BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 18^TH February 2015

PRESENT

       SMT. ASHA SHETTY           :  HON’BLE  PRESIDENT

       SMT.LAVANYA M. RAI       :   MEMBER

CC.No.422/2014

(Admitted on 15.11.2014)

Mrs. Marina S.Lobo,

W/o Melwyn Lobo,

Aged about 40 years,

Residing at Bairady,

Alape Village,

Padil Post,

Mangalore.                              …… COMPLAINANT

(Advocate for the Complainant: Sri. K.Sadananda)

     VERSUS

The South Kanara Agriculturist

Co-Operative Marketing Society Ltd.

No.3901, APMC Sub-Yard,

Nellikai Road,

Mangalore-575 001

Represented by its Managing Director. …OPPOSITE PARTY

(Opposite Party: Exparte)

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. ASHA SHETTY:

I.       1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Party claiming certain reliefs.

The brief facts of the case are as under:

The Complainant has deposited certain sum of money with the Opposite Party and the Opposite Party is a registered society having its registered office in the above address. The details of the amounts deposited with the Opposite Party finance mentioned in detail herein below:-

The Complainant stated that, they have invested their hard earned money in Opposite Party co-operative society under the Fixed Deposit Receipts for the stipulated period and the Opposite Party inturn agreed to pay interest mentioned in the fixed deposit  receipts.  Further it is stated that, the Opposite Party inspite of agreed to refund the aforesaid amount on the date of maturity mentioned in the Fixed Deposit Receipts not refunded the amount till this date.

It is stated that, the Complainant approached the Opposite Party, the Opposite Parties have been indefinitely postponing the money payable under the Fixed Deposit Receipts without assigning any valid reasons which amounts to deficiency in service and hence the above complaint is filed before this Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay the amounts shown in the schedule mentioned in the deposit receipts issued by the Opposite Party i.e. face value and interest till the maturity date and also pay interest at the rate of 14% per annum on the deposit receipts  from the maturity date mentioned in the deposit receipts till the date of payment and also sought for compensation and cost of the proceedings.

II.      1. Version notice served to the Opposite Party by R.P.A.D. Inspite of that Opposite Party not appeared nor represented the case till this date. Hence we proceeded exparte as against Opposite Party and Postal Acknowledgement marked as Court Doc.No.1.

III.     1. In support of the complaint, Mrs. Marina S.Lobo – Complainant (CW1) filed affidavit reiterating what has been stated in the complaint and produced Ex. C1 to C15. Opposite Party placed exparte.

In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the complaint filed by complainant is maintainable?

2. Whether the Complainant proves that the Opposite Party committed deficiency in service?

3. If so, whether the Complainant is entitled for the reliefs claimed?

4. What order?

           We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows: 

             Point No.(i) & (ii): Affirmative.

                       Point No.(iii) & (iv): As per the final order.       

REASONS

IV.  1.  POINTS No. (i) to (iv):

In the instant case, the Complainant in order to substantiate the complaint filed evidence on affidavit supported by Fixed Deposit Receipts i.e. Ex.C1 to C13 mentioned in the annexure in detail.  The Complainant sworn affidavit stating that, the Fixed Deposits are matured but the Opposite Party keep on assured to refund the amount by giving one or the other excuses and postponing the payment without valid reasons.  However, now the point for consideration is that, whether the Complainant is entitled for the amount mentioned in the Fixed Deposit receipts and thereby without paying the aforesaid amount the Opposite Parties have committed deficiency in service? Answer is affirmative.

On perusal of the oral as well as documentary evidence available on record, we find that, the Complainant deposited the hard earned money under the Fixed Deposit receipts with the Opposite Party and the Opposite Party inturn agreed to refund the amount along with the interest on the date of maturity mentioned in the Fixed deposit receipts.  We are of the considered opinion that, in a case of like this nature reciprocal promises were enshrined in the contract/certificate/receipts entered/issued between the parties, both the parties were obliged to perform in that ‘Order’.  No doubt the Complainant invested certain sum of money under the Fixed Deposit receipts for a particular period with the Opposite Party and the Opposite Party inturn received the invested amount from the Complainant and agreed to refund the aforesaid amount along with the interest on the date of maturity.  When that being so, it is the obligation on the part of the Opposite Party’s Co-operative society to refund the amount to the Complainant on the date of maturity because the Opposite Party’s made use of the money pertaining to the Complainant in their society and agreed to refund the amount with interest.  When that being the position, the Opposite Parties society should have refunded the amount to the Complainant without any demand.  As we know, the financial institutions are facing financial crunches and caused problems to the depositors and keep on seeking/postponing the payment by giving the one or the other reasons are common in a case of like this nature.  By considering the transactions involved in the above case, we are of the opinion that, cause of action will be continued till the payment invested under the Fixed Deposit receipts received by the Complainant.

Apart from the above, we also observed that, in similar case the opposite parties took a contention that in other similar cases the complaint is not maintainable in view of the Co-operative Societies Act 1959 as per Section 70.  It is a settled position of law that, Section 3 of the Consumer Protection Act 1986 not in derogation of any other law inforce, we mean to say Karnataka Co-operatives Societies Act 1959 too. It is further stated that since 10 to 12 years due to loss in areca nut business, the society is suffered more than 24 crores. Hence the society is suffering from financial crunch.  Therefore, they could not discharge the liability/fixed deposits to the general public.  It is also stated that they will take steps to repay the same and denied the deficiency in service.

In this connection we have referred a citation - THE TRINITY HOUSE BUILDING CO-OPERATIVE SOCIETY LTD. & ANR. VS WILSON PETERS decided on 30.11.1995 reported in 1996 Vol-I CPR 679 held as under:-

Consumer Protection Act, 1986 – Section 3 – Act, not in derogation of any other law – Karnataka Co-operative Societies Act, 1959 – Section 70 – Complainant about neither allotment of housing site nor refund by OP/appellant- Allowed by DF – Appeal against – Whether Section 70 of Kar. Co-op-Soc. Act bars jurisdiction of Consumer Forum ? – (No) – Complaint is maintainable under COPRA (PARA 18) -  4 ½ YEARS LAPSING SINCE DEPOSIT – No allotment D.F. rightly ordered refund with interest (para 19).

Section 70 of Karnataka Co-operative Societies Act, 1959 is not a bar to a complaint seeking relief for loss and injury suffered due to negligence of D.P. in deficiency in the performance of service viz. Allotment of housing site within a reasonable time after deposit of amount.

Similarly even in the above complaint there is no dispute that the complainant deposited amounts with the opposite parties as averred by them in the complaint seeking refund of the amount.  The opposite parties did not refund the amount till this date. Therefore, we hold that there is no substance in the version filed by the opposite parties even the co-operative societies also falls within the purview Section 3 of the Consumer Protection Act, 1986. A person includes a Co-operative Society, the complainant has got right to file complaint against the co-operatives societies, the harmonious construction of these two provisions will clearly establish that the complaint filed by the complainant is maintainable under the Consumer Protection Act 1986.

By considering the above aspects, we hold that, on failure to pay the aforesaid amount on the date of maturity  till this date amounts to deficiency in service as well as unfair trade practice as stated supra. Therefore, we hereby directed the Therefore, we hereby directed the Opposite Parties jointly and severally to refund Rs.7,47,155/- (Rupees Seven lakhs Forty Seven thousand one hundred fifty five only) i.e Ex.C1 to C13, along with contractual rate of interest from the respective date of deposits till the date of maturity to the complainant and thereafter Opposite Parties shall pay interest at the rate of 12% per annum from the respective date of maturity till the date of payment. And also pay Rs.3,000/- (Rupees three thousand only) towards the cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.

In the result, we pass the following:-               

ORDER

The complaint is allowed. Opposite Parties jointly and severally to refund Rs.7,47,155/- (Rupees Seven lakhs Forty Seven thousand one hundred fifty five only) i.e Ex.C1 to C13, along with contractual rate of interest from the respective date of deposits till the date of maturity to the complainant and thereafter Opposite Parties shall pay interest at the rate of 12% per annum from the respective date of maturity till the date of payment. And also pay Rs.3,000/- (Rupees three thousand only) towards the cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

The F.D.R. if any deposited by the Complainant be returned fourth with by substituting the certified.

The copy of this order as per the statutory requirements be forwarded to the parties and therefore the file be consigned to record.

(Page No.1 to 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 18^th day of February 2015.)

PRESIDENT                                   MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – CW1 Mrs. Marina S.Lobo - Complainant.

Documents produced on behalf of the Complainant:

Ex C1 to C13: Original Fixed Deposit Receipts (13 in Nos.).

Ex C14: 1.8.2014: Office copy of Lawyer’s Notice.

Ex C15: Postal Acknowledgement.

Court Document:

Doc.No.1: Postal Acknowledgement.

Witnesses examined on behalf of the Opposite Party:

- Nil -

Documents produced on behalf of the Opposite Party:       

- Nil -

Dated:18-02-2015                          PRESIDENT