1. The brief facts leading to the institution of present complaint are that the OPs approached the complainants in the month of August, 2008 to deposit cash amount with their society as they were giving high rate of interest. The Ops further assured that the amount of complainants was safe as various persons were depositing their amount in this society. It was further assured by Ops that their society is registered one and amount deposited by the depositors will be returned as and when desired by them or at the time of maturity. It has been further alleged that the complainants believed the Ops and complainant No.1 deposited a sum of Rs.56,000/- vide FDR No.10765 dated 18.08.2008 for one year but the Ops mentioned the due date as 14.04.2009 and the complainant No.1 alongwith his wife i.e. complainant No.2 deposited a sum of Rs.82,880/- vide FDR No.10766 and Rs.27973/- vide FDR No.10767 dated 18.08.2008 for 12 months but the Ops mentioned the due date as 05.10.2009 and 21.01.2009 respectively. The rate of interest was mentioned as 12% per annum. The complainants approached the opposite parties in the first week of December, 2009 and asked them to repay the whole amount of FDRs alongwith interest but they failed to return the same till date. As scuh, the Ops have attributed bad & deficient services to the complainants by not making the payments on due date which caused great mental pain and harassment to them. Hence, the complainants have filed the present complaint seeking relief mentioned in prayer clause of the complaint.
2. Upon notice, OPs No.1 & 3 appeared through counsel and filed a joint written statement raising preliminary objections qua non-maintainability of complaint being barred by jurisdiction as the OP society is registered under the Haryana Co-op. Societies Act and all the disputes can be heard and decided by the Assistant Registrar or Registrar of the Co.Op. Societies. On merits, it has been urged that the complainants have received the amount in question alongwith interest thereon and thus prayed that there is no deficiency in service on their part and sought for dismissal of complaint with costs.
3. OP No.2 filed his separate written statement raising preliminary objections qua non-maintainability of complaint and that there is no privity of contract between the complainants and answering OP. Further, it has been stated that the answering OP is not concerned with the affairs of the society as he had resigned long ago. Thereafter, he never remained as member of the executive body during the currency of issuance of the alleged FDRs. It has been stated that the answering OP later on came to know that the proceedings book pertaining to the affairs of the society which was earlier in the custody of Sh. P.S. Rana is with the police in connection with a criminal case bearing FIR No.92 of 2009 registered at P.S. Sadar, Ambala. The answering OP was called by the police in connection with the investigation of the said case wherein it transpired that he was fictitiously shown to have attended the meetings including election meeting held on 10.02.2006 of the society. The answering OP further submitted that he is ready to give his specimen writing as well as signatures to this Forum for comparison as he has never attended any meetings subsequent to his resignation and his presence, if shown, is false. It has also been submitted that as per By-Laws No.33 of the society, a Member of committee ceases to hold office if he resigns from his post or he absents himself from the three consecutive meetings of the Managing Committee or he commits default in payment of dues of the society for a period exceeding six months. It has been stated that vide award dated 15.10.2009 passed by arbitrator under the co-operative Societies Act, the answering OP had made payment to the society on 11.05.2010. Hence, there is no deficiency in service on his part and prayed for dismissal of the complaint with costs.
4. In evidence, the counsel for the Complainants has tendered affidavits Annexure CX & CY alongwith documents Annexures C-1 to C-3 on behalf of the complainants and closed the evidence.
On the other hand, the counsel for the Ops No.1 & 3 tendered affidavit Annexure RX on behalf of OP No.1 & 3 and closed their evidence whereas the counsel for OP No.2 tendered affidavit Annexure RY alongwith documents Annexure R-1 to Annexure R-43 in evidence on behalf of OP No.2 and closed evidence on his behalf.
5. 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.56000 /-,Rs.82880/- and 27973/- in the shape of FDRs with the OPs-society and the maturity amount of the FDRs was not paid to the complainants hence, a prayer for acceptance of the complaint against the OPs has been made. The counsel for complainants have also relied upon a similar case recently decided by Hon’ble State Consumer Disputes Redressal Commission, Haryana titled as Shalu Chandna etc. Vs. The Vankhandi Co.OP NATC Society Ltd. and others bearing First Appeal No.216 of 2013 decided on 22.07.2013 wherein it has been held that OP No.3 Sh. M.L.Sehgal would also be liable jointly and severally alongwith other opposite parties to make the payments under relief granted by the Forum.
6. On the other hand, the learned counsel for OPs No.1 & 3 argued that the complaint is not maintainable under the Consumer Protection Act as per Provisions of Haryana Co.Op. Societies Act. Moreover, the complainants have already received the amount of FDR alongwith interest thereon and prayed for dismissal of the complaint with costs.
The counsel for the OP No.2 vehemently argued that OP No.2 Shri M.L. Sehgal had resigned from the society long ago i.e. in the year of 2004/2005 as is clear from different applications (Annexure R-29, R-30, R-32, & R-34) addressed to President of OP Society and were sent to him through various UPC’s (Annexures R-31,R-33 & R-35). The said resignation of OP No.2 was accepted by the Assistant Registrar, Co.OP. Societies, Ambala (Annexure R-6). Thereafter, OP No.2 neither participated in the proceedings of the society nor had gone to attend the meeting of society, therefore, he is not liable to pay any amount to the complainants. The counsel for the OP No.2 also relied upon the case law titled as Gulab Singh Vs. Urmil Devi & Ors. reported in CPC 2002(2) Pg. 345 wherein it have been held that-Cooperative Society-individual capacity-the President and Secretary of the society cannot be held liable in their individual capacity but only in their official capacity. The counsel for Op No.2 further argued that the signatures in the proceedings book were forged by Sh. Parmod Singh Rana, OP No.3- President of the society which is evident from report of Forensic Document Expert Report made by Sh. Devendra Prasad (Annexuure R-40) and opinion of Mani Jain, Handwriting Expert (Annexure R-41). Moreover, the OP No.2 wrote a letter dated 25.11.2008 to the Branch Manager, Corporation Bank, Ambala City (Annexure R-24) to delete his name from the list of authorized signatories of the society and further requested not to honour any cheques that bears his signature since he had resigned from the society. Besides it, the counsel for the OP No.2 have argued that during the investigation of FIR No.92 dated 11.06.2009 lodged against certain office bearers of the society regarding misappropriation of public money, the OP No.2 was discharged by the Investigating Agency from initiating criminal proceedings against him. The counsel for OP No.2 further argued that after his resignation, the OP No.2 never attended any meeting/proceedings/election of the society. Therefore, the question of deficiency in service on the part of OP No.2 does not arise and complaint against OP No.2 be dismissed. The OP No.2 have relied upon various case laws 2008 (2) CLT Pg.94 (NC) titled as Jai Singh Vs. LIC, 2002(1)CPC Pg. 77 case titled as Anil Kumar Agarwal Vs. Dena Bank, 1995(2)CPC-367 titled as M/s Krishan Poultry Farm Vs. NIC, 1997(2) CPC Pg.474 case titled as The Supreme Chemical Industries and Others Vs. Rajasthan State Industrial Development and Investment Corporation Ltd. & Ors. wherein it have been observed by various Consumer Foras that “where there is factum of fraud, conspiracy, cheating in Consumer complaints, that cannot be properly adjudicated in summary proceedings as envisaged under the Act- Complainants is relegated to the available remedy in the Civil Court”.
7. After hearing learned counsel for the parties and going through the record, the first and foremost question which 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 have 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 have 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 have 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 have very much jurisdiction to decide the matter in question involved in the present complaint and the case laws referred above by the counsel for OP No.2 qua the matter in dispute must be tried by the civil court being based upon fraud, are not applicable to the facts of the present case.
8. Further, it is an admitted fact on record that the FDRs in question were issued by the OP-society. It is also admitted fact that name of the society was changed and its certain bye-laws were amended as is evident from Annexure R-10. The OPs No.1 & 3 in their written statement have averred that the complainants have already received the amount of FDRs alongwith interest thereon but no any document in support of aforesaid version have been placed on record by them. As such, it is not proved on file that the complainants have received the matured amount of FDRs. Moreover, 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 FDRs in question to the complainants itself is a grave deficiency in service on the part of OPs.
9. Further, the contention of OP No.2 that he is not liable to make the payment of FDRs alongwith other OPs is not tenable since no any document have been placed on the file by OP No.2 wherefrom it is proved that the resignation of OP No.2 was accepted by the Managing Committee of the Society. Mere accepting of resignation of OP No.2 by the Assistant Registrar, Co.OP.Societies, Ambala is not recognized under the provisions of Cooperative Act unless the same is not accepted by Managing Committee of the society rather it is evident from the OP’s own documents i.e. Annexure R-27 & R-28 (photocopies of cheques dated 13.06.2007 and 13.07.2007 which have been issued by Sh. M.L.Sehgal, to one Ms.Poonam Mittal, in the capacity of authorized signatory of the society) that Sh. M.L. Sehgal OP No.2 was not only actively participating in the day to day functioning of the society but have also been signing important financial documents in the nature of issuing cheques. Further the reports of Sh. Devendra Prashad and Sh. Mani Jain, Handwriting and Fingerprint Expert (Annexures R-40 & R-41 respectively) tendered in evidence by OP No.2 are also not tenable in the eyes of law since the same were not prepared at the direction of the Forum or any other authority.
Besides it, Hon’ble State Commission in one similar case bearing First Appeal No.216 of 2013 titled as ‘Shalu Chandna etc. Vs. The Vankhandi Coop NATC Society Ltd. & others have specifically held that “OP No.3 Sh. M.L. Sehgal would also be liable jointly and severally alongwith other Ops to make the payments of OP society.” It is also pertinent to mention here that against the said order dated 22.07.2013 passed in F.A. No.216 of 2013, OP No.3 M.L. Sehgal also preferred Revision Petition No.3734 of 2013 before Hon’ble National Consumer Disputes Redressal Commission, New Delhi which have been dismissed with exemplary costs of Rs.25,000/- on 3.11.2014 and the order passed by Hon’ble State Commission Haryana in F.A. No.216 of 2013 have been upheld. As such, OP No.2 cannot absolve himself from making payment to the complainants jointly and severally alongwith other opposite parties.
10. So far as the future rate of interest on the maturity value of the said FDRs is concerned, the same cannot be allowed with the agreed rate of 12% 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 and the OPs are held liable jointly and severally to comply with the following directions within a period of thirty days from the receipt of this order:-
To pay the amount of FDR No.10765 amounting to Rs.56000/-, FDR No.10766 amounting to Rs.82880/- and FDR No.10767 amounting to RS.27973/- to the complainants concerned alongwith simple interest @ 12% per annum from the date of deposit till the date of maturity i.e. (w.e.f. 18.08.2008 to 14.04.2009, 18.08.2008 to 05.10.2009 & 18.08.2008 to 21.01.2009 respectively)and thereafter on the matured amount i.e. (Principal + Interest), pay simple interest @ 9% Per Annum w.e.f. 15.04.2009, 06.10.2009 and 22.01.2009 respectively to till its actual realisation.
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 free of costs. File be consigned to the record room after due compliance.
Announced in open Court. 05/02/2015
