Complaints filed on: 19-08-2021

                                                      Disposed on: 10-08-2022

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, TUMAKURU

DATED THIS THE 10^th DAY OF AUGUST, 2022

PRESENT

SMT.G.T.VIJAYALAKSHMI, B.Com, L.L.M, PRESIDENT

SRI.KUMARA.N, B.Sc., L.L.B, MEMBER

SMT.NIVEDITA RAVISH, B.A., L.L.B, LADY MEMBER

CC.No.66/2021

K.Govinda Reddy

S/o Chikka Anjinareddy,

A/a 87 years, R/at Kadagathur,

Kodigenahalli Hobli,

Madhugiri Taluk,

Tumakuru District.

(By Sri.C.N.Hanumantharaju, Advocate)

V/s

Sri Vinayaka Souharda Pattina Sahakari

Niyamitha, Lakshmiram building,

Behind Dwaraka hotel,

MG Road, Tumkur-01

President and Present Director

Sri Vinayaka Souharda Pattina Sahakari Niyamitha,

Lakshmiram building,

Behind Dwaraka hotel,

MG Road, Tumkur-01

Ex-President, Present Director of

Sri Vinayaka Souharda Pattina

Sahakari Niyamitha,

A/a 50 years, Ex-Directorof Sri Vinayaka

Souharda Pattina Sahakari Niyamitha,

OP Nos. 3 & 4 are R/at “Siri Nilaya”

Bethalur Cross, Bethalur,

Hanumanthapura Village,

Bheemasandra, SSMC Post,

Bellavi Hobli, Tumakuru Taluk.

Ex-Secretary, Sri.Vinayaka Souharda Pattina

Sahakari Niyamitha, M.G.Road, Tumakuru,

R/at Near Sacred Heart College,

Upparahalli Main Road, Upparahalli,

(OP.1 & 5 – Ex-parte)

(OP No. 2: Sri.S.K.S.Adv.,)

(OP No.3 – Served absent)

(OP No.4 by Sri.L.Ramanjaiah, Advocate)

                                                          :O R D  E R :

SMT.NIVEDITA RAVISH -  LADY MEMBER

          This complaint is filed U/s 35 of the Consumer Protection Act 2019 to direct the Opposite Parties (hereinafter called as OPs) to pay Rs.2,76,000/- (Rs.Two Lakhs Seventy Six thousand) i.e. Fixed Deposit with accrued interest and further prays to direct the OP to pay the compensation of Rs.2,00,000/- for deficiency of service of the OPs.  

2.       It is the case of the complainant that the OP No.1 is the present President, OP No.2 is the Ex-president, Ex-Vice President and present Director, OP No.3 is the Ex-President and present Director, OP No.4 is Ex-Director and OP No.5 is the Ex-Secretary of Sri.Vinayaka Souharda Pattina Sahakari Niyamitha, Tumakuru. On the request made by the OP Nos.3&4, the complainant has deposited in all Rs.2,76,000/- (Two Lakhs Seventy Six Thousand) with the OPs as under:

Due to the urgent financial needs, the complainant has approached and demanded to OP No.1 and requested to return the fixed deposit amount with interest.  Complainant has also approached and made request to return the fixed deposit amount with interest to OP No.3 who was President at that time and also with OP No.4. The OPs in spite of several requests, have failed to return the F.D. amount with interest.  Hence, this complaint.

3.       After registering the complaint, Commission notice was issued to OPs.  The OP No.1 has refused to claim the notice and though the notice served to OP5, has not appeared before the Commission; hence OP No.1 and 5 placed Ex-parte.  Notice to OP No.3 published in SAMYUKTHA KARNATAKA Kannada daily newspaper; even after notice published in the news paper, the OP No.3 has remained absent.  The OP Nos. 2 & 4 have appeared through their counsel and filed their respective version.

4.       Further, the OP No.4 has filed IA U/s 151 of CPC regarding maintainability of the complaint and complainant filed objections for IA U/s 151 of CPC filed by OP No.4.

5.       The OP Nos. 2 & 4 have made paravise objections in their version and denied all Paras from 2^nd Paragraph to Para of prayer column as false and further submitted that, in entire complaint the complainant has not at all stated anything about OP No.2 and 4 involvement with regard to any kind of amount and OP Nos. 2  and 4 are not necessary parties to the said complaint to adjudicate the matter.  Further, the OP Nos. 2 and 4 submitted that complainant has made deposit of his amount in the society, the society and CEO/Secretary is responsible for refund of the F.D., R.D. by making all arrangements since society is existing and continued its business, therefore the society and CEO are responsible for the return of the F.D. and R.D. Amounts.  The OP Nos. 2  and 4 further submitted that the complainant has not elucidated in entire complaint that how the Director /Ex-president are liable to pay the refund of the F.D., S.B. amount.  In the absence of those pleadings, the complaint is not maintainable against the OP Nos. 2 and 4.  Further the OP Nos. 2 and 4 submitted that there is no relationship of consumer/customer and present case is not maintainable either in law or facts and complaint has not made party of all Chairman, Vice-Chairman, members, directors and other official bearers.  The OP Nos. 2 and 4 further submitted that complainant has not whisper single words with regard to OP Nos. 2 and 4, OP Nos. 2 and 4 neither formal parties nor necessary parties and it is clear that the mis-joinder of the party of his ulterior ill motive and further submitted that the present dispute arises between the members of the society.  Hence, there is proper Forum to adjudicate the matter not before this Hon'ble Commission.  For the above all reasons OP Nos. 2 and 4 prayed for dismissal of the complaint against OP Nos. 2 and 4.

6.       Further, OP No.4 has filed IA U/s 151 of CPC regarding maintainability of the complaint.  In the affidavit with IA, OP No.4 has swear that, she has been appointed as director under ladies quota for the period of 5 years commencing from 29.02.2016 to five years, there after her period of Directorship in the Society has been completed/ended with the year 2021.  Thereafter by virtue of fresh election for the period of five years i.e. 22.02.2021 onwards election was conducted by virtue of JDRCS.  New Management body was constituted same was communicated to concern Authority at Bengaluru as well as Tumkur.  Hence, OP No.4 stated that she is not a director for the said society at present, hence she is not aware of the any of the deposit made by the complainant and its renewal and OP No.4 has mentioned the all averments of the version in the affidavit of said IA and prayed to dismiss the present complaint against the OP No.4.

7.       The complainant has filed the objections to IA U/s 151 of CPC filed by OP No.4 stating that all facts stated in the affidavit of OP No.4 annexed to the application are all denied as false and further complainant submitted that the said society is not functioning from 1 ½ years.   The OP No.3 who is the husband of OP No.4, was President from 2006 to 2020 and OP No.3 was the Director for the period more than 15 years.  The said Society is not functioning from 1 ½ years and only document purpose election was conducted and false Audit report was submitted to the concerned Authority and OP No.3 is an Advocate, practicing at Tumkur.  The complainant has deposited the amount on the request of the OP No.3 and OP No.3 assured that he is responsible for the said amount.  The OP No.4 is the wife of OP No.3 and she is Director of the said Society.  Hence, OP No.4 is also responsible to pay the deposited amount.  For the above reasons complainant prayed for dismiss the IA filed by the OP No.4 with exemplary costs.  We have heard the arguments of both sides on IA and on objections to IA.   

8.       The complainant has filed his affidavit and produced two documents, which are marked as Ex.P1 to & P10.  In spite of giving several opportunities, the OPs have not filed their affidavit evidence.

9.       We have heard the oral arguments of the counsel for complainant and OP No.1 & 3 in person who were arrested in other cases and produced by the Prison Authority at the time of arguments.  The points that would arise for determination are as under:-

1. Whether the complainant proves deficiency of service on the part of OPs?

2. Is complainant is entitled to the relief sought for?

10.      Our findings on the aforesaid points are as under:

Point No.1: In the affirmative

Point No.2: As per final order for the below

:R E A S O N S:

Point Nos.(1) and (2):

11.     The counsel for the complainant argued that the complainant has deposited in total Rs.2,76,000/- vide different fixed deposit receipt numbers on different dates in the OP’s Society and to proves the same complainant has produced the Ex.P1 to P9, the copy of the fixed deposit receipts were signed by Secretary, Vice President and President of the OP’s Society.  Further, complainant submitted that due to urgent financial needs he had approached OP Nos.1, 2, 3 and 4 on several time and requested them to return the fixed deposited amount with interest.  It is the right of the depositors to withdraw their deposited amount whenever they want/need. 

12.     The OP No.4 has filed an application U/s 151 of CPC and prayed for dismiss the complaint filed by the complainant against the OP No.4 who was Ex-Director of the Society since complaint is not maintainable against OP No.4 and Argued on IA as, OP No.4 has appointed as Director under Ladies quota for the period of 5 years i.e. from 29.02.2016 to 5 years and period of OP No.4 as a Director is ended with the year 2021.  Thereafter by virtue of fresh election was conducted by virtue of JDRCS, new Management Committee was formed by election which was held in the year 2021.  Further, OP No.4 argued that after the formation of new Management body, she has remains in Society as a Member only, hence she is not concerned or liable to return a fixed deposited amount of the complainant.  Further, the OP No.4 has argued that returning of the deposited amount is the duty of the CEO/Secretary of the Society.

13.     In objection to the IA filed by the OP No.4 the counsel for the complainant has argued that the said Society is not functioning from 1 ½ years and the business of the said society closed from 1 ½ years, no transaction took place during that period and only for the documentation purpose election was conducted and false Audit report was submitted to the concerned authority.  Further, counsel for the complainant argued that, OP No.4 along with other OPs making unfair trade practice and complainant counsel submitted that the complainant has deposited the amount as per the request of the OP No.3 and OP No.4.   OP No.4 has herself submitted that she has been Director of the said Society from 29.02.2016 and complainant has deposited the amounts on different dates as per the request of the OP Nos. 4 & 3, when OP No.4 was been an active Director of the said society.  Hence, we have come to the conclusion that, the OP No.4 has also liable to return the F.D. Amount deposited by the complainant. Hence, IA filed by the OP No.4 U/s 151 of CPC is liable to be dismissed.

14.  Counsel for the OP Nos. 2 & 4 were submitted that the return of the deposits is the duty of the CEO/Secretary of the Society, not the duty of the OP Nos. 2 & 4.  As per our discussion when directors, presidents and members of the Society were worked for collection of the deposits for development of their society, then they are very much liable and responsible to return and protect the deposit amount of the depositors with interest.  Hence, OP Nos. 2 & 4 are liable in returning of the F.D. Amount with interest to the complainant.

15.     Further, OP Nos. 2 & 4 submitted that the present dispute arises between the members of the Society, hence there is proper Forum to adjudicate the matter and not before this Hon’ble Commission and prayed for dismissal of the complaint.  It is pertinent to note that reliefs sought for Consumer Protection Act reliefs are in addition to other reliefs.  Section 100 of C.P.Act 2019 reads as ‘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”.  and in the case of Arvid Mills Ltd., V/s M/s Associated Roadways, reported in 2004(3) CTC 127, the Hon’ble Supreme Court has held that “remedies available under the Consumer Protection Act are additional remedies and not derogation of any other law.  Thus, we find that the complaint is maintainable before this Consumer Commission.

16.     Further, OP Nos. 2 & 4 have taken contention that the complainant has not made all the Chairman, Members and other Office bearers as party to the complaint and complainant has made these OPs as a party to the proceedings to harass these OPs.  In contrary, these OPs are failed to produce the list of all Members, Chairman, President and other office bearers of the said Society.  Hence, the contention of the OPs cannot be acceptable.  Furthermore, when the complainant deposited his hard earned money, if money is not given to him whenever he needs, it obviously amounts to deficiency in service on the part of the OPs.  It is the bounden duty of the OPs and they should make all endeavor to pay back the amount in deposit with interest and not doing so it is a mis carriage of justice and gross deficiency in service on the part of OPs.  Ex.P1 to P9 are clearly reveals that, complainant has deposited total amount of Rs.2,76,000/- and their due date as shown in the table.  Due to some financial needs complainant wanted to return the deposited amounts before maturity date.  Meanwhile of this proceedings, 02 F.D. receipts those are Receipt Nos. 437 and 438 were reached the maturity date and even till the date, the OPs have not shown the courtesy to return the deposited amount to complainant with interest.  The OPs have admitted to give interest @ 13% P.A. to F.D.R.No.426, 436, 421, 411, 430, interest @ 12% P.A. to F.D.R.No.433 & 432, interest @ 11% p.a. to F.D.R. Nos. 437 and 438, but the complainant requested for return of F.D.Amount with interest before maturity of the deposit.  Hence, complainant has not entitled to claim interest as admitted by the OPs i.e., @ 11%, 12% and 13% P.A.,  but he has entitled to the interest @ 9% P.A. on all the F.D. receipts.  Hence, the OPs are jointly and severally liable to pay Rs.1,00,000/- from 22.05.2020, Rs.28,000/- from 19/10/2020, Rs.36,000/- from 02.09.2020, Rs.16,000/- from 09/12/2020, Rs.10,000/- from 03.02.2020, Rs.22,000/- from 20/09/2019, Rs.25,000/- from 05.08.2020, Rs.19,000/- from 12/03/2020, Rs.20,000/- from 26/11/2020 till realization.

 17.    Further, complainant prays for Rs.2,00,000/- as a compensation towards mental agony and harassment given to the complainant.  In contrary, the complainant has not produced any documents to show that he is entitled for compensation of  Rs.2,00,000/-.  But the OPs have compelled the complainant to approach to this Commission, hence OPs have liable to pay Rs.10,000/- for compensation and Rs.10,000/- for litigation cost.  According to the above reasons, we proceed to pass the following:-          

:O R D E R:

The complaint filed by the complainant is allowed in part.

The OP Nos. 1 to 5 are directed jointly and severally to pay Rs.1,00,000/- from 22.05.2020, Rs.28,000/- from 19/10/2020, Rs.36,000/- from 02.09.2020, Rs.16,000/- from 09/12/2020, Rs.10,000/- from 03.02.2020, Rs.22,000/- from 20/09/2019, Rs.25,000/- from 05.08.2020, Rs.19,000/- from 12/03/2020, Rs.20,000/- from 26/11/2020 along with 9% interest from the date respective deposit till realization.

Further, the OP Nos. 1 to 5 are jointly and severally directed to pay Rs.10,000/- towards compensation and Rs.10,000/- as litigation cost to the complainant within 30 days of receipt/knowledge of this order, otherwise it carries interest @ 10% p.a. till its realization. 

Furnish the copy of order to the complainant and opposite parties at free of cost.