1. The brief facts leading to the institution of present complaint are that the OPs No.2 to 4 are running the aforesaid society i.e. OP No.1 who used to receive money from the public at large with the assurance to them to earn attractive rate of interest, high returns & secured investment. It has been further alleged that the complainant after inspiring the assurance as well as representation of the Ops/ respondents, agreed to deposit a sum of Rs.40,000/- with the society vide FDR No.10805 dated 29.01.2009 @ 12.5 % per annum having due date of maturity as 07.05.2009. At the time of maturity of FDR in question, OPs failed to pay the matured amount despite various visits and requests. As such, the Complainant has submitted that the OPs have attributed bad & deficient services to her by not making the payments on due date which caused great mental pain & harassment. Hence, the Complainant has filed the present complaint seeking relief as mentioned in prayer clause of the complaint.
2. Ops No.1 & 2 refused to take the notices, as such they were proceeded against exparte vide order dated 07.12.2011. OP No.4 did not appear despite service of summons, as such, OP No.4 was proceeded against exparte vide order dated 12.11.2013.
3. OP No.3 filed his separate written statement raising preliminary objections qua non-maintainability of complaint. Further, it has been stated that answering OP was the Vice President of the said society for a short period and thereafter his resignation has been accepted by the Assistant Registrar, Cooperative Societies, Ambala, Haryana vide letter dated 11.12.2009 addressed to Deputy Registrar, Cooperative Societies, Kurukshetra. The answering respondent is not concerned with the affairs of the society which is very much apparent from the receipt of FDR duly signed by President, Sh. Parmod Rana. It is further submitted that the payment under the said FDR has been made by the Complainant to OP No.2 and OP No.3 has neither received any amount on behalf of the society nor signed the FDR in question. Therefore, the OP No.3 has been wrongly arrayed as OP in this complaint particularly when the OP No.3 is neither Vice President nor Member of the Executive Body and is not in any way concerned with the affairs of the society as he had resigned long ago. 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 complainant had tendered affidavit Annexure C-X alongwith documents Annexures C-1 to C-9 and closed the evidence. On the other hand, the counsel for the OP No.3 tendered affidavit Annexure RX alongwith documents Annexure R-1 to R-46 in evidence and closed the same.
5. We have heard the learned counsel for the complainant and gone through the record very carefully. The learned counsel for the complainant argued that the complainant had invested an amount of Rs.40,000/- in the shape of FDR with the OPs-society and the maturity amount of the FDR was not paid to the complainant hence, a prayer for acceptance of the complaint against the OPs has been made. The counsel for complainant has 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. The counsel for the OP No.3 vehemently argued that OP No.3 M.L. Sehgal had resigned from the society long ago i.e. in the year of 2005 as clear from different applications (Annexure R-2, R-3, R-4, & R-5) addressed to the then Assistant Registrar, Cooperative Societies & Deputy Registrar, Cooperative Societies of the Society through registered post as well as by hand. The said resignation of OP No.3 was accepted by the Assistant Registrar, Co.OP. Societies, Ambala as clear from contents of letter No.3016/RK-1 dated 11.12.2009 (Annexure R-6). Thereafter, OP No.3 did not participate 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 complainant. The counsel for the OP No.3 also relied upon the case law titled as Gulab Singh Vs. Urmil Devi & Ors. reported in CPC 2002(2) Pg. 345 wherein it has 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.3 further argued that the signature in the proceedings book were forged by Sh. Parmod Singh Rana, OP No.2-President of the society which is evident from report of Forensic Document Expert Report made by Sh. Devendra Prasad (Annexure R-40) and opinion of Mani Jain, Handwriting Expert as Annexure R-41. Moreover, the OP No.3 wrote a letter dated 25.11.2008 (Annexure R-24) to the Branch Manager, Corporation Bank, Ambala City 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.3 has argued that during the investigation of FIR No.92 dated 11.06.2009 lodged against certain office bearer of the society regarding misappropriation of public money, the OP No.3 was discharged by the Investigating Agency from initiating criminal proceedings against him. The counsel for OP No.3 further argued that after his resignation, the OP No.3 never attended any meeting/proceedings/election of the society. Therefore, the question of deficiency in service on the part of OP No.3 does not arise and complaint against OP No.3 be dismissed. The OP No.3 has 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 has been observed by various Consumer Fora’s 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- Complainant 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 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 complainant 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 Complainant 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 derogation 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 Complainant 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 and the case laws referred above by the counsel for OP No.3 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 FDR in question was issued by the OP-society. It is also admitted fact that name of the society was changed and its certain bye-laws were amended on 25.06.2004 as evident vide Annexure R-10. OP No.1 & 2 in their written statement has averred that the complainant has already received the amount of FDR alongwith interest thereon but no any document in support of aforesaid version has been placed on record by them. As such, it is not proved on file that the complainant has received the matured amount of FDR. Moreover, where a company or a firm invites deposits from the public for the purpose of using money for its business on promise or giving attractive rate of interest with security of investment and prompt repayment of the principal after the stipulate 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 complainant itself is a grave deficiency in service on the part of OPs.
9. Further the contention of OP No.3 that he is not liable to make the payment of FDR alongwith other OPs is not tenable since no any document has been placed on the file by OP No.3 wherefrom it is proved that the resignation of OP No.3 was accepted by the Managing Committee of the Society. Mere accepting of resignation of OP No.3 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. Moreover, from the perusal of documents Annexure C-1, C-2, C-5 & C-6 (Audit report dated 31.03.2007, Information supplied by Assistant Registrar, Co.Op. Societies, Ambala under RTI Act, letter No.3085 dated 17.12.2009 & letter No.3222 dated 31.12.2009 respectively), it is proved that OP No.3 i.e. M.L. Sehgal, was Vice President of the society on 31.12.2009. It is also evident from the Annexure C-3 & C-4 (photocopy of cheques dated 13.06.2007 and 13.07.2007 which has 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.3 was not only actively participating in the day to day functioning of the society but has also been signing important financial documents in the nature of issuing cheques. 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 has 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 has 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 has been upheld. As such, OP No.3 cannot absolve himself from making payment to the complainant jointly and severally alongwith other opposite parties.
10. 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 12.5% per annum due to peculiarity of circumstances as most of the loanee of the society has 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 communication of this order:-
To pay the amount of FDR No.10805 amounting to Rs.40,000/- to the Complainant alongwith simple interest @ 12.5% per annum from the date of deposit till the date of maturity i.e. (w.e.f. 29.01.2009 to 07.05.2009) and thereafter on the matured amount i.e.(Principal + interest) pay simple interest @ 9% Per Annum w.e.f. 08.05.2009 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. :04/02/2015
