Haryana

Karnal

CC/703/2021

Mohamad Afzal - Complainant(s)

Versus

Sahara Credit Cooperative Society Limited - Opp.Party(s)

Kanav Deep Singh

07 Sep 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                          Complaint No.703 of 2021

                                                        Date of instt. 17.12.2021

                                                        Date of decision 07.09.2022

 

Mohamad Afzal son of Shri Azamtula, resident of house no.312, chhoti Mangalpur, near ITI Chowk, Karnal. (age about 34 years) Aadhar card no.6494 1576 7668. Mobile no.87084-98371.

 

      …….Complainant 

                                        Versus

 

1.     Sahara Credit Cooperative Society Limited, Registered office: Sahara India Bhawan, I, Kapoorthala Complex, Aliganj, Lucknow-226024 (UP) through its Managing Director.

 

2.     Sahara India Pariwar, opposite Onida Showroom, near Chandrachal Banquent Hall, Kunjpura Road, Karnal through its Branch Manager.

    …..Opposite Parties.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

               

Before   Sh. Jaswant Singh……President.       

      Sh.Vineet Kaushik ………..Member

              Dr. Rekha Chaudhary…..Member

 

 Present: Shri Kanavdeep, counsel for complainant.

                Shri Vikas Yadav, counsel for opposite parties.

 

                (Jaswant Singh President)

ORDER:  

                 

                 The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant opened an R.D. Account no.22005101605 membership no.22001400784 with the OP no.2 for a sum of Rs.3000/- per month for a period of 72 months, on 13.08.2014 which was to be matured in August, 2020. On maturity i.e. after completion of 72 months, a sum of Rs.3,15,000/- was to be paid by OPs to the complainant. The complainant paid the entire monthly installments to the OPs without any delay by paying the amount from his hard earned money. After that, complainant approached and requested to the OP no.2 to make the maturity amount to him and OPs told that the maturity amount will be released by registered office and the complainant will get the amount with upto date interest. However, till date OPs have not released outstanding amount alongwith interest to the complainant and the complainant has been running from pillar to post but the OPs have turned a deaf ear and did not bother to make the payment of abovesaid R.D. account alongwith interest to the complainant. In this way there was deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OPs appeared and filed their written version raising preliminary objections with regard to maintainability; locus standi; cause of action; mis-joinder and non-joinder of necessary parties; jurisdiction and concealment of true and material facts. On merits, it is pleaded that this Commission has no jurisdiction to entertain and try the present complaint as the OP is a society and only the Registrar of Cooperative Society has got jurisdiction to entertain, try and decide the complaint. It is further pleaded that complainant never approached the OPs regarding the maturity amount. There is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Complainant tendered into evidence his affidavit Ex.CW1/A, copy of front page of passbook Ex.C1, receipt dated 31.01.2020 Ex.C2, copy of installments Ex.C2, copy of passbook page 1 to 4 Ex.C3, copy of whatsapp message of OP Ex.C4, copy of Aadhar card of complainant Ex.C5 and closed the evidence on 21.04.2022 by suffering separate statement.

5                On the other hand, OPs tendered into evidence affidavit of Sunil Sinha, Manager Ex.RW1/A and closed the evidence on 18.05.2022 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant while reiterating the contents of complaint, has vehemently argued that complainant had opened a R.D. account and deposited Rs.3000/- per month for the period of 72 months, w.e.f. 13.08.2014 to August, 2020 and on maturity, it becomes Rs.3,15,000/-, but OPs have failed to release said amount to the complainant after maturity of the same and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for OPs while reiterating the contents of written version, has vehemently argued that complainant never approached the OPs regarding the maturity amount. He further argued that this Commission has no jurisdiction to try and decide the present complaint as the OPs is a Society and only the Registrar of Cooperative Society has jurisdiction to try and entertain the present complaint, therefore, the dispute is to be entertained before Arbitrator as per arbitration agreement under clause 18 of the scheme Super AB, which is reproduced as under:-

        Clause 18. Arbitration:-

        “All dispute between Society and Member the same shall be subject to arbitration as per the provisions of Section 84 of the “Multi State Co-operative Society Act, 2002 as amended from time to time.” Learned counsel for OPs relied upon the judgment of Hon’ble National Commission in case titled as Ms. Anjana Abraham Chembethil Versus The Managing Director, The Koothattukulam Farmers Service Cooperative Bank Ltd. NCDRC759 of 2013 (4) and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, the complainant has deposited his savings with the OPs in R.D. account. It is also admitted that OPs have failed to return the said amount after expiry of its maturity period i.e. after 72 months.

11.           The first question for consideration is that whether the present complaint is maintainable before this Commission or not, in view of the Arbitration Agreement under clause 18 of the scheme Super AB?

12.           In this regard, we are of the considered view that the OPs have not placed on record any Arbitration Agreement or any document proving that OPs is a society. Therefore, this plea is not tenable in the eyes of law.  Furthermore, for the sake of argument if it is to be considered that OPs is a society and there should exist an arbitration agreement between the OPs and the complainant. Even in existence of arbitration agreement also this Commission has jurisdiction to entertain the present complaint as it is a settled proposition of law that complaint under Consumer Protection Act, being an additional remedy, despite there being an arbitration agreement, the proceedings before Consumer Commission have to go on. The remedy under Consumer Protection Act is a remedy provided to a consumer when there is a defect in any goods or services. In this regard, we have placed reliance on the case titled “M/s Emaar MGF Land Limited Versus Aftab Singh, review petition © Nos.2629-2630 of 2018 (SC), wherein Hon’ble Supreme Court of India held in para no.55 as under:-

“We may, however, hasten to add that in the event a person entitled to seek an additional special remedy provided under the statutes does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration.”

  

        Further, similar view was taken by Hon’ble National Commission in case titled as Sanjay Gopinath Versus M/s IREO Grace Realitech Pvt. Ltd. (bunch of the cases) decided on 31.08.2021 wherein Hon’ble National Commission while placing reliance on the judgment of Hon’ble Supreme Court of India titled as M/s Emaar MGF Land Limited Versus Aftab Singh-I (2019) CPJ 5 (SC) has held that an Arbitration clause in the Agreement does not bar the jurisdiction of Consumer Fora to entertain the complaint. Hence, the objection raised by the learned counsel for the opposite party that the clause of Arbitration bars this commission from entertaining the complaints is unsustainable.

13.           Hence, keeping in view the above discussion and ratio of law laid down in the aforesaid judgments, the plea taken by the OPs has no force. Thus, this Commission has jurisdiction to entertain and try the present complaint.

14.           The next question arises for consideration whether the complainant has ever approached to the OPs for getting his maturity amount of the aforesaid R.D. account or not? 

15.           It is an admitted fact that complainant had deposited his savings with the OPs in the R.D. Account. To prove his version, complainant has placed on record his affidavit Ex.CW1/A, copy of passbook Ex.C1, receipt dated 31.01.2020 Ex.C2, copy of installments Ex.C2, copy of passbook page 1 to 4 Ex.C3, copy of whatsapp message of OP Ex.C4. Learned counsel for OPs has taken a plea that since the assets of the OPs have been stayed by the Hon’ble Delhi High Court. He further submitted that the matter is also pending before the Hon’ble Supreme Court. Admittedly, Hon’ble Supreme Court has not stayed the recovery from the OPs. Reasons above the OPs are unable to make the payment belonging to complainant but OPs have not even placed on record any document in order to support its version. Furthermore, the OPs have failed to prove the reason behind to withhold the maturity amount of the complainant. It is not the case of the OPs that they have made the payment of the maturity amount to the complainant. In support of his version OPs only placed on record affidavit of Sunil Sinha Manager Ex.OP1/A. Thus, OPs have failed to rebut the version of the complainant by leading any cogent and convincing evidence.

16.           Furthermore, it is evident from the passbook Ex.C1 that the complainant opened an RD account with OP no.2 on 13.08.2014 for an amount of Rs.3000/- per month for a period of 72 months. It is also evident from the receipts Ex.C3 that the complainant deposited a total amount of Rs.2,16,000/- till August 2020 and on maturity it becomes Rs.3,15,000/-, which has not been disputed by the OPs in their pleadings.  In view of the matter, credence can be given to these documents and the complainant is held to be entitled for Rs.3,15,000/-. Needless to mention here, the complainant did not avail any kind of services of the OPs and has also not taken cash back, therefore, complainant is certainly and definitely entitled to the deposited amount as above. Hence, the act of the OPs for non-honouring their own scheme and by non-explaining the terms and conditions thereof to the complainant, proves deficiency in service and their indulgence into unfair trade practice, which not only resulted in the unnecessary litigation, but has certainly caused unprecedented harassment to the complainant. The act of OPs for non-payment of the amount of RD account after the date of its maturity amounts to deficiency in service as well as unfair trade practice. Hence, complainant is entitled for the maturity amount alongwith interest, compensation and litigation expenses.

15.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to refund the maturity amount of Rs.3,15,000/- of the RD account to the complainant. The OPs are further directed to pay interest @ 9% on the maturity value of the abovesaid RD account from August, 2020 (i.e. date of maturity) till its realization. We further direct the OPs to pay Rs.15,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.5500/- for the litigation expense. This order shall be complied with within 45 days from the date of receipt of copy of this order till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 07.09.2022

                                                                President,

                                                      District Consumer Disputes

                                                      Redressal Commission, Karnal.

 

             (Vineet Kaushik)     (Dr. Rekha Chaudhary) 

                   Member                  Member