IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MURSHIDABAD AT BERHAMPORE.

                CASE No.  CC/147/2016.

 Date of Filing:                    Date of Admission:            Date of Disposal:

     28.09.16                                     04.10.16                                  22.06.22

Complainant: Pramatha Ranjan Mandal

S/O- Lt. Bholanath Mandal,

 88/13/1/A, Mohan Ray Para Road,

PO- Khagra, PS- Berhampore, Pin- 742103

                                                       -Vs-

Opposite Party: 1.  Haridas Chatterjee, Chairman,

Ma-Dayamayee Co-Operative Housing Society Ltd.

            88/7, Mohan Ray Para Road, PO- Khagra,

PS- Berhampore, Pin- 742103

    2. The Branch Manager,

 West Bengal State Co- Oprative Housing Federation Ltd.

60/3/A, Old Plice Line Road, Berhampore,

Po & PS- Berhampore, Pin- 742101

     3. Shi Subhrendu Sen, Secretary,

 Ma-Dayamayee Co-Operative Housing Society Ltd.

26, Vibekananda Karuna Abasan, PO- Rabindranagar,

Kolkata- 700065

Agent/Advocate for the Complainant                        : Represented by Secretary

                                                                                               Murshidabad District Consumer

              Association.       

Agent/Advocate for the Opposite Party No.1 : Partha Majumder

Agent/Advocate for the Opposite Party No.2 : Syama Charan Dhar

Agent/Advocate for the Opposite Party No.3 : None

  Present:    Sri Ajay Kumar Das………………………….......President.

                     Sri Subir Sinha Ray………………………………...Member.     

                     Smt. Aloka Bandyopadhyay……………………..Member.

                                                FINAL ORDER

Sri.ajay kumar das, presiding member.

This is a complaint under section 12 of the CP Act, 1986.

  One Pramatha Ranjan Mandal (here in after referred to as the Complainant) filed the case against Haridas Chatterjee, Chairman, Ma-Dayamayee Co-operative Housing Society Ltd. & Ors. (here in after referred to as the OP) praying for compensation alleging deficiency in service.

 The material facts giving rise to file the complaint are that:-

            The Complainant is a senior citizen having good reputation as an innocent person and permanently resides at 88/13/1/A, Mohan Ray Para Road, Khagra, PO-Khagra, PS-Berhampore, Dist-Murshidabad, Pin-742103.

            The Complainant is a member of Ma-Dayamayee Co-Operative Housing Society Ltd. and as such he took House Building Loan amounting Rs.20,000/- only on different dates i.e. 18.07.79 Rs. 9,000/-, 28.01.80 Rs.6,000/-, 06.12.80 Rs. 5,000/- keeping his sale deed and other valuable document to the Society as Mortgage.

            The Society ‘’Ma-Dayamayee’’ is a registered one in the name of Ma-Dayamayee Co-Operative Housing Society Ltd. Its registration No. is 68 dated 30.06.78 under Assistant Registrar of Co-Operative Societies, Murshidabad. The address of the Society is Ma-Dayamayee Co-Operative Housing Society Ltd. 88/7, Mohan Ray Para Road, Khagra, PO-Khagra, PS-Berhampore, Dist-Murshidabad, Pin-742103.

            The Complainant wanted to repay his loan in advance. So he submitted an application on 25.06.99 to the secretary of the Society and got permission in this regard.

            The Complainant repaid all his dues on 29.09.99/13.10.99 under Receipt No.1558 by cheque bearing No. 056510 dated 29.09.99.

            The Branch-in-charge, Berhampore Branch, West Bengal, State Co-Operative Housing Federation Ltd. wrote a letter to the Secretary, Ma-Dayamayee Co-Operative Housing Society Ltd. under reference No. 93/1/I-31 dated 28.10.15 clearly stated that Shri. Pramatha Ranjan Mandal, member of your society repaid his dues long before, but reconveyance of his property are lying pending.

            Having no other alternative, the Complainant is compelled to take shelter in the court of law.

            The OP miserably failed to discharge their obligatory service in terms of assurance given to the Complainant. The Complainant had suffered heavy financial loss and damages and the OP was under obligation to fulfill the contact.

            The OP acted in most negligent manner while dealing with the Complainant and the Complainant suffered heavy loss and injury and entitled to get compensation.

            The Complainant also prays to his honour to pass an order to return the Sale Deed and other valuable documents lying with the Society and also prays to his honour to pass an order.

            OP No.1 filed Written Version on 05.12.16 stating inter alia that the present complaint is wholly misconceive, groundless and unsustainable in law and liable to be dismissed.

            OP No.1 stated in his W/V that the honourable court has no jurisdiction to entertain and adjudicate upon the dispute as per provision of 102(4) of West Bengal Co-operative Societies Act,2006 and does not fall within the ambit of the provision of the Consumer Protection Act, 1986, and is exclusively triable by the A.R.C.S Murshidabad range and as such the complaint is liable to be dismissed. The dispute raised by the Complainant in the present complaint is manifestly outside the preview of the Consumer Protection Act in any event the said Act is an addition to and in derogation the provision of the Specific Relief Act and Transfer of Property Act. The proceedings initiated by the Complainant are nonest, null and void and without jurisdiction. The definition of Complainant, complain, consumer dispute and service as define in Sec 2(1) of the Consumer Protection Act do not cover the claims arising under the present dispute and that from the aforesaid definition the Complainant is not consumer and the controversy involve in the complain is not a consumer dispute.

            OP No.1 further stated that the present complaint is baseless and flagrant abuse of process of Law to harass and blackmail the answering OP and the Complainant has no Locus Standi to initiate the present proceeding against the OP. The present complaint is hopelessly barred by limitation because of that as per the complaint the Complainant repaid all his dues on 20.09.99 but instant complain is filed in the year 2016 i.e. long long after two years from 20.09.99. The present complaint is frivolous and vexatious and liable to be dismissed Under Sec 26 of C.P. Act. As per Sec 17 of the W.B.C.S Act Maa Dayamayee Co-operative Housing Society is the necessary party of this proceedings. All statements made in the complain are denied by this answering OP and submits that the Complainant took loan of Rs.20,000/- from Maa Dayamayee Co-operative Housing Society and the society took loan of that amount from the OP No.2 and the Complainant executed a sale deed in favour of the OP No.2 against the said loan as a security. At the time of taking such loan by the Complainant, OP No.1 is not the Chairman or the Secretary of the said Society. So the OP has no personal knowledge regarding the disputed transaction in between the said society and the Complainant. OP No.1 was elected as a Chairman of the said Society in the year 2001. So, after expiry of his tenure he is not re-elected as a Chairman of the said Society. At present the OP No.1 is not the Chairman of the said Society.

            He further stated that the entire management or maintaining the day to day accounts of the said society is lying with the secretary of the society. Secretary of the society manage and control the day to day affairs of the society. The Secretary i.e. OP No.3 and Sulopani Moitra ex-Secretary of the Society are the best person to say the present position regarding the said loan of the Complainant. So. Sulopani Moitra is the necessary party of this proceedings. All the papers, account books, counter file of the receipts, resolution book and other papers are in the custody of the OP No.3. There is no deficiency of service on the part of the OP No.1, so, the OP is not liable to any relief as claimed by the Complainant. So, the Complainant’s complaint will be rejected with cost.

            OP No.2 filed Written Version on 13/01/17 stating inter alia that the case is not maintainable, there is no cause of action to file the case, the case is barred by law of limitation, the case is barred by the principles of estoppels, waiver and acquiescence and this Court has no jurisdiction to try the above case as per provisions of the WB State Co-Operative Society Act.

            OP No.2 stated in his W/V that the Complainant admitted that he being a member of Ma-Dayamayee Co-operative Housing Society Ltd. took house building loan amounting to Rs.20,000/- only after keeping his Sale Deed with the Society. He also admitted that the said Society has been registered under Astt. Registrar of Co-operative Societies, Murshidabad. To mention that for obtaining house building loan the Complainant transferred his land his registered Sale Deed in favour of the secretary, Ma-Dayamayee Co-operative Housing Federation Ltd. OP No.2 had a letter No. 1281 dated 01.10.15 from the A.R.C.S., Murshidabad asking about Sri. Pramatha Ranjan Mondal. In terms of the said letter this OP No.2 wrote the letter under Reference No.93/1/I-31 dated 28.10.15 to the Secretary of Ma-Dayamayee Co-operative Housing Society Ltd. which will speak for itself. The OP No.2 i.e. West Bengal State Co-operative Housing Federation Ltd. Berhampore Branch is acting as a Branch under Chief Executive Officer, W.B. State Co-op Housing Federation Ltd. Kolkata. Ma-Dayamayee Co-op Housing Society Ltd. was registered by the A.R.C.S., Murshidabad at Berhampore and the Society is working according to its Bye-laws framed and approved by the A.R.C.S. Murshidabad. The said society thereafter has been directly acting as per law under the OP No.2.

            OP No.2 further stated that the Society obtains fund through the OP No.2 and disburses loan to its individual members and keeps individual accounts. But the said Society has not yet submitted requisite papers and accounts to the OP No.2 regarding the Complainant that he does not owe to the society and by sending letter asking the OP No.2 in respect of the said lonee member relating to demortgage his property, and in such event the matters are sent to the CEO, WB State Co-op Housing Federation Ltd. Kolkata by the OP No.2 and after obtaining approval from Kolkata Office, the Branch-in-charge, Berhampore Branch sends letter to the Primary Society to reconvey the property to the member whose loan account is settled and closed, and then his title deed is also given to the said member. To mention that no individual account is maintained by the WB State Co-op. Housing Federation Ltd. Berhampore Branch. In the above said premises this OP No.2 has no responsibility or liability at this state without having any settled accounts and other documents from the said Society in respect of any lonee-member or this Complainant. Thus, the above case is liable to be dismissed with cost.

            Notice served upon OP No.3 but the notice of the OP No.3 has been returned with postal remarks “Refused”.

   On the basis of the complaint and the written versions the following points are framed for proper  adjudication of the case :

Points for decision

1. Isthe Complainant a consumer under the provision of the CP Act, 1986?

2. Has this Forum jurisdiction to entertain the complaint?

4. Has the OP any deficiency in service, as alleged?

5. Is the Complainant entitled to get any relief, as prayed for?

Decision with Reasons:

Point No.s 1,2,3,4&5

All the points are taken up together for the sake of convenience and brevity of discussion.

            Ld. Advocate for the OP No.1 has submitted before this court that the Hon’ble Commission has no jurisdiction to entertain and adjudicate upon the dispute as per provision of 102(4) of West Bengal Co-operative Societies Act,2006 and does not fall within the ambit of the provision of the Consumer Protection Act, 1986, and is exclusively triable by the A.R.C.S Murshidabad range and as such the complaint is liable to be dismissed. The dispute raised by the Complainant in the present complaint is manifestly outside the preview of the Consumer Protection Act in any event the said Act is an addition to and in derogation the provision of the Specific Relief Act and Transfer of Property Act. The proceedings initiated by the Complainant are nonest, null and void and without jurisdiction. The definition of Complainant, complain, consumer dispute and service as define in Sec 2(1) of the Consumer Protection Act do not cover the claims arising under the present dispute and that from the aforesaid definition the Complainant is not consumer and the controversy involve in the complain is not a consumer dispute.

            Secretary Murshidabad District Consumer Association submits on behalf of the Complainant that as per Section 102 (4) of the West Bengal Cooperative Societies Act 2006, any Civil Court or any Consumers’ Dispute Redressal Forum shall not have any jurisdiction to try any dispute as mentioned in sub Section (1). He further submits that the Consumer Protection Act, 1986 has been repealed by the Consumer Protection Act, 2019. So, the submissions advanced by the Ld. Advocate for the OP No.1 is not tenable. After hearing of both sides we perused the relevant provisions of Law.

            Section 3 of the Consumer Protection Act, 1986 says that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

            The same provisions have already been found in section 100 of the Consumer Protection Act, 2019.

            The Provisions of the Act are supplementary in nature and have no overriding effect.

            The word derogation means partial abrogation. The word ‘abrogate’ is used when a law is abolished in its entirety. It is, thus, clear that the provisions contained in Consumer Protection Act do not in any way abrogate even partially the provisions of any other law for the time being in force.

            In Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha the Supreme Court held that having due regard to the scheme of the Consumer Protection Act and purpose sought to be achieved to protect the interest of the Consumers, better the provision are to be interpreted broadly, positively and purposefully in the context of the case to give meaning to additional/ extended jurisdiction, particularly when the Act seeks to provide remedy in addition to other remedies provided under other Acts unless there is a clear bar.

            In view of the matters discussed above and keeping in mind the above legal provision, we are of the view that this District Commission has no jurisdiction to try the dispute as alleged.

  In the result, the Consumer case fails.

Reasons for delay

The Case was filed on 28.09.16 and admitted on 04.10.16. This Commission tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.

In the result, the Consumer case fails.

   Fees paid are correct. Hence, it is

Ordered

   that the complaint Case No. CC/147/2016 be and the same is dismissed on contest      against the OP No 1&2 and ex-parte against OP No. 3 without costs.

          Let plain copy of this order  be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand  /by post under proper acknowledgment  as per rules, for information and necessary action.

    The Final Order will also be available in the following Website:

    confonet.nic.in

   Dictated & corrected by me.