Order by:

Sh.Amrinder Singh Sidhu, President

1.       Smt.Mamta Gupta, complainant  has filed the instant complaint under section 12 of  the Consumer Protection Act, 1986 (as amended upto date) on the allegations that Opposite Party No.1 is Credit Cooperative Society and it use to get deposit  the amount from various consumers through different schemes on interest basis. Opposite Parties No.2 and 3  are the authorized service centre of Opposite Party No.1 company at Moga as well as at Ludhiana. Opposite Party No. 2 is Incharge  cum Responsible person for acts and deeds of Opposite Party No.1 at Moga. The Complainant alleges that she  is a widow lady and earning her both ends meal and is residing alongwith her minor children and during her life time, she kept some money with a hope that at the time of higher studies of her children, she may use it. The complainant further alleges that on the allurement of Opposite Party No. 2, she  deposited her hard earned money of Rs.65,000/- with Opposite Parties in the shape of Fixed Deposit Receipt vide No.80474612979 having Certificate No.925001322097 with Membership No.60341600016 here at Moga on 19.02.2016 and the said FDR was to be matured after 18 months i.e. on 19.08.2017 and on the maturity date, the amount payable to the complainant comes to Rs.75,595/-. As such, there is relationship of consumer and service provider between the parties as provided under the Consumer Protection Act. Copy of the said FDR is Ex.C2 on the file. The Complainant further alleges that   after the maturity date, she made various requests to the Opposite Parties to release the maturity amount  of the FDR . Initially, the Opposite Parties asked the complainant to wait for three months, but later on  the Opposite Parties have been lingering on the matter on one pretext or the other. Now, the Opposite Parties have flatly refused to pay any amount to the complainant, as such, there is deficiency in service on the part of the Opposite Parties. In this way, said conduct of the Opposite Parties clearly amounts to deficiency in service and unfair trade practice and as such, the Complainant is left with no other alternative but to file the present complaint.  Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Parties may be directed to make the maturity amount of Rs.75,595/- of the FDR alongwith future interest  @ 12 % per annum from the date of maturity date i.e. 19.8.2017 till its actual realization. 

b)      The amount of Rs.50,000/- be allowed to be paid by the opposite parties on account of compensation due to mental tension and harassment caused by the complainant.

c)       The cost of complaint amounting to Rs.10,000/- may please be allowed.

d)      And any other relief to which this Hon’ble Consumer Forum, Moga may deem fit be granted in the interest of justice and equity.       

2.       Opposite Parties  appeared through counsel and contested the complaint by filing  the written version taking preliminary objections therein inter alia that the Complainant has not approached this Forum with clean hands as the present complaint is wholly misconceived, baseless and unsustainable in the eyes of law and is thus liable to be dismissed. The Complainant is not a ‘consumer’ of Sahara Credit Co-operative Society Limited. There is no relation of consumer and service provider between the Complainant and the Opposite Parties. The Opposite Party is Society duly registered under “Multi State Co-operative Society Act, 2002,” and the Complainant is member of the society and thus, the relation between the Complainant and the Opposite Party is of Member and Society. Therefore, for any dispute between Society and Member, consumer complaint is not maintainable and is liable to be dismissed with cost. If the Complainant who is member of society, have any grievance or dispute with the society, the Complainant is bound to refer her dispute before Arbitrator as per Arbitration Agreement. There exists a valid arbitration agreement between Society and Complainant/ member, therefore the present complaint is not maintainable and is liable to be dismissed. It is further alleged that Kuldeep Singh  who has been arrayed personally by name as Opposite Party No. 3 had personally never entered into any agreement with the Complainant nor received any fee or consideration from the Complainant to provide her any service, therefore, the complaint is defective for mis-joinder of unnecessary party and is liable to be dismissed on this ground alone. On merits, it is alleged that the Complainant had contacted the office of Society to become member and after understanding the bye-laws and objects of society she became member  through membership No. 60341600016 and being a member of society, she had opened account No.60346200215 on 19.02.2016 under Sahara A.Select Scheme and deposited Rs.65,000/- for 18 months at Franchise Office-Moga of Society. Before opting this scheme the Complainant duly understood the terms and conditions of scheme and then submitted signed application form to invest for the furtherance of objects of society. It is further alleged that the Complainant approached the Opposite Parties after considerable delay from the date of maturity and demanded additional interest for delayed period, which was not payable as per clause 4 of the scheme. However, the Opposite Parties were making payment as per the said clause, but the Complainant herself refused to receive the payable amount and she did not surrender the original certificate, as such the Complainant is solely liable for the same and hence there is no deficiency in service on the part of the Opposite Parties.  Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.

3.       In rejoinder to the written reply of the Opposite Parties, the Complainant alleges that as per section 3 of the Consumer Protection Act, 1986, the Act not in derogation of any other law. The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. In this regard, ld.counsel for the Complainant has also cited rulings of Hon’ble National Commission, New Delhi as well as Hon’ble State Consumer Disputes Redressal Commission. The Complainant further alleges that the before getting the money in the shape of  FDR in question, she was never conveyed or submitted the alleged terms and conditions of the agreement on which they are now relying upon and now at this stage, those any such terms and conditions are not applicable in the case in hand. It is further alleged that the written version filed on behalf  the Opposite Parties  are not filed  by an authorised person. The Opposite Party is allegedly limited company and the written version has to be filed on the basis of power of attorney in view of the law of Hon’ble Supreme Court of India, laid down in (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” Hence, the Complainant has prayed before this Forum to allow the complaint alongwith costs.

4.       In order to  prove  her  case, the complainant has placed on record  her affidavit Ex.C1 and copy of FDR Ex.C2.

5.       On the other hand,  to rebut the evidence of the complainant,  Opposite Parties also placed on record the affidavit of Sh.Jatinder Goel Ex.OPs1 and copy of terms and conditions Ex.OPs2.

6.       We have heard the ld.counsel for the parties and also perused the written arguments filed by  the Complainant and  gone through the documents placed  on record.

7.       During the course of arguments, both the ld.counsel for the Complainant as well as Opposite Parties  have mainly reiterated the facts as narrated in the complaint as well as in written reply respectively.    It is not disputed that the Complainant had deposited Rs. 65,000/- with Opposite Parties in the shape of Fixed Deposit Receipt vide No.80474612979 having Certificate No.925001322097 with Membership No.60341600016 at Moga on 19.02.2016 and the said FDR was to be matured after 18 months i.e. on 19.08.2017 and on the maturity date, the amount payable to the complainant comes to Rs.75,595/-.  But  on the other hand, ld.counsel for the Opposite Parties has contended that  Complainant is not a ‘consumer’ of Sahara Credit Co-operative Society Limited. There is no relation of consumer and service provider between the Complainant and the Opposite Parties. The Opposite Party is Society duly registered under “Multi State Co-operative Society Act, 2002,” and the Complainant is member of the society and thus, the relation between the Complainant and the Opposite Party is of Member and Society. Therefore, for any dispute between Society and Member, consumer complaint is not maintainable and is liable to be dismissed with cost. If the Complainant who is member of society, have any grievance or dispute with the society, the Complainant is bound to refer her dispute before Arbitrator as per Arbitration Agreement. There exists a valid arbitration agreement between Society and Complainant/ member, therefore the present complaint is not maintainable and is liable to be dismissed. But at the same time, in its written reply, Opposite Parties also specifically mentioned that  the Complainant approached the Opposite Parties after considerable delay from the date of maturity and demanded additional interest for delayed period, which was not payable as per clause 4 of the scheme. However, the Opposite Parties were making payment as per the said clause, but the Complainant herself refused to receive the payable amount and she did not surrender the original certificate, as such the Complainant is solely liable for the same and hence there is no deficiency in service on the part of the Opposite Parties.

8.       The first plea taken by the Opposite Parties is that there is no relationship of consumer between the Complainant and  Opposite Parties and other plea is that as per the terms and conditions of the agreement, the Complainant is not entitled to additional interest for delay period  from the date of maturity of the said FDR.

9.       The main  objection of the Opposite Parties is that the complainant is not a consumer of Sahara Credit Co-Operative Society Limited and there is no relation of consumer and service provider and the complainant who is member of the society, have any grievance of dispute with the society, the complainant is bound to refer her dispute before Arbitrator as per Arbitration agreement under clause 11 of the scheme, but we do not agree with the aforesaid contention of the Opposite Parties because section 3 of the Consumer Protection Act, 1986 provides as under:-

“as per section 3 of the Consumer Protection Act, the Act not in derogation of any other law – The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

In case titled Associated Road Carriers Ltd. Versus Kamlender Kashyap & Ors reported in I (2008) CPJ-404 (NC), it was observed that additional remedy is provided under Section 3 of the Act and jurisdiction of fora is not barred by Arbitration Clause. Further in case titled Pasumarthi S.N. Murthi (Dr.) Versus Nischint Constructions reported in I (2003) CPJ-399 (A.P.), it was observed that Fora is at liberty to proceed with matters rather to relegate to arbitration since the Act intends to relieve consumers of cumbersome arbitration proceedings. Keeping in view the citations as referred to above this complaint is maintainable in this Forum and the  complainant has a right to get his grievances redressed through this channel of Consumer Protection Act, 1986.  Further, in this regard, it is relevant to mention that the Hon’ble National Commission in case WESTERN RAILWAY v. VINOD SHARMA, I (2017) CPJ 279 (NC), while discussing the various provisions of the Act and by relying upon the judgments of the Hon’ble Supreme Court, in which it was observed that having due regard to the scheme of the Consumer Protection Act and purpose sought to be achieved to protect the interest of the consumers, the better provisions are to be interpreted broadly, positively and purposefully 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; held in Para Nos.17 to 19 as follows:

“17. A plain reading of the provisions quoted above from the Railways Act, 1989 and the Railway Claims Tribunal Act, 1987 indicates that an elaborate mechanism has been laid down for providing compensation in the event of accidents, untoward incidents and allied matters, during the course of the operations, carried out by the Railways and for that purpose, the jurisdiction, powers and authority of the Claims Tribunal have been laid down. It is to be determined, however, whether keeping in view the above provisions, the consumer fora shall also have the jurisdiction to deal with the matters, involving railway accidents. The issue has come up for consideration from time to time before the Hon'ble Apex Court and this Commission as well. It has been observed that the Consumer Protection Act is a special legislation, enacted to provide better protection for the interests of consumers in diverse fields. It is true that for specific sectors such as banking, finance, insurance, supply of electricity, entertainment etc., appropriate mechanism has been laid down in the respective statute, to provide suitable relief to the consumers as per requirements. However, the Consumer Protection Act is a beneficial legislation, specially enacted for the protection of the consumers and provides an additional remedy in the shape of Section '3' of the Consumer Protection Act, which clearly lays down that the provisions of the Act shall be in addition to, and not in First Appeal No.334 of 2018 10 derogation of the provisions of any other law for the time being in force. A harmonious construction of the provisions contained in the Consumer Protection Act and the Railways Act etc. shall indicate that the jurisdiction of the consumer fora cannot be barred, even if the provisions to provide compensation are laid down in the Railway legislation. The Hon'ble Supreme Court in their order in Secretary, Thirumurugan Cooperative Agricultural Credit Society vs. M. Lalitha (dead) through LRs, I (2004) CLT 20 (SC) and in Trans Mediterranean Airways vs. Universal Exports, IV 2011 CPJ 13(SC) observed that, "having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, the better provisions are to be interpreted broadly, positively and purposefully 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.

18. In State of Karnataka vs. Vishwabarathi House Building Co-op. Society, I (2003) CPJ 1 (SC), the Hon'ble Supreme Court observed, that by reasons of the provisions of Section '3' of the Act, it is evident that remedies provided thereunder are not in derogation of those provided under other laws. The said Act supplements and not supplants the jurisdiction of the Civil Courts or other statutory authorities.

19.     Based on the discussion above, it is held that the consumer fora do have the jurisdiction to deal with the present case and hence, the consumer complaint cannot be dismissed on the ground of lack of jurisdiction by the consumer fora.”

Hence, in view of the law laid down by the Hon’ble Supreme Court as well as the National Commission as discussed above, the aforesaid contention of the appellants/opposite parties is rejected, holding that the Consumer Forum/District Forum is duly authorized and competent to decide the dispute between the parties and the District Forum duly exercised the jurisdiction under law. Not only this, recently our own Hon’ble State Consumer Commission, Punjab, Chandigarh in First Appeal No. 334 of 2018 decided on 06.06.2018 titled as Divisional Railway Manager Vs. Malkit Singh also held so.

10.     The second plea of the Opposite Parties  is the Complainant has deposited the money in the FDR after understanding the terms and conditions of the scheme. But on the other hand, the Complainant has specifically contended that she never  received any such terms and conditions of the scheme upon which now the Opposite Parties are relying upon their defence to deny the claim of the Complainant. Perusal of the file shows that the Opposite Parties could not produce  any evidence to prove that terms and conditions of such  scheme were ever supplied or conveyed to the complainant, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insruance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that

“the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company.”

Hence, clause 4 of the alleged terms and conditions of the scheme is not applicable in the case of the complainant because no terms and conditions were ever supplied to the complainant before at the time of obtaining the FDR in question. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that

“In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.”

11.     Furthermore, the written version  filed on behalf of the Opposite Parties  has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party   is allegedly limited Company and written version has been filed on the basis of special power of attorney given  to ld.counsel for the Opposite Party. In this regard, the reliance upon the judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11, it was held that

“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”

Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the

“the bear authority is not recognised under law and ultimately, it was held that the plaint was not instituted by an authorised person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”

Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that

“the plaint instituted by  an unauthorized person has no legal effect.  In view of this, the written version filed by the Opposite Parties is not legally sustainable and the same can not be read over as the defence on the part of the Opposite Parties.”

12.     Undisputedly, the Complainant has deposited the amount of Rs.65,000/- with the Opposite Parties in the shape of FDR copy of which is placed on record as Ex.C2 and the Opposite Parties has also admitted this fact in reply to para No.3 under the head  ‘Parawise Reply’, stating that the Complainant has deposited Rs.65,000/- for 18 months at Franchise office-Moga of Society on 19.02.2016 and hence there is recurring cause of action arose to the Complainant to file the instant complaint because till date the Opposite Parties has not paid the amount of the FDR in question to the Complainant.            

13.     To support her case, the  rulings of Hon’ble Supreme Court of India as well as Hon’ble National Commission, New Delhi cited by the Complainant are fully applicable to the facts of the present case. So we are of the view that the Opposite Parties are certainly deficient in rendering services to the Complainant and hence the instant complaint is allowed and the Opposite Parties are, jointly or severally directed to pay the maturity amount of 75,595/- (Rupees seventy five thousands five hundred and ninety five only) alongwith interest @ 9% per annum from the date  of maturity of the FDR in question i.e. 19.08.2017 till its realization. The Opposite Parties are also directed to pay lump sum compensation  of Rs. 15,000/- (Rupees fifteen thousands only) on account of harassment, mental tension  and litigation expenses, to the Complainant. The compliance of this order be made by the Opposite Parties within 30 days from the date of receipt of copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

14.     Reason for delay in deciding the complaint.

This complaint could not be decided within the prescribed period because the government has not appointed any of the two Whole Time Members in this Forum since 15.09.2018. Moreover, the President of this Forum is doing additional duty at District Consumer Forum, Fatehgarh Sahib and Administration Duty at District Consumer Forum, Sangrur. There are only two working days in a week when the quorum of this Forum remains complete.  

Announced in Open Forum

Dated: 20.06.2019.

(Parampal Kaur)                      (Amrinder Singh Sidhu)

                           Member                                       President