Chandigarh

DF-II

CC/92/2020

Pawan KumarSharma - Complainant(s)

Versus

Humara India Credit Cooperative Society Limited - Opp.Party(s)

Adv. Deepak Aggarwal

06 Aug 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	92/2020
Date of Institution	:	04.02.2020
Date of Decision	:	06.08.2021

 

                                       

                                               

Pawan Kumar Sharma s/o Sh.Hans Ram r/o H.No.1673, Sector 15, Panchkula.

        ...  Complainant.

Versus

1. Humara India Credit Co-operative Society Ltd., through its Director/Managing Director, Regd. Office at Mangal Jyoti, 101, 227/2, AJC, Bose Road, Kolkata West Bengal.
2. The Branch Manager, Humara India Credit Co-operative Society Ltd. (Sahara India Group), SCO 1110-111, Sector 22-B, Chandigarh.

…. Opposite Parties.

BEFORE:

SHRI RAJAN DEWAN, PRESIDENT

SMT.PRITI MALHOTRA, MEMBER

SHRI B.M.SHARMA, MEMBER

 

Argued by:-

                Sh.Deepak Aggarwal, Adv. for the complainant

                Sh.Nitin Sharma, Adv. for the OPs.

 

 

PER RAJAN DEWAN, PRESIDENT

1.         Brief facts of the case are as alleged by the complainant are that on the assurances/projections and commitments made by the OPs, he invested the following amounts with OP No.2 in the fixed deposit scheme floated by the OPs for the period of three years:-

 

 

1	2	3	4	5	6
Sr. No.	Certificate No.	Date of Deposit	Amount Deposited (In Rs.)	Maturity Amount (In Rs.)	Date of Maturity
	605 000132182	12.02.2016	1,15,176/-	1,76,910	12.02.2019
	605 000132183	12.02.2016	1,13,958/-	1,75,039/-	12.02.2019

                It has further been averred that the maturity amount has not been refunded by the OPs so far despite his repeated requests and even service of the legal notice dated 02.09.2019 sent through registered post. 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.         Upon notice, the OPs put in appearance through their Counsel Sh.Nitin Sharma, Advocate.  The OPs have contested the consumer complaint inter alia raising the preliminary objections that the complaint is wholly misconceived and vexatious; that 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, the consumer complaint is not maintainable.   It has further been pleaded that the complainant before opting contribution scheme of the company duly understood the terms and conditions of the scheme and being a member of the Society, he 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. Pleading that there is no deficiency in service on their part, a prayer for dismissal of the complaint has been made.
3.         The complainant filed rejoinder to the written reply of the OPs  controverting their stand and reiterating her own.
4.         We have heard the arguments advanced by the Counsel for the parties   and gone through the documentary evidence on record and written arguments of OPs.
5.         The Counsel for the OPs has argued that the complaint is not maintainable under provisions of the Consumer Protection Act, 1986 as the relation between the complainant and the OPs is of member and the Society. However, we do not find any weight in this submission of the Counsel for the OPs as it is not a pure dispute between the 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 opposite parties for a particular period and the refund of the same along with benefits. As such, the same certainly amounts to rendering of ‘service’ as defined in 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 opposite parties has been hired by the complainant by depositing the above said amount with them. Besides this, the remedy before the Consumer Forum is in addition to and not in derogation to any other provisions of any other law for the time being in force as provided under Section 3 of the Consumer Protection Act, 1986 and as such this Commission has got the jurisdiction to entertain and decide the present complaint. Here our view is also bolstered from the judgment of the Hon'ble Supreme Court of India passed 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."

6.         The Hon'ble National Consumer Disputes Redressal Commission, New Delhi in the judgment reported as "Smt. Kalawati and others versus M/s United Vaish Co-operative Thirft and Credit Society Ltd.", 2002(1) CLT 101 has also held as under:-

"Section 3 - Delhi Co-operative Societies Act, 1972, Sections 60 and 93 - Bar of jurisdiction - Deposits - Non payment of by respondent society on maturity to the petitioners who were members of the society - Complaint filed before District Forum against respondent society - Plea of the respondent society that in view of Section 93 of the Societies Act consumer Forum would have no jurisdiction in respect of the dispute - Held that a District Forum is not a Civil Court though it may have the trappings of a Civil Court - Neither it is a revenue court - Do not think that Section 93 of the Societies Act would come in the way of the District Forum in assuming the Jurisdiction.

(ii)            Section 2(1)(d) - Delhi Co-operative Societies Act, 1972, Sections 60 and 93 - Consumer Deposits - Non payment of by respondent society on maturity to the petitioners who were members of the society - Complaint filed before District Forum against respondent society - Findings by the State Commission that a member cannot be a consumer vis-à-vis the society of which he is a member set aside - Held that complainants were certainly consumers and could maintain their complaints in the District Forum."

7.         The Hon’ble Supreme Court of India in Virender Jain Versus Alaknanda Co op Group Housing Society Ltd. in Civil Appeal No. 64 of 2010 and connected matters (order dated 13.04.2013) had also widened the scope of the 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 and as such it is held that the complaint is maintainable against the OPs under the provisions of the Consumer Protection Act, 1986.
8.                 The next plea taken by the opposite parties is that the dispute between the parties is liable to be referred to the arbitration, as per Clause 84 of the Multi State Co-operative Society Act, 2002 and Clause-11 of the Scheme. 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 the 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 Apex Court, vide order dated 13.02.2018. Review Petition (C) Nos. 2629-2630 of 2018 in Civil Appeal Nos. 23512-23513 of 2017 filed against the above said order First Appeal No.127 of 2021 22 dated 13.02.2018 was also dismissed by the Hon’ble Supreme Court, vide order dated 10.12.2018. Consequently, it is held that the existence of an Arbitration Clause in any agreement is not a bar to resolve the present dispute by this Commission. Consequently, this objection of the opposite parties is also rejected.
9.         From the certificates/FDR receipts produced on record as Annexures C-1 and C-2, it is established that the complainant had deposited the amounts as mentioned in the table above under the scheme of the OPs. Admittedly, the maturity amount has not been refunded to the complainant despite his repeated requests which itself amounts to deficiency in service as well as indulgence into unfair trade practice on the part of the OPs.  As regards the plea of the Counsel for the OPs that the complainant is not entitled to any relief and the payment, if any, shall be strictly payable as per the terms and conditions of the Scheme is concerned, we are of the concerted opinion that this submission of the OPs is not sustainable in the eyes of law, in view of the fact that OPs in their written version have clearly admitted that they floated a Scheme amongst its Members and, therefore, the Members who subscribers to the aforesaid Scheme also become its consumers and when there is a fault on behalf of the Society in providing its services to its consumers there is certainly deficiency in service on the part of the Opposite Parties.  Moreover, it is not expected from a Company like the OPs to deal with their existing customers. It is an admitted fact that the amount remained deposited with the Opposite Parties for quite long time, therefore, the complainant is certainly entitled to 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) as follows:-

“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.”

10.               In view of the above discussions, the consumer complaint deserves to succeed against the OPs, and the same is accordingly allowed. The OPs are directed to:-
    1. refund the maturity amount(s) to the complainant with interest @ 9% from the respective date of its maturity as mentioned in the table above till its payment.   
    2. to pay Rs.25,000/- to the complainant as compensation on account of mental agony and physical harassment.
    3. To pay Rs.11,000/- as costs of litigation.

                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 actual payment besides compliance of other directions.

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

Announced

06.08.2021                                                                  

Sd/-

 (RAJAN DEWAN)

PRESIDENT

 

Sd/-

 (PRITI MALHOTRA)

MEMBER

 

Sd/-

(B.M .SHARMA)

MEMBER