BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 102/2004 Filed on 28.02.2004

Dated : 15.12.2008

Complainants:

1. G. Karthiayani Amma, Krishna Vilasom Bungalow, Pulimath, Kilimanoor.

Addl. Complainant:

2. M. Balakrishnan Nair, Krishna Vilasom Bungalow, Pulimath, Kilimanoor.

(By adv. C.P. Francis)

Opposite parties:

1. The General Manager, Raidco, Kannur.

(By adv. Nalanchira P. Krishnankutty)

2. The Secretary, Kilimanoor Co-operative Agricultural and Rural Development Bank Ltd. No. T. 316, Kilimanoor.

(By adv. V. Bhuvanendran Nair)

This O.P having been heard on 17.11.2008, the Forum on 15.12.2008 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of this complaint are that complainant has availed two loans of Rs. 5000/- each from the 2^nd opposite party and received Rs. 5000/- for digging well and constructing pump house and maintenance, the remaining Rs. 5000/- with the 2^nd opposite party to give it to 1^st opposite party to purchase pump set and its accessories from the 1^st opposite party. 1^st complainant has not placed any order to 1^st opposite party and not executed any agreement in favour of 1^st opposite party to give interest and that complainant has remitted the loan amount with interest to 2^nd opposite party and closed the said loan. Further on 25.01.1988 2^nd opposite party had issued a notice to complainant, and complainant had issued reply notice showing that complainant has no transaction with the 1^st opposite party. Meanwhile 1^st opposite party filed arbitration case No. 04/91 before the Registrar of Co-operative

Societies and obtained an order against the complainant and complainant preferred revision petition No.

34/91 against the said order before the Co-operative Tribunal and the same was dismissed for default. Again, in order to restore the same complainant filed an application No. 13/2002 before the Co-operative Tribunal and the same was also dismissed. Meanwhile 1^st opposite party had issued notice to

the complainant demanding to pay the balance amount of Rs. 4075.35 with interest amounting to Rs.

26101.35 within 30 days and hence this complaint.

Opposite parties entered appearance and filed objection contending that the petition is not maintainable as per the Consumer Protection Act. The complainant had purchased a pump set from the 1^st opposite party. For purchase of the said pump set the complainant had obtained a loan from the 2^nd opposite

party. In effect a hire purchase loan. The loan money was not given in cash to the complainant, but the same was given to the 1^st opposite party where from the pump set was purchased by the complainant. The loan amount was only Rs. 5000/-. The 2^nd opposite party gave only Rs. 5000/- to the 1^st opposite

party as per the terms of the hire purchase scheme. Since the pump set and accessories were valued for the amount more than the loan amount, the complainant owed to give the balance less than the loan amount to the 1^st opposite party. The balance amount was Rs. 4070.35. In order to realise the said amount with interest 1^st opposite party had filed Arbitration case No. 4/91 before the Registrar of Co-operatives. The case was contested. It was awarded in favour of the 1^st opposite party allowing to

realise principal amount and interest from the complainant. Since this was the transaction on 23.06.1980, interest was accrued and the same itself has become a large amount. Against the said award, revision petition No. 34/01 was filed before appellate Tribunal by the complainant and the same was dismissed. In order to restore the case an application No. 113/2001 was filed and it was also dismissed. Again a review petition No. 13/02 was filed before the Co-operative Tribunal and the same was also dismissed. So the matter has become finalised by the statutory Forum as per the Co-operative Societies Act. This complaint is barred by limitation also. Since the complainant had already sought relief in the Arbitration court and Appellate court and the matter has become finalised years back, this complaint on the same subject matter does not stand in this Forum as it is subjudice.

In view of the above, the preliminary points to be considered are:-

1. Whether the complainant is maintainable before this Forum?

2. Whether complaint is barred by limitation?

1^st opposite party has produced three documents which has been marked as Exts. D1 to D3. Ext. D1 is

the copy of the order from the Court of Assistant Registrar of Co-operative Societies(Audit), Chirayinkil dated 31.07.1999 on Arbitration Reference under Sec. 69 and 70 of the Kerala Co-operative Societies Act 1969 and Rules 67 of the Kerala Co-operative Societies Rules. On perusal of Ext. D1, it is found that 1^st opposite party in this complaint is the plaintiff and 1^st complainant in this complaint is the 1^st

opposite party. As per Ext. D1 order, the arbitration reference relates to the sale of a pump set and its accessories for Rs. 9070.35 by the Trivandrum Branch of Raidco Ltd to 1^st opposite party, Karthiayani Amma. The purchase order was placed through the 2^nd opposite party in this complaint and 1^st opposite

party supplied the pump set to Smt. G. Karthiayani Amma as per invoice No. 4649, 4650 dated 23.06.1980 and 4598 dated 24.04.1980 and sum of Rs. 5000/- was remitted by the 2^nd opposite party to 1^st opposite party. As per the letter sent by the 2^nd opposite party to the 1^st opposite party to realize the balance amount towards the cost of pump set from G. Karthiayani Amma, 1^st opposite party in its

letter dated 25.01.1988 informed Karthiayani Amma to remit the balance amount, but the latter did not turn up for remitting the balance amount. As per Ext. D1, the court of Assistant Registrar of Co-operative Societies directed Raidco to realize Rs. 15,376.35 from Karthiayani Amma. Against the order as per Ext. D1, Karthiayani Amma filed revision 34/01 before the Court of the Kerala Co-operative Tribunal and the said revision was seen dismissed by Ext. D2. Against Ext. D2 revision order, Karthiayani Amma preferred a review petition before the Kerala Co-operative Tribunal which was seen dismissed by Ext. D3. The counsel appearing for 1^st opposite party submitted that since the complainant had taken up the

matter with the Co-operative Tribunal consequent to awards passed by the Assistant Registrar of Co-operative Societies, and the said revision and review petitions were dismissed by the Co-operative Tribunal, where from, the complainant had not preferred an appeal. At this juncture, it is pertinent to note that arbitration clause is not a bar to the entertainment of the complaint by the consumer redressal agency constituted under the Consumer Protection Act, even if arbitration provision has been laid down in a statute, Sec. 90 of the Kerala Co-operative Societies Act does not oust the jurisdiction of the consumer Forum to adjudicate upon such disputes. Parties can approach both the Fora created under the Co-operative Societies Act and Consumer Protection Act. As per Sec. 3 of the Consumer Protection Act, the provision of this shall be in addition to and not in derogation of the provisions of any other law for the time being in force. The option is upon the parties to approach either the authority under Co-operative Societies Act or under the Consumer Protection Act. In this case it is to be noted that the 1^st

opposite party already sought relief in connection with the same subject matter (settlement of account) in Arbitration Court. Complainant in this case contested the said case before the arbitration court and challenged the order (Ext.D1) of the Arbitrator before the Kerala State Co-operative Tribunal by way of revision and review petition and the same were dismissed by Exts. D2 and D3. Had complainant been challenged the order of the Arbitrator before the Kerala State Co-operative Tribunal, complainant should have been avoided the proceedings under the Consumer Protection Act and this complaint is barred by the rule of resjudicata. Parties cannot exercise option under the Co-operative Societies Act and the Consumer Protection Act simultaneously. In view of the above, the complaint is not maintainable under the Consumer Protection Act. In view of the findings on the first point, we need not consider the other point.

In the result, complaint is dismissed as not maintainable.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 15^th December 2008.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER