Haryana

Panchkula

CC/148/2021

ABDESH KUMAR ROY. - Complainant(s)

Versus

SAHARA CREDIT CO-OPERATIVE SOCIETY LTD. - Opp.Party(s)

IN PERSON

10 Jan 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA.

 

 

Consumer Complaint No	:	148 of 2021
Date of Institution	:	23.02.2021
Date of Decision	:	10.01.2023

Abhdesh Kumar Roy s/o  Sh. Cheedi Roy resident of Village Ganga Prasad OP Amopur, Bara Bazar District Begusarai(Bihar)

Also resident of House No.53, Gali No.3, Maheshpur, Panchkula, Haryana.

                                                                                ….Complainant

Versus

1.     Sahara Credit Co-operative Society Limited, Through its Managing Director, Regd. Office at, Sahara India Bhawan, 1, Kapoorthala  Complex, Aliganj, Lucknow(Uttar Pradesh)-226024.

2.     Sahara Credit Co-operative Society Limited, Branch Manager/ Authorised Officer, Rajendra Road,Baruani, District Begusarai (Bihar)-851112

3.     Sahara Credit Co-operative Society Limited, Through its Branch Manager, Shop No.16, Shiva Shopping Complex, Sector-12-A(Rally), Panchkula, Haryana.

….Opposite Parties

 

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT,  2019.

 

Before:      Sh.Satpal, President.

Dr.Pawan Kumar Saini, Member.

Dr.Sushma Garg, Member.  

 

Present:     Complainant in person.

                Sh. Manish Sharma, Advocate for OPs No.1 to 3.     

ORDER

(Per Satpal, President)  

1.             Briefly stated, the facts of the case are that one representative/agent of the OPs, namely, Sh.Raj Kumar s/o Sh. Satnaryan Rajat approached the complainant giving information about the new schemes floated by the Ops. The complainant informed the said agent about his planning to get to arrange the marriage of his daughter in the year 2020 and would require money accordingly, for the marriage of his daughter. The complainant, on the basis of assurances and promises made by OPs, invested a total sum of Rs.1,00,000/- on 14.09.2017 in their scheme, namely, ‘Sahara A Select’. The details of deposits is given as under:-

Sr.No.	Complainant’s name	Membership no. and Certificate no.	Account no.	Amount  deposited /date of  deposit	Maturity Amount & Date of maturity
1	Abhdesh Kumar	13581700663 & 925005914006	13586703561	25000	29075/-14.03.2019
2	Abhdesh Kumar	13581700663 & 925005914007	13586703562	25000	29075/- 14.03.2019
3	Abhdesh Kumar	13581700663 & 925005914008	13586703563	25000	29075/- 14.03.2019
4	Abhdesh Kumar	13581700663 & 925005914009	13586703564	25000	29075/- 14.03.2019

 It is stated that the complainant had visited the registered office of OPs at Lucknow and branch office at Baruani and local branch office at Panchkula for the release of maturity amount but no heed was given to his genuine request. It is alleged that the complainant is running from pillar to post for the satisfactory resolution of his grievances but to no avail. The legal notice dated 16.12.2020 was served upon through registered post seeking the release of the maturity amount but the OPs have not released the maturity amount of Rs.1,16,300/-(Four certificates). Due to nonpayment of the Ops, the complainant has suffered a lot of mental agony and physical harassment and financial loss; hence the present complaint.

2.             Upon  notice Ops No.1 to 3 appeared through counsel and filed written statement raising preliminary objections qua complainant is not a consumer of the Ops and there is no relation of consumer and service provider between the complainant and the Ops; the complainant became  the member through Begusarai(Bihar) branch of the OPs and deposited  his amount through  that branch, hence OP No.3 is not competent to release  the amount of other branch as all record of the complainant is maintained by Begusarai(Bihar) of the Ops. It is stated that complainant had himself visited at the office of the Ops and became the member of the society to get benefits of the scheme. As far as opening of the said scheme is concerned, the same is matter of record. The society was always ready to make the payment as per the conditions of scheme but due to demand of enhanced rate interest on maturity amount, the payment could not be made to the complainant at that time. There is valid arbitration agreement between the parties and Ops always works as per the terms of the agreement and byelaws of the society. Further, the complainant had demanded enhanced rate of interest beyond the scheme and scope of the agreement vide his notice; hence the same was rejected by the Ops and dispute is arise which is dispute between member and society and hence this Hon’ble Commission have no jurisdiction to entertain the present complaint. So there is no deficiency in service on the part of the Ops and prayed for dismissal of the present complaint.  

3.             The complainant has tendered affidavit as Annexure C/A along with documents Annexure C-1 to C-10 in evidence and closed the evidence by making a separate statement. On the other hand, the evidence of Ops No.1 to 3 closed by court order vide 22.11.2022 of this Commission.

4.             We have heard the complainant as well as the learned counsel for the Ops and gone through the entire record available on file, minutely and carefully.

5.             During arguments, the complainant reiterating the averments made in the complaint as also in the affidavit Annexure C-A has prayed for acceptance of the complaint by granting relief as claimed for in the complaint.

6.             The complaint has been contested, apart from merits, by raising several preliminary objections qua the maintainability of the complaint.  The first objection is that there is no relationship of consumer and service provider between the complainant and the OPs as the complainant is only a member of the Society, which is duly registered under “Multi State Cooperative Society Act, 2002” & the rules framed there under, and the bye-laws of the society and that the contributory schemes are run among the members for their benefits. It is vehemently contended that a consumer complaint is not maintainable in a dispute between a member and the society and in this regard, reliance has been placed upon the case law titled as M/s Anjana Abraham Chembethil, Mutholapura PO Ernakulam Vs. The Managing Director, The Koothattukulam Farmers Service Co-operative Bank Limited reported in 2013(4) CPJ 333(NC).

7.                The next objection is that there exists a valid arbitration agreement between the society and the complainant/members and as per provisions contained in Section 84 of the Multi State Co-operative Society Act, 2002, a dispute, if any, between the society and the members was/is liable to be referred to arbitration for its adjudication.  It is contended that as per Section 83 of The Multi State Co-operative Society Act, 2002, Central Registrar has power to make an order after inquiry to repay or restore the money or property or any part thereof, with interest at such rate, or to pay contribution and costs or compensation to such extent, as the Central Registrar may consider just and equitable.

8.             The first plea of OPs No.1 to 3 is that the instant consumer complaint is not maintainable under the provisions of the Consumer Protection Act as relationship between the complainant and the OPs society is that of member and the society & not that of consumer & service provider. We do not find any weight in this submission as there is no dispute between the members of the cooperative society regarding its governance. In fact, the dispute involved in the present complain  is with regard to the deposited amount under the scheme of the OP’s society for a particular period and refund of the same after maturity along with benefits. As such, the service rendered by the OPs 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 OP’s society was hired by the complainant by depositing the above said amount with them. 

9.             We may, safely, place reliance upon the law laid down by the full bench of the Hon’ble Commission, in case titled as Smt. Kalawati & Ors.  Vs. M/s United Vaish Co-operative Revision petition no.823 to 826 of 2011(NC) has held as under:-

        “Member of the Society 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 members, invited 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 services by the society and a complaint is maintainable against society by the members as complainant”.

10.            The Ops have placed reliance upon the case law(supra) titled as M/s Anjana Abraham Chambethil Vs. The managing Director, the Koothattukulam Farmers Service Co-operative Bank ltd., which was decided by single Member of the Hon’ble National Commission, New Delhi, whereas the case of said Smt.Kalawati & Ors. Vs. M/s United Vaish Co-operative, Revision Petition on No.823 to 826 of 2001(NC) was decided by three members of the Hon’ble National Consumer Commission, New Delhi and thus, the cited case law by the Ops i.e. Anjana Abraham Chambethil Vs. The Managing Director, the Koothattukulam Farmers Service Co-operative Bank Ltd. is of no help to their case.

11.            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 judgment 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.

12.            The next objection/plea 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. 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. Reliance in this regard may be placed upon the judgment of the Hon’ble Supreme Court of India in “Secretary, Thirumurugan Co-operative Agricultural Credit Society Vs. M.Lalitha(Dead) through LRs and others”, 2004(1) CLT 456 in which it was held as under:-

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 Section3 seeks to provide remedy  under the Act in addition to other remedies provided under other Acts unless there is clear bar”.

13.            Further, reliance can be placed upon the order dated 13.07.2017 passed by the large bench of the Hon’ble National Commission in Consumer Complaint no.701 of 2015 titled as Aftab Singh Vs. 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. 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 is also rejected.

14.            On merits, it is not in dispute that a sum of Rs.1,00,000/- was deposited by the complainant on 14.09.2017 vide four separate certificates(Annexure C-5 to C-8). As per certificates(Annexure C-5 to C-8), the maturity amount of each certificate was Rs.29,075/- and the maturity date was 14.03.2019. The non-payment of the maturity amount after the maturity date clearly amounts to unfair trade practice on the part of the Ops. The contentions of the OPs that the complainant had demanded the higher rate of interest is not tenable for want of any evidence in support of their contentions. In this regard, no evidence has been adduced, much less adequate and credible, by the OPs to substantiate their version that the complainant was insisting upon the payment of interest on the maturity amount. It is well settled legal proposition that mere bald assertions, which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value. In fact, the OPs were not in a position to make the payments of maturity amount to the complainant qua the certificates (Annexure C-5 to C-8) on account of financial constraint and economic crisis being faced by them as submitted in other complaints cases bearing no. 627 of 2019, 634 of 2019, 628 of 2019, 87 of 2020 and 86 of 2020, which were disposed of vide our order dated 21.03.2022.

15.           It is pertinent to mention here that the OPs even after the filing of this complaint and during the pendency of this complaint have never shown any interest to release the maturity amount to the complainants. There was no bar or hindrance over the OPs to release the maturity amount to the complainants after getting the formalities completed even during the pendency of the complaint but the OPs instead of refunding the maturity amount preferred to contest the present complaint on flimsy and baseless grounds.

16.           Further, the plea of the Ops that the complainant was the member of Begusarai branch and thus, OP No.3 is not able to deal with the case, is also not tenable as the OPs could easily have collected the details of deposited amount from the concerned branch at Begusarai.

17.            In view of the aforesaid discussion, we conclude that there have been lapses and deficiencies on the part of OPs No.1 to 3 while delivering services to the complainant; hence, the Ops are liable, jointly and severally, to compensate the complainant.

18.            As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs No.1 to 3:-

1. The Ops are directed to make the payment of maturity amount pertaining to certificate(Annexure C-5 to C-8) i.e. Rs.1,16,300/-(29075+29075+29075+29075) to the complainant along with interest @ 9%(S.I.) per annum w.e.f. date of maturity i.e. 14.03.2019 till its actual realization.
2. The OPs are also directed to pay a lump-sum amount of Rs.20,000/- to the complainant on account of mental agony, physical harassment and litigation charges. 

 

19.            The OPs No.1 to 3 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 to 3. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:10.01.2023

 

 

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal         

           Member                          Member                     President

 

Note: Each and every page of this order has been duly signed by me.

 

                                              Satpal,                         

                                                    President