This complaint U/S 12 of C.P. Act, 1986 was initially filed against the Opposite Party 1. Sahara India Commercial Corporation, Kadamtala Complex, 1^st Floor, P.S.: Kotwali, P.O. & Dist. Jalpaiguri, Pin Code- 735101, Phone No.- 03561-228545, 2. Sahara India Co-operative Society Ltd., “Saharayan” Authorised Centre, Kadamtala Complex, 1^st Floor, P.S.: Kotwali, P.O. & Dist. Jalpaiguri, Pin Code- 735101, Phone No.- 03561-228545, 3. Sahara India Commercial Corporation, Registered Office- Sahara India Sadan, 2a, Shakespeare Sarani, P.S. & P.O.- Shakespeare Sarani, Kolkata- 700071, 4. Sahara India Commercial Corporation Ltd., Command Office- Sahara Bhawan 1 and 2, Kapoorthala Complex, P.S & P.O.- Aliganj, Lucknow- 226-024 who contested the case by filing Written Version (W.V.).

The case of the compliment as per her complaint is as follows-

The complainant stated in her plaint that on 17/03/2008 she had purchased 08 (eight) cash investment certificates from serial number 917004742177 to 917004742184 from O.P.’s company of Jalpaiguri Branch and the maturity of those certificates was between five to ten years by mentioning on the back side of those said certificates that the certificate holder encash the said certificate at any time within the specific period. The complainant also added that the deposit amount was Rs. 1, 70, 000/- (Rupees One Lac and Seventy Thousand) only as on 17/03/2008 and the maturity value after 09 (nine) years was Rs. 4, 62, 060/- (Rupees Four Lac Sixty Two Thousand and Sixty) only.

The complainant also stated in her plaint that due to financial crisis she went to the O.P. No.1 around December, 2016, i.e., after completing the eighth (08^th) year from the date of investment, to surrender the certificates and the O.P. No.1 received all the 08 (eight) certificates from the complainant and gave her 08 (eight) separate receipts for the said certificates and assured her that the released amount would be transferred to the bank account of the complainant but after a long delay when the O.P. called the complainant in May, 2017, the 09^th (ninth) year of investment had already been completed and as per the calculation of the O.P. the maturity value became not less that Rs. 4, 62, 060/- (Rupees Four Lac Sixty Two Thousand and Sixty) only which was declared by the O.P.’s Jalpaiguri Branch on the reverse side of the original investment certificate. The complainant also added that on 06/05/2017 the O.P. paid a total sum of Rs. 1, 48, 502/- (Rupees One Lac Forty Eight Thousand Five Hundred and Two) only to her as part payment through three separate cheques of which two were of Rs. 64, 251/- (Rupees Sixty Four Thousand Two Hundred and Fifty One) only each and one was of Rs. 20, 000/- (Twenty Thousand) only and told the complainant that the rest of due amount of Rs. 3, 13, 558/- (Rupees Three Lac Thirteen Thousand Five Hundred) only would be paid to her very soon but the O.P.s failed to keep their promise. The complainant also added that on 04/03/2019 she sent a notice for her due payment but all were in vein.

The complainant also argued in her plaint that for delaying of disbursement of her due amount from the O.P.s she took a loan of Rs. 64, 000/- (Rupees Sixty Four Thousand) only on 08/02/2019 from I.C.I.C.I. Bank and instead of receiving her due amount she started paying interest to I.C.I.C.I Bank to save herself temporarily from her financial problem. The complainant also added that getting no result on 04.03.2019 she sent a notice to the O.P.s however the O.P.s bothered to reply and finding no other alternative the complainant filed this complaint in this Commission.

The prayers of the complainant are as follows-

1. To pass an order directing the O.P.s for clearance of her principal amount of Rs. 3, 13, 558/- (Rupees Three Lac Thirteen Thousand Five Hundred) only.
2.  To pass an order directing the O.P.s to pay the interests accruing on hr outstanding amount from 06/05/2017 onwards as the Court may decide upon.
3. To pass an order directing the O.P.s to pay a sum of Rs. 1, 00, 000/- (Rupees One Lac) only as mental agony, pain and suffering, hardships caused, deficiency of service, legal expenses etc.

            List of documents filed by the complainant:

1. Photocopy of Certificates purchased- {Annexure “A” series (A1 to A8)}.
2. Photocopy of the reverse side of the purchased Certificates- {Annexure “B” series (B to B2)}.
3. Typed table of the reverse side of the purchased Certificates- {Annexure “B1” series (B to B2)}.
4. Photocopy of deposit certificates issued by the O.P.- {Annexure “C” series (C1 to C82)}.
5. Photocopy of cheques (Part Payments) issued by the O.P.s- {Annexure “D” series (D to D4)}.

6. Photocopy of statement of Central Bank, Kadamtala Branch, Jalpaiguri where the O.P.’s cheque were encashed- {Annexure “E” series (E to E)}.

7. Photocopy of letter posted to the O.P. and the related Speedpost receipt and A.D. Form- {Annexure “F” series (F to F2)}.
8. Photocopy of I.C.I.C.I. Bank loan statement- {Annexure “G” series (G to G)}.     

             On behalf of the O.P.s, Sahara India Commercial Corporation and Sahara India Co-operative Society Ltd., who contested the case by filing W.V. and as per their W.V. the O.P.s categorically denied all the allegations made by the complainant and also argued that they did not assure to disburse or release the amount to the bank account of the complainant and even they had no intention to start or taking any kind of delaying tactics about the payment disbursement process. The O.P.s also added that they never gave any false promise and were always ready to extend their service to the complainant and they did not do any kind of unfair trade practice.

             The O.P.s also argued in their W.V. that the relation between the complainant and them was a debtors and creditors and transaction between them was of commercial- financial transaction and if there was any grievance, it should be redressed to the Ld. Civil Court only. The O.P.s also added in their W.V. that the inability of making payment of any kind to the complainant was not intentional which has been originated from a dispute with S.E.B.I. as whole matter is still pending before the Hon’ble Supreme Court of India and the delay of making payment is happening owing to the existing embargo order passed by the Hon’ble Supreme Court of India.           

             Having heard, the Ld. Advocate of both the side and on perusal of the Complaint, Written Version and documents filed by the parties the following points are taken to be decided by this Commission.

 Points for consideration

1) Whether the complainant is a consumer?

2) Whether the case is maintainable under the CP act 2019?

3) Whether this Commission has its jurisdiction to decide this case? 

4) Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?

5) Is the complainant is entitled to get any award and relief as prayed for? If so, what extent?

Decision with reason:-

            All the points are taken up together for consideration and decision.

Seen and perused the complaint petition and Written Version filed by the parties which are supported by the affidavit, documents filed by the parties. We are also heard arguments of both the parties in full length.

The complainant resides in the jurisdiction of Jalpaiguri and the O.P. was carrying his business in Jalpaiguri having its registered office at Sahara India Sadan, 2a, Shakespeare Sarani, P.S. & P.O.- Shakespeare Sarani, Kolkata- 700071 and Command Office- Sahara Bhawan 1 and 2, Kapoorthala Complex, P.S & P.O.- Aliganj, Lucknow- 226-024. Thus, the Commission has no doubt that the complainant is a very much consumer as per the Consumer Protection Act- 2019 and also there is no doubt that this Commission has its jurisdiction to decide this case.

On 17/03/2008 the complainant had purchased 08 (eight) cash investment certificates from serial number 917004742177 to 917004742184 from O.P.’s company of Jalpaiguri Branch and the maturity of those certificates was between five to ten years by mentioning on the back side of those said certificates that the certificate holder encash the said certificate at any time within the specific period. The complainant also added that the deposit amount was Rs. 1, 70, 000/- (Rupees One Lac and Seventy Thousand) only as on 17/03/2008 and the maturity value after 09 (nine) years was Rs. 4, 62, 060/- (Rupees Four Lac Sixty Two Thousand and Sixty) only but due to financial crisis she went to the O.P. No.1 around December, 2016, i.e., after completing the eighth (08^th) year from the date of investment, to surrender the certificates and the O.P. No.1 received all the 08 (eight) certificates from the complainant and gave her 08 (eight) separate receipts for the said certificates and assured her that the released amount would be transferred to the bank account of the complainant but after a long delay when the O.P. called the complainant in May, 2017, the 09^th (ninth) year of investment had already been completed and as per the calculation of the O.P. the maturity value became not less that Rs. 4, 62, 060/- (Rupees Four Lac Sixty Two Thousand and Sixty) only which was declared by the O.P.’s Jalpaiguri Branch on the reverse side of the original investment certificate. The complainant also added that on 06/05/2017 the O.P. paid a total sum of Rs. 1, 48, 502/- (Rupees One Lac Forty Eight Thousand Five Hundred and Two) only to her as part payment through three separate cheques of which two were of Rs. 64, 251/- (Rupees Sixty Four Thousand Two Hundred and Fifty One) only each and one was of Rs. 20, 000/- (Twenty Thousand) only and told the complainant that the rest of due amount of Rs. 3, 13, 558/- (Rupees Three Lac Thirteen Thousand Five Hundred) only would be paid to her very soon.

In order to prove the case the Complainant has filed its evidence in the form of an Affidavit and in the Written Complainant has specifically corroborated the Complaint and has stated on which day she purchased the Fixed Deposit Certificate from the O.P, also narrated the date of Maturity. The Complainant has also stated on which day went to the O.P from demanding the maturity amount in respect of her 08 (eight) cash investment certificates from serial number 917004742177 to 917004742184. The Complainant has also stated in her evidence that she sent written letter to the O.P. for settlement of her claim but the O.P. paid no heed and make no payment till today.

At the time of argument Ld. Advocate of the Complainant submits that the Complainant has been able to prove its case against the O.P not only through her Written Deposition but also by producing documents.

Ld. Advocate of the O.P.s during argument submits that, this case is not maintainable in its present form and prayer as the Complainant is not a consumer as per the provisions of the Consumer Protection Act 2019. They also argued that the O.P.s is a society which was formed and duly constituted under provisions of Multi-state Co- operative Societies Act, 2002. He further argued that the Complainant was a member under the Society (O.P.) and their relation is not as a Consumer and service provider and for which if any disputes arises between the member and society it will be decided as per the provisions of Multi-state Co-operative Societies Act, 2002 (Section 84), not as per the provision of the Consumer Protection Act, 2019. Ld. Advocate of the O.P.s prayed for dismissal of this case.

Firstly we will consider the objection of the O.P. on the point as to whether the Complainant being a member of a society will fall within the definition Consumer under the Consumer Protection Act 2019 or not? in this regard we can refer a decision of the Hon'ble Supreme Court where it held that the disputes between Co-operative Society and its member regarding deficiency in Service can be maintained under the Consumer Protection Act vide the case of The Secretary, Thirumurugan Co-operative Agricultural Society Vs. M. Lalitha (Dead) through LRS (Appeal, Civil 92 of 1998) decided on 11.12.2003.

It was also decided by the Hon'ble Supreme Court in Virender Jain Versus Alkananda Co-op. Group Housing Society Ltd. (2013) 9 SCC 383 it was held that dispute raises by the members of the society can be decided by the Consumer Forum.

`In view of those decisions and other materials on record we are of the view that the plea taken by the O.P. stands rejected and this Commission has sufficient Jurisdiction to entertain this Complaint as a Consumer dispute and thereby this case is maintainable.

Ld. Advocate of the O.P. in the Written Version and during argument claimed that, this Consumer Commission has no jurisdiction to entertain this case on the grounds that, in the contract between the Complainant and the O.P. there is arbitration clause which is contained in the terms and conditions of the contract. But the said point has already been decided by the Larger Bench of the Hon'ble National Consumer Commission in the case of Aftab Singh - Versus- Emaar MGF Land Limited & anr being Consumer Case No. 701 of 2015 Vide Order dt. 13.07.2017 wherein it was held that, an arbitration clause in the Agreements cannot circumscribe the jurisdiction of a Consumer Forum notwithstanding the Amendments made to Section 8 of the Arbitration Act. Against that Order Civil Appeals bearing in No. 23512-23513 of 2017 was filed before the Hon'ble Supreme Court. But the said Appeal was dismissed on 13.02.2018. Against that Order Review Petition) being No. 2629-2630 of 2018 was filed before the Hon'ble Supreme Court and on 10.12.2018 that Review Application was also dismissed. In view of the above the objection raised by the O.P. regarding the jurisdiction point is also rejected.

In the case in hand there is no dispute between the parties that the Complainant was not provided with Investment Certificates. It is also not denied / disputed that, the Complainant did not deposit the Sum of money to the O.P. It is also admitted fact that, the O.P. on receiving the sum of money issued deposit certificates.                                                                                           

            The complainant several times tried to get her legitimate claim but the O.P.s failed to settle her said legitimate claim of its Rs. 3, 13, 558/- (Rupees Three Lac Thirteen Thousand Five Hundred) only in total, against the O.P.

So, as per the above discussion it is very much clear that there was a deficiency of service from the part of O.P.s and this Commission has no doubt that there was a deficiency of services from the part of the O.P.s. In the instance case, the complainant is entitled to get Rs. 3, 13, 558/- (Rupees Three Lac Thirteen Thousand Five Hundred) only in total, against the O.P. along with a simple interest @ 9% Per Annum from the date of their maturity of those said cash investment certificates till the realization of the total amount. The complainant is also entitled to get Rs. 5,000/- (Rupees Five Thousand) only for mental pain and agony and litigation cost and O.P.s are also directed to deposit

Rs. 10,000/- (Rupees Ten Thousand) only to Consumer Legal Aid Account of this Commission.

That the Consumer Case No. 16/2019 be and same is allowed in contest against the O.P. No. 1, 2, 3 and 4 jointly and severally.

Hence, it is therefore,

ORDERED

That the Consumer Case No. 16/19 be and same is allowed in contest against the O.P.s (Sahara India Commercial Corporation and Sahara India Co-operative Society Ltd.) and the O.P. No. 1, 2, 3 and 4 are jointly and severally liable in this case.                                                                                                                   

The complainant do get an award of Rs. 3, 13, 558/- (Rupees Three Lac Thirteen Thousand Five Hundred) only in total, against the O.P.s along with a simple interest @ 9% Per Annum from the date of their maturity of those said cash investment certificates till the realization of the total amount. The complainant is also entitled to get Rs. 5,000/- (Rupees Five Thousand) only for mental pain and agony and litigation cost and O.P.s are also directed to deposit Rs. 10,000/- (Rupees Ten Thousand) only to Consumer Legal Aid Account of this Commission within 30 (Thirty) days from the date of this order.

Let a copy of this judgment be given to the parties directly or through their legal representative for compliance free of cost.