BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Complaint Case no.582 of 2019
Date of Institution: 01.10.2019
Date of Decision: 06.09.2021.
Amit Goyal aged about 34 years son of Sh. Harbans Lal, R/o H.No. 13/424, Lane-5, Gobind Nagar, Hisar Road, Sirsa. ………Complainant.
Versus
- Sahara India Pariwar, Branch Located at adjoining Jyani Hospital, Near State Bank of India Main Branch, 2nd Floor, Sirsa, Distt. Sirsa through its Branch Manager.
- Sahara India Cooperative Society Ltd., Reg. Office at Sahara India Bhawan, 1, Kapporthala Complex, Aliganj, Lucknow-226024 through authorized person.
……… Opposite parties.
Complaint under Section 12 of the Consumer Protection Act, 1986.
Before: SH. JASWANT SINGH…………. PRESIDENT
MRS.SUKHDEEP KAUR……………MEMBER
Present: Sh. Subhash Chander, Advocate for complainant.
Sh. J.S. Sidhu, Advocate for opposite parties.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (after amended as under Section 35 of Consumer Protection Act, 2019) against the opposite party (herein after referred as OP) on the averments that he got deposited his saving amount i.e. Rs.1,66,906/- with the Ops in the shape of one FDR for 18 months and op no.1 i.e. local branch of the op no.2 issued the receipt and certificates after depositing the amount vide receipt No. 080711800924 dated 23.1.2018 and certificate no. 787000495466 and the maturity value of the same was Rs.1,95,447/- including interest up to the date of maturity i.e. 23.07.2019. The amount was deposited by the complainant with the ops and ops agreed to pay interest @12% per annum compoundable interest half yearly rests. That after maturity of the amount, the complainant has fulfilled all the terms and conditions for getting refund of the amount deposited but the ops are intentionally lingering on the matter on one pretext or the other and have caused deficiency in service and unfair trade practice towards the complainant. Hence, this complaint.
2. On notice, opposite parties appeared. Ops filed their joint written version taking certain preliminary objections that the complainant is not a consumer of Ops as there is no relation of consumer and service provider between the complainant and Ops. The ops are 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 op no.1 has not entered into any agreement with the complainant or received any contribution from the complainant to provide any service. Moreover, no company exists with name of op no.2. Therefore, complaint is defective for mis-joinder of unnecessary party and is liable to be dismissed on this ground alone. If, the member of the society has any grievance or dispute with the society, he is bound to refer the dispute before the Arbitrator as per Clause 11 of the terms and condition of the contribution of the scheme Sahara Credit Cooperative Society Limited. That complainant is not the consumer as defined under the Consumer Protection Act as the complainant made the contribution in the scheme for earning profit, therefore, the contribution made by complainant is a purely commercial transaction and does not come under the ambit of Consumer Protection Act. On merits, it is submitted that ops are not collecting the funds from General Public for the purpose of investment. Rather the members of the Society made contribution in the society. The complainant being member of Society with membership no.24841500757 had chosen scheme A Select to make investment in furtherance of the objects of Society. He himself approached the company to take good benefit. The payment, if any, was strictly payable as per terms and conditions of the contribution. It is further submitted that under Sahara Credit Society Scheme, there is no provision of maturity or pre-maturity payment. The complainant has made false and baseless statement. The complainant is not entitled to get Rs.1,95,447/-. The complainant’s accounts are still continuing under the terms and conditions of scheme and he is getting benefits of scheme and the ops never refused to provide its services to the complainant. Further, scheme does not provide interest over the contributed amount. It is further submitted that for getting refund, the member has to surrender original certificate and after that on the date of payment, the member has to be present at the office with Identity Proof for verification and to sign the discharge voucher. Remaining contents of the complaint are also denied to be wrong and prayer for dismissal of complaint made.
3. Complainant tendered into evidence his affidavit Ex.CW1/A, copy of receipt of the amount of Rs.1,66,906/- as Ex.C1 and copy of certificate Ex.C2.
4. On the other hand, learned counsel for ops suffered a statement that written version filed on behalf of ops be read as evidence and they do not want to file any separate evidence.
5. We have heard learned counsel for parties and have perused the case file carefully.
6. Learned counsel for complainant while reiterating the contents of complaint has vehemently argued that complainant had deposited an amount of Rs.1,66,906/- with the ops in the shape of FDR on 23.1.2018 for a period of 18 months and on the date of its maturity, i.e. 23.7.2019, he was to receive an amount of Rs.1,95,447/- from the ops, but ops have failed to release the amount of the FDR to the complainant after maturity of the same and prayed for acceptance of the complaint.
7. On the other hand, learned counsel for ops while reiterating the contents of written version has argued that ops are co-operative society registered under Multi State Co-operative Societies Act, 2002. The ops are not collecting funds from General Public for the purpose of investment and the members of the Society including complainant made contribution in the society. The complainant being member of Society had chosen scheme A Select to make investment in furtherance of the objections of Society. The payment, if any was payable as per terms and conditions of the contribution. He has further argued that there is no provision of maturity or pre-maturity payment. The complainant is not entitled to get Rs.1,95,447/- from the ops. He has further argued that this Commission has no jurisdiction to try and decide the present complaint as the ops are society and only the Register of Co-operative Society has jurisdiction to try and entertain the present complaint and prayed for dismissal of the complaint.
8. The first question for consideration before us is that whether this Commission has jurisdiction to try and entertain the present complaint or not?
9. The ops have taken a plea that ops are society and there exists an arbitration agreement between the society and its members including complainant, therefore, the dispute, if any should have been referred to the Arbitrator by the complainant as per clause 11 of the terms and condition of contribution of the scheme Sahara Credit Co-operative Society Limited. In this regard, the ops have not placed on record any arbitration agreement or any document to prove that ops are society. Therefore, this plea is not tenable in the eyes of law. Further more, if for the sake of argument, the plea of ops is admitted that Ops are society and there exists an arbitration agreement between the ops and the complainant, then also this Commission has jurisdiction to try and entertain the present complaint as it is a settled proposition of law that filing of complaint under the provisions of Consumer Protection Act, is an additional remedy despite there being an arbitration agreement and there is no bar to the proceedings before Consumer Commission. 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, reliance can be placed in case titled as M/s Emaar MGF Land Limited Versus Aftab Singh, Review Petition (C) No.2629-2630 of 2018 (SC), in which 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.
10. So, keeping in view the above discussion and ratio of the above judgment, the plea taken by ops has no force. Thus, this Commission has jurisdiction to entertain and try the present complaint.
11. The next question for consideration before us is that whether complainant is entitled to the reliefs as claimed for or not?
12. The complainant in order to prove his case has tendered his affidavit Ex.CW1/A, in which, he has reiterated all the facts mentioned in his complaint. He has also tendered in evidence copy of receipt of the amount of Rs.1,66,906/- issued by ops dated 23.1.2018 as Ex.C1. The complainant has also placed on record copy of certificate bearing No.787000495466 issued by ops as Ex.C2, which goes to show that complainant deposited a sum of Rs.1,66,906/- with the ops and the date of maturity is mentioned in the certificate as 23.7.2019 and maturity amount is mentioned as Rs.1,95,447/- and rate of interest payable is mentioned as 11%. The receipt and certificates Ex.C1 and Ex.C2 prove that the amount of Rs.1,66,906/- was deposited by the complainant with the OPs in fixed deposit. On the other hand, the ops have not led any evidence rather stated that their written version be read as evidence. There is no corroborative evidence on file in support of written version of the ops. The complainant has duly proved on record by leading cogent and convincing evidence that he is entitled to the maturity amount of Rs.1,95,447/- from the date of maturity i.e. 23.07.2019 alongwith agreed rate of interest i.e. 11% per annum. Though ops have taken a plea that the complainant has joined as member in the society and got deposited amount with the society and the amount of the complainant is lying deposited with the society, but however, they have not placed on record any document from which it could be presumed that OPs have made payment of the maturity amount of the FDR to the complainant or they have ever made any offer to the complainant to receive the payment. The Ops have also not placed on record any statement of account showing the outstanding balance of the complainant against the Ops. Non-payment of the amount of FDR to the complainant after the date of maturity by the Ops is deficiency in service as well as unfair trade practice on their part. Hence, complainant is entitled for the maturity amount alongwith interest, compensation and also litigation expenses. The complainant has deposited amount of Rs.1,66,906/- with the ops on 23.1.2018 in fixed deposit for a period of 18 months and on the date of maturity i.e. 23.7.2019, the ops were liable to pay an amount of Rs.1,95,447/- to the complainant but the ops have not paid any amount to the complainant.
13. In view of the above discussion, we allow the present complaint and direct the opposite parties to refund the maturity amount of Rs.1,95,447/- to the complainant alongwith interest at the rate of 11% (i.e. agreed rate of interest) per annum from the date of maturity i.e. 23.7.2019 till actual payment within a period of 45 days from the date of receipt of copy of the order. We also direct the ops to further pay a sum of Rs.10,000/- as compensation for harassment and mental agony and Rs.5,000/- on account of litigation expenses to the complainant within above said period. A copy of this order be supplied to the parties free of costs. File be consigned to record room.
Announced in open Commission. Member President,
Dated: 06.09.2021. District Consumer Disputes
Redressal Commission, Sirsa.
