Haryana

Ambala

CC/101/2021

Shiv Kumar Aggarwal - Complainant(s)

Versus

Saharayan Universal Multipurose Society Ltd - Opp.Party(s)

Rohit Mittal

06 Apr 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                                          Complaint case No.:  101 of 2021.

                                                                          Date of Institution           :    18.02.2021.

                                                                          Date of decision    :    06.04.2022.

 

Shiv Kumar Aggarwal son of Shri Dharampal, aged about 73 years, at present R/o 44, Palam Vihar, Ambala Cantt.

                                                                                      ……. Complainant.

 

Versus

 

1.       Saharayan Universal Multipurpose Society Limited, Through its        Managing Director Shri Subrata Roy, Regd. Office, 195, Zone-I, in front     of DV Mall, M.P.Nagar, Bhopal-462 011.

2.       Saharayan Universal Multipurpose Society Limited, through its Managing   Director Shri Subrata Roy, Head Office: Sahara India Centre, # 2,       Kapoorthala Complex, Aliganj, Lacknow-226 024.

3.       Saharayan Universal Multipurpose Society Limited, Through its Regional   Manager Shri Sanjay Tyagi, Regional Office G.T. Road, Gohana Road,         Panipat 462 011.

4.       Saharayan Universal Multipurpose Society Limited, through its Branch       Manager Local Office: Sahara India Pariwar, # 5744-46, 1^st Floor,         Nicholson Road, Ambala Cantt.

 

                                                                                      ..…. Opposite Parties.

                            

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.         

                            

Present:       Shri Rohit Mittal, Advocate, counsel for the complainant.

                   Shri Manish Sharma, Advocate, counsel for the OPs.

 

Order:        Smt. Neena Sandhu, President.

Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’), praying for issuance of following directions to them:-

1. To pay the total amount of Rs.30,50,496/-, deposited by the complainant vide three certificates i.e. the maturity amount of Rs.10,16,832/-, of each certificate alongwith interest @ 15.25 % per annum, from the date of maturity, i.e. 23.02.2019, till its realization.
2. To pay Rs.1,00,000/-, as compensation for the mental agony and physical harassment suffered by the complainant.
3. To pay Rs.50,000/-, as litigation expenses. 

 

2.                Brief facts of the case are that the OP No.1 is a society, owned and managed by Sahara Group, dealing in finances, having its registered office at Bhopal and Head office at Lucknow and having branches all-over India including Ambala Cantt.  OPs by making big advertisement regarding their investment schemes, in order to secure investment from the consumers allured them that under the said scheme they will get handsome returns alongwith interest @ 15.25%, on maturity. Complainant invested in total Rs.19,86,000/-, i.e Rs.6,62,000/- vide certificate No.85000607966, Rs.6,62,000/- vide certificate No.85000607967 and Rs.6,62,000/- vide certificate No.85000607968 under receipt No.3416418545-46 & 47 membership No. 923986000386, having maturity date 23.02.2019. OPs were to pay the maturity amount of Rs.30,20,469/- in all the three certificates mentioned above i.e maturity amount of Rs.10,16,832/- in each of the certificate on the date of maturity i.e 23.02.2019. Complainant requested the OPs, to pay the maturity amount but they did not pay the same, by saying that due to paucity of funds they are not in a position to pay the amount and the amount will be paid after a short time. Complainant served a legal notice dated 13.11.2019, upon the OPs but of no avail. By not paying the maturity amount of all the three certificates mentioned above, the OPs have committed deficiency in service. Hence, the present complaint.

3.                Upon notice, OPs appeared through counsel and filed written version, raising preliminary objections with regard to maintainability and jurisdiction etc. On merits, it is stated that the Saharayan Universal Multipurpose Society Limited is duly registered under “Multi State Cooperative Society Act, 2002” and complainant is the member of the said society. Complainant became the member of the Society to get benefits of the said scheme and decided to become the member, after reading and signing the bye laws of the society, which are mentioned on the backside of application form, duly signed by the complainant. Thus, relation between the complainant and the OPs is of member and society. The bye laws of the society, clearly indicates that any dispute between the society and its member/account holder should be decided by the arbitrator as per Section 84 of the Multi State Co-operative Society Act, 2002. It is further stated that as per Section 25(5) of the Multi State Co-operative Society Act, 2002, it shall be the duty of every member of the Multi State Co-operative Society to promote and protect the interests and objects of the society. As per Section 55 of the Multi State Co-operative Society Act, 2002, a Multi State Co-operative Society shall have a charge on the share or contribution or interest in the capital and on the deposits of a member or past or deceased member and on any dividend, bonus or profits payable to a member or past member or the estate of a deceased member to the society and may set-off any sum credited or payable to a member or past member or the estate of deceased member in or towards payment of any such debt. OPs are always ready to make the payment as per the condition of the scheme but due to enhance demand of interest on maturity amount, the payment could not be made to the complainant at that time. There is no deficiency in service on the part of the OPs. Rest of the averments of the complainant were denied by the answering OPs and prayed for dismissal of the present complaint.

4.                 Learned counsel for the complainant tendered affidavit of complainant as Annexure CA along with documents Annexure C-1 to C-11 and closed the evidence of the complainant. On the other hand, learned counsel for OPs has made a statement that written version of OPs be read as evidence of OPs and closed the evidence of OPs.   

5.                We have heard the learned counsel for the parties and carefully gone through the case file.

6.                 At the outset, the learned counsel for the OPs, vehementally argued that OPs is a society duly registered under Multi State Co-operative Society Act, 2002 and the complainant is the member of the society, as such, for any dispute between the society and the member, consumer complaint is not maintainable. In support of his contention, the learned counsel for the OPs has placed reliance on the judgment of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in the case of M/s Anjana Abrahim Chembethil Versus Managing Director, The Kothattukulam Farmers Service Co-operative Bank Ltd. (2013) 4 CPJ 333 (NC) and also on the judgment dated 10.05.2021, passed by Tripura State Consumer Disputes Redressal Commission, Agartala in the case of Smt. Paramita Deb Versus The Sector Head, Agartala City Sector Office, Sahara Credit Co-operative Society Limited.

7.       To this effect, the learned counsel for complainant has submitted that the dispute is with regard to deposit of amount under the scheme of the OPs for a particular period and the refund of the same alongwith benefits. As such, the same certainly amounts to rendering of service as defined in the Act. There is element of deficiency in service due to non-performance of the contract, whereby service of the OPs has been hired by the complainant by depositing abovesaid amount with them, thus, Consumer Court has jurisdiction to entertain the dispute, where consumer comes to the Commission regarding deficiency in service. Thus, the present complaint filed by the complainant is maintainable before this Hon’ble Commission. In support of his contention, the learned counsel for the complainant has placed reliance upon the judgments of the Hon’ble Supreme Court of India, New Delhi, rendered on 11.12.2003, in Civil Appeal No. 92 of 1998, Secretary, Thirumurugan Co-operative Agricultural Credit Society Versus M. Lalitha (dead) through L.Rs and other and rendered on 24.03.2013, in Civil Appeal no.64 of 2010, Virender Jain Versus Alaknanda Co-operative Group Housing Society Limited and others.

 8.      The plea of the complainant is that the OPs refused to pay the maturity amount and by doing so, they have committed deficiency in service, as such, he filed the present complaint before this Hon’ble Commission. The stand of the Ops is that complaint is not maintainable under the provision of Consumer Protection Act as the relation between the complainant and OPs is of member and society. However, we do not find any merit in this submission of the OPs because it is not a dispute between the member and the co-operative society regarding its governance, in fact, it is a dispute with regard to non-payment of the maturity amount, by the OPs, to the complainant. As such, there is element of deficiency in service, due to non-performance of the contract whereby service of the OPs has been hired by the complainant by deposing the aforesaid amount with them. It may be stated here that in the case of Samruddhi Co-operative Housing Society Limited Versus Mumbai Mahalaxmi Construction Pvt. Ltd., decided on 11.01.2022, the Hon’ble Supreme Court of India has held that the members of the appellant society are well within their rights as ‘Consumer’ to pray for compensation as a recompense for the consequent liability (such as payment of higher taxes and water charges by the owners) arising from the lack of an occupancy certificate.  The Hon’ble Supreme court of India in the case of in Varinder Jain Versus Alaknand Co-Operative (Supra) has held that disputes between the members and their Society can be decided by the Consumer Commission. Moreover, as per Section 100 of the Consumer Protection Act, 2019, the remedy before Consumer Commission is an addition to and not in derogation of any other provision of any other law for the time being in force. The mere fact that some other remedy has been provided, to an aggrieved under some other law, would not oust the jurisdiction of the consumer commission in view of Section 100 of the CP Act, 2019 in respect of the matter regarding deficiency vis. a vis. adoption of unfair trade practice. The Hon’ble Supreme Court of India in the case of Secretary, Thirumurugan Co-operative Agricultural Credit Society Vs. M. Lalitha (Ded) through L.R. & Ors., (Supra) has held that the remedy before the Consumer Forum is in addition and not in derogation to the remedy under other Acts, unless there is clear bar to jurisdiction.  Merely because the rights and liabilities are created between the Members and the Management of the Society under the Co-operative Societies Act, it cannot take away or exclude the jurisdiction conferred on the Fora under the CP Act. With regard to the plea of the opposite parties that the dispute between the parties is liable to be referred to the arbitrator, as per Clause 84 of the Multi State Co-operative Society Act, 2002. It needs to be mentioned here that larger bench of Hon’ble National Commission vide order dated 13.07.2017, in CC No. 701 of 2015, titled as Aftab Singh Versus  EMAAR MGF Land limited and Anr. has held that in the kind of agreement between the complainant and the builders cannot circumscribe the jurisdiction of consumer Fora, notwithstanding with the amendments made to Section 8 of the Arbitration Act, 1996. The Civil appeal filed by the M/s EMAAR MGF Land limited, against the order dated 13.07.2017, of the Hon’ble National Commission, in the above referred case, was dismissed by the Hon’ble Apex Court vide its order dated 13.02.2018. Review Petition filed against the order dated 13.02.2018, of the Hon’ble Supreme Court, in the aforesaid case, was also dismissed by the Hon’ble Supreme Court vide its order dated 10.12.2018. The principle of laws in the aforesaid judgments is squarely applicable to the facts of the present case and as such it is held that existence of an Arbitration Clause in any agreement is not a bar to resolve the present dispute by this Commission and the complaint filed by the complainant against the OPs is maintainable under the provision of the Consumer Protection Act, 2019.

9.                From the perusal of three Certificates No.085000607966, 085000607967 and 085000607968, Annexure C-2 to C-4, it is evident that on 23.02.2016, complainant deposited Rs.6,62,000/-, each in the abovesaid certificates, with the OPs.  From the perusal of the term No.10 of the terms and conditions for contribution, printed on the backside of the certificate, which reads as under:-

           The member shall be free to withdraw his/her contribution any-time after the expiry of the 36 months from the date of payment of the contribution, in such a case, the society shall compensate the member by giving a benefit on the contribution made by such member on 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 vary for lesser or higher contribution. 

          Complainant is entitled to get the amount deposited by him with the OPs on 23.02.2016, alongwith benefits on 23.02.2019, i.e after the expiry of 36 months from the date of payment. On maturity complainant requested the OPs to pay him the maturity amount but they did not pay the said amount to him. By not paying the maturity amount, the OPs have committed deficiency in service and are thus liable to pay the maturity amount to the complainant alongwith interest. They are also liable to pay compensation to the complainant for the mental agony and physical harassment caused to him and litigation expenses.

10.              In view of the aforesaid discussion, we allow the present complaint and direct the OPs in the following manner:-

1. To pay the maturity amount of all the above-mentioned three certificates, as per term No.10 of the terms and conditions for contribution, to the complainant alongwith interest @ 9% per annum w.e.f 23.02.2019, i.e the date of maturity, till its realisation.  
2. To pay Rs.5,000/- as compensation for the mental agony         and physical harassment caused to the complainant.

                   (iii)    To pay Rs.3,000/- as litigation expenses.

                   The OPs are further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order. Certified copy of the order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.  

Announced on :06.04.2022.

 

 

 

          (Vinod Kumar Sharma)            (Ruby Sharma)               (Neena Sandhu)

              Member                                  Member                       President

 

 

 

 

 

 

 

 

 

Present:       Shri Rohit Mittal, Advocate, counsel for the complainant.

                   Shri Manish Sharma, Advocate, counsel for the OPs.

 

Vide our separate detailed order of even date, the present complaint has been allowed. File be consigned to Record Room, after due compliance.

Announced on :06.04.2022.

 

 

 

          (Vinod Kumar Sharma)  (Ruby Sharma)               (Neena Sandhu)

              Member                         Member                       President