Ld Advocate for the complainant is present. Judgement is ready and pronounced in open Commission. 

SRI ASISH DEB, PRESIDENT.

Facts of the Complainant is that the Complainant has permanent residence within this Jurisdiction. The O.Ps. are the high officials of Sahara India which is a financial investment company and they create funds by taking money from general public by inducing for a good return from their company. Being attracted by their advertisement and repeated earnest request of O.Ps.complainant invested moneyas mentioned below.

The Complainant demanded the said maturity value from the Opposite parties on December 2019 by depositing all documents, but they till now did not pay the same to the complainant. Thereafter complainant again and again went to office of the Opposite parties to take said maturity values but till now they did not pay the same for which the complainant has been suffering from mental agony. Thus, the O.Ps. have done deficiency in service and a such investment is relating to financial matter according to decision of National Commission [2016(4)CPR723NC], the cause of action of this case is continuing one and as such there is no delay to file this complaint before this Commission. The complainant has prayed for direction upon the O.P. to return the said amounting values of said maturity of Rs. 2,14,860/- to the complainant with 10% interest from December 2019 till realization. To pay a compensation of Rs. 50,000/- to the complainant for mental agony. To pay a litigation cost of RS.10,000/- to the complainant for conduct of this case. Total of Rs. 2,74,860/-. To grant other relief to the complainant which the Commission may deem fit and proper.

Upon notice the Ld Advocate for the ops appeared before this commission on 01.08.2022 and filedwritten versions mainly challenging the maintainability of the case and left the matter before the Commission to dispose of the same alongwith the judgement. After that the Ld Advocate for the ops never turned up; resultantly the case proceeded ex-parte against it. The key question of maintainability was raised on the law point as to whether a member can pick up a conflict with co-operative society or not. According to the ops the Complainant has admitted to membership of the society as per provisions of the Multistate Co-operative Society Act, 2002, therefore the provisions of the Act, 2002 as well as rules and byelaws of the society are binding upon the complainant. Relation between the complainant and society is that of a member and society not of a consumer and service provider. Therefore, for any dispute between society and members, consumer complainant is not maintainable before this Hon’ble Consumer Commission. It is submitted that after registration as a multi-state co-operative society, the O.P. had launched a contributory scheme and admitted members in terms of the Act of 2002, the rules framed there under and the bye-laws of the society. The contributory scheme is run among the members for their benefit. The members are bound to desist from any act or omission which may cause harm or damage to the society. Being a member the complainant has to follow the guidelines of the society. His rights, interest, and obligations are governed by the Multistate co-operative societies Act, 2002 which is a complete code in itself and inter-alia provides for dispute redressal mechanism between the society and its members. It is submitted that issue regarding maintainability of consumer complaint relating to dispute between Society and Member came up before Hon’ble NATONAL CONUSMER DISPUTES REDRESSAL COMMISSION IN CC 273 OF 2012.Jayantilal TrikambhaivsAbhinav Gold international and Hon’ble National Consumer Dispute Redressal Commission after considering the issue has appreciated the grounds taken by the Complainant and vide its order dated 19.09.2012 directed that – “The Complainant himself argued that the complainants are the investors. It is also clear that their primary aim is to have profit out of these transactions. Every now and then, the words huge profit, multi-profit, big profit, etc. find mention in the complaint. The only purpose is to earn the profits, through its appears that gullible persons have been taken for a ride. There is no evidence or no averment that the above said transaction was entered for self-employment or earning their livelihood. There is no averment that this transaction is the only source of their bred and butter. We, therefore, have no hesitation to hold that the complainant and the person who are seeking relief through them are not the consumers. Consequently the presently complaint is not maintainable. The complaint is, therefore, dismissed“. In present case the dispute, if any, between the complainant and the Opposite Party is between Member and Society, therefore in the light of law laid down by the, Hon’ble national Commission, Hon’ble State Commission and Hon’ble District Commission in the above mentioned cases, this Hon’ble Commission has no jurisdiction to try the present complaint. Thus present complaint is not maintainable before the Hon’ble District Commission and is liable to be dismissed with cost.

Points for determination are:

 1. Is the case maintainable in its present form and in law?                                              2.  Is the Complainant entitled to the relief(s) as sought for?

Decision with reasons

Both the points, being inter related to each other, are taken up together for discussion  for sake of brevity and  convenience.

It is evident from the annexure/certificates that the deposits were made by the complainant with the society which was duly registered. The OP being legal entity the complainant instituted the case against it. Upon notice the Ops appeared and questioned the maintainability of the case mainly on the ground that the certificate shows the complainant is a ‘Member’ of the society/OP, according to ops a member can not be treated as “depositor”, as such complainant is not a consumer. Let us see whether complainant can be treated as consumer or the ops can be treated as service provider. We observe that the OP has used the word “member” in the certificate instead of depositor in the enumerable  certificates. The concept of corporate/society entity does not permit  to designate all the enumerable depositors alike complainant as member. The OP has blatantly used the term member as cloak for fraud or improper conduct. Where the protection of public interest is of paramount importance this Commission shall not entertain the plea taken by the OP. The OP has used the term “member” in the certificate to evade its obligations imposed by the law. The notion of member instead of depositor has been created to defeat public convenience, justify wrong, protect fraud or defend crime. Where the conception of corporate entity is employed to defraud creditors, to evade an existing obligation, to circumvent a statute, to achieve or perpetuate monopoly, or to protect  knavery or crime, the Court will draw aside wrong  notion set up by the OPs and will do justice to the real depositors.  The OP, as service provider, used the term “member” in the certificate to avoid the action by any Court of Law, so this term should be treated as mere “sham” and made in order to defraud the real “depositor” alike complainant. The OPs have exploited its legal entity for the purpose of illegality or defrauding other. The OPs thus being a service provider by its action caused deficiency in service leading to severe mental agony and harassment to the complainant. Therefore, the principle of law as in the case of JayantilalTrikambhaivsAbhinav Gold international referred by the OPs in its petition is not applicable in the instant case as the facts and circumstances of this case are totally different from the facts and circumstances of the referred case. This the instant case is maintainable in its present form and in law.

We have carefully perused the affidavit of the complainant and the certificates produced by the complainant and find that the particulars of the complaint fully corroborate with the particulars of the certificates. None of the OPs has turned up to controvert the statement of the complaint on oath. So the complainant has been successful in proving his case.

Two decisions reported in 2016(4), CPR 325 (NC) and (2), 2016(4), CPR 723 (NC) have been referred in support of the case of the complainant. It appears that in 2016(4), CPR 325 (NC) it has been decided that non- payment of redemption/maturity amount even on receipt of the unit certificates is an act of deficiency in rendering service on the part of the Company. Here the Opposite Parties did not controvert that the complainant paid the amount as asserted by the complainant.  In 2016(4),CPR 723 (NC) it has been decided that the depositor shall have continuous cause of action to seek recovery of the amount of his fixed deposit.

        In this case it appears that sham paper transaction has been created in order to take deposit of money from the presumably illiterate person.  Consumer law being a beneficial legislation, the Commission cannot overlook that in this way some companies are taking money from the poor people and filling up their iron chest.

        Ld. Advocate for the complainant argued that the complainant along with many persons have been cheated by the op Co.. They have invested money with the Co. on the assurance that they would get maximum value after the maturity period. But they have not received said amount.

        In Civil Appeal No. 3883 of 2007, the Hon’ble Supreme Court has been pleased to observe in the matter dispute concerning a consumer that it is necessary for the courts to take a pragmatic view of the rights of the consumer principally since it is the consumer who is placed at a disadvantage visa vise the supplier of service or goods.

        In view of the aforesaid decisions and on the basis of the uncontroverted statement made in the complaint supported by affidavit, it is clearly established that the complainant is a Consumer under the Consumer Protection Act 2019(An Act to promote, protect and enforce the rights of the consumers) and there is deficiency of service on the part of the Opposite Parties according to the Consumer Protection Act 2019. 

Thus, both the points are decided in favour of the complainant.

Hence, it is

O R D E R E D

That CC/24 of 2022 be and the same is allowed ex parte against the OPs.

        The Opposite Parties, who are jointly and severally liable, are hereby directed to pay a sum of Rs.2,29,683/- to the complainant within one month from the date of this order along with interest @ 10% p.a. from the date of filing of this case  till full realization of the awarded amount with further Rs. 1000/- as litigation cost, failing which the complainant will be at liberty to put this order into execution.

 Let copy of the judgment be supplied to all the parties free of cost.