National Consumer Disputes Redressal
Smt. Kalawati & Ors. vs M/S. United Vaish Co-Operative Thirft & ... on 26 September, 2001
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NOS. 823 to 826 OF 2001 (From the order dated 13.3.2001 in Appeal Nos.A-1428 to 1421/99 of the State Commission, Delhi) Smt. Kalawati & Ors. .. Petitioners Vs. M/s. United Vaish Co-operative Thirft & Credit Society Ltd. .. Respondent BEFORE: HONBLE MR. JUSTICE D.P. WADHWA, PRESIDENT HONBLE MR. JUSTICE C.L. CHAUDHRY, MEMBER HONBLE MR. JUSTICE J.K. MEHRA, MEMBER. MRS. RAJYALAKSHMI RAO, MEMBER. MR. B.K. TAIMNI, MEMBER For the Petitioner s : Mr. Sanjay Kataria, Advocate for M/s. Campus Associates, Advocates For the respondent : Mr. Arvind Pandey, Advocate. for the Registrar, Co-operative Society : Mr. M. Shah, Inspector. ORDER
Dated the 26th September, 2001 PER JUSTICE D.P. WADHWA (PRESIDENT) State Commission on appeal filed by the respondent-opposite party set aside the order of the District Forum holding that the petitioners-complainants were not consumers within the meaning of clause (d) of sub section (1) of section (2) of the Consumer Protection Act, 1986 (for short CPA) on their being the members of the opposite party, a society registered under the Delhi Co-operative Societies Act, 1972 (for short Societies Act). It was also held that in view of Section 93 of Societies Act consumer forum would have no jurisdiction in respect of those disputes as enumerated in Section 60 of the said Act.
Complainants are now the petitioners before us and the opposite party is respondent. Petitioners had deposited various amounts as fixed deposit receipts with the respondent which amounts were to be payable to them on maturity with interest at the agreed rate. Respondent defaulted in making payment of the fixed deposit receipts after they matured. Complaining deficiency in service petitioners approached the District Forum. Complaints were allowed by the District Forum and directions were issued to the respondent to refund the amounts of the fixed deposit receipts with interest due to each of the petitioners at the time of maturity and thereafter pay interest @ 18% per annum till payment.
Aggrieved by this order of the District Forum respondent filed appeal before the State Commission which, as stated above, was allowed and the order of the District Forum was set aside and complaints dismissed. Two contentions were raised on the basis of which the appeal was allowed;
(i) that a Forum under the CPA has no jurisdiction over the subject matter of the complaints in view of the provisions of Section 60 read with Section 93 of the Societies Act and
(ii) petitioners were not consumers availing of services as defined under the CPA. Section 60 of the Societies Act specifies the disputes which could be referred to arbitration under that Act by the Registrar of the Societies. It is not necessary for us to go into the question if the dispute raised by the petitioners did fall under Section 60 of Societies Act as for the purpose of decision of the questions raised we will accept that the dispute did fall within the purview of Section 60 and as so held by the State Commission. Then come the crucial question if Section 93 of the Societies Act bars the jurisdiction of the District Forum under CPA.
Section 3 of CPA provides as under:
3. Act not in derogation of any other law.-
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
Section 3 is worded in widest terms and leaves no one in doubt that the provisions of CPA shall be in addition and not in derogation of any other law for the time being in force. Thus even if any other Act provides for any remedy to a litigant for redressal of that remedy a litigant can go to District Forum if he is a consumer under CPA. That remedy exists in any other law which creates the right is no bar to District Forum assuming jurisdiction.
We may now refer to Section 93 of the Societies Act which contains bar of jurisdiction of courts, which Section is as under:
93. Bar of jurisdiction of courts.- (1) Save as provided in this Act, no civil or revenue court shall have any jurisdiction in respect of-
(a) the registration of a co-operative society or its bye-laws or of an amendment of a bye-law;
(b) the removal of a committee;
(c) any dispute required under section 60 to be referred to the Registrar; and
(d) any matter concerning the winding up and the dissolution of a co-operative society.
2. While a co-operative society is being wound up, no suit or other legal proceedings relating to the business of such society shall be proceeded with or instituted against, the liquidator as such or against the society or any member thereof, except by leave of the Registrar and subject to such terms as he may impose.
3. Save as provided in this Act, no order, decision or award made under this Act shall be questioned in any court on any ground whatsoever.
For one thing a District Forum is not a Civil Court though it may have the trappings of a Civil Court. Neither it is a revenue court.
We therefore, do not think that Section 93 of Societies Act would come in the way of the District Forum assuming jurisdiction. We may consider Section 93 of the Societies Act with the provisions barring jurisdiction of the Courts in some other enactments namely Multi-State Co-operative Societies Act, 1984, Recovery of Debts Due to Banks & Financial Institutions Act, 1993 and the Railway Claims Tribunal Act, 1987. The relevant Sections of these Acts are as under:
Section 105 of the Multi-State Co-operative Societies Act, 1984:
105. Bar of jurisdiction of courts.- (1) Save as otherwise provided in this Act, no court shall have jurisdiction in respect of -
(a) the registration of a multi-State co-operative society or its bye-laws or of an amendment of the bye-laws;
(b) the removal of board of directors;
(c) any dispute required under section 74 to be referred to the Central Registrar; and
(d) any matter concerning the winding up and the dissolution of a multi-State co-operative society.
(2) While a multi-State co-operative society is being wound up, no suit or other legal proceedings relating to the business of such society shall be proceeded with or instituted against the liquidator or against the society or any member thereof, except by leave of the Central Registrar and subject to such terms and conditions as he may impose.
(3) Save as otherwise provided in this Act, no decision or order made under this Act shall be questioned in any court Section 18 of the Recovery of Debts Due to Banks & Financial Institutions Act, 1993:
18bar of jurisdiction On and from the appointed day, no court or other authority shall have, or be entitled to exercise, any jurisdiction, powers or authority (except the Supreme Court, and a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution) in relation to the matters specified in section 17.
Section 15 of the Railway Claims Tribunal Act, 1987:
15. Bar of jurisdiction- On an from the appointed day, no court or other authority shall have, or be entitled to, exercise any jurisdiction, powers or authority in relation to the matters referred to in [sub-sections (1) and (1A)] of section 13.
It will be seen that while Section 105 of the Multi-State Co-operative Societies Act, 1984 uses the word court. Jurisdiction of court is thus barred in respect of disputes mentioned in the Section. Other two Acts uses the words not only court but also other authority. District Forum is certainly other authority as it is not a court. Both these two Acts certainly bar the jurisdiction of a District Forum to take cognizance of the matter which falls exclusively in the jurisdiction of the Tribunal established under those two Acts.
In the case of Union of India & Ors. Vs. Sri Ramji Enterprises & Anr. (First Appeal No.411 of 1996) we have already held that in view of the provisions of Section 15 of the Railway Claims Tribunal Act, 1987, District Forum established under the CPA will have no jurisdictions over the matters covered under Railway Claims Tribunal Act. Section 3 of the CPA is to be read in consonance with the provisions barring jurisdiction of a Court or other tribunals absolutely. If a District Forum assumes jurisdiction in respect of matter falling exclusively within the jurisdiction of Tribunals established under Railway Claims Tribunal Act, 1987 or the Recovery of Debts Due to Banks & Financial Institutions Act, 1993 or similar other enactments that would certainly be in derogation of those provisions which is not permissible. We may also refer to a judgement of the Supreme Court in the case of Marine Container Services South Pvt. Ltd. vs. GO Go Garments - (1998) 3 SCC 247 where the Supreme Court said with reference to Section 3 of CPA that Contract Act would nevertheless apply to the complaints filed under CPA and that Section 3 could not mean to say that it overrides other provisions of law.
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.
A co-operative society under the Societies Act, is a akin to a company under the companies Act, 1986.
If we refer to Section 35 of the Societies Act, a cooperative society is a body corporate by the name under which it is registered having perpetual succession and a common seal, and with power to hold property, enter into contract, institute and defend suits and other legal proceedings and to do all things necessary for the purpose for which it is constituted. A co-operative society is not bound by the rigors of the Companies Act. Under Section 4 of the Societies Act a society which has its objects the promotion of the economic interests of its members in accordance with co-operative principles may be registered under the Act. A member of the society cannot exercise rights as a member unless he has made due payment as required by the bylaws of the society. A member has a right of one vote in the affairs of the society. It is apparent that rights of a member in a society are similar to rights which a shareholder exercises in a company. Rights of a shareholder are: (i) to elect directors and thus to participate in the management of the affairs of the company, (ii) to vote on resolutions at the meeting of the company and (iii) to enjoy the profits of the company in the shape of dividends. A share holder is different person than the company of which he is the shareholder. Similarly, a member of the society is different from the society of which he is a member. He can certainly if occasion arises, proceed against the society raising a dispute. In the Case of Neela Vasant Raje vs. Amogh Industries & Anr. - 1986-95 Consumer 446 this Commission had taken a view that with reference to Section 2(1)(d) of CPA that where a company or a firm invites deposits from the public for the purpose of using money for its business on promise of giving attractive rates of interest with security of investment and prompt repayment of the principal after the stipulated term the transaction of such a nature would clearly make the depositor a consumer under CPA.
This Commission also observed that the definition of the expression service was couched in the widest possible language and it expressly covered service of any description other than any service rendered free of charge or under a contract of personal service. Thus we hold that complainants were certainly consumers and could maintain their complaints in the District Forum.
We, therefore, overrule the view taken by the State commission both on the question of jurisdiction and on consumer availing of services of the society. The order of the State Commission is, therefore, set aside and that of the District Forum is restored. Petitioners shall be entitled to costs which we quantity at Rs.2,000.
.J. (`D.P. WADHWA) PRESIDENT ..J. (C.L. CHAUDHRY) MEMBER ..J. (J.K. MEHRA) MEMBER ..
( RAJYALAKSHMI RAO) MEMBER ..
( B.K. TAIMNI) MEMBER