BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A.Nos.145/2010 to F.A.No.148/2010 against C.C.Nos.502/2009, 503/2009, 389/2009 and 390/2009 District Forum-III, HYDERABAD.
Between:
1. M/s.Menaka Saree Mandir
Rep. by its Proprietor
Smt.Sapna J.Sadh,
H.No.4-1-213/10,
Jeevan Apartments,
Hanuman Tikdi,
Hyderabad Appellant/Complainant
in F.A. 145/2010
2. M/s.Saree Mandir
Rep. by its Proprietor
Sri JogeshSadh,
H.No.4-1-213/10,
Jeevan Apartments,
Hanuman Tikdi,
Hyderabad Appellant/Complainant
in F.A. 146/2010
3. Smt.Sapna J.Sadh,
W/o.Jogesh Sadh,
Aged about years,
Occ:Housewife,
H.No.4-1-213/10,
Jeevan Apartments,
Hanuman Tikdi,
Hyderabad Appellant/Complainant
in F.A. 147/2010
4. M/s.Saree Mandir
Rep. by its Proprietor
Sri JogeshSadh,
H.No.4-1-213/10,
Jeevan Apartments,
Hanuman Tikdi,
Hyderabad.
5. Sri JogeshSadh,
Proprietor, M/s Saree Mandir,
H.No.4-1-213/10,
Jeevan Apartments,
Hanuman Tikdi,
Hyderabad Appellants/Complainants
in F.A. 148/2010
And
The Peoples’ Co-operative Society Ltd.,
Rep. by its Chairman,
4-2-102, Badi Chowdi, Sultan Bazar,
Hyderabad-95. Respondent/Opp.party
in FAs. 145/10 to 148/2010
Counsel for the Appellant : M/s.Gopi Rajesh & Associates
(Common in all appeals)
Counsel for the Respondent :Mr.P.G.S.Prasad.
(Common in all appeals)
QUORUM: THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT
AND
SMT.M.SHREESHA, MEMBER.
WEDNESDAY, THE TWENTY FIFTH DAY OF JANUARY,
TWO THOUSAND TWELVE
( Typed to the dictation of Smt.M.Shreesha Hon’ble Member )
*****
These appeals are disposed by a common order since the facts are similar in all these appeals.
F.A.No.147/2010
Aggrieved by the order in C.C.No.389/2009 on the file of District Forum-III, Hyderabad, the complainant preferred this appeal.
The brief facts as set out in the complaint are that the complainant was attracted by the scheme launched by the opposite party purchased 100 shares by paying a sum of Rs.10,000/- @ Rs.100/- per share and after receipt of the amount, the opposite party issued share certificates in favour of the complainant on 14-3-2001 under membership No.42 and share Nos.1966 to 2065. While so the opposite party sent a letter dated 02-12-2008 requesting her to hand over the share certificates immediately. After receipt of the said notice, the complainant handed over the share certificates to the opposite party. The opposite party after receiving the original share certificates from the complainant did not refund the 100 share certificates value nor refunded the original share certificates to the complainant despite several requests made by her. Thereafter the complainant addressed a letter dated 30-1-2009 requesting to refund the original share certificates or to refund the amount of Rs.10,000/-. for which the opposite party gave a reply dated 17-2-2009 that the complainant’s share certificate amounts was appropriated to cash credit account in terms of one time settlement. The complainant denied the said allegation and submitted that he settled the other claims with the opposite party under one time by paying amounts and there is no connection between one time settlement and share certificates account. The complainant never gave any letter or consent to withdraw the said amount. Hence the complaint for a direction to the opposite party to refund the 100 share certificates.
Opposite party resisted the claim by filing counter and denying the allegations made in the complaint. Opposite party admitted that the complainant was a Member of it and the opposite party issued 100 shares worth Rs.10,000/- and the complainant availed credit facility from them. Opposite party further contended that the complainant is not a ‘consumer’ as the complainant being a member of the society, there is no consumer dispute and the Forum has no jurisdiction to entertain the complaint in view of the bar contained in Section 37 (1) & 51 of the Co-operative Societies Act and further submitted that the society has the first and paramount lien or charge upon all the shares interest on shares as per Bye law 51. Opposite party further submitted that it intimated the complainant about one time settlement and their appropriation on 02-12-2008 since it availed the credit facility for the purpose of business and the deposits are linked with the loan and submitted that there is no deficiency in service and prayed for dismissal of the complaint with costs.
Based on the evidence adduced i.e. Exs.A1 to A8 and B1to B16 and the pleadings put forward, the District Forum dismissed the complaint.
Aggrieved by the said order, the complainant preferred this appeal.
The point that arises for consideration in appeal, F.A.No.147/2010 is whether there is any deficiency in service on the part of the opposite party and if the complainant is entitled for the relief sought for in the complaint?
The facts not in dispute are that the complainant vide Ex.A1 dated 14-3-2001 purchased 100 shares of the opposite party society, the value of each share being Rs.100/-. It is the complainant’s case that they had taken a loan from the opposite party and it is also not in dispute that the complainant and the opposite party entered into a one time settlement as per letter dated 09-9-2008 evidenced under Ex.B13, written by the complainant to the opposite party for which the opposite party replied under Ex.B14 letter dated 24-12-2008 which reads as follows:
With reference to your letter dated 9-9-2008, we advise that the Board of Directors have accepted the one time settlement amount offered by you in both the accounts put together.
Accordingly, the one time settlement amount having been deposited, there is no liability in the above mentioned accounts with us as on date.
This letter is issued without prejudice to the rights, the Society may have at any point of time.
From the aforementioned letter, it is clear that the opposite party referred to Ex.B13 dated 9-9-2008 that the Board of Directors accepted the one time settlement of Rs.26,00,000/-. The main contention of the complainant is that the opposite party sent a letter dated 2-12-2008 requesting her to hand over her original share certificates and after receipt of the said notice, the complainant handed over the share certificates but the opposite party neither refunded nor returned the share certificates. Thereafter the complainant sent notice dated 30-1-2009 evidenced under Ex.A4 requesting the opposite party to return the original share certificates or to refund Rs.10,000/-, for which opposite party replied vide Ex.A7 dated 17-2-2009 which reads as follows:
We are in receipt of your letter dt.30-1-09 requesting for
i) return of the Recurring deposit amounts, appropriated to cash credit accounts in terms of the ONE TIME settlement.
ii) Return of share capital, appropriated to cash credit accounts in terms of ONE TIME settlement.
In this connection, your attention is drawn to paras 2(ii) and 2(iv) of our letter No.PCSL/08/47 dated 2-12-08 (acknowledged by you on 10-12-08) in reply to your letter dated 25-11-08, wherein, we have given suitable replies to the issues raised by you now.
Please be advised that the society has sacrificed a sizeable amount by giving you the benefit of a ONE TIME settlement and hence no requests for further concessions can be entertained now.
In this letter, they referred to Ex.A2 letter dated 2-12-2008 in which they had asked for submission of original share certificates. The opposite party contended that only after taking the appropriations into consideration, the amount of Rs.26,00,000/- was arrived as full and final settlement. This appropriation has not been mentioned anywhere in Ex.B14 dated 24-12-2008. This letter Ex.B14 only refers to Ex.B13 dated 9-9-2008 wherein the one time settlement amount is fully accepted. The learned counsel for the opposite party relied on Ex.B15, statement of account stating that there is a net loss of Rs.4,74,919.95 to the society, in which he included the share capitals of Rs.10,000/- towards Menaka Saree Mandir and Rs.20,000/- towards Saree Mandir. The entire amount of Rs.26,00,000/- was deposited by the complainant towards one time settlement on 04-10-2008.
The brief point that falls for consideration is whether the complainant was informed of the appropriation of the share certificates in the OTS settlement of Rs.26,00,000/-?
We find force in the contention of the complainant that these appropriations were not informed to them at the time of arriving at Rs.26,00,000/- towards one time settlement as evidenced under Exs.B13 and B14. While it is not in dispute that the society had lien as per byelaw No.38, the fact remains that the complainant was made to believe that the one time settlement of Rs.26,00,000/- as evidenced in the letter dated 9-9-2008 and accepted under letter dated 24-12-2008 is exclusive of the share certificates amount. There is no whisper of these appropriations in the final letter of acceptance in Ex.B14. Having paid the entire amount of Rs.26,00,000/-, the act of the opposite party in exercising lien on the share certificates without a mention of it in their final acceptance of letter amounts to deficiency in service and unfair trade practice for which act, we direct the opposite party to refund the amount deposited towards the share certificates together with compensation of Rs.3,000/- and costs of Rs.2,000/-.
In the result F.A.No.147/2010 is allowed setting aside the order of the District Forum and we direct the opposite party to refund Rs.10,000/- to the complainant together with compensation of Rs.3,000/- and costs of Rs.2,000/- within four weeks from the date of receipt of this order.
F.A.No.145/2010:
For the same reasons as stated in F.A.No.147/2010, this appeal F.A.No.145/2010 is allowed setting aside the order of the District Forum and we direct the opposite party to refund the recurring deposit amount of Rs.21,000/- together with compensation of Rs.3,000/- and costs of Rs.3,000/- within four weeks from the date of receipt of this order.
F.A.No.146/2010:
For the same reasons as stated in F.A.No.147/2010, this appeal F.A.No.145/2010 is allowed setting aside the order of the District Forum and we direct the opposite party to refund the recurring deposit amount of Rs.35,000/- together with compensation of Rs.5,000/- and costs of Rs.3,000/- within four weeks from the date of receipt of this order.
F.A.No.148/2010:
For the same reasons as stated in F.A.No.147/2010, this appeal F.A.No.148/2010 is allowed setting aside the order of the District Forum and we direct the opposite party to refund the share certificate amount of Rs.20,000/- together with compensation of Rs.3,000/- and costs of Rs.3,000/- within four weeks from the date of receipt of this order.
Sd/-PRESIDENT.
Sd/-MEMBER.
Jm Dt.25-1-2012
