Chandigarh

DF-II

CC/1176/2019

Sanjay Kumar - Complainant(s)

Versus

M/s Hamara India Credit Co operative Society Limited - Opp.Party(s)

Ashok Kanwal Adv. & Harsh Nagra Adv.

02 Jun 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	1176/2019
Date of Institution	:	13.12.2019
Date of Decision	:	02.06.2022

 

                                               

                                                         

Sanjay Kumar s/o Sh.Kapoor Chand r/o House No.951, Phase-2, Ram Darbar, Chandigarh.

        ...  Complainant.

Versus

1. M/s Humara India Credit Co-operative Society Ltd., through its Official Person /Owner/Representative, Regd. Mangal Jyoti, 101, 227/2, AJC Bose Road, Kolkata, West Bengal-700020.
2. M/s Sahara India Parivar, SCO 1110-1111, Sector 22-B, Chandigarh through its Representative.

…. Opposite Parties.

BEFORE:

 

SMT.PRITI MALHOTRA, PRESIDING MEMBER

SHRI B.M.SHARMA, MEMBER

 

Argued by:-

                Sh.Ashok Kanwal, Adv. for the complainant

                Sh.Nitin Sharma, Adv. for the OPs.

 

PER PRITI MALHOTRA, PRESIDING MEMBER

1.         Brief facts of the case, as alleged by the complainant, are that being allured by the assurances of the OPs, on 29.01.2016, the complainant invested Rs.66,428/- vide certificate No.605000132354 and on its maturity i.e. 29.01.2019, the complainant was to get Rs.1,02,033/-.  After the date of maturity, the complainant requested the OPs to release the maturity amount(s) by submitting the requisite documents but the same has not been released despite repeated requests. 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.           The 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 of the terms and conditions of the 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 the 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.  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 the 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 or unfair trade practice on their part, OPs prayed for dismissal of the consumer complaint.

4.           Parties led evidence by way of affidavits and documents.
5.           We have heard the learned counsel for the parties and gone through the record and written arguments of OPs.
6.           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."

7.           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.
8.           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.
9.           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 receipt(s) wherein the OPs themselves have mentioned maturity date etc.
10.                     From the perusal of receipt produced on record as Annexure C-1 by the complainant, it is established that the complainant had deposited the amount under the scheme of the OPs. Admittedly, the maturity amount with interest has 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.
11.           Before parting it would not be out of place to mention here that admittedly the maturity amount 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.”

12.           In view of the above discussion, the consumer complaint deserves to succeed against the OPs and the same is accordingly partly allowed. The OPs are directed as under :-
    1. to refund the maturity amount (s) totaling i.e. Rs.1,02,033/- as stated above to the complainant along with interest @ 9% p.a. from the date of its maturity i.e. 29.01.2019 till its realization.
    2. to pay ₹20,000/- to the complainant as compensation on account of mental agony and physical harassment.
    3. to pay ₹7,000/- to the complainant as costs of litigation.
13.          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.
14.           The pending application of the parties, if any, stands disposed of accordingly.
15.           Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced

02.06.2022                                                    

 

 

Sd/-

(PRITI MALHOTRA)

PRESIDING MEMBER

 

Sd/-

 (B.M .SHARMA)

MEMBER