BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Complaint Case no. 537 of 2019
Date of Institution: 12.09.2019
Date of Decision: 22.07.2022.
Raman Bajaj son of Shri Manohar Lal, resident of Gali No.4, near Jai Shree High School, Begu Road, Sirsa.
………Complainant.
Versus
Sahara India Real Estate Corpn. Ltd., 2nd Floor, Hartron Computer Centre, near State Bank of India, Hisar Road, Sirsa, through its Manager.
……… Opposite party.
Complaint under Section 12 of the Consumer Protection Act, 1986.
Before: SH. PADAM SINGH THAKUR………. PRESIDENT
MRS.SUKHDEEP KAUR…….………MEMBER
SH. SUNIL MOHAN TRIKHA……….MEMBER
Present: Sh. A. C. Sihag, Advocate for complainant.
Sh. J.S. Sidhu, Advocate for opposite party.
ORDER
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986 (after amendment under Section 35 of Consumer Protection Act, 2019) against the opposite party (referred as OP) on the averments that complainant being old member with op deposited Rs.1,25,000/- with op on 8.2.2016 and op issued certificate bearing no. 85000597064 receipt no. 34016012787 and membership no. 924846000125. That as per condition no.10 printed on the back of certificate, complainant was/is entitled to withdraw the amount/ contribution after the expiry of 36 months from the date of payment of the contribution alongwith benefits and as such complainant is entitled to withdraw the amount alongwith benefits after expiry of three years which has been completed on 7.2.2019. It is further averred that now after expiry of three years, complainant visited to the office of op several times and requested for payment of contribution alongwith benefits, but op started putting off the matter with one pretext or the other and did not make the amount/ payment of contribution alongwith benefits. That a legal notice dated 8.7.2019 was also got served upon op but to no effect. It is further averred that such act and conduct of deficiency in service and unfair trade practice on the part of op, complainant has suffered unnecessary harassment and mental agony and genuine request/ demand of complainant has been denied by op wrongly and arbitrarily, hence complainant is legally entitled for amount of Rs.50,000/- as compensation for causing harassment and is also entitled to the litigation expenses of Rs.25,000/- in addition to the amount of Rs.1,25,000/- alongwith benefits. Hence, this complaint.
2. On notice, opposite party appeared. Op filed written statement taking certain preliminary objections that the complainant is not a consumer of Op as there is no relation of consumer and service provider between the complainant and Op. The op is Society duly registered under ‘Multi State Co-operative Society Act, 2002” and the complainant is a member of Society. Thus, relation between the complainant and ops 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. That complainant had contacted the office of Saharayn Universal Multipurpose Society Limited to become member and after understanding the bye-laws and objects of the Society he had obtained membership of Society. As such being a member of society he got right to take part in the schemes of Society. He simply contributed his money in furtherance of the objects of society and any person who is not a member has no right to take part in the schemes of society. The complainant being a member is himself share holder and a part of society, as such he cannot separate himself from society. That this Commission has no jurisdiction to try the present complaint. That apart from above, if the complainant who is a member of the Society has any grievance or dispute with the Society, he is bound to refer his dispute before Arbitrator as per arbitration agreement under Clause 18 of the scheme Super AB. On merits, it is submitted that if the complainant had made contribution with the society the same would have under the capacity of member of the Society and the contribution is made in furtherance of the objections of society. It is further submitted that the Society runs its schemes among its members only and only its members have right to get benefit of the Society’s scheme. Clause-1 of terms and conditions of scheme provides that only a regular member who got minimum one share of the Society shall be only entitled to contribute under the schemes of society. Every member of society is part of society and except the members no one can avail the benefits of schemes of society. It is further submitted that the Society does not receive deposits and there is no provision under the scheme for deposit. As he did not submit any application for redemption of any voucher or coupon there was no occasion for processing any request of redemption. The members of society can avail the benefits of scheme as per the terms and conditions of scheme. If any member has made contribution he must have to surrender the original contribution certificates alongwith the prescribed application form to get the benefit as per the provisions of the scheme. It is further submitted that complainant neither approached to the op for getting any benefit as alleged by him nor produced any original certificate that was ever issued by the Society. The complainant is not entitled to get Rs.1,25,000/- or any interest over this amount from up. Under the terms and conditions of scheme, there is no provision of payment of interest over contribution. All other contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
3. The complainant has tendered his affidavit Ex.CW1/A, receipt of the amount of Rs.1,25,864 dated 8.2.2016 Ex.C1, receipt of another amount of Rs.77100/- dated 14.08.2012 Ex.C2, copy of legal notice Ex.C3, postal receipt Ex.C4 and copy of adhar card Ex.C5.
4. On the other hand, op did not lead any evidence rather learned counsel for op made a statement that the written statement filed on behalf of op may be read in evidence on behalf of op.
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. The complainant in order to prove his complaint has furnished his affidavit Ex.CW1/A in which he has reiterated all the contents of his complaint. He has also placed on file receipts/ certificates as Ex.C1 as well as Ex.C2. According to complainant, on 8.2.2016, he deposited an amount of Rs.1,25,000/- with the op vide certificate bearing No. 85000597064 and as per condition no.10 printed on the back of certificate, he is entitled to withdraw his amount/ contribution after the expiry of 36 months from the date of payment alongwith benefits and said period of 36 months has already expiry on 7.2.2019. The complainant has further alleged that after expiry of three years, he visited several times to the office of op and requested for payment of contribution alongwith benefits, but op did not pay any heed to the genuine requests of the complainant. Though, complainant has alleged deposit of the amount of Rs.1,25,000/- with the op on 8.2.2016, but the perusal of certificate Ex.C1 reveals that an amount of Rs.1,25,864/- was deposited by him with the opposite party. In the Clause 10 of terms and conditions for contribution printed on the back of said certificate issued by op to the complainant it is clearly mentioned as under:-
10. The Member shall be free to withdraw his/ her Contribution any time after the expiry of 36 months from the date of payment of the Contribution, in such a case, the Society may compensate the Member by giving a benefit on the Contribution made by such Member of an amount not exceeding Rs.53,600/- on a contribution of Rs.1,00,000/- (One Lac Only) in the form of cash or cash equivalent products including gold, jewellery etc. as decided by the governing body of the Society. The amount may very for lesser or higher contribution.
7. From the above said clause of terms and conditions of certificate issued by op, it is clearly evident that complainant is free to withdraw his contribution after the expiry of 36 months from the date of deposit. Admittedly, the complainant has deposited the above said amount of Rs.1,25,864/- on 8.2.2016 and period of three years has already been expired on 7.2.2019, therefore, complainant was entitled to claim his above said amount from the opposite party. The opposite party has not led any evidence in support of its written version. The averments made by op in its written version have not been proved by op by leading and cogent evidence and therefore, simple version of op without any supporting evidence cannot be relied upon. The op has not proved on record that op has ever given benefit of the contribution or any share of the profit of the amount deposited by complainant to him being Member of the Society as alleged by op. Rather it is proved on record that complainant is entitled to claim his amount after expiry of three years from the opposite party which he claimed several times from the op but op has failed to return the above said amount of Rs.1,25,864/- alongwith benefits to the complainant.
8. During the course of arguments, learned counsel for op has strongly contended that as per scheme of the company, complainant is not entitled to file a consumer complaint rather he is bound to refer his dispute before the Arbitrator as per arbitration agreement. On the other hand, learned counsel for complainant has contended since remedy provided under Consumer Protection Act is an additional remedy, so complaint filed by present complainant is very much maintainable. We found no substance in the plea of learned counsel for op as remedy provided under Consumer Protection Act is an additional remedy and complainant can opt for this remedy, so it cannot be said that present complaint is not maintainable. Moreover, op has not placed on file any scheme or arbitration agreement executed between the parties. The Hon’ble Supreme Court of India in case titled as Virender Jain vs. Alaknanda Cooperative Group Housing Society Limited and others, Civil Appeal No. 64 of 2010 decided on 23.04.2013 has held that dispute between Member and Society can be decided by Consumer Forum. The principle of law laid down in the aforesaid judgment is squarely applicable to the case in hand and as such it is held that present complaint is maintainable against op under the provisions of Consumer Protection Act. More so, as per Section 100 of Consumer Protection Act, 2019, the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Therefore, in view of the provisions of Section 100 of Consumer Protection Act, 2019 as well as law laid down by our own Hon’ble Apex Court, the objections taken by op in written statement are not at all maintainable and op is liable to refund the amount of complainant alongwith interest. Non payment of amount of complainant alongwith benefits clearly amounts to deficiency in service as well as unfair trade practice on the part of op and as such complainant is also entitled to compensation and litigation expenses from the op besides amount of Rs.1,25,864/- alongwith interest.
9. In view of our above discussion, we allow this complaint and direct the opposite party to pay the amount of Rs.1,25,864/- alongwith interest @6% per annum from the date of deposit of the amount i.e. 8.2.2016 till actual realization to the complainant. We also direct the op to pay a sum of Rs.15,000/- as compensation for harassment including litigation expenses to the complainant. The op is liable to comply with this order within a period of 45 days from the date of receipt of copy of this order, failing which complainant will be at liberty to initiate proceedings under Section 71/72 of the Consumer
Protection Act, 2019 against the op. A copy of this order be supplied to the parties free of costs. File be consigned to record room.
Announced Member Member President,
Dated: 22.07.2022. District Consumer Disputes
Redressal Commission, Sirsa.
JK
