JUDGMENT Per Justice Sham Sunder , President This appeal has been filed by OP No.2 Anil Pawha (now appellant) against the common order dated 11.12.2009 passed by the District Consumer Disputes Redressal Forum-I, U.T.Chandigarh (hereinafter to be referred as the District Forum only), vide which the complaint of the complainant Virain Sandhu (now respondent No.1) was allowed and the opposite parties were directed to pay jointly and severally the amount of Rs.6,14,000/- alongwith interest at the agreed rate of 16% per annum, since 16.4.2005 till its payment. The OPs were further directed to pay Rs.5000/- to the complainant towards costs of litigation. It was also made clear that initially the Society -OP NO.3 would make payment to the complainant, within three months, from the date of order i.e. 11.12.2009 and if the full amount was not paid, or no amount was paid by OP No.3, then the remaining amount, or the entire amount, as the case may be, would be paid jointly and severally by Opposite Parties No.1 & 2. 2. The facts, in brief, are that the complainant was approached by Amarjeet Singh OP-1 to invest some money with OP-3 Society . It was assured by Amarjeet Singh to give interest @ 16% per annum. Taken by his representation, an amount of Rs.6,14,000/- was invested by Virain Sandhu in the form of Fixed Deposit Receipt (for short FDR) in 2004 with OP No.3 Society through Amarjeet Singh. The FDR was renewed from time to time. The interest continued to be received by the complainant, till 16.4.2006. Thereafter, she(complainant) requested the OPs to pay her principal amount alongwith interest. OPs No.1 & 2 assured the complainant regarding the payment of amount, but it was not paid. Subsequently, through newspapers, the complainant came to know about the complaints lodged against OP No. 1 Amarjeet Singh and OP No.2 Anil Pahwa(now appellant) with regard to the embezzlement committed by them. She also came to know that the Inspector Cooperative Societies was appointed, as the Administrator, for liquidating the assets of the Society and recovering the money, from the defaulters, and finally disbursing the same to them (depositors). The complainant, again approached OPs No.1 & 2 for refund of the amount, but to no avail. When the grievance of the complainant was not redressed, left with no other alternative, a complaint under Section 12 of the Consumer Protection Act,1986(hereinafter to be referred to as the Act only) was filed by her. 3. In reply, OP-1 pleaded that the District Forum at Chandigarh had no jurisdiction, to entertain and decide the complaint. It was further pleaded that the complaint was barred by the provisions of Section 82 of the Punjab Cooperative Societies Act, 1961. It was stated that the investment was made by the complainant, with the Society, and not with the answering OP Amarjeet Singh. It was further stated that the disbursement was to be made by the liquidator, as the Society had been wound up. It was further stated that the answering OP had resigned from the primary membership of the Society way back in the year 2004, and therefore, there was no question of the complainant approaching him. It was also denied that the complainant was ever handed over any document or FDR by the answering OP. It was further stated that as such, there was no deficiency, in service, or unfair trade practice on the part of the answering OP. 4. OP-2, in his separate written statement, took up almost the similar objections, as were taken up by OP NO.1 in the written reply, and prayed for dismissal of the complaint. 5. OP-3, in its written reply, also took up similar preliminary objections, as were taken up by OPs 1 & 2, in their separate written replies. On merits, it was stated that the managing committee of the Society was suspended under Section 27 of the Act, and, on the report of the Administrator, and the concerned Inspector, the Society was brought under liquidation, vide orders, passed by the Assistant Registrar (exercising the powers of Registrar), Cooperative Societies, Mohali. It was denied that the complainant ever approached the answering OP. It was further stated that the amount which was deposited by the complainant, was duly entered in the books of account of the Society. 6. The parties led evidence, in support of their case. 7. After hearing the Counsel for the parties , and, on going through the evidence and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the judgment. 8. Feeling aggrieved, the instant appeal, was filed by Anil Pawha OP No.2/ Appellant. 9. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellant, at the very outset, submitted that the District Forum, at Chandigarh, had no territorial jurisdiction, to entertain and decide the complaint. He further submitted that the amount was deposited by the complainant with OP No.3 Society, which was having its office at Mohali, whereas, OPs NO.1 & 2, Amarjeet Singh and Anil Pahwa were the office bearers i.e the President and the General Secretary respectively of the said Society, who later on resigned. The question, that arises for determination, is, as to whether, any part of cause of action arose to the complainant, within the territorial jurisdiction of the District Forum at Chandigarh or not.? The complainant stated that he was residing, at the relevant time, in House No.522, Sector-18-B, Chandigarh. In para-26 of the complaint, as also in the affidavit, filed by the complainant, it was, in clear-cut terms, stated that Amarjeet Singh OP No.1 and Anil Pahwa OP No.2 were working for gain, at Chandigarh. It is further evident from the averments, contained in the complaint, as also in the affidavit submitted by the complainant, by way of evidence, that the amount in respect whereof the FDR was issued, was also taken by Amarjeet Singh OP NO.1, at Chandigarh. Since, Amarjeet Singh OP NO.1 was working for gain in State Bank of India, at Chandigarh, and the amount in respect whereof the FDR was issued by the Society, was also paid to him, at Chandigarh, by the Complainant, certainly a part of cause of action arose to the complainant, within the jurisdiction of the District Forum, Chandigarh. When the complaint was taken up on 12.6.2009, the following order was passed by the District Forum ; “Arguments heard. Since OP Nos.1 & 2 are stated to be carrying on business within the jurisdiction of this Forum whereas OP No.3 is stated to be carrying on business outside its jurisdiction. On the oral request of counsel for the complainant, permission is accordingly granted to the complainant to institute the complaint within the jurisdiction of this Forum as required under Section 11(b) of the Consumer Protection Act, 1986. The complaint is accordingly admitted. Issue notice to Ops for 23.07.2009.” 11. A perusal of this order, clearly reveals, that the permission under Section11(b) of the Consumer Protection Act,1986, was granted to the complainant, to file complaint, at Chandigarh. No revision was, admittedly, filed against the order dated 12.6.2009, by OP NO.2. Under these circumstances, the said order attained finality. In this view of the matter, the District Forum Chandigarh was right, in holding, that it had got territorial jurisdiction, to entertain and decide the complaint. 12. The Counsel for appellant, however, placed reliance on Sonic Surgical Vs National Insurance Company Ltd. 2010(1)RCR(Civil)1(SC) and K.Sagar,M.D., Kiran Chit Fund, Musheerabad Vs A.Bal Reddy and Anr. AIR2008 Supreme Court 2568, in support of his contention, that the District Forum, at Chandigarh, had no territorial jurisdiction, to entertain and decide the complaint. In Sonic Surgical Vs National Insurance Company Ltd.’s case (supra) , the policy was taken at Ambala and the claim for compensation was made at Ambala. No part of cause of action had, thus, arisen to the complainant at Chandigarh. It was, under these circumstances, that the Apex Court held that the Consumer Fora at Chandigarh had no territorial jurisdiction. In K.Sagar, MD., Kiran Chit Fund Vs A Bal Reddy and Anr.’s case (Supra), the order was passed by the Consumer Fora without considering the question of jurisdiction. It was, in these circumstances, that the matter was remitted to the State Commission to decide the question of jurisdiction. The facts of the aforesaid cases, are clearly distinguishable, from the facts of the instant case. In these circumstances, no help, can be drawn, by the Counsel for the appellant, from the law, laid down, in the aforesaid cases. The submission of the Counsel for the appellant, therefore, being devoid of merit, must fail, and the same is rejected. 13. It was next contended by the Counsel for the appellant, that the complaint was palpably barred by time, as the amount was allegedly deposited, in 2004, whereas the complaint was filed on 8.6.2009. He further submitted that the complaint could be filed only within a period of two years, from the date of accrual of the cause of action. He further submitted that, no doubt, no such objection was taken, in the written statement, by the OP, yet the same being legal objection, could be taken, even at the stage of the first appeal. It is evident from C-1 (deposit receipt) that the FDR was renewed from 16.4.2005 to 16.4.2006 on 16.4.2005. It means that within three years of the original deposit, the outstanding debt was acknowledged by the OPs. It is further evident from annexure C-2 dated 16.2.2008 written to Virain Sandhu by Gurmit Singh, Administrator, the Sarb Bank Employees Cooperative U.S.E.T. & Credit Society Ltd. , that an amount of Rs.5,34,000/- as principal and Rs.1,03,582/- as interest was payable by the Society, to her. It means that again the acknowledgment of debt, outstanding against the Society, was made by the Administrator, within three years, from the date of renewal of the FDR. Again on 24.4.2009, vide Annexure C-5, which is a copy of the Ledger Account of the complainant, from 16.4.2005 to 16.4.2007, the acknowledgment of the amount due to the complainant, from the Society, was made by the liquidator. The period of limitation was, thus, to run from 24.4.2009 for filing a complaint under Section 12 of the Act. The complaint, in this case, was filed on 8.6.2009. In these circumstances, by no stretch of imagination, it could be said that the complaint was barred by time. The submission of the Counsel for the appellant, therefore, being devoid of merit, must fail, and the same is rejected. 14. It was next submitted by the Counsel for the appellant that since remedy for settlement of dispute, by way of arbitration, was available in view of provisions of Sections 55 and 82 of the Punjab Cooperative Societies Act,1961, the complaint under Section 12 of the Consumer Protection Act,1986 was barred. With a view to appreciate the said contention of the Counsel for the appellant in its proper perspective, reference to Section 3 of the Consumer Protection Act,1986 is made, which reads as under ; “3.Act not in derogation of any other law.— The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.” 15. Section 3 of the Act is worded in widest terms and leaves no manner of doubt that the provisions of the Act shall be in addition to, and not in derogation of any other law, for the time being in force. The mere fact that some other remedies are provided, to an aggrieved person under any other law, would not oust the jurisdiction of the Consumer Fora, in view of Section 3 of the Act. In Secretary, Thirumurugan Co-operative Agricultural Credit Society Vs. M.Lalitha (Ded) through L.R. & Ors., I(2004) CPJ 1 (SC), the principle of law, laid down, was to the effect that the remedy under the Act, has been provided, in addition to other remedies provided under other Acts, unless there is a clear bar to oust the jurisdiction. It was further held that merely because the rights and liabilities are created between the Members and the Management of the Society under the Act, it cannot take away or exclude the jurisdiction conferred on the Forums, under the Act, expressly and intentionally. A similar question arose in Lakshi Chauhan & Ors. Vs. Durg Jila Griha Nirman Sahakari Samiti Maryadit & Anr., IV(2004) CPJ 477 before the Chhattisgarh State Commission, Raipur. It was held that Section 82 of the Cooperative Societies Act may operate as a bar against the jurisdiction of Civil and Revenue Courts but it does not bar the jurisdiction of Consumer Forum. Reliance was placed by the Chhattisgarh State Commission on Chuval Consumer Protection Society & Anr. Vs. Anand Corporation & Ors., 2003(1) CPR 602 in support of its view. In Smt.Kalavati & Ors. Vs. M/s. United Vaish Co-operative Thrift & Credit Society Ltd., I(2002) CPJ 71 (NC) , a five member bench of the Hon’ble National Commission decided a similar dispute, between the parties, with respect to Section 93 of the Delhi Co-operative Societies Act, 1972, which is para-materia with Section 82 of the Punjab Co-operative Societies Act, 1961. It was held by the National Commission that Section 82, related to the bar of jurisdiction of the Civil or Revenue Courts and not of the Consumer Fora. While referring to Section 3 of the Act, it was held by the National Commission that the Consumer Fora would still have the jurisdiction to decide the dispute, between the consumer, and the Society, irrespective of the fact, that a similar provision existed, in Section 93 of the Delhi Co-operative Societies Act, 1972, and Section 105 of Multi-State Co-operative Societies Act, 1984. Distinction between the two provisions i.e. one under Section 18 of the Recovery of Debts Due to Banks and Financial Institution Act, 1993, and Section 15 of the Railway Claims Tribunal Act, 1987, under which the jurisdiction of the Court or ‘other authority’ was barred, was made by the Hon’ble National Commission. It was further held by the National Commission that since the jurisdiction of “other authority” ipso-facto is not barred under Section 93 of the Delhi Co-operative Societies Act, 1972, and Section 105 of Multi-State Co-operative Societies Act, 1984, the Consumer Fora would be entitled to exercise the jurisdiction. The ratio of the law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, the submission of the Counsel for the appellant, that the District Forum at Chandigarh had no jurisdiction to entertain and decide the complaint, being devoid of merit, must fail, and same stands rejected. 16. The Counsel for the appellant next submitted that the designation of Anil Pahwa OP No.2/appellant was not mentioned, in the cause title of the complaint. He further submitted that Anil Pahwa could not be held liable in his individual capacity. He further submitted that, no doubt, Anil Pahwa was the General Secretary of the Society, but he resigned. He further submitted that the District Forum was, thus, wrong in accepting the complaint against Anil Pahwa in his individual capacity. The address of Anil Pahwa was given as under ; Anil Pahwa, State Bank of India, IOR Deptt., Ground Floor, Local Head Office, Sector-17-B Chandigarh, resident of H.No.63, Raipur Khurd, Near Airport Chowk, Chandigarh. 17. Anil Pahwa was working in the State Bank of India, Sector-17, Chandigarh. No document was produced, on record, as to when he resigned from the said society, as General Secretary. When the complainant was approached by Amarjeet Singh, he was given assurance that, if the amount was deposited with the Society, he would get higher rate of interest. She could not be expected to know their designations. In para-11 of the complaint, it was, in clear terms, stated that the complainant continued to approach Amarjeet Singh who had taken the money from her, but to no avail. In fact, Amarjeet Singh made Anil Pahwa to talk to the complainant, who assured her that the money would be paid in short span. Anil Pahwa, therefore, being General Secretary, as admitted by the Counsel for the appellant, at the relevant time, also held out an assurance to the complainant, regarding the payment of the amount deposited by her. It means that Amarjeet Singh and Anil Pahwa who were posted in State Bank of India, Sector-17, Chandigarh, and were office bearers of the Society connived with each other, with a view to hold attractive assurance, to the innocent persons, like the complainant, regarding the deposit of the amount, and getting higher rate of interest, than was available, in the market. It is also evident from Annexure C-6, alongwith which a list of defaulter employees, which is at page 101 of the complaint, was sent by Tejinder Singh Virdi, Joint Registrar, Cooperative Societies, Patiala Division to the Chief General Manager, State Bank of India, Local Head Office, Sector-17, Chandigarh, that Amarjeet Singh and Anil Pahwa, both working in the main branch, Sector-17, Chandigarh, in connivance with other committee members, had committed serious irregularities, by advancing wrong/fictitious loans to a number of individuals, due to which, an FIR was also lodged. The list of defaulter employees at page 101 of the record of complaint file also shows that an amount of Rs.6,58,276/- was shown outstanding against Anil Pahwa appellant. He was, therefore, a defaulter, as per the said list. Anil Pahwa and Amarjit Singh, committed acts of misfeasance, malfeasance and also allegedly embezzled the amount of the Society. These acts committed by them were not authorized by the Society. For the aforesaid acts committed by Anil Pahwa and Amarjit Singh, in their individual capacity, they could certainly be held liable, in that capacity. All this clearly goes to show that Anil Pahwa played a vital role, in connivance with Amarjeet Singh and other members of the Society to cheat the complainant, in the manner, referred to above. The District Forum was also right in holding Anil Pahwa & Amarjit Singh, liable in their individual capacity. The submission of the Counsel for the appellant, in this regard, being devoid of merit, must fail and same stands rejected. 18. The Counsel for the appellant, also placed reliance upon Gulab Singh Vs Smt. Urmil Devi & Ors 2002(2)CPC 345 to contend that Anil Pahwa could not be held responsible, in his individual capacity. As stated above, Anil Pahwa was the General Secretary of the said Society. He did not produce any record as to, on which date, he resigned as the General Secretary of the said society. In Gulab Singh’s case (supra) there was no allegation against the office bearers of the Society that they committed the acts of misfeasance, malfeasance and also embezzled the amount of the Society. It was, under these circumstances it was, held that the office bearers could not be held liable in their individual capacity. In this view of the matter, no help can be drawn from Gulab Singh Vs Smt.Urmil Devi & Ors.’s case (supra), as the facts of this case are distinguishable from the facts of the instant case. . 18. The deposit of the amount by the complainant, with the Society was not disputed by the appellant, and the said deposit is duly corroborated through Annexure C-1, deposit receipt, vide which the FDR was renewed. When the appellant and Amarjit Singh, at whose instance, the amount was deposited, with the Society, failed to pay the amount, despite repeated requests, it could certainly be said that there was deficiency, in service, on the part of the appellant and other OPs. The District Forum was, thus, right in coming to the conclusion, that it was, on account of rendering deficient service by the appellant and other OPs that the complainant was deprived of her hard earned money, for such a long time. The District Forum was, thus, right, in accepting the complaint and granting the relief, as stated above. The order, passed by the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission. 19. For the reasons recorded above, the appeal, being without merit, must fail, and the same is dismissed with costs quantified at Rs.3000/-. 20. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
