Haryana

Ambala

CC/200/2010

LACHHMAN DASS SHARMA - Complainant(s)

Versus

THE PNB SOCITEY - Opp.Party(s)

NANEET GUPTA

02 Jul 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

      Complaint Case No.    :200 of 2010

       Date of Institution       :24.05.2010

       Date of Decision         :02.07.2015

1.         Lachman Dass Sharma

2.         Subhash Sharma son of Sh. Lachman Dass Sharma both residents of House No.82, New Milap Nagar, Ambala City.

                                   

                                                                                                                                                                 ……Complainants.

                                                                                                            Versus

1.         The Punjab National Bank Employee’s Co-operative Urban (SE) Thrift & Credit Society Ltd., through its President Narinder Swami #  472, Sector-7, Urban Estate, Ambala City.

2.         Narinder Swami, President The Punjab National Bank Employee’s Co-operative Urban (SE) Thrift & Credit Society Ltd., #  472, Sector-7, Urban Estate, Ambala City.

3.         Anil Aggarwal son of Sh. Siri Ram Aggarwal, Vice President, The Punjab National Bank Employee’s Co-operative Urban (SE) Thrift & Credit Society Ltd., # 5362/3, Chowk Darzian, Ambala City.

4.         S.K. Pahuja Member, Managing Committee/Executive Body The Punjab National Bank Employee’s Co-operative Urban (SE) Thrift & Credit Society Ltd. C/o Punjab National Bank, Baldev Nagar-Branch, Ambala City.

 

                                                                                                            ……Opposite Parties.

Complaint Under Section 12 of the Consumer Protection Act.

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

                        SH. ANIL SHARMA, MEMBER.                       

Present:          Sh. Navneet Gupta, Adv. counsel for Complainants.

                        Sh. Vivek Sachdeva, Adv. counsel for OPs No.3 & 4.

                        Ops No.1 & 2 exparte.                       

ORDER.

1.                     Brief facts leading to the institution of present complaint are that the OPs No.2  to 4 are running the aforesaid society  and used to receive money from the public at large in the name of abovesaid society i.e. OP No.1 with the assurance to public to earn attractive rate of interest, high returns & secured investment.  The complainants, after inspiring the assurance as well as representation of the respondents, agreed to deposit  certain amount in the shape of FDR bearing No.1494  matured value of which after renewal on 07.12.2007 comes to Rs.60,628/- & having interest @ 13% per annum.  But the Ops failed to pay the matured amount despite various visits and requests. So, a legal notice  dated 12.04.2010 was served upon the Ops but of no avail. As such, the  complainants have submitted that the OPs have attributed bad & deficient services to them by not making the payments on due date 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.                     Upon notice, OP No.2 was duly served but neither he nor any representative on his behalf  put in appearance and as such, he was proceeded against  exparte vide order dated 02.08.2010.  OP No.1 also did not appear despite publication against him  in newspaper ‘Dainik Bhasker’ dated 20.08.2014.  As such, OP No.1 was also proceeded against exparte vide order dated 21.11.2014.

                        OP No.3 appeared and filed written statement raising preliminary objections qua non-maintainability of the complaint as the matter in issue is not covered under the definition of Consumer Protection Act being commercial transaction and further that the complaint is hopelessly time barred.  It has also been urged that the answering OP is not the President of the Managing Committee of the society in question i.e. Op No.1 and the complainants have impleaded him as Op No.3 in his individual capacity just to harass him and as such the complaint is liable to be dismissed for non-joinder and mis-joinder of the necessary parties.  On merits, it has been denied that  the answering OP used to receive the deposits alongwith other Ops from the public at large in the name of Op No.1 or  he ever gave any assurance to them to earn attractive rate of interest, high returns, secured investment in future on the deposited amount as alleged.  As such, the answering OP is not responsible and liable for all the conduct of business of the said society as well as liabilities attached to it. There is no deficiency in service on the part of answering OP and has, thus, prayed for dismissal of complaint with costs.

                         OP No.4 filed separate written statement raising preliminary objections qua non-maintainability of complainant as the matter in issue is not covered under the definition of Consumer Protection Act being commercial transaction just to earn interest and thus this Hon’ble Forum  has no jurisdiction to entertain and try the present complaint.  Further, the complaint is hopelessly time barred and beyond limitation.  It has further been urged that the complaint is bad for non-joinder and mis-joinder of necessary parties and the answering OP has been unnecessarily impleaded in individual capacity whereas he is only a member of society & not its office-bearer and was not a party to the alleged transaction nor he is competent to sign any document or release the amount.  On merits, it has been denied that the answering OP ever participated in the alleged transactions between the complainants and the society as alleged in the complaint. Rest of the contents of the complaint have been denied and prayed for dismissal of the complaint with costs.

3.                     In evidence, the counsel for the complainants have tendered affidavit  of complainants as Annexure C-X alongwith documents as Annexures C-1 to C-4 on behalf of complainants and closed the evidence whereas on the other hand, the counsel for OP’s No.3 & 4 tendered their affidavits as Annexures RX & RY respectively & closed evidence on behalf of Ops No.3 & 4.

4.                     We have heard the learned counsel for the complainants and gone through the record very carefully. The learned counsel for the complainants argued that the complainants had invested an amount of Rs.38745/- in the shape of FDR with the OPs-society which was got further  renewed upto 07.12.2007 with maturity value of Rs.60,628/- and the maturity amount of the FDR was not paid to the complainants hence, a prayer for acceptance of the complaint against the OPs has been made.

                        On the other hand, the learned counsel for OPs No.3 & 4 argued that the complaint is not maintainable under the Consumer Protection Act as per Provisions of Haryana Co.Op. Societies Act and the Ops are not liable for any act of the society as they were  not its office-bearers  rather they were simply members and as such, they are not responsible and liable for conduct of business of the society as well as liabilities attached to it.

5.                     After hearing learned counsel for the parties and going through the record, the first and foremost question 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 has 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 has 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 has 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.

6.                     Further, it is an admitted fact on record that the FDR in question was issued by the OP-society and at the time of maturity, it was not encashed to the complainants and it is well settled law that 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 FDR in question to the complainants itself is a grave deficiency in service on the part of OP-society.

7.                     Now, the next question arises for consideration before the Forum is that whether Op’s No.3 & 4 who are alleging themselves not to be office bearers of the OP society rather only members of the society are liable to pay the amounts of FDR in question in individual capacity alongwith OP No.2 who is President of the OP No.1 society. In this regard, complainants have failed to place on record any document or resolution of the OP-society whereby it is proved that they ever remained as Office bearer/Managing Committee Member of the society and as such they cannot be burdened with the liability in individual capacity for the repayment of FDR in question alongwith Ops no.1 & 2.

8.                     So far as the future rate of interest on the maturity value of the said FDR is concerned, the same cannot be allowed with the agreed rate of 13% 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 rate of simple interest i.e. @ 9% per annum. 

                        In view of the above discussed facts, we allow the present  complaint  against the OPs No.1 & 2 who are held liable jointly and severally to comply with the following directions within a period of thirty days from the communication of this order:-

1. To pay the amount of FDR No.1494 amounting to Rs.38745/-to the complainants alongwith simple interest @ 13% per annum from the date of deposit till the date of maturity i.e. (w.e.f. 10.06.2004 to 07.12.2007) and thereafter on the matured amount i.e. (Principal + Interest), pay simple interest @ 9% Per Annum w.e.f. 08.12.2007 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:02/07/2015                                                                  Sd/-

                                                                                                   (A.K. SARDANA)

                                 PRESIDENT                

 

                                                                                                           Sd/-

                        (ANIL SHARMA)

                                MEMBER