O R D E R
(Per Ms. Savita G. Kurtarker, Member)
By this Order we shall dispose of the Complaint filed by the Complainant against the Opposite Parties.
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The brief facts of the case are as under:
The Complainant has two FDRs bearing no. 086 dated 07.01.2007 amounting to Rs. 1,00,000/- and another FDR bearing No. 094 dated 07.01.2007 amounting to Rs. 1,00,000/- for a period of 12 months at the rate of 8% with Paroda V.K.S.S. Society Ltd.However, FDR bearing No. 094 is in duplicate.
The case of the Complainant is that in the month of August 2011 the Complainant went to encash the said FDRs and handed over the FDRs to the office bearer of Opposite Party No.1.The office bearer of Opposite Party No.1 calculated the amount on FDR bearing No. 086 as Rs. 1,54,763/- as on 14.08.2011 and wrote on the said FRR as cancelled and FDR 094 as duplicate.
The Complainant objected and raised the issue with the Director of Opposite Party No.1.The Complainant wrote a letter to the Opposite Party No.1 and the same was received by Opposite Party No.4 on 13.10.2012.
The Opposite Party No.1 vide letter No. PVKSS/53/2012-12 dated 15.10.2012 with reference to the letter sent by the Complainant replied the said letter of the Complainant.The Complainant also sent letter dated 23.10.2012 to the Opposite Party and the Opposite Party No.2 replied the said letter of the Complainant vide his letter in reply dated 26.10.2012.
The Complainant also attended Board of Director’s meeting on 29.10.2012 for settling the pending issues of this FDR.In the said meeting the issues were not settled.However, the Opposite Party No.4 gave some papers to the Complainant.After that the Complainant through his advocate sent a legal notice dated 31.12.2012 by Regd. Post A/D. demanding a sum of Rs. 2,00,000/-
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alongwith interest of 18% within fifteen days from the receipt of the said legal notice. The same was replied by Opposite party No.2 vide letter No. PVKSS/85/2012-13 dated 16.01.2013. Thereafter the Complainant visited the office of the Opposite Party No.1 on 02.02.2013 for inspection . However, they have asked to come for inspection on some other day.
According to the Complainant the Opposite Party No.4 is negligent in keeping record of the transaction of Opposite Party No.1 as the FDRs quoted in column 2 of the reply dated 16.01.2013 are not matching with the Fixed Deposit Ledger Folios.According to the Complainant the F.D. bearing receipt no. 086 is given no number in Fixed Deposit Ledger Folios.
It is the case of the Complainant that the Complainant has withdrawn an amount of Rs. 1,00,000/- with the withdrawal slip on 07.01.2007 and an amount of Rs. 1,00,000/- on 23.10.2007 and asked the Opposite Party No.4 to invest the said amount in the Fixed Deposits and accordingly the Complainant had received F.D. Receipts of Rs. 1,00,000/- deposited on 07.01.2007 was encashed on 06.04.2009.
Further the other two receipts of Rs. 1,00,000/- deposited on 23.10.2007 bearing No. 086 and 094 as no numbers are being given to these two receipts in the Fixed Deposit Ledger Folio were renewed on maturity in 2008 which can be noted on the backside of original F.D. receipts.
The Complainant also made a complaint to the Assistant Registrar of Co-op Societies, Margao.The Asst. Registrar of Co-op Societies has submitted his report.According to the Complainant, he had asked some documents from the Opposite Party No.1. However the Opposite Parties replied stating that no documents available and after audit documents are dumped and destroyed.
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According to the Complainant the Opposite Party No.4 is responsible for fraudulent mis-appropriation of FDRs.Therefore the present complaint with the following reliefs:
For a direction to the Respondent to pay the said amount of Rs. 2,00,000/-alongwith 18% interest from the date of investment till actual payment.
For the costs.
For any other order as this Hon’ble Forum deems fit and proper in the interests of justiceand equity.
The Complainant alongwith the complaint filed the following xerox copies of the documents:
F.D. Receipt dated 07.01.2007 bearing No. 086 for an amount of Rs. 1,00,000/-, maturity date is 08.01.2008.
F.D. Receipt dated 07.01.2007 bearing No. 094 for an amount of Rs. 1,00,000/- maturity date is 08.01.2008.
Letter dated Nil from the Complainant to the Opposite Party No.4.
Letter dated 19.10.2012 from the Opposite Party No.1 to the Complainant.
Letter dated 23.10.2012 from the Complainant to the Opposite Party No.4.
Letter dated 26.10.2012 from the Opposite Party No.1 to the Complainant.
Legal notice dated 31.12.2012 from Advocate Mr. Rakesh S. Karmali to the Opposite Party No.4.
Letter dated 16.01.2013 from the Opposite Party No.1 to the advocate for the Complainant Mr. Rakesh Karmali. Letter dated 05.11.2012 from the Complainant to the Assistant Registrar of Co-op Societies, South Zone, Margao.
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Report dated 05.12.2012 of D.P. Parab, Special Auditor of Co-op Societies, South Zone addressed to the Assistant Registrar, Co-op. Societies, Margao.
Letter dated 11.12.2012 from the Complainant to Opposite Party No.4.
Letter dated 18.12.2012 from the Opposite Party No.1 to the Complainant.
The Opposite Parties filed their written version and raised the following preliminary objections:
The complaint needs to be dismissed for non-joinder ofparties.
This Forum has no jurisdiction to entertain the present complaint and as per section 83 of Goa Co-operative Societies Act as the same shall be dealt with by the Registrar of Co-op. Societies.
That the Complainant is not a consumer.
The Complainant vehemently denied the contents of the complaint and prayed for dismissal of the complaint with costs.
Alongwith written version the Opposite Party filed xerox copies of Chapter- IX of the Goa Co-operative Societies Act 2001 setting out the provisions of section 83 & 84 of the said Act.
The Complainant filed his Affidavit-in-evidence. All the Opposite Parties also have filed their Affidavits-in-evidence. Questionnaire was put to the Complainant. The Complainant answered the questionnaire.
While going through the answers to the questionnaire filed by the Opposite Parties, we find question 12 of the questionnaire of the Opposite Party to the Complainant.
“question 12. Did the incident of cancellation took place during the period you was the member of Board of Directors?
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Ans: Yes, this incident of writing of cancelled and duplicate took place when I was he Member of B.O.D.”
Question no. 10 of said questionnaire is as under:
“Was you a member of Board of Directors of the O.P.at any point of time?
Ans: Yes, but now I have resigned from the B.O.D.”
Question No.17 of the said questionnaire reads as under:
“ How are you in possession of the cancelled certificate?
Ans: As the said amount is not paid to me I am in possession of the FDRs and the Opposite Party No.4 had written cancelled and duplicate on the above said FDR’s and handed over to me ,when presented for encashment.”
The Complainant also filed further clarification by way of answers to the questionnaire put by Opposite Parties to the Complainant.
17. The Complainant also put questionnaires to Opposite Party No.1 to 4.
18. Both the parties filed their written arguments.
19. On perusing the complaint, Affidavits-in-evidence and the written arguments and questionnaire and answers to the questionnaire it transpired that the Complainant has not disclosed that he was a member of Board of Directors of Opposite Party No.1 during the period from 01.09.2008 to 05.12.2012. We have also observed contradictory averments in para 11 of the Complaint, said para is reproduced hereinunder and contradictory averments are underlined.
“para 11- the Complainant further states that his usual practice for depositing amount in FDR’s by withdrawing the amount from the SB A/c. bearing No.8 with the help of withdrawal slips and after that the Respondent No.4
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use to deposit the said amount in the fixed deposits, by issuing Fixed Deposit Receipts and as per the same practice the Complainant withdrawn with withdrawal slips an amount of Rs.1,00,000/- on 07.01.2007 and an amount of Rs. 1,00,000/- each in two withdrawal slips on 23.10.2007.” and asked the Respondent No.4 to invest the said amount in the Fixed Deposits and accordingly the Complainant had received the FD Receipts of which Rs. 1,00,000/- (Rupees one lakh only) of the amount deposited on 7-01-2007 was encashed on 06-04-2009. The other two receipts of Rs. 1,00,000/- (Rupees one lakh only) each deposited on 23-10-2007 bearing book no. 86 and 94 as no number are being given to these two receipts in the Fixed Deposit ledger folios, were renewed on maturity in 2008 which can be noted on backside of original FDR receipts.”
20. It is the case of the Complainant that he withdrew a sum of Rs. 2,00,000/- on 23.10.2007 but we have observed that the FDRs certificate are dated 07.01.2007 that means F.D. Certificates are prior to the withdrawal of the amount of the said Rs. 2,00,000/-. We also have observed in the letter dated nil from the Complainant to the Opposite Party No.4. In the said letter from the Complainant to the Opposite Party No.4, the Complainant has written that in January 2007 he has invested Rs. 1,00,000/- and same was encashed in April 2009. Accordingly he has received two F.D.Rs bearing No. 086 and 094 respectively upon depositing amount of Rs. 2,00,000/- on 23.10.2007. It is pertinent to note that in his complaint at para 11 the Complainant has specifically stated that in two withdrawal slips dated 23.10.2007 he has withdrawn an amount of Rs. 1,00,000/- each. However, we have observed that the F.D.Rs are bearing the dates as 07.01.2007. We find no confidence in the contradictory averments made by the Complainant in para 11 as
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saying that cash was withdrawn on 22.10.2007 and F.Ds are back dated on 07.01.2007. Now on perusal of this letter we find that the Complainant has invested Rs. 1,00,000/- in January 2007 and same was encashed in April 2009 and accordingly have received two F.D.Rs bearing No. 086 and 094, upon depositing of Rs. 2,00,000/- on 23.10.2007. We have hereinabove pointed out that both these F.D. Certificates bears the same date i.e. 07.01.2007. We find no satisfactory clarification given by the Complainant for his contradictory statement made in the complaint.
21. It is seen from the letter dated 16.01.2013 from the Opposite Party No.1 to the advocate for the Complainant Mr. Rakesh Karmali. After perusal of said letter dated 16.01.2013 from the Opposite Party No.1, addressed to the Advocate for the Complainant it is seen that the Complainant had deposited number of F.Ds on number of occasions with Opposite Party No.1 and the Opposite Party No.1 in this reply has given details about the said deposits. The items at sr. no. 3 of this letter we have seen that on 07.01.2007 the Complainant has deposited an amount of Rs. 1,00,00/- and in lieu of that he has been received F.D.R. no. 086 dated 07.01.2007 and the maturity period is shown as 08.01.2008. The Opposite Party No.1 also stated in the letter that the same FDR was closed the amount of Rs. 1,18,310/-including interest was transferred to the SBAC Account of the Complainant.
22. We before passing of the order sought clarification with the Complainant who was present at the time of passing of the order. The Complainant answered that it is written by the advocate and it is correct. These two contradictions weaken the case of the Complainant. Besides these contradictions we also do not find any evidence on record to support the case of the Complainant.
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23. It is observed from the Report dated 05.12.2012 of D.P. Parab, Special Auditor of Co-op Societies, South Zone addressed to the Assistant Registrar, Co-op. Societies, Margao. It is seen from this report that D.P. Parab, Special Auditor of Co-op Society, South Zone, Margao was appointed to make inquiry in respect of subject an appeal of Mr. Jose S. Rebello, r/o Comba, St. Jose de Areal, Salcete who is the Board of Director of Paroda VKK Society Ltd. and carrying a money transaction business with the society. At page 2, para 3 of this report this Special Auditor of Co-op Society has made the observation ‘that finally I am to report that the society has made payment to Mr. Jose S. Rebello by transferring his saving account of Rs. 1,18,310/- on 06.04.2009 which is simultaneously withdrawn by him without obtaining original or duplicate F.D.R by the Society. As a result of this deficiency and carelessness on the part of the Manager, the F.D. holder have got chance to reproduce the same for repayment and to make complaint/appeal before higher authority. However, for the second F.D.R of Rs. 1,00,000/- transaction has no effect to direct the society for repayment.
24. We also have noticed that in this complaint the Complainant has not averred about he being the member of the Board of Directors of the Opposite Party No.1. He also not stated anywhere in the complaint or in his Affidavit-in-evidence that during the period of this transaction he was a member of Board of Directors of the Opposite Party No.1. We find the Complainant has not approached with clean hands. We also have observed that the Opposite Parties have vehemently denied the averment made in the complaint. Denials are not specific.
25. The Opposite Parties have raised the preliminary objections that this Forum has no jurisdiction to try and entertain the present complaint and to support their contention The Opposite Party has relied on section 83 of the Goa Co-op Societies Act 2001. However, it is a
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settled law that section 3 of the Consumer Protection Act 1986 specifically states the provisions of this act shall be addition to and not in derogation of the provisions of any other law for time being in force.
26.Section 83 of Goa Co-op Societies Act 2001 is specifically states notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, elections of the office bearers, conduct of general meetings, management or business of a society shall be referred by any of the parties to the dispute, or by a federal society to which the society is affiliated, or by a creditor of the society, as the case may be, to the Registrar. We find the dispute before us is not touching the constitution, election of the office bearer, conduct of the management or business society. Therefore we have jurisdiction to try and entertain the present complaint and the Complainant is a consumer as per the provisions of Consumer Protection Act 1986.
27. The Opposite Parties also raised that the complaint is dismissed for non-joinder of parties. However, the Opposite Parties have failed to show which are the necessary parties to be joined in the present complaint.
28. In view of this and under the circumstances we are inclined to dismiss the present complaint and we pass the following order:
O R D E R
The complaint is dismissed. However, if the Complainant chooses to file the suit for the reliefs claimed in the present complaint, he can do so according to law and in such case he can claim the benefit of section 14 of Limitation Act to exclude the period spent in
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prosecuting the proceedings under the Consumer Protection Act, 1986, while computing the period of limitation, prescribed for such suit.
(Shri Jayant S. Prabhu)
President
(Ms. Savita G. Kurtarker)
Member
(Ms. Cynthia A. Colaco)
Member
pf:
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