Haryana

Ambala

CC/407/2019

Shaligram - Complainant(s)

Versus

Sahara Credit Co-Op Society Ltd - Opp.Party(s)

Vinod Bhardwaj

11 Jan 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	407 of 2019
Date of Institution	:	21.11.2019
Date of decision	:	11.01.2023

……. Complainant.

                                                Versus

1. Sahara Credit Co-operative Society Limited, Sahara India Pariwar, 5744-5746, Above Corporation Bank Limited, First Floor, Nicholson Road, Ambala Cantt., through its' Manager Shri P.K.Sinha.
2. Raj Kumar Collection Agent Sahara India, Above Corporation Bank, Sadar Bazar, Ambala Cantt.
3. Sahara Credit Co-operative Society Limited, Registered Office-Sahara India Bhawan-I, Kapurthala Complex, Ali Ganj, Lucknow-226 024, through its' Authorized Signatory.

                                                                                                                                                ….…. Opposite Parties.

 Before:       Smt. Neena Sandhu, President.

                     Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

Present:       Shri Vinod Bhardwaj, Advocate, counsel for the complainant

                   Shri Manish Sharma, Advocate, counsel for OP No.1.

                   OPs No.2 and 3 already ex parte.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To refund the amount of Rs.45,000/- against the deposit @ Rs.100/- per day for 12 months i.e. with effect from 27.07.2018 till 26.07.2019 deposited in Account of the complainant bearing No.23987201256, Membership No.23981700478 vide Pass Book No.2140 issued by the opposite parties, to the complainant.
2. To pay interest on the above amount of maturity amounting Rs.45,000/- @ 18% per annum from the date of maturity i.e. from 27.07.2019 till date of entire payment, to the complainant,
3. To pay Rs.1,00,000/-, as compensation for the mental agony and physical harassment suffered by the complainant.
4. To pay Rs.22,000/-, as cost of litigation.
5. Grant any other relief which this Hon’ble Commission may deems fit.

2.             Brief facts of this case are that in the first week of July, 2018, the OPs contacted the complainant and allured him to deposit his money with them and in turn, he will get in return more amount. OP No.2 induced the complainant to come to the office of OP No.1 situated above the Corporation Bank Limited, First Floor, Nicholson Road, Ambala Cantt. for showing  all the plans of depositing the money. Accordingly on 27.07.2018, the complainant approached OP No.1, where he met OP No.2. OPs No.1 and 2 showed some of the plans against deposit of moneys and promised that on payment of  Rs.100/- per day for 12 months totaling to Rs.36,500/-, he will get in return Rs.45,000/ on the due date without causing any hindrance. Accordingly, on the allurement of the OPs No.1 and 2, the complainant started depositing Rs.100/- per day for 12 months with effect from 27.07.2018 till 26.07.2019, for which she was issued Pass Book No.2140 having Application No.314019260953, Account No. No.23987201256, Membership No.23981700478 and in the said Passbook the mother of the complainant namely Smt. Viday Devi is shown to be the nominee. Many times, OP No.2 being Collection Agent of OPs No.1 and 3 took Rs.100/- daily from the complainant after coming to his house and promised the complainant that the OPs will incorporate the daily receiving amount of Rs.100/- in the Passbook of the amount of Rs.36,500/- but on many occasions OPs No.1 and 2 did not incorporate some of the amount. On 27.07.2019, the complainant approached OPs No.1 and 2 at Nicholson Road, Ambala City seeking refund of maturity amount with interest i.e. total amount of Rs.45,000/- against the aforesaid deposit; but they kept on lingering the matter on one pretext or the other and finally did not pay the same. Hence this complaint.  
3.           Upon notice OP No.1 appeared and filed written version wherein various objections were taken to the effect that the complainant is not a consumer of the OPs, as there is no relation of consumer and service provider between them; that for any dispute between society and its member, consumer complaint is not maintainable. In Ms. Anjana Abraham Chambethil Vs. The Managing Diretor, The Koothattukulam Farmers Service Co-operative Bank Ltd., NCDRC759@2013) 4 CPJ 333 (NC) the Hon'ble National has held that the consumer forum have no jurisdiction to try the dispute arising between co-operative society and its members. As per Section 3 (N) of The Multi State Co-operative Society Act, 2002 definition of member is (Member means a person joining in the application for the registration of a multi State Co-operative Society and includes a person admitted to membership after such registration in accordance with the provisions of this Act, the rules and the byelaws). As per byelaws of the society, it is clearly mentioned that any dispute between the society and its member/ account holder should be decided by the arbitrator. The OPs are always ready to make the payment as per the conditions of scheme but due to enhance demand of interest on maturity amount the payment could not be made to the complainant at that time.  Rest of the averments of the complainant were denied by OP No.1 and prayed for dismissal of the present complaint.
4.           Upon notice, none appeared on behalf of the OPs No.2 and 3, before this Commission, therefore, they proceeded against ex-parte vide order dated 06.02.2020 (OP No.2) and 15.01.2020 (OP No.3) respectively.

5.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CA alongwith documents as Annexure C-1 to C-3 and closed the evidence on behalf of the complainant. Learned counsel for OP No.1, on 30.11.2022, stated that the written reply filed on behalf of OP No.1 be treated as its evidence.  
6.           We have heard the learned counsel for the complainant and learned counsel for the OP No.1 and have also carefully gone through the case file.
7.           Learned counsel for the complainant submitted that by neither making payment of maturity amount under the scheme in question nor paying interest thereon, the OPs have committed deficiency in service and also indulged into unfair trade practice. 
8.           On the other hand, learned counsel for OP No.1 submitted that the complainant being member of the Society did not fall within the definition of consumer. In support of this contention, the learned counsel for the OP No.1 has placed reliance on the order dated 14.09.2022, passed by the Hon’ble State Consumer Disputes Redressal Commission, UP, Lucknow, in the case of Sahara Credit Cooperative Society Limited & Others Vs. Smt. Mangra Devi & Anr. and also on the order dated 09.11.2022, passed by Punjab and Haryana High Court, Chandigarh in the case of M/s Saharay Universal Multipurpose Society Limited Vs. State Consumer Disputes Redressal Commission Punjab and Others. He further submitted that since the complainant was seeking enhanced rate of interest, as such, the payment could not be made to him. However, the fact that the complainant paid an amount of Rs.100/-  per day for 12 months has not been disputed by him.
9.           The first question that falls for consideration is as to whether, the provisions of the Societies Act  bar the jurisdiction  of Consumer Commissions and that the complainant falls within the definition of consumer or not? It may be stated here that the Hon’ble Supreme Court of India vide order dated 11.12.2003, in Civil Appeal No. 92 of 1998, Secretary, Thirumurugan Co-operative Agricultural Credit Society Versus M. Lalitha (dead) through L.Rs and other and vide order dated 24.03.2013, in Civil Appeal no.64 of 2010, Virender Jain Versus Alaknanda Co-operative Group Housing Society Limited and others, has clearly held that disputes between the members and their Society can be decided by the Consumer Commission and that the remedy before the Consumer Forum is in addition and not in derogation to the remedy under other Acts, unless there is clear bar to jurisdiction.  Merely because the rights and liabilities are created between the Members and the Management of the Society under the Co-operative Societies Act, it cannot take away or exclude the jurisdiction conferred on the Fora under the CP Act. .
10.           Not only as above, a similar question came for determination before five Members Bench of the Hon’ble National Commission in Revision Petition  Nos. 823 To 826  of  2001, Smt. Kalawati & Ors. Versus M/s. United Vaish Co-operative Thirft  & Credit Society  Ltd. wherein it was held that  the provisions of the Societies Act  does not bar the jurisdiction  of Consumer Foras assuming jurisdiction in the matter. Relevant part of the said order is reproduced hereunder:-

“……..We  are  also not in agreement with the view   of the State Commission that  a member cannot be a consumer vis-a-vis  the society of which he is a member.  As a member he  has certain rights in the society like  attending  its meeting and right to vote.   A member is a separate entity from the Co-operative Society which is just like a shareholder as in the Company registered under the Companies Act, 1986. Here is the society of which the complainants are member which invites deposits and pays interest and   is to refund the amount with interest on maturity.   Society provides facilities in connection with financing and is certainly  rendering  services to its members and here is a member who avails of such services.  When there is a fault  on the part of the society and itself is not paying the amount   on fixed deposit receipts on maturity, there is certainly deficiency in service by the society and a complaint lies against society by the member as a complainant.  A co-operative society under the Societies Act, is a akin to a  company under the companies Act, 1986.   If we refer to Section 35 of the Societies Act, a cooperative society is a body  corporate by the name under which it is registered having perpetual succession and a common seal, and with power to hold property, enter into contract, institute and defend suits and other legal proceedings and to do all things  necessary for the purpose for which it is constituted.  A co-operative society is not bound by the rigors  of the Companies Act.   Under Section 4 of  the Societies Act a society which has its objects the promotion of the economic interests of its members in accordance with  co-operative principles may be registered under the Act.  A member of the society cannot exercise  rights as a member unless he has made  due payment as required by the bylaws  of the society.   A member has a right of one vote in the affairs of the  society.   It is apparent that rights of a member in a society  are   similar to  rights which a shareholder exercises in a company.  Rights of a shareholder are: (i)   to elect directors  and thus to participate in the management  of the affairs of the company, (ii) to vote on resolutions at the meeting of the company and (iii) to enjoy the profits of the company in the  shape of dividends.  A share holder is different  person  than the company of which he is the  shareholder.   Similarly, a member of the society is different from  the society of which he is a member.  He can certainly if occasion arises,  proceed against the  society  raising a dispute.  In the Case of Neela Vasant Raje  vs. Amogh Industries   &Anr. -  1986-95 Consumer  446 this  Commission had taken a view that with reference to Section 2(1)(d)  of CPA   that where a company or a firm  invites deposits from the public  for the purpose  of using money for its business on promise of giving attractive rates of interest with  security  of  investment  and prompt  repayment of the principal after the stipulated term  the transaction of such a nature  would clearly make the depositor a ‘consumer’  under CPA.  This  Commission also observed  that  the definition of  the expression ‘service’  was couched in the widest possible language and it expressly covered ‘service of any description’ other than  any service rendered ‘free of charge’ or ‘under  a contract of personal service’. Thus we hold that complainants were certainly consumers and could maintain their complaints in the District Forum….”

11.           In Ashish Ramesh Chandra Birla & Ors.Vs Murlidhar Rajdhar Patil & Ors.I (2009) CPJ 200 (NC), also, a Consumer Complaint was filed against Siddhi Vyankatesh Urban Co-operative Credit Society Ltd. Jalgaon, that some amount was invested with it, in a Scheme launched by it, but it failed to pay the same, on maturity. The complaint was, ultimately, accepted by the District Forum. Aggrieved against the order of the District Forum, First Appeal was preferred, before the State Commission, which was dismissed. Dissatisfied with the order of the District Forum and the State Commission, Revision Petition was filed, before the National Commission, taking up an objection, that the Directors of the Society were not personally responsible, for any default of repayment of the maturity amount, by the Society. Ultimately, the National Commission, held that the Directors of the Society were jointly and severally liable to pay the amount of maturity and were rightly held to be deficient, in rendering service, by the Foras below. The principle of law, laid down, in the aforesaid cases, is fully applicable and will also hold field as far as the present case is concerned.  The complainant therefore falls within the definition of consumer. Objection taken by OP No.1 in this regard stands rejected.

Thus, in view of the law laid down by the Hon’ble SupremeCourt in Secretary, Thirumurugan Co-operative Agricultural Credit Society and Virender Jain’s cases (supra), any findings given by the Hon’ble High Court in CWP No.5008-2022 or by Hon’ble State Commission, Lucknow in Appeal No.901 of 2019, reliance whereupon has been placed by OP No.1, will not hold the field.

12.           As far as objection taken with regard to Arbitration is concerned, it may be stated here that this issue has already been set at rest by the larger Bench of the Hon’ble National Commission in Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements/contracts cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Civil appeal bearing No.23512-23513 of 2017 and  Review Petition (C) Nos.2629-2630 of 2018 filed by the builder, before the Hon’ble Supreme Court of India, also stood dismissed vide orders dated 13.02.2018 and 10.12.2018 respectively. As such, objection taken in this regard also stands rejected.
13. A bare perusal of record reveals that vide application form Annexure C-2, the complainant became member in the scheme of the OPs, under which he was required to pay Rs.100/- for the tenure of 12 months. The complainant has pleaded that he had paid Rs.100 per day regularly for 12 months i.e from 27.07.2018 to 26.07.2019, yet, despite the fact that it was committed by the OPs that the maturity amount of Rs.45,000/- will be paid to him on 27.07.2019 but, they failed to pay the same. Complainant has also pleaded that some receipts against payment of Rs.100/- were not issued by the OPs. In the written version the said fact has not been specifically denied by the OP No.1, rather it is stated that the maturity amount could not be paid to the complainant because due to enhanced demand of interest sought by the complainant on maturity amount. Facing with this situation, we have no reason to disbelieve the contention of the complainant that the OPs committed to pay Rs.45,000/- to the complainant on 27.07.2019 and by not paying the said amount, the OPs have committed deficiency in service. Thus, the Ops are liable to pay the amount of Rs.45,000/- to the complainant alongwith interest. OPs are also liable to pay compensation for the mental agony and physical harassment suffered by the complainant and also litigation expenses.  
14.           In view of the aforesaid discussion, we allow the present complaint and OPs jointly and severally are directed, in the following manner:-

                   (i)      To pay the amount Rs.45,000/-, to the complainant alongwith interest@ 4% per annum, w.e.f. 27.07.2019 i.e. date on  which the amount was to be paid by the OPs, till its  realization.

                   (ii)     To pay Rs.5,000/-, as compensation for the mental agony and physical harassment, caused to the complainant.

                   (iii)    To pay Rs.3,000/-, as litigation expenses.

                   The OPs are further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order. Certified copy of the order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room

Announced on :11.01.2023.

 

          (Vinod Kumar Sharma)            (Ruby Sharma)               (Neena Sandhu)

              Member                                 Member                       President