Surinder Pal Singh Bawa v. Sahara Credit Cooperative Society Ltd. & Ors.

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

PUNJAB, CHANDIGARH.

First Appeal No.310 of 2021 Date of institution : 03.09.2021 Reserved On : 22.02.2022 Date of decision : 28.02.2022 Surinder Pal Singh Bawa, aged 62 years, son of Mr. Bawa Ajit Singh, resident of House No.2636, Urban Estate, Phase-II, Patiala. ….Appellant/Complainant

Versus

1. Sahara Credit Cooperative Society Limited, Registered Office:

Sahara India Bhawan, 1, Kapoorthala Complex, Aliganj, Lucknow-226024, through its General Manager, Branch Office:

Lower Mall, opposite Polo Ground, Patiala, through its Manager/Incharge.

2. Sahara Credit Cooperative Society Limited, Branch Office Lower Mall, opposite Polo Ground, Patiala, through its Manager.

3. Mr. Rajesh Kumar Shukla, Manager/Incharge, Sahara Credit Cooperative Society Limited under the Branch Office Sahara India Lower Mall, opposite Polo Ground, Patiala. ….Respondents/Opposite Parties

First Appeal under Section 41 of the

Consumer Protection Act, 2019 (As

amended up to date) against the order

dated 04.08.2021 of the District Consumer

Disputes Redressal Commission, Patiala.

Quorum:-

Hon'ble Mrs. Justice Daya Chaudhary, President Mrs. Urvashi Agnihotri, Member.

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1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No

2) To be referred to the Reporters or not? Yes/No

3) Whether judgment should be reported in the Digest? Yes/No

Argued By:-

For the appellant : Sh. S.P.S. Bawa, In Person For the respondents : None.

JUSTICE DAYA CHAUDHARY, PRESIDENT

The appellant/complainant-Surinder Pal Singh Bawa has approached this Commission by way of filing the present appeal under Section 41 of the Consumer Protection Act, 2019 (as amended up to date) for modification of the impugned order dated 04.08.2021 passed by the District Consumer Disputes Redressal Commission, Patiala (in short, "the District Commission") in Consumer Complaint No.503 of

2019.

2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.

3. Briefly the facts of the case as made out in the appeal are that the appellant/complainant filed a complaint under Section 12 of the Consumer Protection Act, 1986 before the District Commission against the respondents/opposite parties namely Sahara Credit Cooperative Society Limited and others (hereinafter to be referred as

"opposite parties"). It was averred in the complaint that the complainant availed services of the opposite parties by investing under Sahara Scheme. He deposited an amount of ₹60,000/- in R.D.

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Account No.25924201864 for a period of 60 months on 17.10.2012. An amount of ₹1,000/- was to be deposited per month. The complainant was allotted Account No.311013397817. Maturity date of the certificate was 17.10.2017 and the maturity amount was ₹76,671/-. The complainant submitted all relevant documents with the respondents/opposite parties for releasing the amount but still the amount was not released with matured value. A number of requests were made but still nothing was done. It was further mentioned in the complaint that the complainant was entitled for the amount deposited by him plus interest accrued thereupon at the agreed rate not only till the date of maturity but till the actual payment was to be made. Thereafter, a legal notice through counsel was also sent through Registered AD Post to the opposite parties but still the payment was not made. The inaction on the part of the opposite parties was a case of 'deficiency in service'. A prayer was made in the compliant for issuance of directions to the opposite parties for release of total amount of ₹88,956/- along with interest at the rate of 18% from 01.11.2019 till the date of actual payment and also to pay an amount of ₹1 lac towards compensation and ₹20,000/- on account of litigation expenses.

4. The District Commission, after considering the averments made in the complaint as well as the response of the opposite parties, partly allowed the complaint, vide order dated 04.08.2021, by awarding

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an amount of ₹37,000/- along with interest at the rate of 6% per annum w.e.f. 17.10.2012. The opposite parties were also directed to pay an amount of ₹5,000/- as compensation and ₹5,000/- towards litigation expenses. The compliance of the order was to be made within a period of 45 days from the date of receipt of certified copy of the order.

5. The appellant/complainant being not satisfied with the impugned order dated 04.08.2021 has filed the present appeal under Section 41 of the Consumer Protection Act, 2019 before this Commission for enhancement of the amount by raising arguments that the amount of compensation is not only adequate but the rate of interest is also on the lower side. It has further been prayed that the amount of compensation as well as litigation expenses are also required to be enhanced.

6. The appeal came up for hearing for the first time on 07.09.2021. The appellant/complainant himself appeared in person and notice was issued to the respondents, which was served upon them. However, on 26.10.2021, 12.12.2021 as well as 22.02.2022, none appeared on behalf of the respondents. It appears that the respondents are not interested to pursue the appeal/litigation, as for the last 3 dates neither counsel nor any representative of the respondents/opposite parties-Society appeared in-spite of service.

7. Arguments have been raised by the appellant while appearing in person. It has been submitted by the appellant that the

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order passed by the District Commission is based only on the presumption that a limited amount has been credited on the basis of documents available with the complainant at the time of filing of the complaint. As per the Payment Schedule, an amount of ₹59,000/- in the form of equal monthly deposits of ₹1,000/- each was paid in the R.D. Account, as is clear from Ledger Statement (Annexure A-3). The appellant further submits that the amount so deposited by him has been duly accepted by the opposite parties and the same should not have been decreased only on the basis of incomplete entries in the passbook. The passbook is neither a final set of documents nor compulsory document and as such the impugned order has been passed by the District Commission by seeing the entries in the passbook only. The appellant further submits that as per provisions of the Interest Act, 1978, he becomes entitled for interest on the amount deposited by him. At the end, the appellant submits that the inaction and action of the opposite parties amount to 'deficiency in service', which has caused mental agony and harassment to him and, as such, he is entitled for entire amount deposited by him along with interest and also the compensation as well as litigation expenses are liable to be enhanced.

8. None has appeared on behalf of the respondents/opposite parties but we have perused the impugned order dated 04.08.2021 passed by the District Commission. We have also carefully perused

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the record of the District Commission, where not only the documents of the respondents/opposite parties-Society as well as of appellant/complainant are there but the reply to the complaint filed by the opposite parties is also available.

9. Certain preliminary objections have been raised by the opposite parties before the District Commission, stating that the complainant had not approached the District Commission with clean hands and there is no merit in the complaint. It has further been mentioned in the reply that for any dispute between the Society and the member, the District Commission had no territorial jurisdiction and the complaint was not maintainable before the District Commission. It has been further been mentioned in the reply that after obtaining membership of the Society, the complainant has no right to take part in the schemes of the Society. There are certain references of the complaints of similar nature in Para No.6 to 8, wherein it was held that the Consumer Forum/Commission had no jurisdiction to entertain such cases and any complaint filed with the grievance is not maintainable. Even on merits, it has been mentioned that the complainant after understanding the bylaws and the objects of the Society had become member under above said Account No. for a period of 60 months i.e. ₹1,000/- per month. Before opting the scheme, the complainant had understood all the terms and conditions of the scheme and had submitted signed Application Form. The claim in the complaint is

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against the terms and conditions of the agreement and the appellant/complainant is not entitled to get any amount from the opposite parties.

10. Facts relating to filing of the complaint, partly allowing thereof vide impugned order dated 04.08.2021 and thereafter filing of the present appeal before this Commission are not disputed.

11. A preliminary objection has been raised by the opposite parties regarding the maintainability of the complaint on the ground that the dispute between the member and the Society cannot be raised before the Consumer Commission. This issue is no more res-integra. Hon'ble Supreme Court of India in the case of The Secretary, Thirumurugan Co operative Agricultural Credit Society v. M Lalitha (Dead) through LRs, I (2004) CPJ 1(SC), wherein same issue was involved, held that disputes between a cooperative housing society and its member regarding deficiency in service can be maintained/resolved under the Consumer Protection Act. In Para-17, it was held as under:

"17. The decision in Dhulabhai case (supra) also does not help the appellant. The present case is not one where the question to be considered is as to the exclusion of jurisdiction of civil court in view of the provisions of Section 90 read with Section 156 of the Act. Provisions of 1986 Act, as already made clear above, apply in addition to the other provisions available under other enactments. It follows that the remedies available under the 1986 Act for redressal of disputes are in addition to the available remedies under the Act. Under the 1986 Act we have to consider as regards the additional jurisdiction conferred on the forums and not their exclusion. In Dhulabhai case consideration was whether the jurisdiction of the civil court was

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excluded. Propositions (1) and (2) indicate that where the statute gives a finality to the orders of the special tribunals the jurisdiction of civil courts must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Further, where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. The remedies that are available to an aggrieved party under the 1986 Act are wider. For instance in addition to granting a specific relief the forums under the 1986 Act have jurisdiction to award compensation for the mental agony, suffering, etc., which possibly could not be given under the Act in relation to dispute under Section 90 of the Act. Merely because the rights and liabilities are created between the members and the management of the society under the Act and forums are provided, it cannot take away or exclude the jurisdiction conferred on the forums under the 1986 Act expressly and intentionally to serve a definite cause in terms of the objects and reasons of the Act, reference to which is already made above..."

12. In another case, the Hon'ble Supreme Court in Civil Appeal No. 64 of 2010 (Virender Jain V. Alaknanda Co-op. Group Housing Society Ltd. in and connected matters) decided vide order dated 13.04.2013 by relying upon the law laid down in the case of M Lalitha (supra) has held in Para-14 as follows:

"14. In our view, there is no merit in the submission of the learned Senior Counsel. In the complaints filed by them, the appellants had primarily challenged the action of respondent No.1 to refund the amounts deposited by them and they extinguished their entitlement to get the flats. Therefore, the mere fact that the action taken by Respondent No.1 was approved by the Assistant Registrar, Cooperative Societies and higher authorities, cannot deprive the appellants of their legitimate right to seek remedy under the Act, which is in addition to the other remedies available to them under the Cooperative Societies Act. Law on this issue must be treated as settled by the judgments of this Court in Thirumurugan Co operative Agricultural Credit Society v. M Lalitha; Kishore Lal v. Chairman, Employees' State Insurance Corpn. 2007

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(4) SCC 579 and National Seeds Corpn. Ltd. v. M. Madhusudhan Reddy 2012 (2) SCC 506.

13. In one more case reported as (Smt. Kalawati and others versus M/s United Vaish Co-operative Thirft and Credit Society Ltd.), 2002(1) CLT 101, Hon'ble National Commission held as under:

"In this view of the matter, it is not necessary to deal with the argument that CPA is a general enactment while the Delhi Co- operative Societies Act, 1972 is a special enactment as it was canvassed before us. This issue on the interpretation of a special or general Act does not arise in the present case. We therefore hold that Section 93 of the Societies Act does not bar the jurisdiction of District Forum assuming jurisdiction in the matter.

We are also not in agreement with the view of the State Commission that a member cannot be a consumer vis-a-vis the society of which he is a member.

As a member he has certain rights in the society like attending its meeting and right to vote. A member is a separate entity from the Co-operative Society which is just like a shareholder as in the Company registered under the Companies Act, 1986. Here is the society of which the complainants are member which invites deposits and pays interest and is to refund the amount with interest on maturity. Society provides facilities in connection with financing and is certainly rendering services to its members and here is a member who avails of such services. When there is a fault on the part of the society and itself is not paying the amount on fixed deposit receipts on maturity, there is certainly deficiency in service by the society and a complaint lies against society by the member as a complainant."

Therefore, the above said preliminary objection raised by the opposite parties is rejected.

14. Now coming to merits of the case, a limited grievance of the complainant is there in the present appeal that his claim has partly been allowed by considering the entries in the passbook but by not

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relying upon the entries in the Ledger Statement (Annexure A-3), wherein complete entries are there. It contains monthly contribution deposited by the appellant/ complainant in each month starting from 17.10.2012 to 14.10.2017. In each month, an amount of ₹1,000/- was deposited and grand total has been reflected as ₹59,000/-.

15. While partly allowing the complaint of the

appellant/complainant, the District Commission issued a direction to the opposite parties to pay him an amount of ₹37,000/- being the amount as reflected in the passbook, which has been placed on record as Ex.C-5. The District Commission further issued direction to pay compensation for the mental agony and harassment suffered by the complainant along with litigation expenses by awarding ₹5,000/- against each head.

16. Now, the question for determination is as to whether the amount so deposited by the appellant/complainant is to be considered on the basis of entries made in the passbook or Ledger Statement?

17. In the passbook (Ex.C-5), an amount of ₹37,000/- has been reflected up to 30.04.2015, whereas in the Ledger Statement (Annexure A-3), an amount of ₹59,000/- has been reflected. It is also not in dispute that R.D. Account No.25924201864 was opened on 17.12.2012 for a fixed period of 60 months and an amount of ₹1,000/- was to be deposited monthly. The due date was 17.10.2017 with

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maturity amount of ₹76,671/-. The appellant/complainant was also issued passbook Ex.C-5.

18. As per averments/submissions made by the appellant, the total amount along with interest up to 31.10.2019 comes to ₹88,956/- and the opposite parties are also liable to pay further interest on the said amount w.e.f. 01.11.2019 till final realization. However, the fact remains that as per Ledger Statement (Annexure A-3), an amount of ₹1,000/- per month has been deposited w.e.f. 17.12.2012 to 14.10.2017 and total amount has been reflected as ₹59,000/-. The maturity date has been mentioned as 17.10.2017. The said Ledger Statement has been prepared and issued by Sahara India Pariwar under the stamp/signatures of the same Authorized Person, who has issued the passbook Ex.C-5, having same Employee Code:19134 as written in both the documents i.e. passbook and Ledger Statement. Even same Account No. and Membership No. are mentioned in the passbook and the Ledger Account. The Ledger Statement is an authentic document, which cannot be disputed. Passbook is only a document for handing over to the concerned person but sometime it is not necessary to be maintained as entries in the passbook are made only on the asking of the party concerned but the entries in the Ledger Statement are based on the computerized internal system of the Company. In case any incomplete entries are there or some of the entries have not been reflected in the passbook for any reason, the

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same cannot be relied upon and the Ledger Statement (Annexure A- 3), which is prepared on the basis of digital record is to be relied upon.

19. Admittedly, the Ledger Statement Annexure A-3 was not produced before the District Commission and the same has been produced along with the appeal. However, since the passbook (Ex.C-

5) and Ledger Statement (Annexure A-3) are signed by one and the same officer/official of the opposite parties, so there is no reason to doubt the authenticity of the same. It appears that the respondents/opposite parties have not appeared to contest the appeal, as the passbook and Ledger Statement have been issued and signed by same officer/official of the opposite parties and as such they cannot raise any issue against the entries made in the Ledger Statement.

20. The "Bankers' Books" has been defined under Section 2

(3) of The Bankers Books Evidence Act, 1891, which is reproduced as under:

"(3) "bankers' books" include ledgers, day-books, cash-books, account-books and all other books used in the ordinary business of a bank."

21. The amount of ₹59,000/- has been reflected in the Ledger Statement (Annexure A-3) and the same is included in the above said definition of "Bankers' Books". Moreover, this Ledger Statement has been signed by the same officer/official of the opposite parties, who has issued the passbook (Ex.C-5). Employee Code is also mentioned below the signatures of that officer/official.

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22. Therefore, the impugned order passed by the District Commission is required to be modified, by taking into consideration the entries of the deposited amount as reflected in Ledger Statement (Annexure A-3), which has been issued under stamp and seal of the opposite parties itself. The appellant/complainant is held entitled for an amount of ₹59,000/- instead of ₹37,000/- as awarded by the District Commission. The rate of interest is also on lower side and the same is liable to be enhanced. Because of inaction on the part of the respondents/opposite parties, the appellant/complainant has been compelled to file the complaint as well as this appeal and he has incurred expenses. Therefore, the compensation and litigation expenses as awarded by the District Commission are also liable to be enhanced.

23. Accordingly, the appeal is allowed and the impugned order dated 04.08.2021 passed by the District Commission is modified to the extent that the respondents/opposite parties shall pay an amount of ₹59,000/-, instead of ₹37,000/-, to the appellant/complainant. The rate of interest is increased from 6% to 9% per annum, which shall be paid on the amount of ₹59,000/- w.e.f. 17.10.2012 till realization of entire amount. The amount of compensation is increased from ₹5,000/- to ₹10,000/- and litigation expenses from ₹5,000/- to ₹10,000/-. Compliance of the order shall be made by the respondents/opposite parties within a

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period of 45 days of the date of receipt of certified copy of the order.

24. The appeal could not be decided within the statutory period due to heavy pendency of court cases and pandemic of COVID-19.

(JUSTICE DAYA CHAUDHARY)

PRESIDENT

(URVASHI AGNIHOTRI)

MEMBER

February 28, 2022. (Gurmeet S)

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