DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ROPAR

1. Raghav Sharma aged about 7 years minor son of Harvesh Kumar.
2. Mannat aged about 11 years Minor D/o Harvesh Kumar both minors through their natural guardian father and next friend Harvesh kumar S/o Prem Chand R/o Village Bikapur Tehsil and District Rupnagar.

                                                                                                                                                                                      …….Complainant

                                        Versus

1. The Bassowal Co-operative Agriculture Service Society Ltd, Bassowal, Tehsil Anandpur Sahib, District Rupnagar through its Secretary.
2. Assistant Registrar, Cooperative Societies, Sri Anandpur Sahib, District Rupnagar.

…..Opposite Parties

Complaint under Section 35 of Consumer Protection Act, 2019.

QUORUM:

Shri S.K. Aggarwal, President

Ms. Ranvir Kaur, Member

Shri Ramesh Kumar Gupta, Member

Present:-

For the complainant       :      Shri A.S. Katwal, Advocate.

For OP Nos.1 & 2             :      Shri  N.S. Khattra, Advocate.

ORDER:

1. This complaint has been filed by the complainant No. 1&2

against the opposite parties under Section 35 of the Consumer Protection Act, 2019 alleging deficiency in service on their part with the prayer for issuance of following directions to them:-

1. To pay/release an amount of Rs. 1,28,034/- to complainant No. 1 and Rs. 1,92,056/- to complainant   No. 2;
2. To pay Rs. 50,000/-, as compensation and litigation cost.

2.     The case of the complainant No. 1&2 is that complainants are Member of the Bassowal Cooperative Agriculture Service Society Ltd., Bassowal, Tehsil Anandpur Sahib, District Rupnagar-OP No.1, complainant No. 1 vide Account No. NMFD-452 is having Rs. 1,28,034/- in his said account and  complainant No. 2 vide Account No. NMFD-453 is having Rs. 1,92,056/- in his said account. On 20.8.2022 the complainants moved an application for releasing the said amount but OPs refused to release the said amount of the FDR.  The complainant approached the OPs many times to release the said amount but they put off the matter on one pretext or the other and never released the said amount to him.  Alleging deficiency in service on the part of the OPs the present complaint has been filed for issuance of above mentioned directions to them.

3.     Upon notice, OPs Nos.1 and 2 appeared through counsel.  OP No.1 filed its separate reply and took certain preliminary objections to the effect that the complaint is barred by jurisdiction as per the Punjab Cooperative Societies Act, 1961 and Rules 1963.  The Punjab Cooperative Societies Act, 1961 is a special Act and it is a general principle of jurisprudence that a general law is over ridden by a special law.  The complainant has not approached with clean hands and has concealed the material facts from this Commission.  The Secretary of OP No.1-Society, Shri Vishavpreet Singh, died in a road accident in year 2019.  The Secretary had not done audit of the Society since year 2016.  The audit of the Society for the time period of 2016 to 2020 was done collectively and the Cooperative Audit Department had issued special audit report of the said time period amounting to Rs. 1,63,00,000/- and the Cooperative Audit Department also held that Secretary, Vishavpreet Singh, was responsible for the embezzlement of amount approximately Rs. 47 lakh in the Society.  The Department has also issued the arbitration proceedings under Section 55/56 of the Punjab Cooperative Societies Act, 1961, against Late Vishavpreet Singh, the then Secretary and Managing Committee of the said time period.  The Assistant Registrar has powers under Section 65 of the Punjab Cooperative Societies Act, 1961, for attachment of the property before passing award.  The Society will arrange the funds by selling the property of the then Secretary, Late Vishavpreet Singh under Section 63 (b) of the Act ibid.  The wife of late Vishavpreet Singh, Secretary had filed a claim petition under Motor Vehicles Act before District Courts, Rupnagar regarding the death of her husband in the road accident.  The said claim petition is pending and wife of late Vishavpreet Singh, Secretary had also promised to pay the entire embezzlement amount of her late husband in the Society.  Due to the embezzlement in the Society, the Society is at present not in such position to return all the deposits of the complainant along with interest.  Whenever the funds are arranged in the Society, then the society will give the amount to the complainant on priority basis. The complaint has been filed with ulterior motive just to put pressure upon the Society.  On merits all the paras of the complaint have been admitted being matter of record and the averments made in the preliminary objections have been reiterated.  Denying any deficiency in service on its part a prayer for dismissal of the complaint has been made.

4.     In-spite of availing so many opportunities OP No.2 did not file its reply.  Period of 45 days had already been elapsed.  Therefore, defence of opposite party No.2 was struck off, vide order dated 17.3.2023.

5.     In support of his complaint, the complainant tendered in evidence his own affidavit as Ex.CW1/A and documents i.e. copy of passbooks for Member of Agri. Credit and Service Societies as Ex.C1  & Ex.C2  , copy of Aadhaar Card as Ex.C-3, Ex.C4 & Ex.C5  and copy of letter dated 20.8.2022 as Ex.C-6. 

6.     In rebuttal the OPs tendered into evidence certain documents i.e. photocopies of Personal Ledgers as Ex.OP1 and Ex.OP2, photocopies of orders dated 2.9.2022 as Ex.OP3 to Ex.OP9, copy of Special Report for the period from 1.4.2016 to 31.3.2020 as Ex.OP10, copy of Annexure-1, vide which Salesman (deceased) had given fake debt in the name of self and his family members as

Ex.OP11 along with details of various cases as Ex.OP12.

7.     Heard.  The entire record has been perused.

8.     So far as the objection of OP No.1-Society that the complaint

is not maintainable against OP No.1-Society is concerned, the same is baseless as per Section 82 of the Punjab Cooperative Societies Act, 1961.  The mere fact that some other remedy has been provided to an aggrieved under some other law, would not oust the jurisdiction of Consumer Fora in view of Section 100 of the Consumer Protection Act, 2019.   Reference in this regard may be made to judgment of Hon’ble Supreme Court in “Secretary, Thirumurugan Co-operative Agricultural Credit Society v. M. Lalitha (Dead) through LR & Ors.” I(2004) CPJ 1 (SC) in which it has been held that the remedy under the Act has been provided in addition to other remedies provided under other Acts unless there is clear bar to jurisdiction.  It has been further held that merely because the rights and liabilities are created between the Members and the Management of the Society under the Act, it cannot take away or exclude the jurisdiction conferred on the Forums under the Act expressly and intentionally.  It is, thus, held that this complaint is maintainable under the provisions of Consumer Protection Act, 2019.   

9.     Admittedly, the complainant No. 1&2 are Members of OP No.1-Society and complainant No. 1 vide Account No. NMFD-452 is having Rs. 1,28,034/- in his said account since 18.07.2020 and  complainant No. 2 vide Account No. NMFD-453 is having Rs. 1,92,056/- in his said account since 17.07.2020, which is also clear from copy of passbooks, Ex.C1 & Ex.C2. The complainants moved an application dated 20.8.2022, Ex.C-3, to the Secretary of OP No.1-Society for making payment to them from their accounts with it. However, till date no payment has been made by the OPs to the complainant. 

10.   A perusal of evidence tendered by OP No.1 i.e. documents Ex.OP-1 to Ex.OP-12 reveals that all these documents relate to alleged embezzlement by the employees/Secretary of OP No.1-Society in which admittedly the complainant has no role, whatsoever.  Even if there has been any embezzlement, it is for OPs to look into that matter and the complainant has nothing to do with the same being their internal affairs.  The OPs are only responsible for the acts of their employees for which the complainants, who are a Members of OP No.1-Society, cannot be penalized. In these circumstances, we are of the considered view that the complainant No. 1&2 cannot be deprived of their legitimate right of getting his money from Ops. Certainly there is a deficiency in service on the part of OPs in not making payment of Rs. 1,28,034/- to complainant No. 1, vide Account No. NMFD-452  since 18.07.2020 and of Rs. 1,92,056/-  to complainant No. 2 vide Account No. NMFD-453 since 17.07.2020, 17.07.2020 as is clearly discernible from thier passbooks, Ex.C-1 &  Ex.C-2  

11.   In view of the above facts and circumstances, this complaint

is partly allowed and OPs are directed to make payment of

Rs. 1,28,034/- to complainant No. 1, vide Account No. NMFD-452  since 18.07.2020 along with interest at the rate of 9% per annum from 18.07.2020 till date of actual payment. and of Rs. 1,92,056/-  to complainant No. 2 vide Account No. NMFD-453 since 17.07.2020,  along with interest at the rate of 9% per annum from 17.07.2020 till date of actual payment.  These payments shall be made by OPs within a period of 30 days from the date of receipt of certified copy of this order, failing which they shall pay these amounts i.e. of      Rs. 1,28,034/- and Rs. 1,92,056/-  along with interest at the rate of 12% per annum.  The OPs are further directed to pay Rs.10,000/-, as compensation to complainant No. 1&2, for harassment and mental tension suffered by the complainant No. 1&2 and Rs.11,000/- as litigation cost to complainant No. 1&2.  .    

12.   Since the main complaint has been decided, the pending application(s), if any, is rendered infructuous.

13.   Copies of this order be sent to the parties as per Rules.  File be consigned after due compliance.

14.   The complaint could not be decided within the statutory period due to paucity of staff.

(S.K. AGGARWAL)

PRESIDENT

 (RAMESH KUMAR GUPTA)                                 (RANVIR KAUR)

               MEMBER                                                          MEMBER