the F.D on any day after it became mature and also entitled to withdraw  the balance amount outstanding at the SB A/c on any day.  In view of the facts and  circumstances we are of the view that this is a case of continuing cause of action.  In the circumstances we hold that the complaint is not barred by limitation as contented by the opposite party.  The point answered accordingly. 

Point No.4

It is to be pointed out that the complainant has approached the consumer forum not as a share holder.  The relief sought for is not to protect the right of a share holder but the complainant approached the Forum as a Consumer who has not been allowed to withdraw the Fixed  deposit amount and the balance from his Savings Bank Account.  The complainant would allege deficiency in service and unfair trade practice against the opposite party bank as a service provider.  A Co-operative Bank which receives fixed deposit from the customers and allowed to open savings bank account is undoubtedly a  service provider.  Now we shall consider whether there is any deficiency in service or unfair trade practice on the part of the opposite party bank.  The term deficiency is defined U/s 2(1)(g) of the Consumer Protection Act 1986 and the term unfair trade practice is defined U/s 2(1)(r) of the said Act.   Accordingly deficiency means “any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”.  We have already found that the opposite party bank is a service provider.  The terms of Ext.A1 to A3 fixed deposit receipt would make it clear that the opposite party bank is to repay the amount with agreed interest on maturity.  Here in this case admittedly the opposite party failed to pay the principal amount with interest agreed instead of repaying the amount the bank deferred the payment.  Similarly the complainant has not permitted to withdraw the amount from the SB A/c.  The above  acts of the opposite party bank definitely would come under the definition  of deficiency in service and unfair trade practice.  The point answered accordingly.

Point No.5

The opposite party bank has not denied the status of the complainant as a customer.  The opposite party bank has also not denied the allegation of the complainant that he has made Ext.A1 to A3 Fixed deposits and that the complainant is maintaining two savings bank account as per Ext.A4 and A5 pass book with opposite party bank.  It is true that some financial irregularities and misappropriation of money taken place in the bank and the Managing Committee has been dissolved by the Registrar of Co-operative Societies.  But these grounds are not sufficient for denying the legitimate claim of the complainant under Ext.A1 to A5 documents.  It is true that the materials available on record would indicate that as per the direction of the Hon’ble High Court of Kerala in  Writ Petition(C) No.16820/2014, a comprehensive scheme was prepared but it was admittedly not finally approved by the Government nor started to implement the scheme.  It is brought out during cross examination of DW1 that after Administrator Rule has been implemented in the Bank during the year 2015, amount due to several customers has been settled and that it is the duty of the bank to repay the amount kept in F.D deposits.  DW1 would also admit at the end of cross examination  with permission conducted by the learned counsel for the complainant that Cu t^md-¯n \n¶pw settle Bb tIkp-IÄ¡v  OP  XpI-IÄ release sNbvXp-sIm-Sp-¯n-«p-­v.  The above materials on record would indicate that the framing of the scheme is not a bar in releasing the amount to the complainant especially when the scheme has not become finalized till date.  On evaluating the entire materials available on record we find that the complainant is entitled to get back the amount covered by Ext.A1 to A3 fixed deposits along with agreed interest and also entitled to get the balance amount under Ext.A4 and A5 Savings Bank Accounts in his name with interest agreed.    Point answered accordingly.

Point No.6

It  is also clear from the available materials that as the amount covered by  three FD’s and two SB A/c’s were not refunded by bank even after the maturity of the Fixed deposits and not allowed to withdraw cash from the savings bank accounts inspite of his repeated request and making Ext.A6 complaint. In the circumstances the claim of the complainant that he has sustained much mental agony and hardship cannot be denied and ignored.  Therefore the complainant is entitled to get reasonable compensation also from the opposite party bank.  The complainant is also entitled to get costs of the proceedings.  Point  answered accordingly.

Point No.7

     In the result complaint stands allowed in the following terms:-

1. The opposite party bank is directed to pay the principal amount with agreed interest shown in Ext.A1 to A3 Fixed Deposit receipts and also close Ext.A4&A5 SB A/cs  and return the balance amount outstanding with interest due within 45 days from today.
2. The opposite party Co-operative Bank is directed to pay Rs.25000/- as compensation and Rs.10,000/-  costs of the proceedings.
3. The opposite party  is directed to comply with the above directions within 45 days from today failing which the complainant is entitled to recover the amount covered by relief No.1&2 with interest @ 9% from the date of complaint till realization from the opposite party bank and its assets.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the   8^th   day of  August 2022.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-

PW1  :         Rajan Pillai

Documents marked for the  complainant

Ext A1:        Fixed deposit certificate receipt No.001606 for Rs.55,356/- dated 20.04.2011 from Thamarakudi Service Co-operative Bank in the name of  Mr.Rajan Pillai.

Ext A2:        Fixed deposit certificate receipt No.002065 for Rs.50,000/- dated 20.06.2011 from Thamarakudi Service Co-operative Bank in the name of  Mr.Rajan Pillai.

Ext.A3:       Fixed deposit certificate receipt No.0001645 for Rs.1,00,000/- dated 14.10.2011 from Thamarakudi Service Co-operative Bank in the name of  Mr.Rajan Pillai.

Ext.A4 :      Savings bank pass book from Thamarakkudy service Co-operative bank in the name of  Rajan Pillai and Bindu.TG.

Ext.A5        :Savings bank pass book from Thamarakkudy service Co-operative bank in the name of  Rajan Pillai.B.

Ext.A6        : Written request from the complainant to the Secretary, Thamarakudy Co-operative bank.

Witnesses Examined for the opposite party:-

DW1 :         Aneesh.K

Documents marked for the opposite party:-

Ext.D1 series        : Revival package

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent