ORDER BELOW EXH. 1
Per – Hon’ble Smt. Manisha H. Repe, Member
1. This is a consumer complaint filed under section 12 of the Consumer Protection Act, 1986. It is filed by an individual consumer against opponent Nos. 1 & 2. The Opponent no. 1 is a society registered under Multistate Co-op. Societies Act. 2002. Opponent No. 1 is doing its business at Shirwal, Tal. Khandala, Dist. Satara. The Opponent No. 2 is State Bank of India, a nationalized bank and it is doing its business at Bhor, Tal.Bhor, Dist. Pune. Present complaint is filed by the complainant alleging deficiency in banking services on the part of the opposite parties.
2. The Complainant was working as a driver with Maharashtra State Transport Corporation (MSRTC). His saving account was with Opponent No. 2 bearing account no. 11344993529 at Bhor branch, Dist Pune. The said complainant stood as a surety for the loan amount disbursed by Opponent No. 1 to Mr. Narayan Shivram Wankhede, who was a principal debtor. It is the contention of the complainant that for the repayment of the said loan, Mr. Wankhede, had mortgaged his agricultural properties as a security for loan. Subsequently, outstanding loan amount was not repaid by Mr. Narayan Sakharam Wankhede within stipulated period, and therefore, the arbitration proceeding bearing No. 76/2015 was initiated by the Opponent No. 1, which finally resulted into granting award in favour of Opponent No. 1. The said arbitration award was granted on April 13, 2016. As per the said award, Mr. Narayan Sakharam Wankhede and the present complainant were held equally liable for making the repayment of the outstanding loan amount, which was disbursed to Mr.Narayan Sakharam Wankhede. Complainant averred in the complaint that award passed by the arbitrator in the arbitration proceeding bearing No. 76/2015 is not binding on him as there was no any arbitration agreement between the complainant and Opponent No. 1.
3. Mr. Narayan Sakharam Wankhede failed to make the arrangement of the said outstanding loan amount ordered in the award and therefore, Opponent No. 1 initiated execution proceedings against the principal debtor as well as the present complainant, as contemplated under the provisions of Multistate Co-op. Societies Act, 2002. Meanwhile, complainant, after his retirement, received gratuity amount, provident fund and pension amount that was transferred in his saving account bearing account No.11344993529 which was with Opponent No. 2. During the execution proceeding, despite service of notice, principal debtor Mr. Narayan Sakharam Wankhede failed to deposit the outstanding amount within stipulated period and thereby, attachment and seizure proceedings commenced against the present complainant. Subsequently, saving account of the complainant was seized and amount of Rs. 6,26,998/- (Rupees Six Lac Twenty Six Thousand and Nine Hundred Ninety Eight only) was debited from his account and transferred from his saving account to the account of Opponent No.1 towards the recovery of the outstanding loan amount that was borrowed by Mr. Narayan Sakharam Wankhede. It is stated by the complainant that Opponent No. 2 has, without any authority, debited and transferred his savings and pension and other benefits amount to the Opponent No. 1 and thereby caused injustice to him. It is the contention of the complainant that Opponent No. 1, without taking legal opinion from their legal advisors, acted arbitrarily and illegally. Hence, these illegal acts on the part of Opponent Nos. 1 and 2 amounted to deficiency in services and have, thus, caused irreparable loss to the complainant. Several demand notices were sent by the complainant to the Opponent No. 2 with regard to returning of the seized amount which was unlawfully debited from his saving account by Opponent No. 2. Despite having received the said notices by the Opponent No. 2, no amount was refunded by Opponent No.2 in the saving account of the complainant. Hence, this complaint has been filed by the complainant and he has prayed for returning of the amount of Rs. 6,26,998 (Rupees Six Lac Twenty Six Thousand and Nine Hundred Ninety Eight only) that was seized and transferred from his saving account by Opponent No. 2, and sought compensation of Rs.15,000 (Rupees Fifteen Thousand Only) from the opponents.
4. The complaint was filed along with delay application. Notices of the delay application were sent to the opponents. Opponents appeared before this Commission and filed their say on the delay application. Subsequently, delay application is not pressed by the complainant. Therefore, matter was kept for admission. At the time of admission, question of maintainability of the complaint was raised by the opponents.
5. Heard arguments of the advocates of both the parties on the point of maintainability of the complaint. Perused the documents on record. It is evident from the documents that principal debtor, Mr. Narayan Sakharam Wankhede had obtained the loan from Opponent No. l. It is admitted fact that present complainant stood guarantor for the said loan and it was not repaid by the principal debtor in the stipulated period and therefore, arbitration proceeding bearing No. 76/2015 was initiated against the complainant and principal debtor. In the arbitration proceeding, an award was passed on April, 13, 2016, against the complainant and principal debtor. Perused the copy of the award. It is evident from the award that despite the service of notice of the arbitration proceeding, the complainant remained absent and miserably failed to reply. Hence, intimation of the arbitration proceeding and sufficient opportunity was given to the complainant. It is clear from this, that the arbitrator has followed the rules of natural justice while passing the award in the arbitration proceedings. In the arbitration proceedings, complainant and principal debtor were held liable for the repayment of the outstanding amount and therefore, Opponent No. 1 initiated execution proceeding against the complainant for the repayment of the outstanding amount and thereby attached and seized savings account of the complainant. On perusal of the documents on record, it shows that Opponent No. 1 is a registered Co-op. Society registered under Multistate Co-op Societies Act, 2002 and arbitration proceedings was initiated against the complainant under the provisions of Multistate Co-op Societies Act, 2002. In view of the provisions of the Multistate Co-op Societies Act, 2002, there is a specific bar of jurisdiction under section 117(3) of the Act. Under the provisions of section 117(3), no decision or order made under this Act shall be questioned in any court. Therefore, aggrieved person has no right to challenge the order passed by the competent authorities under the Multistate Co-op Societies Act, 2002 either before Civil Court or any other forum. In the instant case, the recovery officer of the Opponent No. 1 acted under the sovereign powers as a recovery officer and attached and seized the savings account of the complainant and thereby debited the amount of Rs. 6,26,998 (Rupees Six Lac Twenty Six Thousand and Nine Hundred Ninety Eight only) towards the repayment of the outstanding amount of the loan amount. It is clearly evident from the documents that Opponent No.2 obeyed, followed and enforced the orders of the recovery officer of the Opponent No.1 and thereby transferred the amount to Opponent No.1 from the savings account of the complainant. Opponent No. 2 is legally bound to obey and enforce the orders of the competent authorities under the Multistate Co-op Societies Act, 2002. The remedy of the arbitration provided under the Multistate Co-op Societies Act, 2002 is statutory remedy and it is binding on all the parties to the arbitration proceedings. Thus, in view of the section 117(3) of the Multistate Co-op Societies Act, 2002, special embargo is created under the special Act and jurisdiction of the consumer forum is barred from interfering with the decisions and orders passed by the arbitrator and of the competent authorities. The Supreme Court in case of General Manager, Telecom v/s M. Krishan, reported in 2009(8) SCC 481 held that the special law overrides the general law and the consumer forum cannot usurp power and jurisdiction to decide a matter, if the same is conferred upon special forum. Hence, the dictum laid down by the Apex court in the aforesaid judgment is binding on us in this case.
6. Under these circumstance, it is the considered opinion of this Commission that this Commission is not empowered to entertain the present complaint and it is barred by jurisdiction. Hence, present complaint deserves to be dismissed. We hold accordingly and proceed to pass the following order.
O R D E R
- Complaint stands dismissed before admission.
- The parties shall bear their respective costs.
- Copies of this order be given to the parties free of cost.
