Haryana

Ambala

CC/61/2011

ANEESH GOYAL - Complainant(s)

Versus

THE VANKHANDI - Opp.Party(s)

NAVNEET GUPTA

14 May 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                        Complaint Case No.    : 61 of 2011

             Date of Institution       : 21.02.2011 

                         Date of Decision         : 14.05.2015

Aneesh Goyal  son of Sh. S.K. Goyal resident of Kothi No.1400, Sector-9 HUDA,

Ambala City.                                                                                  ……Complainant.

                                                                               Versus

1.         The Van Khandi Co-operative Non-Agriculture Thrift & Credit Society Ltd. Ambala City through its President, Sh. Parmod Singh Rana C/o State Bank of India, Liability Central Processing Centre, D-173, Phase 8-B, Industrial Area, S.A.S. Nagar, Mohali (Punjab).

2.         Parmod Singh Rana, President, The Van Khandi Co-operative Non Agriculture Thrift & Credit Society Ltd. Ambala City C/o  State Bank of India, Liability Central Processing Centre, D-173, Phase 8-B, Industrial Area, S.A.S. Nagar, Mohali (Punjab).

3.         M.L.Sehgal, Vice President, The  Van Khandi Co-operative Non Agriculture Thrift & Credit Society Ltd. Ambala City C/o State Bank of India, Polytechnic Branch, Ambala City  and # 198, Sector-9, Urban Estate, Ambala City.

                                                                                                            ……Opposite Parties.

Complaint Under Section 12 of the Consumer Protection Act.

CORAM:        SH. A.K. SARDANA, PRESIDENT.

                        SH. S.C.SHARMA, MEMBER.                      

                       

Present:          Sh. Navneet Gupta, Adv. for Complainant.

                        Sh. Sudhir Sehgal, Adv. for OPs No.1 & 2.

                        Sh. Mohinder Bindal, Adv. for OP No.3.                       

ORDER.

1.                     Brief facts of  the present complaint are that the OPs No.2 & 3 are running the aforesaid society  and used to receive money from the public at large in the name of above-said society i.e. OP No.1 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 respondents agreed to deposit a sum of Rs.22500/- with the society vide FDR No.10738 dated 10.05.2008 having interest @ 12.5% per annum and having date of maturity as 16.04.2009.  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 them by not making the payments on due date which caused great mental pain & harassment to them. Hence, the complainant has filed the present complaint seeking relief as mentioned in prayer clause of the complaint.

2.                     Upon notice, OPs No.1 & 2 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 complainant has received the amount in question alongwith interest thereon and thus prayed that there is no deficiency in service on their part and sought  dismissal of complaint with costs.

3.                     OP No.3 filed his separate written statement raising preliminary objections qua non-maintainability of complaint being a civil matter and not covered under the Consumer Protection Act.  It has further been urged that only the Ops No.1 & 2 are liable for the refund of the amount and  the answering OP is not concerned with the affairs of the society as he had resigned from the post of Vice President long ago which was accepted by the Co-operative Society. On merits, it has been denied that the answering OP was the member of the committee  and running  its business.  It has also been urged that neither any payment nor any FDR was ever signed or received  by the answering OP.  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 has tendered in evidence  affidavit Annexure C-X alongwith documents Annexures C-1 to C-11 on behalf of complainant and closed the same  whereas on the other hand, the counsel for the Ops No.1 & 2 tendered in evidence affidavit Annexure R-Y in their evidence and closed the same.  The counsel for OP No.3 tendered in evidence affidavit Annexures R-X & RZ alongwith documents Annexure R-1 to R-46 on behalf of OP No.3 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.22500/-/- 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.                     On the other hand, the learned counsel for OPs No.1 & 2 argued that the complaint is not maintainable under the Consumer Protection Act as per Provisions of Haryana Co-Op. Societies Act.  Moreover, the complainant has already received the amount of FDR alongwith interest thereon and prayed for dismissal of the complaint with costs.

                        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 2004/2005 as is clear from different applications (Annexures 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.3 was accepted by the Assistant Registrar, Co-OP. Societies, Ambala (Annexure R-6). Thereafter, OP No.3 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 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 signatures 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 (Annexure R-41). Moreover, the OP No.3 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.3 has 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.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 may 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 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- 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 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 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.                     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 as is evident from Annexures C-9 & C-10.  The OPs No.1 & 2 in their written statement have 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 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 FDR in question to the 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 Co-operative Act unless the same is not accepted by Managing Committee of the society. Moreover, from the perusal of documents Annexure C-2, C-3, C-6 & C-7 (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-4 & C-5 (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.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.  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.3 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 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 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:-

1. To pay the amount of FDR No.10738 amounting to Rs.22500/- 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. 10.05.2008 to 16.04.2009) and thereafter on the matured amount i.e. (Principal + Interest), pay simple interest @ 9% Per Annum w.e.f. 17.04.2009 to till its actual realisation.
2. 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 concerned free of costs. File be consigned to the record room after due compliance.

 

Announced in open Court.14.05.2015                 

 

                                                                                                                              

                                                                                                        Sd/-

                                                                                               (A.K. SARDANA)

                                                                                                     PRESIDENT

                                                                                                       Sd/-

                                                                                              (S.C. SHARMA)

                                                                                                    MEMBER