BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

                                                                   Complaint  No.220 of 2016

                                                                   Date of Instt. 19.05.2016

                                                                   Date of Decision: 17.09.2019

Ajit Kaur Jhatu W/o Late Shri Ajit Singh Jhatu at present R/o 1309 Bilbo Ct. San Jose, Ca 95121 USA Permanent R/o Village Kangni Wal, PO Hazara, Jalandhar Through her General Attorney and Daughter in Law Sarabjit Kaur Jhatu W/o Shri Jaswinder Singh Jhatu Through their Authorized Representative S. Bhupinder Singh S/o S. Bikram Singh.

                                                                             ..........Complainant

Versus

1.       The Hazara Co-Operative M/P Agri Service Society Ltd., VPO Hazara, Jalandhar Through Chairman/ President/ Secretary/ Member.

2.       S. Makhan Singh S/o S. Darshan Singh, R/o Village Kangniwal, PO Hazara.

          Second Address:- President, The Hazara Co-Operative M/P Agri Service Society Ltd., VPO Hazara, Jalandhar.

3.       Om Parkash S/o Shri Tulsi Das, R/o Village Nurpur, PO Sham Churasi, District Hoshiarpur, Punjab.

          Second Address:- Secretary, The Hazara Co-Operative M/P Agri Service Society Ltd., VPO Hazara, Jalandhar.

4.       Jasbir Singh, Ex. President, The Hazara Co-Operative M/P Agri Service Society Ltd., VPO Hazara, Jalandhar.

5.       Malkiat Pal, Ex Secretary, The Hazara Co-Operative M/P Agri Service Society Ltd., VPO Hazara, Jalandhar.

                                                                           ….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Sh. Karnail Singh              (President)

                              Smt. Jyotsna                      (Member)

Present:        Sh. Atul Malhotra, Adv. Counsel for the Complainant.

                              Sh. D. K. Gupta, Adv. Counsel for the OPs No.1 to 3.

                    OPs No.4 & 5 exparte.

Order

                             Karnail Singh (President)

1.                The instant complaint has been filed by the complainant through her attorney Smt. Sarabjit Kaur Jhatu. It is stated in the complaint that the OP No.1 is a registered society and is engaged in doing banking business, banking transactions and allied services including receiving amounts from general public for fixed deposits etc. for consideration particularly at VPO Hazara, Jalandhar. OPs No.2 and 3 are working as the President and Secretary, respectively of OP No.1 and are responsible for the day to day working and running of the OP No.1 along with other executive members of OP No.1. Complainant do not have any knowledge of the names and addresses of other executive members of the OP No.1 who are responsible for running and working of OP No.1 and the same can be disclosed by OPs No.2 and 3. OPs No.4 and 5 were Ex-President and Ex-Secretary, respectively of OP No.1 and were responsible for the day to day working and running of the OP No.1 alongwith other executive members of OP No.1 at the time of accepting the fixed deposit from complainant from 1999 onwards.

2.                That complainant is a consumer of services provided by OPs for consideration at Jalandhar. Complainant had been allotted and operating many accounts particularly account No.1040 in OP No.1 jointly with her husband Ajit Singh. The complainant alongwith her husband had shifted to USA for quite some time and used to visit India every three four years. That husband of the complainant died on 21.05.2012 and after the death of her husband, complainant became the sole owner and beneficiary of above said account and fixed deposit in OP No.1. The complainant had got issued a fixed deposit from OP No.1 for Rs.5,75,000/- after withdrawing the said amount from her account No.1040 on 18.11.2006. OPs had issued another fixed deposit account No.5740 and a new passbook for fixed deposit account after deducting Rs.1000/- illegally. Thereafter, complainant had gone abroad to USA. The complainant, being old aged and due to inconvenience in travelling from USA to India, has executed a General Attorney in favour of her daughter-in-law Sarabjit Kaur Jhatu W/o S. Jaswinder Singh Jhatu to operate, withdraw, transfer etc. all of the bank and other accounts of complainant particularly account with OP No.1.

3.                That recently when the said attorney of complainant i.e. Sarabjit Kaur alongwith her cousin brother Sh. Bhupinder Singh approached OPs No.1 to 3 and requested them to get the said fixed deposit encashed. OPs No.1 to 3 started dilly-dallying the encashment of the said fixed deposit of complainant on one pretext or the other. On being prevailed OPs No.1 to 3 informed Sarabjit Kaur and Sh. Bhupinder Singh that the said amount of Rs.5,75,000/- deposited with OP No.1 as a fixed deposited by complainant has been withdrawn illegally by OP No.5. As such, the above said fixed deposit of complainant shall be encashed as and when the amount is recovered from OPs No.4 and 5. That neither complainant nor attorney Sarabjit Kaur had any information or knowledge about the said illegal withdrawal and misuse of said amount of Rs.5,75,000/- by OPs till last week. Further, when the said attorney Mrs. Sarabjit Kaur and Bhupinder Singh prevailed upon OPs No.1 to 3 to encash the said fixed deposit, the OPs No.1 to 3 refused to encash the fixed deposit stating that OPs No.1 to 3 do not have sufficient amount in their account to encash the fixed deposit of the complainant and due to that act of the OPs, complainant suffered mental tension, harassment, inconvenience and financial loss and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to encash the fixed deposit of Rs.5,75,000/- from 18.11.2006 till date of payment of entire sum alongwith interest @ 12% per annum OR OPs be directed to pay in lump sum as compensation of Rs.19,00,000/- and further OPs be directed to also pay litigation cost of Rs.11,000/-.

4.                     Notice of the complaint was given to the OPs, but despite service through publication in newspaper, OP No.4 did not come present and ultimately, OP No.4 was proceeded against exparte, whereas OPs No.1 to 3 served and appeared through its counsel and filed joint written reply, whereby contested the complaint by taking preliminary objections that the instant complaint of the complainant is not maintainable and further averred that the complaint of the complainant is barred by limitation, delay, latches and acquiescence and further alleged that the complaint of the complainant is liable to be dismissed on the ground of mis-joinder and non-joinder of necessary parties. It is further alleged that no FDR for sum of Rs.5,75,000/- has been issued by OP society in favour of the complainant. Alleged photocopy of the passbook is forged and fabricated. No receipt of payment of Rs.5,75,000/- is annexed with the complaint, which could show that complainant deposited sum of Rs.5,75,000/- with the OP. On merits, allegations of the complainant are categorically denied and further submitted that the complainant had never got issued FDR from OP No.1 for Rs.5,75,000/- and lastly prayed that the complaint of the complainant is without merits, the same may be dismissed.

5.                OP No.5 filed its separate written reply, whereby categorically denied all the allegations as made in the complaint and lastly prayed that the complaint of the complainant is without merits, the same may be dismissed.         

6.                After filing written reply by OP No.5, none has appeared on behalf of OP No.5 and ultimately, OP No.5 proceeded against exparte.

7.                In order to prove the case of the complainant, counsel for the complainant tendered into evidence affidavit of the attorney of the complainant Ex.CA alongwith some documents Ex.C-1 to Ex.C-9 and closed the evidence.

8.                Similarly, counsel for the OPs No.1 to 3 tendered into evidence affidavit Ex.OP/A alongwith one document Ex.OP-1 i.e. Copy of Saving Bank Withdrawal Form and closed the evidence.

9.                We have heard the learned counsel for the complainant as well as counsel for the OPs No.1 to 3 and also gone through the case file very minutely.

10.              The case set up by the complainant is only that she alongwith her husband Ajit Singh Jhatu operating joint account No.1040 with OP No.1 and husband of the complainant died on 21.05.2012 and after his death, she became the sole owner and beneficiary of the said account and fixed deposit with the OP. The complainant got issued a fixed deposit from OP No.1 for sum of Rs.5,75,000/- and the said amount was withdrawn by the complainant from her account No.1040 on 18.11.2006 and the same was given to the OP for adjusting in fixed deposit account, which was given by the OP an other account No.5740 and Rs.1000/- was deducted as charges. Thereafter, the complainant make many request to the OP for refund of the said amount, but they did not bother and ultimately, the complainant being old aged lady cannot come to India again and again and as such, she appointed her attorney to Sarabjit Kaur Jhatu and copy of the power of attorney is Ex.C-5 and thereafter, the said attorney Sarabjit Kaur Jhatu visited the office of the OP number of times, but they did not bother to reimburse the said fixed deposit amount of Rs.5,75,000/- and as such, necessity arose to file the present complaint.

11.              The case of the complainant refuted by the contesting OPs No.1 to 3 by taking a plea that the complaint of the complainant is barred by limitation, but this version of the OPs is not acceptable because there is a recurring cause accrued in favour of the complainant because until the payment is not made, the cause of action accrued to the complainant day by day and therefore, this version of the OPs is not having any force in the eyes of law.

12.              Further, OPs took a plea that the instant complaint is not maintainable because after the death of Ajit Singh, his LRs is to be impleaded as a party to the present complaint and in the absence of LRs, no effective and proper adjudication can be made by the Forum. We have considered this aspect of the OPs and find that the LRs is required to implead if the complainant has no independent right to file the present complaint, admittedly, the fixed deposit account stands joint in the name of the complainant as well as her husband Ajit Singh Jhatu and after the death of Ajit Singh Jhatu, the complainant become sole owner of the said account and under this situation, the LRs of Ajit Singh is not required to be impleaded and therefore, we do not find any sound substances in the argument of the learned counsel for the OPs.

13.              Further, the OP has categorically denied that any FDR of Rs.5,75,000/- was ever issued to the complainant or her husband. However, the OPs admitted that the complainant is having joint saving account No.1040 with the OP No.1 and further alleged that the complainant categorically failed to produce on the file any fixed deposit receipt and in the absence of any such receipt, it is not acceptable that the complainant alongwith her husband has ever got facility of fixed deposit from the OPs. We have sympathetically considered the plea of the OPs and find that the complainant has brought on the file an affidavit of the attorney Sarabjit Kaur Jhatu, which is Ex.CA and further the complainant has brought on the file photostat copy of the passbook having account No.1040, where-from admittedly an amount of Rs.5,75,000/- was withdrawn by the complainant on 18.11.2006 and the said amount have been shown deposited by the OP in another account No.5740, photostat copy of the said passbook is Ex.C-4. So, one thing is established that the complainant alongwith her husband deposited the amount of Rs.5,74,000/- in the saving account of the OP No.1. Now, we have to leave the question whether it is fixed deposit or saving account, but amount is shown to be deposited with the OP No.1 as per photostat copy of the passbook Ex.C-4, the said deposition of aforesaid amount is further corroborated from another authenticated document “Salsi Dispute Decision” Ex.C-9. The dispute in regard to mis-appropriation of the said amount of the complainant Rs.5,74,000/- was came before the Deputy Registrar Co-operate Society, Jalandhar and accordingly, the matter was probed by Diljit Sharma, Deputy Registrar and gave verdict in his order Ex.C-9 that the said amount of the complainant has been mis-appropriated by the then Secretary Malkit Pal and ordered to recover the said amount from Malkit Pal, Secretary. Now, one thing is established that the amount was deposited by the complainant with OP No.1, though it was mis-appropriated by any employee of the OP No.1 i.e. inter-se matter between the OP No.1 and Secretary Malkit Pal, the OP No.1 may recover the said amount from the Secretary Malkit Pal, but OP No.1 bound to reimburse the said amount to the complainant because the said amount was deposited by the complainant with the OP No.1 and the same is required to reimburse by OP No.1 to the complainant. So, with these observations, we are of the considered opinion that the claim of the complainant is established and as such, we hold that the complainant is entitled to recover the said deposited amount of Rs.5,74,000/- with interest from the date of deposit alongwith compensation and litigation expenses.

14.              In the light of above detailed discussion, the complaint of the complainant is partly accepted and OPs No.1 to 3 are jointly and severally liable to pay the said amount to the complainant i.e. Rs.5,74,000/- alongwith interest @ 10% from the date of deposit i.e. 18.11.2006, till its realization. Further, OPs No.1 to 3 are directed to pay compensation to the complainant for causing mental tension, harassment and agony, to the tune of Rs.75,000/- and OPs No.1 to 3 further directed to pay litigation expenses of Rs.10,000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.  

15.               Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                             Jyotsna                                Karnail Singh

17.09.2019                    Member                              President