State Consumer Disputes Redressal Commission
The President, 145.Periyakulam ... vs A.Mahindran,Periyakulam-625601 on 9 February, 2022
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
PRESENT: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
F.A.No.108/2018
(Against the order made in C.C.No53/2015 dated 23.11.2017 on the file of the
District Forum, Theni.)
WEDNESDAY, THE 09th DAY OF FEBRUARY 2022
1. The President,
145 Periyakulam Co-operative,
Urban Bank Limited,
Perumal Kovil Street,
Thenkarai, Periyakulam. 1st Appellant/1st Opposite Party
2. The Secretary,
145 Periyakulam Co-operative,
Urban Bank Limited,
Perumal Kovil Street,
Thenkarai, Periyakulam. 2nd Appellant/2nd Opposite Party
-Vs-
A.Mahindran,
S/o T.Alagarsamy,
Vadakarai, Periyakulam - 625 601. Respondent/Complainant
Counsel for Appellants-1&2/Opp.Parties-1&2 : Mr.S.Sennivasagam, Advocate.
Counsel for Respondent/Complainant : Mr.Y.KarthikKamlakannan, Advocate.
This appeal coming before me for final hearing on 19.01.2022 and on
perusing the material records, this Commission made the following:-
ORDER
THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
1. This appeal has been filed by the appellants1&2/opposite parties1&2 under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 2 against the order of the learned District Forum, Theni made in C.C.No.53/2015, dated 23.11.2017, partly allowing the complaint.
2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the learned District Consumer Disputes Redresssal Forum, Theni.
3. The opposite parties suffering by an order, directing the opposite parties to return the amount of Rs.5000/- with interest to the complainant and also directing the opposite parties to pay a sum of Rs.10,000/- as compensation for deficiency in service and Rs.3000/- as cost to the complainant in the hands of the learned District Consumer Disputes Redressal Forum, Theni (hereinafter in short "District Forum") have preferred this appeal before this Commission.
4. The case of the complaint is as follows:- The complainant is a member in the opposite party's Co-operative bark since 22.05.1999 by paying his share of Rs.5,000/-. As a member the secured mortgage loans for nearly five to six times and repaid the entire amount. On 02.07.2014, he approached the Opposite Party for loan on basis of mortgage. After a few days of delay, the opposite parties denied the loan. In view of it, the complainant sent an application dated 11.08.2014, requesting the opposite Parties to return his share of Rs.5,000. That request was not accepted. Therefore, on 11.08.2014, the complainant sent a letter seeking the return of share amount of Rs.5,000/- with interest from 01.07.2014 onwards. The complainant secured information by invoking Right to Information Act which was replied by the opposite parties. However, the opposite Parties did not yield to the request of the complainant and therefore, for demanding the return of his share amount of 3 Rs.5,000/- and compensation towards deficiency of service and for mental agony the complainant claimed Rs.1,00,000/- each apart from the cost of the proceedings
5. Written version filed by the 1st opposite party is as follows:- It is stated that the Periyakulam Co-operative Urban Bank constituted under the provisions of the Tamil Nadu Co-operative Societies Act and its administration is guided by rules and regulations and by-laws etc. It is true that the complainant is the member of the 1st opposite Party bank and availed loan often. To become a member of the society one has to subscribe towards share and in case to avail loan facilities to subscribe additionally towards share. By paying share amount, the complainant became a shareholder. In his capacity as forming part of the general body of the bank and he can participate in an election to the Board either as a voter or a contestant and if elected can manage the affairs of the society. As a member of the Co-operative Society, the complainant cannot be considered as a consumer within the definition of the Consumer Protection Act. Therefore, the complaint is not legally sustainable. The complainant has not explained the deficiency in this case and the dispute between the complainant and the opposite Party is not a consumer dispute. Returning of the share amount is not a service and therefore, the question of deficiency of service does not arise. The payment of share amount is made only towards becoming a member and to retain the membership. The claim of interest by the complainant for his share amount is not legally sustainable. The claim of the complainant for loan was rejected for valid reason and was communicated to him. Moreover the 1st opposite Party has clearly stated to the complainant that his share capital would be returned as per the seniority and subject to the rules and regulations. The present dispute should be resolved only under Section 90 of the Co- 4 operative Societies Act. By virtue of Section 156 of Co-operative Societies Act jurisdiction of Civil Court has been specifically barred. At any rate the non-returning of the share amount cannot be construed as a deficit in service. As by refund of the share amount, the complainant is relieved of the office membership. Therefore, the complaint is legally sustainable and should be dismissed.
6. The Learned District Forum, had passed an ex-parte order against the 2nd opposite party after framing the following three points for consideration: (1) Whether this Forum has jurisdiction to entertain the complaint and give relief to the complainant? (2) Whether the opposite parties have committed any deficiency of service? (3) Whether the complainant is entitled for any compensation?.
7. After considering the evidences adduced by the complainant and the written version filed by the 1st opposite party came to a conclusion that the District Forum is not competent to decide the dispute between the parties it should be referred to Registrar for decision and dismiss the complaint by answering the point for consideration no.1. The District Forum found it is not competent to decide the question and dismiss the complaint. The complainant challenged the order before this Commission by filing in F.A.No.78/2016 in the above appeal this Commission elaborately discussed the point of Jurisdiction to entertain the complaint filed by a member of Co-operative society in the appeal by relying upon the citation reported in AIR 2004 SC 448 - CDJ 2004 SC 180 the Secretary, Thirumurugan Co-operative Agricultural Credit Society -Vs- M.Lalitha (dead) through LR's and others. In this case law the Hon'ble Supreme Court has categorically held that a member of a Registered Co-operative Society is also a consumer and the consumer Fora constituted under the Consumer Protection Act, 1986 have jurisdiction to entertain 5 the claim of the member against the society and to grant relief and held the complaint filed by the complainant is maintainable and remand back the matter to the District Forum by set aside its order with a direction to dispose the matter on merits.
8. After receiving the records the Learned District Forum, proceeded further with the enquiry and passed the impugned order had held that the opposite parties committed deficiency in service and partly allowed the complaint directing the opposite parties to return the amount of Rs.5000/- with interest to the complainant and also directing the opposite parties to pay a sum of Rs.10,000/- as compensation for deficiency in service and Rs.3000/- as cost to the complainant.
9. Being aggrieved against that order the opposite parties challenging it by filing the appeal stating that the Learned District Forum passed an ex-parte order under intricate circumstances. The appellant arranged for appearance and representation before the Forum through an Advocate at Madurai, and it seems that despite the counter statement prepared and handed over to another Advocate at Theni to file and follow the matter. Neither he presented the counter statement before the Forum nor represented during hearings thereby, he paved way to pass and ex-parte order against the appellant, that came to knowledge only on receipt of the copy of the order through post from the respondent. The appellant would have given yet another opportunity to represent the matter by sending notice to the appellant herein that would have enabled the appellant to contest the complaint both on law and on facts, as set out in the counter statement.
10. No additional evidences were adduced by both parties in this appeal before this Commission.
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11. Point for consideration is;-
Whether the order passed by the Learned District Forum, Theni in C.C.No.53/2015, dated 23.11.2017 is sustainable under law or not?
12. Point: The counsel for the appellants raised two contentions that remanding the matter to the District Forum to decide the matter on merits conduct the fresh trial regarding fresh evidence of both sides and second one is disposing the appeal on merits without remand.
13. The complainant filed the complaint before the District Forum in the year 2015 the learned District Forum passed its earlier order deciding the first issue with regard to the jurisdiction raised in first point for consideration on 06-07-2016 the matter was elaborately discussed only with regard to maintainability of the complaint filed by the complainant as member of the Co-operative Society and held it is maintainable and dismiss the complaint. The above order was challenged by the complainant before this commission in F.A.No.78/2016 the same question was elaborately discussed in the order and decided the question in favour of the complainant by relying upon the reported judgement of Hon'ble Supreme Court in AIR 2004 SC 448 - CDJ 2004 SC 180 and held that the complaint filed by member of the Co-operative society is maintainable before the Consumer Fora the matter was remitted back for disposal.
14. In the above appeal also the 2nd appellant herein the Secretary, Periyakulam Co-operative Urban Bank refused to receive the notice issued from this commission and the 1st appellant herein entered into the appearance in the above appeal in (F.A. No.78/2016) through an Advocate remained absent this Commission has passed the order on merits in the above appeal the vital point raised by the complainant with 7 regard to the jurisdiction only on merits. In the absence of both respondents who are the appellants herein the appellants are having the opportunity to raise their contentions before the District Forum as a first time they have not appeared after receiving the notice sent from the District Forum and remained absent the 1st appellant herein filed his written version before the District Forum on 03.03.2016. Therefore, both appellants herein are having the knowledge about the complaint filed by the complainant before the District Forum and allowed to pass an order on merits as a first time they are not appeared after receiving the notice in the appeal filed by the complainant before this Commission they are losing the second chance for raising their contention in the appeal. When the matter was remanded back to the District Forum notices were issued from the District Forum for their appearance on 06.09.2017. The 1st appellant not appeared before the District Forum on 06.09.2017 and the notice sent to 2nd appellant was returned with a postal endorsement was insufficient address. The Learned District Forum passed an order for issuing fresh notice both the appellants not appeared before the District Forum as a third time. The learned District Forum after considering the evidences produced by the complainant and passed the order in favour of the complainant and partly allowed the complaint.
15. Now, both opposite parties challenged the above order in this appeal after used their chances for raising on their contentions three times before the District Forum as well as the first time in the appeal filed by the complainant in F.A.No.78/ 2016 the conduct of the appellants who are the opposite parties in the complaint would go to show the lethargic attitude and Forum shopping due to their absence. The dispute is remained unsettled even after lapsing of 6 years the proceedings 8 before the Consumer Fora are summary in nature but one of the main objects of the Act to provide speedy and simple Redressal to consumer disputes the consumer are required observes the principles of natural justice and have been empowered to give relief of a specific nature and to award, wherever appropriate compensation to consumers. The objects and purpose of enacting the Act rendered simple inexpensive and speedy remedy to the consumer with complaints against the defective goods and deficiency in service and the Act being a beneficial legislation intended to confer some speedier remedy on a consumer from being exploitation. Therefore, the contention raised by the counsel for the appellant is not sustainable remand of the matter to the District Forum once again for the disposal on merits does not arise.
16. With regard to the second contention raised by the counsel for the appellant the question of Jurisdiction was already decided by this Circuit Bench while disposing F.A.No.78/2016. The 1st appellant herein filed written version raising objection against the complaint on the ground that by paying share amount, the complainant became a shareholder, in his capacity as forming part of the general body of the bank and he can participate in an election to the Board either as a voter or a contestant and if elected can manage the affairs of the society. As a member of the Co-operative Society, the complainant cannot be considered as a consumer within the definition of the Consumer Protection Act. Therefore, the complaint is not legally sustainable. Admits the complainant is the member of the 1st opposite party bank and availed loan returning of the share amount is not a service and therefore, the question of deficiency of service does not arise. The claim of interest by the complainant for his share amount is not legally sustainable. The dispute should be 9 resolved only under Section 90 of the Co- operative Societies Act. By virtue of Section 156 of Co-operative Societies Act jurisdiction of Civil Court has been specifically barred for the above contentions raised in their written version.
17. The District Forum discussed the points and dismiss the complaint. In the first appeal the order of the District Forum was set aside the matter was remanded back for disposal on merits. In the order of remand the question of jurisdiction was decided by this Bench by referring the law reported in AIR 2004 SC 448 - CDJ 2004 SC 180 specifically decided as "in this case law the Hon'ble Supreme court has categorically held that a member of a Registered Co-operative Society is also a consumer and the Consumer Fora constituted under the Consumer Protection Act, 1986 have jurisdiction to entertain the claim of the member against of the society and to grant relief".
18. Now, the counsel for the appellants and raised the same question in their written arguments as second contention is elaborately mentioning the same points raised their written version with regard to the jurisdiction and explaining the various Sections under Co-operative Societies Act. Therefore, explanations under Section 28, 29, 30 and By-Law No.8 Section 90 of Tamilnadu Co-operative Societies Act are irrelevant with regard to the disputes between the parties. The Learned counsel for the appellants also explained in the written arguments about the Employees State Insurance Act and Employees provident Fund Act comparing the designation of shareholders under the above Act with the Co-operative Societies Act. Other contention raised by the counsel for the appellants also irrelevant after the disposal of F.A.No.78/2016 by this Commission. The order passed in the appeal binds the parties including the appellants herein. Therefore reconsideration of the decided 10 question does not arise. The second contention also raised by the counsel for the appellants is not sustainable. The second contention raised by the counsel for the appellants are only irrelevant and not sustainable.
19. The learned District Forum had been already decided in favour of the complainant. Even though the order was passed in the absence of opposite parties it was passed only on merits by considering the evidences produced by the complainant. The opposite parties cannot raise any objection against their own documents when they are admitted the complainant is a member and paid the share amount and demanded only for refund of share amount. Therefore, the order passed by the learned District Forum is sustainable under law and answered accordingly for the point for consideration.
20. In the result, the appeal is dismissed by confirming the order of the learned District Forum, Theni made in C.C.No.53/2015, dated 23.11.2017. In addition the appellants/opposite parties are directed to pay additional cost of Rs.5000/- to the respondent/complainant in this appeal.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 09th day of February 2022.
Sd/-xxxxxxxxx N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
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