Haryana

Panchkula

CC/251/2020

NAND LAL. - Complainant(s)

Versus

SAHARA INDIA PARIVAR. - Opp.Party(s)

SHITAL BINDAL

09 Jan 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA.

 

 

Consumer Complaint No	:	251 of 2020
Date of Institution	:	26.08.2020
Date of Decision	:	09.01.2023

 

Nand Lal aged 46 years son of Shri Ram Chander, resident of Village Naggal  Bhaga, Tehsil Kalka, District Panchkula.                                                                                                                                                                                                           ….Complainant

Versus

1.     Sahara India Parivar, Branch Office upon Axis Bank, Car Centre Building, Rambagh Road, Kalka, Tehsil Kalka, District Panchkula-133302, through its Branch Manager.

2.     Saharayn Universal Multipurpose Society Limited Regd: Office 195, Zone-1, In front of D.B.Mali, N.P.Nagar, Bhopal, Madhya Pradesh- 462011.

3.     Sahara India Commercial Corpn. Ltd. Commercial Office, Sahara India Bhawan, Kapporthala Complex, Lucknow-226024, through its Managing Director.

                                                              ….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:     Sh.Sheetal Bindal, Advocate for the complainant.

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

ORDER

(Per Satpal, President)  

1.             Briefly stated, the facts of the case are that the complainant had invested a sum of Rs.114789 on 30.06.2016 and an another sum of Rs.2493/- on 23.09.2016 under the Super AB Scheme floated by OP No.1, vide two separate certificates. The details of invested given in tabular form as under:-

Sr.No.	Complainant’s name	Membership no. and Certificate no.	Receipt no.	Amount  deposited /date of  deposit	Date of maturity
1	Nand Lal	924006000451 & 105000791165	34019395469	114789/ 30.6.2016	30.12.2018
2	Nand Lal	924006000532 &  105000819505	34019395656	2493/- 23.09.2016	23.03.2019

 It is stated that the above said fixed deposits had matured on the above mentioned date but the Op No.1 is lingering the payment of maturity amount to complainant on one pretext or the other. The complainant has visited the OP No.1 several times but to no avail and ultimately a legal notice dated 08.06.2020 was sent to the Ops asking the release of the maturity amount. The OPs have taken no action on the legal notice and thus, due to the act and conduct, 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. It is submitted that Saharyn Universal Multipurpose Ltd. is duly registered under “Multi State Cooperative Society Act, 2002” and the complainant is a member of the society; thus relation between the complainant and the OPs is of a member and the society. Therefore, for any dispute between society and member, complaint is not maintainable. There is a valid arbitration agreement between the parties and OPs always works as per the terms of the agreement and byelaws of the society. On merits, it is submitted that the complainant is not a member of society and thus is not competent to file the claim on behalf of his diseased wife. It is submitted that wife of the complainant had herself visited the office of the OPs and became the member of the society to get benefits under the said scheme. It is submitted that society was always ready to make the payment as per conditions of the scheme but due to demand of enhanced interest on maturity amount, the payment could not be made to the complainant at that time. There is no deficiency on part of the OPs. The demand raised by the complainant for enhanced rate of interest on the maturity amount was beyond the scheme and scope of the agreement signed by the wife of the complainant; So there is no deficiency in service on the part of the Ops and prayed for dismissal of the present complaint.  

3.             The learned counsel for the complainant has tendered affidavit as Annexure C/A along with documents Annexure C-1 to C-4 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for OPs No.1 to 3 by making a separate statement stated that the written statement filed on 25.02.2021 may be read into evidence on behalf of the Ops No.1 to 3 and close the evidence.   

4.             We have heard the learned counsels for the parties and gone through the record available on file, minutely and carefully.

5.             During arguments, the learned counsel for 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 the relief as claimed for in the complaint.

6.             On the other hand, 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).

                   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, if a dispute arises, if any, between the society and the members, then same 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.

                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 an 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. 

7.             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”.

8.             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.

9.             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 For a. 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.

10.            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”.

11.            Further, reliance can be placed upon the order dated 13.07.2017 passed by the larger bench of the Hon’ble National Commission in Consumer Complaint no.701 of 2015 titled as Aftab Singh Vs. EMAAR MGF Land Limited & Anr. wherein it was held that an Arbitration Clause in the afore-stated kind of Agreements between the complainants and the Builder cannot circumscribe jurisdiction of a Consumer For a, 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 was also 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.

12.            On merits, it is not in dispute that a sum of Rs.114789/- was paid by the complainant on 30.06.2016 vide receipt no.34019395469 and certificate no.105000791165. Further, the payment of Rs.2,493/-by the complainant vide receipt no.34019395656 and certificate no. 105000819505  on 23.09.2016 is also not in dispute. As per terms and conditions provided on the back side of the Certificate(Annexure C-1 & C-2), any member is at liberty to withdraw his/her contribution any time after the expiry of 30 months from the date of payment. Evidently, a period of more than 4 years has expired at the time of filing of the present complaint. Therefore, as per terms and conditions prescribed over leaf on the certificate in question, the complainant is entitled to seek refund of his paid amount. 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 higher 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-1 &  C-2) on account of financial constraints 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.

13.           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 complainant. There was no bar or hindrance over the OPs to release the maturity amount to the complainant 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.

14.            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.

15.            Surprisingly, the Ops have made the averments in their reply that the wife of the complainant had become a member of the society. Infact, the complainant had become a member of society by paying a sum of Rs.1,14,789/- and Rs.2,493/-. The complainant has claimed the release of the amount paid by him vide certificates(Annexure C-1 & C-2).

16.            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 Rs.1,14789/- to the complainant along with amount as agreed vide terms and conditions mentioned on the back-side of the certificates(Annexure C-1) till maturity(30.12.2018) i.e. after the expiry of 30 months from the issuance  of  date of certificates and thereafter, interest @9%(S.I.) per annum w.e.f. date of maturity i.e. 30.12.2018 till its actual realization.
2. The Ops are directed to make the payment of Rs.2,493/- to the complainant along with amount as agreed vide terms and conditions mentioned on the back-side of the certificates(Annexure C-2) till maturity(23.03.2019) i.e. after the expiry of 30 months from the issuance  of  date of certificates and thereafter, interest @9%(S.I.) per annum w.e.f. date of maturity i.e. 23.03.2019 till its actual realization.
3. The OPs are also directed to pay an amount of Rs.15,000/- to the complainant on account of mental agony and harassment.
4. The Ops are further directed to pay an amount of Rs.5,500/- as cost of litigation charges.

 

17.            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:09.01.2023

 

 

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