BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 30^th NOVEMBER 2015

PRESENT

        SMT. ASHA SHETTY           :  HON’BLE  PRESIDENT

        SMT.LAVANYA M. RAI        :   HON’BLE MEMBER                                         

COMMON ORDER IN

C.C.Nos. 368, 369/2015

CC.No.368/2015

(Admitted on 17.10.2015)

Mr. K. Shivaraya Shenoy,

S/o Late K. Ramaraya Shenoy,

Aged 60 years,

Door No. 1-98, Khandige House,

Maroli Village, Kulshekar Post,

Mangalore.                                                 …… COMPLAINANT

(In person) 

VERSUS

The South Kanara Agriculturists Co-Operative

Marketing Society Ltd.,

No. 390, Sahakari Mahal,

Mangalore-1

Represented by the Liquidator/Asst. Registrar

Of Co-operative Society,

Puttur. D.K.

(Opposite Party  Ex-parte)

 CC.No.369/2015

(Admitted on 17.10.2015)

Mrs Latha P. Suvarna

W/o Dr. Praveen Suvarna

Aged about 55 years,

R/a. Shivabagh 5^th Cross,

Behind Regional Office,

Karnataka Bank, Mahaveera Circle,

Mangalore 575 002.                                 …… COMPLAINANT

(Advocate for complainant by Sri K.B.Arasa)

VERSUS

The Official Liquidator,

The South Canara Agriculturist’s

Co-operative Marketing Society Limited

Sahakari Mahal, P.B. No.159,

Mangalore-01, D.K.

 (Opposite Party  Ex-parte)

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. ASHA SHETTY:

I.       1. The above complaints are filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the common Opposite Parties claiming similar reliefs.  In order to save the time as well as for the sake of convenience, we have taken up all the cases together and passed common order as under:-

The brief facts of the case are as under:

The Complainants are 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 society mentioned in detail herein below:-

Complainants stated that, they have invested their hard earned money in Opposite Parties co-operative society under the fixed deposit receipt for the stipulated period mentioned in the respective fixed deposit receipts and the Opposite Parties in turn agreed to pay interest mentioned in the certificates. Further it is stated that, the Opposite Parties in-spite of agreed to refund the aforesaid amount on the date of maturity mentioned in the respective F.D. Receipts not refunded the amount till this date.

It is stated that, the Complainants approached the Opposite Parties, the Opposite Parties have been indefinitely postponing the money payable under the F.D. Receipts without assigning any valid reasons which amounts to deficiency in service and hence the above complaints are 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 entire Deposited amount invested by them respectively mentioned in their complaints and also sought for compensation and cost of the proceedings.

II.      1. Version notice served to the Opposite Parties.  Among them one of the opposite party filed version but rest not filed and placed Ex-parte in some cases.

However, the Opposite Party No.1 appeared in person, filed similar version in all the cases and stated that since 10 to 12 years due to loss in arecanut 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 deposit to the general public.  It is also stated that they will take steps to repay the same and denied the deficiency in service and prayed for dismissal of the complaint.

III.     1. In support of the above complaints, all the respective Complainants are examined as CW-1 and produced documents got marked under the ‘Ex.C’ series detailed in the annexure here below. Opposite Parties not led any evidence. 

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

1. Whether the complaints filed by complainants are maintainable?

2. Whether the Complainants proved that the Opposite Parties committed deficiency in service?

3. If so, whether the Complainants are 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 Complainants in order to substantiate their respective complaints filed evidence on affidavit supported by fixed deposit receipts i.e. Ex.C ‘series’ in all the complaints mentioned in the annexure in detail.  The Complainants sworn affidavits stating that, the Fixed Deposits are matured but the Opposite Parties 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 Complainants are 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?

On perusal of the oral as well as documentary evidence available on record, we find that, the Complainants deposited the hard earned money under the Fixed Deposit Receipts with the Opposite Parties and the Opposite Parties in-turn agreed to refund the amount along with the interest on the date of maturity mentioned in the respective F.D. Receipts.  We are of the considered opinion that, in a case of like this nature reciprocal promises were enshrined in the contract/certificate entered/issued between the parties, both the parties were obliged to perform in that ‘Order’. No doubt the Complainants invested certain sum of money under the Fixed Deposit Receipts for a particular period with the Opposite Parties and the Opposite Parties in-turn received the invested amount from the Complainants 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 Parties Co-operative society to refund the amount to the Complainants on the date of maturity because the Opposite Parties made use of the money pertaining to the Complainants 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 Complainants 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 certificate are received by the Complainants.  It is not the case of the Opposite Parties that, they have offered the payment on the date of maturity or subsequent dates till this date. Even in this count the complaint is maintainable.

We further observed that, the Complainants invested certain sum of money under the Fixed Deposit Receipts and Opposite Parties agreed to repay the amount along with the interest but failed to pay the said amount till this date amounts to deficiency in service as well as unfair trade practice.

Apart from the above, we also observed that, 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 all the complaints there is no dispute that the complainants 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 complainants have got right to file complaints against the co-operatives societies, the harmonious construction of these two provisions will clearly establish that the complaints filed by the complainants are 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 Opposite Parties are jointly and severally shall pay the entire amount mentioned in the Fixed Deposit Receipts in CC.No.368/2015 Rs.43,742/- (Rupees Forty three thousand seven hundred and fourty two only) i.e Ex.C1 to C3, in CC.No.369/2015 Rs.2,68,000/- (Rupees Two lakhs sixty eighty thousand only) i.e Ex.C1 to C4, along with contractual rate of interest from the respective date of deposits till the date of maturity to the complainants 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) in each case towards the cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

In the present cases, 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 complaints are allowed. Opposite Parties are jointly and severally shall pay the entire amount mentioned in the Fixed Deposit Receipts in CC.No.368/2015 Rs.43,742/- (Rupees Forty three thousand seven hundred and fourty two only) i.e Ex.C1 to C3, in CC.No.369/2015 Rs.2,68,000/- (Rupees Two lakhs sixty eighty thousand only) i.e Ex.C1 to C4,  along with contractual rate of interest from the respective date of deposits till the date of maturity to the complainants 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) in each case 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 30^th day of OCTOBER -2015.)

PRESIDENT                                      MEMBER

 (SMT. ASHA SHETTY)                     (SMT. LAVANYA M.RAI)

D.K. District Consumer Forum                      D.K. District Consumer Forum

     Mangalore.                                                 Mangalore.        

ANNEXURE

Witnesses examined on behalf of the Complainants:

CW-1 : Mr. Shivaraya Shenoy-                 CC.No.368/2015.

CW-1 : Mrs Latha P.Suvarna-                  CC.No.369/2015

Documents produced on behalf of the Complainant:

In CC.No.368/2015:

Ex C1 to C3 – Original F.D. Receipt (1 in Nos. (3).

1.  29-01-2009-  Original fixed deposit number 000476 a sum of Rs. 19,100/- issued by the opposite party.

2.  02-09-2013-  Original fixed deposit number 4918/6027 a sum of Rs. 12,321/- issued by the opposite party.

3.  02-09-2013-  Original fixed deposit number 4919/6028 a sum of Rs. 12,321/- issued by the opposite party.

Documents produced on behalf of the Complainant:

In CC.No.369/2015:

Ex C1 to C4 – Original F.D. Receipt (1 in Nos. (4).

1.  26-06-2009-  Original fixed deposit number 000627 a sum of Rs. 1,25,000/- issued by the opposite party.

2. 25-02-2009-   Original fixed deposit number 000480 a sum of Rs. 45,000/- issued by the opposite party.

3. 04-06-2013-   Original fixed deposit number 004823 a sum of Rs. 49,000/- issued by the opposite party.

4. 04.06.2012-    Original fixed deposit number 484/5727 a sum of Rs. 49,000/- issued by the opposite party.

  Witnesses examined on behalf of the Opposite Parties:

- Nil -

Documents produced on behalf of the Opposite Parties:    

- Nil –

Dated: 30.11.2015.                                 PRESIDENT

ORDER

The complaints are allowed. Opposite Parties are jointly and severally shall pay the entire amount mentioned in the Fixed Deposit Receipts in CC.No.368/2015 Rs.43,742/- (Rupees Forty three thousand seven hundred and fourty two only) i.e Ex.C1 to C3, in CC.No.369/2015 Rs.2,68,000/- (Rupees Two lakhs sixty eighty thousand only) i.e Ex.C1 to C4, along with contractual rate of interest from the respective date of deposits till the date of maturity to the complainants 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) in each case 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   dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30^th day of NOVEMBER -2015.)

PRESIDENT                                      MEMBER

 (SMT. ASHA SHETTY)                     (SMT. LAVANYA M.RAI)

D.K. District Consumer Forum                      D.K. District Consumer Forum

Mangalore.                                                      Mangalore.