Haryana

Ambala

CC/249/2010

SATPAL DHIMAN - Complainant(s)

Versus

THE AMBALA DURGA - Opp.Party(s)

S.S.MATYA

19 Aug 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                                                                                   Complaint Case No. : 249 of 2010

                                                                                    Date of Institution    :  14.06.2010

                                                                                    Date of Decision       :  19.08.2010

 

1.         Satpal Dhiman son of Sh. Walaiti Ram

2.         Smt. Kiran Bala wife of Sh. Satpal both residents of H.No.533/263, Sapatu Raod, Ambala City.

                                                                                                                                                         ……Complainants.

Versus

1.         The Ambala Durga Co-operative Non-Agriculture Thrift & Credit Society Ltd. Ambala City through its Vice Prewsident Vanita Sehgal, employee Main Branch in State Bank of India, near Civil Courts, Ambala City.

2.         Vanita Sehgal, employee Main Branch in State Bank of India, near Civil Courts, Ambala City.

3.         Santosh Rani wife of Parmod Singh Rana, H.No.170, Sector 9, Urban Estate, Ambala City, the President of the Ambala Durga Co-operative Non-Agriculture Thrift & Credit Society Ltd. Ambala City.

                                                                                                            ……Opposite Parties.

Complaint Under Section 12 of the Consumer Protection Act.

CORAM:        SH. A.K. SARDANA, PRESIDENT.

                        SH. PUSHPENDER KUMAR, MEMBER.

 

Present:          Sh. S.S. Matya, Adv. for complainants.

                        Sh. Mohinder Bindal, Adv. for OP No.2.

                        Ops No.1 & 3 exparte.

ORDER.

1.                     The brief facts leading to the institution of present complaint are that the Opposite parties approached the complainant No.1 and his wife Smt. Kiran Bala in  the month of August, 2008 to deposit the cash amount with their society as they were  giving high rate of interest. The Ops further assured that  the amount of complainants was safe as  various persons were depositing their amount in this  society.  It was further assured by Ops that their society is registered one and amount deposited  by the depositors will be returned as and when desired by them or at the time of maturity.  It has been further alleged by the complainants that after inspiring the assurance as well as representation of the Ops, they agreed to deposit a sum of Rs.18,100/- vide FDR No.2264 dated 18.08.2008  in the name of complainant No.1 and Rs.56300/- vide FDR No.2262 dated 18.08.2008 in the name of both the complainants with the society having interest @ 12 % per annum for one year but the Ops mentioned the due date as 27.11.2009 & 29.04.2009 respectively.   At the time of maturity of FDRs in question, OPs failed to pay the matured amount despite various visits and requests. As such, the complainants have submitted that the OPs have  attributed bad & deficient services to them by not making the payments on due dates which caused great mental pain & harassment to them. Hence, the complainants have filed the present complaint seeking relief as mentioned in prayer clause of the complaint.

2.                     Inspite of various notices issued to the Ops No.1 & 3, they did not bother to appear and at last publication was issued for summoning the Ops No.1 & 3 but despite publication they failed to appear and as such  they were proceeded against exparte vide order dated 28.03.2014 whereas OP No.2 appeared through counsel and filed written statement  raising preliminary objections qua non-maintainability of complaint as there is no privity of contract between the complainants and answering OP. The OP No.2 is neither instrumental in the issuance of the said FDRs nor in any way connected with the providing of services.  Therefore, the answering OP has been wrongly arrayed as OP. Further the OP No.2 is not the Vice President or Member of the executive body as alleged in the complaint as she had resigned long ago. Rest of the contents  of complaint have been denied and prayed for dismissal of complaint with costs.

3.                     In evidence, the counsel for the Complainants has tendered affidavits Annexure CX & CY alongwith documents as Annexures C-1 to C-4 on behalf of complainants and closed  their evidence.

                         On the other hand, the counsel for the Op No.2 tendered affidavit of Smt. Vanita Sehgal as Annexure RX alongwith documents as Annexures R-1 to R-44 and closed their evidence.

4.                     We have heard the learned counsel for the complainants OP No.2 and gone through the record very carefully. The learned counsel for the complainants argued that the complainant No.1 Satpal Dhiman had invested  an amount of Rs.18100/-, in his name and a sum of Rs.56300/- jointly in the name of both the complainants, in the shape of FDRs with the OPs-society but the Ops failed to pay the maturity amount of the FDRs. As such, the present complaint has been filed and a prayer for acceptance of the complaint against the OPs has been made.  The counsel for complainants have also relied upon a similar case recently decided by Hon’ble State Consumer Disputes Redressal Commission, Haryana titled as Shalu Chandna etc. Vs. The Vankhandi Co.OP NATC Society Ltd. and others bearing First Appeal No.216 of 2013 decided on 22.07.2013 wherein it has been  held that OP No.3 Sh. M.L.Sehgal would also be liable jointly and severally alongwith other opposite parties to make the payments under relief granted by the Forum.

5.                     On the other hand, the learned counsel for OP NO.2 argued that the complaint is not maintainable under the Consumer Protection Act as per Provisions of Haryana Co.Op. Societies Act and that OP No.2 had resigned from the society long ago in the year 2008 as clear from the applications (Annexure R-39 & R-40) and the said resignation of OP No.2 Vaneeta Sehgal was accepted by the Assistant Registrar, Co.OP. Societies, Ambala  as clear from documents Annexure R-37 & R-38 respectively.  Thereafter, OP No.2 neither participated in the proceedings of the society nor had gone to attend the meeting of society, therefore, she is not liable to pay any amount to the complainants. The counsel for the OP No.2 also relied upon the case law titled as Gulab Singh Vs. Urmil Devi & Ors. reported in CPC 2002(2) Pg. 345 wherein it has been held that-Cooperative Society-individual capacity-the President and Secretary of the society cannot be held liable in their individual capacity but only in their official capacity.  Besides it, the counsel for the OP No.2 have argued that during the investigation of  FIR No.92 dated 11.06.2009 (Annexure R-41) lodged against certain office bearers of the society regarding misappropriation of public money, the OP No.2 was discharged by the Investigating Agency from initiating criminal proceedings against her.  The  OP No.2 have relied upon various case laws  2008 (2) CLT Pg.94 (NC) titled as Jai Singh Vs. LIC, 2002(1)CPC Pg. 77 case titled as Anil Kumar Agarwal Vs. Dena Bank, 1995(2)CPC-367 titled as M/s Krishan Poultry Farm Vs. NIC, 1997(2) CPC Pg.474 case titled as The Supreme Chemical Industries and Others Vs. Rajasthan State Industrial Development and  Investment Corporation Ltd. & Ors. wherein it have been observed by various Consumer Foras that “where there is factum of fraud, conspiracy, cheating in Consumer complaints, that cannot be properly adjudicated in summary proceedings as envisaged under the Act- Complainant is  relegated to the available remedy in the Civil Court”.

6.                     After hearing learned counsel for the parties and going through the record, the first and foremost question which arises for consideration before this Forum is that “whether this Forum is having jurisdiction to entertain and decide such types of complaints?’  The counsel for the complainants have firmly stated that the complaint is maintainable and this Forum has very much jurisdiction to entertain & decide the same. In support of his contention, the counsel for the Complainants have laid emphasis on Section-3 of the Consumer Protection Act, which is reproduced 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”

 

                        Section-3 is worded in widest terms and leaves no one in doubt that the provisions of Consumer Protection Act shall be in addition to  and not in derrogation of any other law for the time being in force meaning thereby that even if any other Act provides any remedy to a litigant for redressal of his grievance, even then he can approach the Consumer Fora, if he is a ‘Consumer’ under Consumer Protection Act.  The counsel for the Complainants further strengthened his version by placing reliance on case laws 2002(1) CPJ-71(NC) titled as Smt. Kalawati & others Vs United Vaish Co.operative Thrift & Credit Society Limited  and 2006(III) CPJ -390 (NC) titled as Kamal Trading Company Vs. Kolhapur Zila Shetkari Vinkari Sahkari, wherein  it have been held that Societies Act does not bar the jurisdiction of the District Forum assuming jurisdiction in the matter. So, we hold that this Forum has very much jurisdiction to decide the matter in question  involved in the present complaint and  the case laws referred above by the counsel for OP No.2 qua the matter in dispute must be tried by the civil court being based upon fraud, are not applicable to the facts of the present case.

7.                     Further it is an admitted fact on record that the FDRs in question was issued by the OP-society but it is not proved on file that the complainants have received the matured amount of FDRs.  Moreover, where a company or a firm invites deposits from the public for the purpose of using money for its business on promise of giving attractive rate of interest with security of investment and prompt repayment of the principal after the stipulated terms, the transaction of such nature would clearly make the depositor a consumer under the Consumer Protection Act. As such, non-payment of maturity value of the FDRs in question to the complainants itself is a grave deficiency in service on the part of OPs. 

8.                     Further, the contention of OP No.2 that she is not liable to make the payment of FDRs alongwith other OPs is not tenable since no any document has been placed on the file by OP No.2 wherefrom it is proved that the resignation of OP No.2 was accepted by the Managing Committee of the Society. Mere accepting of resignation of OP No.2 by the Assistant Registrar, Co.OP.Societies, Ambala is not recognized under the provisions of Cooperative Act unless the same is not accepted by Managing Committee of the society.

9.                     Besides it, Hon’ble State Commission in one similar case bearing First Appeal No.216 of 2013 titled as ‘Shalu Chandna etc. Vs. The Vankhandi Coop NATC Society Ltd. & others have specifically held that “OP No.3 Sh. M.L. Sehgal would also be liable jointly and severally alongwith other Ops to make the payments of OP society.”  It is also pertinent to mention here that against the said order dated 22.07.2013 passed in F.A. No.216 of 2013, OP No.3 M.L. Sehgal also preferred Revision Petition No.3734 of 2013 before Hon’ble National Consumer Disputes Redressal Commission, New Delhi which have been dismissed with exemplary costs  of Rs.25,000/- on 3.11.2014 and the order passed by Hon’ble State Commission  Haryana in F.A. No.216 of 2013 have been upheld.  As such, OP No.2 cannot absolve herself  from the liability of making payment to the complainants jointly and severally alongwith other opposite parties.

10.                   So far as the future rate of interest on the maturity value of the said FDRs is concerned, the same cannot be allowed with the agreed rate  of 12% per annum due to peculiarity of circumstances as most of the loanees of the society have  turned out to be defaulters.  They have  not returned the amount advanced to them as loan.  In this eventuality, we take a lenient view and the future interest is awarded at the prevailing bank rate of simple interest i.e. @ 9% per annum. 

                        In view of the above discussed facts, we allow the present complaint  and the OPs  No.1 to 3 are held liable jointly and severally to comply with the following directions within a period of thirty days from the receipt of this order:-

1. To pay the amount of FDR No.2264 amounting to Rs.18100/-  to the complainant no.1 & amount of FDR No.2262 amounting to Rs.56300/- to the complainants No.1 & 2 jointly alongwith simple interest @ 12% per annum from the date of deposit to till the date of maturity i.e. (w.e.f. 18.08.2008 to 27.11.2009 & 29.04.2009 respectively) and thereafter on the matured amount i.e. (Principal + Interest), pay simple interest @ 9% Per Annum w.e.f. 28.11.2009  & 30.04.2009 respectively to till its actual realisation.
2. To pay Rs.3,000/- as cost of litigation.

                        So, the complaint is allowed in above terms. Copies of this order be sent to the parties concerned free of costs. File be consigned to the record room after due compliance.

Announced: 19.08.2015        

 

                                                                                                                 Sd/-

                                                                                                      (A.K. SARDANA)

                                                                                                           PRESIDENT

           

                                                                                                         Sd/-

                                                                                         (PUSHPENDER KUMAR )                                                                                                                                                                                                  MEMBER