Chandigarh

DF-II

CC/568/2020

Vinod Kumar - Complainant(s)

Versus

Humara India Credit Co-Operative Society Ltd. - Opp.Party(s)

Sapan Dhir Adv

19 Jan 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	568/2020
Date of Institution	:	23.10.2020
Date of Decision	:	19.01.2022

 

                                               

                                                         

Vinod Kumar son of Sh.Pawan Kumar r/o H.No.203, GH-44, Sector 20, Panchkula.

          ...  Complainant.

Versus

1. Humara India Credit Co-operative Society Ltd., Registered Office Mangal Jyoti 101, 227/2, AJC Bose road, Kolkata, West Bengal-700020.
2. Sahara India Ltd., SCO No.1110-1111, Sector 22-B, Chandigarh.

…. Opposite Parties.

BEFORE:  

SHRI RAJAN DEWAN, PRESIDENT

SMT.PRITI MALHOTRA, MEMBER

SHRI B.M.SHARMA, MEMBER

Argued by:-

                   Sh.Sapan Dhir, Adv. for the complainant

                   Sh.Ammish Goel, Adv. for the OPs.

 

PER RAJAN DEWAN, PRESIDENT

1.           Brief facts of the case, as alleged by the complainant, are that on the assurances of the agent of the OPs, in the year, he invested Rs.2,00,000/-  each against two certificate(s)/FDR(s) bearing No. 823972001046 and No.823972001047, which were to be matured after six years i.e. 20.08.2018.  However, the said payments along with interest have not been released to them and rather the OPs have issued fresh certificates/FDRs No.001316916 & 000302844 dated 23.08.2018 and 08.05.2018 [in fact FDRs No.000302845 dated 08.05.2018 and 001316917 dated 23.08.2018] (Annexures C-1 and C-2) respectively and on the back of these FDRs/Certificates, the OPs have made the remarks that after taking back the previous original FDRs/Certificates from the complainant  qua the interest for previous aforesaid two FDRs/Certificates, the OPs was to release Rs.3,41,020/- and Rs.3,17,697/- to him.   It has further been averred that both these Certificates /FDRs were matured on 08.05.2020 and 23.08.2020 but the OPs were to refund the maturity of Rs.2,50,880/- each to the complainant along with Rs.3,41,020/- and Rs.3,17,697/- but till date they have not released even a single penny to him, either of his own principle amount of Rs.4 lacs or of the interest accrued thereupon since the year 2012. Finally, he got served a legal notice dated 25.09.2020 upon the OPs requiring them to the refund the deposited amounts but to no effect. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the instant complaint.     
2.           OPs contested the consumer complaint, filed their written reply and, inter alia, raised the preliminary objections that the complaint is wholly misconceived and vexatious; there is no relationship of consumer and service provider inter se the complainant and the OPs and that this Commission has no jurisdiction to entertain the complaint and the same is liable to be referred to the arbitrator as per Clause 13 of the terms and conditions of the contribution scheme. It has further been pleaded that the relationship between the complainant and the OPs is of Member and Society and therefore, for any dispute between the society and the Member, consumer complaint is not maintainable. It has been pleaded that the complainant before opting contribution scheme of the company had duly understood its terms and conditions and being a member of the Society, contributed the amounts in question for furtherance of the objects of the society and under the Contribution Scheme, there is no provision of maturity or pre-maturity payment.  It has further been pleaded that the complainant is not entitled to get the deposited amount with interest etc. It has further been pleaded that as per Clause 12 of the Contribution Scheme Bye-laws, rules and regulation of the Society is binding upon the complainant and the member can avail the benefits of the same scheme as per its terms and conditions.  It has been denied that in the year 2012, on the requests of the agent, the complainant had deposited Rs.4 lacs with the OPs against two FDRs bearing No. 823972001046 and 823972001047, issued on 21.08.2012. It has further been stated that these two FDRs/certificates were mentioned in  the connected complaint No.567/2020-titled as Deepak Dhiman Vs. Humara India Credit Coop. Society Ltd.  It has further been pleaded that the complainant had deposited Rs.2 lacs against membership No.6239780028670 on 23.08.2018 and Rs.2 lacs against membership No.623972001870 on 08.05.2018. only and as per the membership,  the complainant is entitled to Rs.2,50,880/- each against the said memberships. Pleading that there is no deficiency in service or unfair trade practice on their part, OPs prayed for dismissal of the consumer complaint.

4.           The Complainant filed rejoinder to the written reply of the OPs controverting their stand and reiterating his own.
5.           Parties led evidence by way of affidavits and documents.
6.           We have heard the learned Counsel for the parties and gone through the record along with written submissions of the complainant.
7.           The first plea of the OPs is that the instant consumer complaint is not maintainable under provisions of the Consumer Protection Act, 1986 as relation between the complainant and OPs is of member and the Society. However, we do not find any weight in this submission as it is not a pure dispute between members of the cooperative Society regarding its governance. In fact, it is a dispute with regard to deposit of amount under the scheme of the OPs for a particular period and refund of the same along with benefits. As such, the same certainly amounts to rendering of ‘service’ as defined under the Act. There is element of ‘deficiency in service’ as well as ‘unfair trade practice’ due to non-performance of the contract, whereby service of the OPs has been hired by the complainant by depositing the above said amount with them. Besides this, it is well settled law that remedy before the Consumer Forum is in addition to and not in derogation to the provisions of any other law for the time being in force. Here we are also strengthened by the judgment of the Hon'ble Supreme Court of India in "Secretary, Thirumurugan Co-operative Agricultural Credit Society Versus M. Lalitha (Dead) through LRs and others", 2004(1) CLT 456 in which it was held as under:-

“11.   From the statement of objects and reasons and the scheme of 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi judicial forums are set up at the district, State and National level with wide range of powers vested in them. These quasi judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever 'appropriate, compensation to the consumers and to impose penalities for non-compliance of their orders.

12.    As per Section 3 of the Act, as already stated above, the provisions of the Act shall be in addition to and not in derogation to any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, better the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clear bar."

8.           Further, the Hon’ble Supreme Court of India in Virender Jain Vs. Alaknanda Co op Group Housing Society Ltd., Civil Appeal No.64 of 2010 and connected matters, decided on 13.04.2013 had also widened the scope of CPA by holding that disputes between members and their Society can be decided by the Consumer Fora. The principle of law laid down in the aforesaid judgments is squarely applicable to the facts of the case in hand. Hence, it is held that the instant consumer complaint is maintainable against the OPs and this Commission has got jurisdiction to entertain and decide the same under the provisions of the Consumer Protection Act.
9.           The next plea taken by the OPs is that the dispute between the parties is liable to be referred to arbitration, as per Clause 84 of the Multi State Co-operative Society Act, 2002. In this respect, it needs to be mentioned that the Larger Bench of the Hon’ble National Commission, vide order dated 13.07.2017, passed in Consumer Complaint No.701 of 2015 titled as Aftab Singh v. EMAAR MGF Land Limited & Anr., held that an Arbitration Clause in the afore-stated kind of Agreements between the Complainants and the Builder cannot circumscribe jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act, 1996. The Civil Appeal No.(s) 23512-23513 of 2017 (M/s EMAAR MGF Land Limited & Anr. Vs. Aftab Singh) filed against the said order of the Hon’ble National Commission has also been dismissed by the Hon’ble Apex Court vide order dated 13.02.2018. Even Review Petition (C) Nos.2629-2630 of 2018 filed against above said order was also dismissed by the Hon’ble Supreme Court vide judgment dated 10.12.2018. Consequently, it is held that existence of Arbitration Clause in the agreement is not a bar to resolve the present dispute by this Commission. Thus, this objection of the opposite parties is also rejected.
10.           So far as the plea of the OPs that there is no provision of maturity or pre-maturity payment is concerned, the same is belied from their own certificates/receipts wherein the OPs themselves have mentioned maturity amount(s) payable on the date of maturity along with interest.
11.           In the instant complaint, though the complainant had claimed refund of Rs.11,60,477/- on account of four Certificates/FDRs but he has been able to place on record any documentary evidence in respect of two Certificates/FDRs bearing No.823972001046 and No.823972001047  for Rs.2 lacs each alleged to be deposited in the year 2012 with the OPs except his bald averments and the said fact has also been denied by the OPs in its written statement vehemently. In the absence of any convincing and reliable documentary evidence, he cannot be held entitled for the refund of the amounts of the aforesaid two Certificates/FDRs. However, the perusal of certificates/FDR receipts produced on record as Ex.C-1 and C-2 by the complainant, it is established that the complainant had deposited the amounts as mentioned above under the scheme of the OPs. Admittedly, the maturity amounts have not been refunded to the complainant by the OPs despite repeated requests which itself amounts to deficiency in service as well as indulgence into unfair trade practice on their part.
12.            Before parting it would not be out of place to mention here that admittedly the maturity amount has remained deposited with the OPs and till date they are enjoying benefits of the same to the detriment of the complainant, therefore, the complainant is entitled to further interest on the deposited amount, as held by Hon’ble Supreme Court in Alok Shanker Pandey Vs. Union of India & Ors., II (2007) CPJ 3 (SC) and the relevant portion is reproduced as under :-

“9.     It may be mentioned that there is misconception about interest.  Interest is not a penalty or punishment at all, but it is the normal accretion on capital.  For example if A had to pay B a certain amount, say 10 years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount. Had A paid that amount to B 10 years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period.  Hence equity demands that A should not only pay back the principal amount but also the interest thereon to B.”

13.           Similar facts have been pleaded in other connected complaints and similar evidence has been led in them.  Therefore, in both these cases, deficiency in service as well as unfair trade practice on the part of the OPs is proved.
14.       In view of the above discussions, both the consumer complaints deserve to succeed against the OPs, and the same are accordingly allowed. The OPs are directed to: -
    1. refund the maturity amount(s) of two FDRs [i.e. Rs.2,50,880/- each (Annexures C-1 & C-2)] to the complainant along with interest @ 9% from the respective dates of its maturity i.e. 08.05.2020 and 23.08.2020 till its payment.   
    2. to pay Rs.25,000/- to the complainant as compensation on account of mental agony and physical harassment in each case.
    3. To pay Rs.7,500/- as costs of litigation in each complaint.

                   This order be complied with by OPs within 30 days from the date of receipt of its certified copy, failing which the amount at Sr.No.(ii) shall also carry interest @ 9% per annum from the date of this order till its actual payment besides compliance of other directions.

15.           Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced                                                                       sd/-

19.01.2022                                                         (RAJAN DEWAN)

PRESIDENT

Sd/-

 (PRITI MALHOTRA)

MEMBER

Sd/-

 (B.M .SHARMA)

MEMBER