DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.300 of 02-05-2016

Decided on 17-04-2017

Mohinderjit Kaur aged about 55 years W/o Magger Singh R/o Village Poohli, District Bathinda.

........Complainant

Versus

1.The Poohli Multipurpose Co-operative Agri. Service Society Limited, Poohli District Bathinda, through its Secretary.

2. The Poohli Multipurpose Co-operative Agri. Service Society Limited, Poohli District Bathinda, through its President. (Deleted)

3.Assistant Registrar, Co-operative Agri. Service Society Limited, Bathinda. (Deleted)

4.Deputy Registrar, Co-operative Agri. Service Society Limited, Bathinda. (Deleted)

5.The Registrar, Co-operative Societies, Punjab, Sector 17, Chandigarh.

6.Deputy Commissioner, Bathinda. (Deleted)

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Sh.M.P Singh Pahwa, President.

Sh.Jarnail Singh, Member.

Present:-

For the complainant: Sh.B.L Sachdeva, Advocate.

For opposite party No.1: Sh.Sanjay Goyal, Advocate.

Opposite party Nos.2 to 4 & 6: Deleted.

For opposite party No.5: Sh.Harraj Singh, Advocate.

ORDER

M.P Singh Pahwa, President

1. The complainant Mohinderjit Kaur (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties The Poohli Multipurpose Co-operative Agri. Service Society Limited and Others (here-in-after referred to as opposite parties).

2. Briefly stated, the case of the complainant is that she is permanent resident of village Poohli and she was agriculturist. In order to earn livelihood, she deposited her entire benefit to invest in the shape of FDRs. Opposite party Nos.1 to 4 are registered society under the Societies Act vide registration No.264. It is a reputed society. Punjab Government has honoured the secretary of opposite parties on 15.8.2013. Opposite parties in the financial year 2012-13 took the first position in Nabard. As such, they are working under Punjab Government. They are assuring their customers that their money is safe with them and Punjab Government will be responsible for the entire amount payable to their customers.

3. It is alleged that as per Section 38 and condition Nos.13 and 14 of Bye Laws, opposite party Nos.3 and 4 shall be bound to pay the interest upon term deposit amount to the customers. As per complainant, she has saving bank account No.1532 and some amount is still lying in this account. She has also deposited the amount with opposite parties in the shape of FDRs:-

   FDR Account No.	Date	Due Date	Amount
   2790	24/06/13	24/06/14	Rs.1,00,000/-
   2790	24/06/13	24/06/14	Rs.2,00,000/-
   		Total	Rs.3,00,000/-

    

4. It is further alleged that on 24.6.2016 i.e. due date of FDRs and also on 20.4.2016, the complainant approached opposite parties for payment of amount and to withdraw the amount, but they have been postponing the matter on one or other pretext. It was told that they have not sufficient fund in the society to pay the amount. As per complainant, due to non-payment of amount of FDRs, she has been caused mental tension, agony pains. Opposite parties have also failed to provide the services and rather deficient in provide the services.

   On this backdrop of facts, the complainant has filed this complaint with the prayer for directions to opposite parties to release the payment of saving bank account as well payment of FDRs i.e. Rs.3,00,000/- with interest @ 18% per annum from the date of deposit till payment. She has also claimed damages to the tune of Rs.1 lakh and litigation expenses to the tune of Rs.10,000/-. Hence, this complaint.

5. In view of statement suffered by counsel for complainant, name of opposite party Nos.2 to 4 and 6 was deleted from the array of opposite parties.

6. Upon notice, opposite party Nos.1 and 5 appeared through their respective counsel and contested the complaint by filing the separate written version. In the separate written version, opposite party No.1 has raised the preliminary objections that this complaint is wholly misconceived, groundless and unsustainable. This Forum has no jurisdiction to entertain and adjudicate upon the dispute involved. This complaint is not a consumer dispute and it does not fall within the ambit of the provisions of 'Act'. Its contents are vague and indefinite. It is straight away liable to be dismissed. Under the Societies Act, the jurisdiction of this Forum is specifically barred. This complaint is frivolous and vexatious. No mandatory notice U/s 79 of the Punjab Co-operative Societies Act or U/s 80 CPC was served upon opposite parties before filing this complaint. This complaint has not been verified in accordance with law.

   On merits, opposite party No.1 has denied all the averments of the complainant and prayed for dismissal of complaint.

7. In the separate written version, opposite party No.5 has raised the legal objections that the complainant has no locus-standi or cause-of-action to file this complaint as she is a member of opposite party No.1. As per provision of sections 55 & 56 of The Punjab Co-operative Societies Act, if any dispute touching the constitution, management or business of a co-operative society arises among members, past members and persons claiming through members, past members and deceased and society, its committee or any officer, agent or employee of the society or liquidator, past or present, such dispute shall be referred to the Registrar for decision and no court shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute. Moreover as per Section 56 of the Act, the Registrar may on the receipt of the reference of dispute U/s 55, decide the dispute himself or transfer it for disposal to any person, who has been invested by the government powers on that behalf or referred it for disposal to one arbitrator. As such, this complaint is liable to be dismissed.

8. It is pleaded that the jurisdiction of this Forum is barred U/s 82 of The Punjab Co-operative Societies Act, 1961 as the complainant has not availed the efficacious remedy available with her before the Registrar, Co-operative Societies. She has not served opposite parties with notice U/s 79 and 80 of The Punjab Co-operative Societies Act before filing the complaint. She has not approached this Forum with clean hands. She has intentionally concealed the true and material facts from this Forum. As such, she is not entitled to any relief from this Forum. There is no deficiency in service on the part of opposite party No.1. The complaint does not fall within the purview of Section 12 of 'Act'. The complicated and intricate questions of facts and law are involved in this complaint, which require elaborate oral and documentary evidence. The witnesses are also required to be cross-examined. It is not possible before this Forum through summary procedure. The complaint is totally false, frivolous and vexatious to the knowledge of the complainant. As such, it is liable to be dismissed with special costs.

9. On merits, it is admitted that opposite party No.1 is a society, but it is further mentioned that Punjab Government has no concern with the business of opposite party No.1. It never claimed that the Punjab Government is responsible in any manner. All other averments of the complainant are denied. It is also denied for want of knowledge that the complainant has deposited the amount with FDRs. Opposite party No.5 has also reiterated its stand as taken in the legal objections and detailed above. In the end, opposite party No.5 has prayed for dismissal of complaint.

10. Parties were asked to produce evidence.

11. In support of her claim, the complainant has tendered into evidence her affidavits dated 22.4.2016 and 16.8.2016, (Ex.C1 and Ex.C5); photocopies of FDRs, (Ex.C2 and Ex.C3); photocopy of saving account, (Ex.C4) and submitted written arguments.

12. To rebut the claim of the complainant, opposite party No.1 has tendered into evidence affidavit of Major Singh dated 22.11.2016, (Ex.OP1/1) and closed the evidence.

13. Opposite party No.5 has tendered into evidence affidavit of Gurbir Singh dated 19.12.2016, (Ex.OP5/1) and closed the evidence.

14. We have heard learned counsel for parties and gone through the file as well as written arguments submitted by complainant.

15. Learned counsel for complainant has reiterated his stand as taken in the complaint and detailed above. It is further submitted by learned counsel for complainant that the complainant has pleaded that she is having saving account with opposite parties and there was some balance. She has deposited the amount in the shape of FDRs. Opposite party No.5 has denied these fact mainly for want of knowledge. The complainant has produced photocopies of front page of passbook, (Ex.C4) and long term deposit receipts, (Ex.C2 and Ex.C3). These are signed by the cashier and secretary of the society. It is also admitted that this amount is payable to the complainant, but the society is unable to pay amount for want of funds and amount will be paid when opposite parties will be having sufficient funds. There is no rebuttal to this documentary evidence. Therefore, the documentary evidence proves the case of the complainant.

16. It is further submitted by learned counsel for complainant that opposite party No.1 has raised the legal objections regarding jurisdiction of this Forum. Opposite party Nos.1 and 5 have referred Sections 55 & 56 of Punjab Co-operative Societies Act to plead that the remedy is only by way of reference for arbitration, but the disputes, which can be referred to arbitration are also detailed in Section 55 of 'Act'. Therefore, the dispute raised by the complainant does not fall within purview of Section 55/56 of Punjab Co-operative Societies Act. In this case, the dispute is only regarding refund of amount deposited by the complainant with opposite parties. It is not a dispute touching constitution, management, business of society and it is also not a dispute regarding member and past members. Opposite party Nos.1 and 5 have also referred Section 82 of Punjab Co-operative Societies Act to plead that the jurisdiction of the Courts is barred. Consumers are provided additional remedy U/s 3 of 'Act'. Therefore, jurisdiction of this Forum is not barred.

    To support these contentions, learned counsel for complainant has relied upon:-

    i) 2004 AIR (SC) 448 Secretary, Thirumurugan Co-operative Agricultural Credit Society Vs. M. Lalitha (dead) through L.Rs and others.

    ii) 2014 (78) RCR (Civil) 113 Siddarth Dalit Motor Vahatuk Co-op. Society Vs. Sanjay Dadu Sasane and Anr.

    iii) 2012 (1) CLT 199 Anil Pahwa Vs. Baldeep Singh & Other.

17. On the other hand, learned counsel for opposite party Nos.1 and 5 have submitted that the complainant Mohinderjit Kaur is member of the society. Therefore, the matter is to be governed by Punjab Co-operative Societies Act, 1961. As per Section 55 & 56 of 'Act', any dispute between the members and society or its committee is to be referred to Arbitration. The jurisdiction of the Courts is specifically barred. As per Section 82 of 'Act' also, jurisdiction of the Courts is barred. Therefore, the complaint is not maintainable.

18. It is further submitted by learned counsel for opposite party Nos.1 and 5 that the complainant has not served opposite parties with notice U/s 79 & 80 of Punjab Co-operative Societies Act. She has claimed refund of amounts. She has not produced any evidence to prove the deposit of amount. Therefore, she does not fall within the purview of U/s 12 of 'Act'. She is also not joined the President as party. She used to control and keep watch on work of the society as per rules and regulations of Punjab Co-operative Societies Act.

19. It is further submitted by learned counsel for opposite party Nos.1 and 5 that the complainant has claimed that amount was deposited in the year 2013 and 2014. Then secretary of opposite party No.1 committed fraud with the society and he has embezzled lakhs of rupees of the society. Opposite party No.1 has already initiated the proceedings against the secretary. A sum of Rs.59,53,887/- is lying deposited with opposite party No.1 in the account of concerned secretary. If the order is passed by the competent authority for payment to the complainant and other aggrieved persons, same be ordered to be released by opposite party Nos.1 and 5 from the account of concerned secretary. The complainant has no right to seek refund through the process of this Forum. The complaint is totally false, frivolous and vexatious and it be dismissed with cost.

20. We have given careful consideration to these rival submissions and gone through the case law cited by learned counsel for complainant.

21. Opposite parties are co-operative society. First objection of opposite party Nos.1 and 5 is regarding maintainability of complaint and jurisdiction of this Forum to entertain this complaint. Opposite party Nos.1 and 5 have referred Section 55/56 of Punjab Co-operative Societies Act, 1961 to support their contentions. A perusal of Section 55 reveals that it is applicable when there is dispute touching constitution, management or business of co-operative society. In this case, the complainant has claimed refund of her amount deposited with opposite parties. Therefore, the dispute does not fall within the ambit of Section 55 of Punjab Co-operative Societies Act.

22. Opposite party Nos.1 and 5 have also pleaded that as per Section 82 of Punjab Co-operative Societies Act, jurisdiction of this Forum is barred. The matter was examined by Hon'ble National Commission in the case of Anil Pahwa Vs. Baldeep Singh (Supra) and it was observed that Section 3 of 'Act' confers additional remedy on the Consumer Forum. The matter of refund or deposits where the amount has not been refunded by Co-operative Society in respect of provisions under the Co-operative Society Act, Consumer Forum would have jurisdiction to entertain the complaints.

    Similarly, Hon'ble Supreme Court of India in case of Secretary, Thirumurugan Co-operative Agricultural Credit Society Vs. M. Lalitha (dead) through L.Rs and others (Supra), has observed that the remedy of Consumer Forum is in addition and not in derogation to remedy under other Acts. It was rather further observed that the jurisdiction of Consumer Fora to decide the dispute is not barred because of even the remedy of arbitration provided under the Co-operative Societies Act. In the case of Siddarth Dalit Motor Vahatuk Co-op. Society (Supra) similar objections of jurisdiction of this Forum was raised by society. Hon'ble State Commission, Maharashtra held that objection is not tenable.

    Keeping in view the law laid down by Hon'ble Apex Court as well Hon'ble National Commission, jurisdiction of this Forum is not barred and complaint is maintainable before this Forum.

23. Now, coming to the main controversy. The complainant has pleaded that there is some amount lying in her saving account, but there is no document to prove that any amount is lying in her saving account. She has also pleaded that she has deposited Rs.3,00,000/- in the shape of FDRs. Copies of these FDRs are also produced on record as Ex.C2 and Ex.C3. Opposite party Nos.1 and 5 have not produced any rebuttal evidence to contradict this evidence of the complainant. In the written version also, they have given evasive reply.

24. For the reasons recorded above, the complaint is partly accepted with Rs.10,000/- as cost and compensation against opposite party Nos.1 and 5. Opposite party Nos.1 and 5 are directed to refund the following amounts of FDR's alongwith interest admissible to this amount as FDR's till date of payment:-

25. It is made clear that since the complaint has been filed through Secretary and Registrar Co-operative Society. These authorities will not be personally liable for making payment. The payment is to be made from the account/assets of the society i.e. The Poohli Multipurpose Co-operative Agri. Service Society Limited.

26. The compliance of this order be made within 45 days from the date of receipt of copy of this order.

27. The complaint could not be decided within the statutory period due to heavy pendency of cases.

28. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced:-

    17-04-2017 (M.P Singh Pahwa)

    President

     

    (Jarnail Singh)

    Member