Haryana

Karnal

CC/723/2021

The Ladies Industrial Home - Complainant(s)

Versus

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

Sooresh Khanna

08 Feb 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 723 of 2021

                                                        Date of instt.29.12.2021

                                                        Date of Decision:08.02.2023

 

The ladies Industrial Home, Sewa Samiti, Kunjpura Road, Karnal through its authorized representative Shri Parvesh Gaba-General Secreary.

                                               …….Complainant.

                                              Versus

 

1.     Sahara Credit Cooperative Society Limited, SCO no.1110-1111 (2^nd floor), Sector-22-B, Chandigarh through its authorized signatory.

 

2.     Sahara Credit Cooperative society limited, Sahara India Bhawan, 1, Kapoorthala Complex, Aliganj, Lucknow-226024.

 

                                                                      …..Opposite Parties.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary……Member

          

 Argued by: Shri Sooresh Khanna, counsel for the complainant.

                    Shri Vikas Yadav, counsel for the OPs.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that on the request and allurement of OP no.1, complainant society invested a huge amount of Rs.9,10,000/- with the OPs on 31.12.2011 for a tenure of 96 months against 55 receipts in the shape of fix deposits account bearing no.23973704293 to 23973704347 whereas the complainant availed 50% loan facility of Rs.4,55,000/- on 16.04.2013 against the said amount of Rs.9,10,000/- from the OPs for the smooth functioning of the complainant’s society. After completion of maturity period of said deposits on 31.12.2019, the complainant contacted the OPs to encash the amount due on the said FDRs but they showed their inability to make payment because of paucity of funds with the company, however, assured that amount with interest will be paid within next 2-3 months. After waiting three months, complainant again approached the OP no.1 and requested to release the maturity amount but OPs did not pay any heed to the request of complainant. Thereafter, complainant requested the OPs time and again to release the amount through written communications, vide registered letters dated 05.09.2020, 25.03.2021, 28.08.2021, 12.10.2021 but of no avail. At the time of maturity on 31.12.2019, the outstanding loan amount was to be adjusted from the maturity amount of Rs.23,76,920/- and balance was to be paid to the complainant. The net amount payable after adjustment of loan comes to Rs.13,03,374/- . As the amount due was not paid to the complainant on maturity so further interest of Rs.3,47,700/- accrued after maturity till today is payable by the OPs. Thus, a total sum of Rs.16,51,074/- is due and recoverable till the date of filing of the complaint. Complainant again and again requested the OPs to make the payment of FDRs but they showed their inability to make the payment. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; jurisdiction; non-joinder and mis-joinder of necessary party; concealment of true and material facts. On merits, it is pleaded that this Commission has got no jurisdiction to entertain and try the present complaint as the OPs are 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 in the office of the OPs for the refund of the maturity amount as alleged. 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.             Learned counsel for complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of revised certificate of registration of society Ex.C1, copy of resolution Ex.C2, copy of statement of account Ex.C3, copies of application of complainant dated 05.09.2020, 25.03.2021, 28.08.2021, 12.10.2021 03.12.2021 Ex.C4 to Ex.C8, AD/postal receipts Ex.C9 to Ex.C13 and closed the evidence on 31.08.2022 by suffering separate statement.

5.             On the other hand, OP has tendered into evidence affidavit of Sunil Kumar Sinha, Manager as Ex.OPW1/A and closed the evidence on 28.10.2022 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’s society has deposited an amount of Rs.9,10,000/-on 31.12.2011 for the period of 96 months with the OPs in the shape of FDR. After maturity of the said FDR, the complainant was entitled for refund of aforesaid amount alongwith interest. The complainant approached the OPs to refund the invested amount alongwith interest, then OPs firstly tried to linger on the matter on one pretext or the other and finally refused to pay the same and prayed for allowing the complaint.

8.             Per contra, learned counsel for OP, while reiterating the contents of written version, has vehemently argued that S.E.B.I. has filed petition against the OP before the Hon’ble Supreme Court of India, vide order dated 16.09.2016 the OPs have been directed to deposit Rs.300 crores with the SEBI and the OPs are held entitled to sell moveable properties owned by them subject to the condition that the entire sale consideration received by them is deposited in SEBI Sahara Account and the list of the properties so sold and the consideration received against the same is filed in this court. So, in view of the above said reason the OPs are helpless to make payment of the complainant. However, after settlement of entire dispute with SEBI the OPs would proceed to pay the amount of the complainant. He further argued that this Commission has no jurisdiction to try and decide the present complaint as the OPs are 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.             The first question arises for consideration whether the present complaint is maintainable before this Commission or not?

10.           The OPs have taken a plea that OPs are a society so Commission has no jurisdiction to entertain the present complaint. In this regard, we are of the considered view that the OPs have not placed on record any Arbitration Agreement or any document to prove that OPs are a society. Therefore, this plea is not tenable in the eyes of law.  Furthermore, if for the sake of argument it may be considered that OPs are a society and there exists an arbitration clause in the agreement executed between parties, in that case also this Commission has jurisdiction to try and 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 place 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 has 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.

11.           Hence, keeping in view the above discussion and ratio of the law laid down in the above judgments, this Commission has jurisdiction to entertain and try the present complaint.

12.           Complainant has deposited an amount of Rs.9,10,000/- on 31.12.2011 with the OPs in shape of fixed deposit for a period of 96 months and the date of maturity was 31.12.2019 and on maturity it becomes Rs.23,76,920/- Complainant has taken a loan of Rs.4,55,000/- on 16.04.2013 against the amount deposited by him. After adjustment of the loan amount from the maturity amount the net payable comes to Rs.13,03,374/-. This fact has not been denied by the OPs. Moreover, it has also proved from Ex.C3 detail of amount investment, total maturity amount comes to Rs.23,76,920/- and said detail has not been denied, rather it is signed by the OPs. After the maturity of the abovesaid amounts, complainants moved various application dated 05.09.2020, 25.03.2021, 28.08.2021, 12.10.2021 03.12.2021 Ex.C4 to Ex.C8 to OPs and demanded the maturity amount. The said applications have been duly received by the OPs, this fact has been proved from AD/postal receipts Ex.C9 to Ex.C13.

13.           In view of the matter, credence can be given to that documents and the complainant’s society held entitled to Rs.13,03,374/-. Needless to mention here, the complainant did not avail any kind of services of the OP and have also not taken cash back, therefore, they are certainly and definitely entitled to the deposited amount as above but OPs have failed to refund the said amount. Hence, the act of the OPs for non-honouring their own scheme, non-explaining the terms and conditions thereof to the complainant so that they could get benefit of the same for 96 months, proves deficiency in service and their indulgence into unfair trade practice, which not only resulted in the present unnecessary litigation, but has certainly caused unprecedented harassment to the complainant’s society.

14.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to refund the amount of Rs. 13,03,374/- to the complainant alongwith interest @ 9% per annum from the date of maturity of the FDR i.e.31.12.2019 till its realization. We further direct the OPs to pay Rs.25,000/- to the complainant on account of mental agony and harassment and Rs.11,000/- for the litigation expenses. 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:08.02.2023

                                                                       

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

(Vineet Kaushik)           (Dr. Rekha Chaudhary)

                     Member                        Member