BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH,                                                                                    MANGALORE

Dated this the 25^th November 2016

PRESENT

       SRI. VISHWESHWARA BHAT D      :  HONBLE PRESIDENT                  

       SRI. T.C. RAJASHEKAR                    :  MEMBER

ORDER IN

C.C.No.39/2014

(Admitted on 22.01.2014)

DevaprasadHegde,

Coastal Restaurant,

Pallikere Complex,

Mangalore.

                                                       ….. COMPLAINANT

(Advocate for the Complainant: Sri BAB)

VERSUS

1. Entrepreneurs Multipurpose,

    Co-Operative Society Ltd.,

    No.304, 3^rd Floor, Embassy Building,

Pumpwell Circle, Mangalore  575002.

2. K. PadmanabhaRai (President)

    S/o Late Narayan Rai,

    NithyanandaNilayay,

Tillari Road, Bolar, Mullihitulu,

     Mangalore.

3. Haseena (Vice president),

    W/o Ismail,

    Bava Palace, Mulihithlu,

     Mangalore.

4. Ananda Shetty,

    S/o Harish Shetty,

    ManjunathaNilaya, No:1/5/25.2111/20,

Byarikanda, Suvarna Catering Lane,

     Near Cashew Factory, Urwa Market,

     Mangalore.

5. Amritha P Rai,

W/o K.P. Rai,

    NithyanandaNilayay,

Tilary Road, Bolar, Mulihithlu,

     Mangalore.

6. Shivaraj,

   Srilakshmi,

    10^th Cross, Kodical,

Ashoknagar,

    Mangalore.

7. Pradeep Shetty,

    S/o Sheena Shetty,

    D.No.22.7.1012,

    NithyanandaNilayay,

Tilary Road, Bolar, Mulihithlu,

     Mangalore.

8. Amritha N Rai,

    W/o Naveen Kumar Rai,

Anugraha Adyaragutthu house,

     Mangalore.

9. ShivaprasadRai,

    NithyanandaNilaya,

Tilary Road, Bolar, Mulihithlu,

      Mangalore.

10. Manoj Kumar Shetty,

     S/o Laxman Shetty,

Feery Road, Bolar,

      Mangalore.

11. Puttaswamy (CEO)

S/o Bomaraj,

SurakshaAppartment,

Kemur, Aple, Padil,

Mangalore.

                                        …...........OPPOSITE PARTIES

(Opposite Parties No.1 2 3 5 7 8 10 11: Ex-parte)

(Advocate for the Opposite Parties No.4 & 6: Sri KPBS)

(Advocate for the Opposite Party No.9: MNVK)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs. 

The brief facts of the case are as under:

The complainant contendsin response to advertisement published in local newspaper by opposite party the complainant on 4.8.2012 deposited Rs. 1,00,000/ for a period of one year with interest at 12% p.a on 4.8.2013.The date of maturity the complainant approached the opposite party where he made the deposit for return of the amount in their Co Operative Society.  But for one or other pretext payment was postponed.  Inspite of besteffort of complainant claiming deficiency in service seeks direction to opposite party to pay the maturity value of Rs. 1,12,000/ subsequent interest of Rs. 4,480/, legal notices cost of Rs.2,000/ and damages for mental shock, pain of 25,000/  and future interest at 12% p.a on Rs.1,12,000/ and cost of Rs..25,000/.

II.     Opposite parties No. 4& 6 throughMr.KPBS and opposite party No.9 through Mr.MNVK filed appearance and written version of almost identically in the nature. The summon subject in their case is the complainant himself is also a member of the society. The representative of the opposite party deny that they are running the Co Operative society(herewith in as per as Co-Operative Society only) opposite party No. 4 is only a share holder.  If the complainant had made any deposit in the society the same is in the course of business of the Society.  The business of the Society is run by the Director or Chief Executive officer or GeneralManagerof the society asper the Karnataka Co-operative Society Act and Rules the liability of any member of the society is limited to his share held inthe society.  Opposite party No. 4 had received legal notice date 12.11.2013 to which a reply was got sent on 16.11.2013 even to subsequent notice reply was sent but returned answer as not claimed.  Opposite party No.4 resigned from membership of the society on 25.6.2012 and it was accepted by the board on 13.7.2012.  Hence seeks dismissal. Opposite party No.6 also further contends he resigned from Director Ship on 31.3.2013. 

          3. In support of the above complainant Mr. Devaprasadfiled affidavit evidence as CW1 and answered the interrogatories served on him and produced documents.Original Deposit Receipt got marked by Forum asEx.A1 detailed in the annexure here below.  On behalf of the opposite party Mr. Ananda Shetty (RW1) and Mr. Shivaraj (RW2) also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked Ex.R1 to R5 detailed in the annexure here below.

III.     In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the other reliefs claimed?
3. What order?

We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

Point No. (i): Affirmative 

Point No. (ii): Affirmative

                   Point No. (iii): As per the final order.            

                                                                                                              REASONS

IV.      POINTS No. (i): The claim of complainant that he deposited the amount of Rs.1,00,000/ with opposite party No.1 society  as for a period of one year with undertaking of the society to pay interest at 12% p.a. is not disputed by this contesting opponents.  The only ground urged by them is complainant in his answer to mentioned in interrogatories he is not a member of the society. But that doesnot procludehim tobe a consumer having deposited the amount with opposite party No.1.  The original FDreceipt issued to complainant of depositingof FDmention in the complaint is produced in this case and it has not endorsement of discharge.  Hence that the opponents have not repaid the amount and thereby dispute betweencomplainant the customer and the opposite partiesservice provider is established. Hence we answer point No.1 in the affirmative.

POINTS No. (ii):In this case as observed earlier the non-payment of the amountsto the complainant in respect of the FD by their society is established.  The ground urged by the contesting opposite parties are they are no more Directors of the society.  In respect of the resignation to the Directorship of the society opposite party No.6 produced Ex.R1 a resignation letter addressed by him to opposite party No.1 it is a computer printout.Signature of opposite party No.6 is found in the document hence we have to consider this document as the original so called resignation letter of opposite party No.6.  There are nodocuments produced by either by opposite party No.6 or opposite party No.4contesting opposite parties to show theirresignationswere accepted by the Board of Directors of opposite party No.1 as required under the said Act and Rules there under.  Infact there is no endorsement or copy of the resolution of acceptance of the resignationletter of opposite party No.6 as Director of opposite party. Hence the claim of opposite party No.4 and No. 6 that they resigned from Directorship of opposite party No.1 cannot be accepted by us. As discussed failure to discharge the amount due to complainant by opposite parties is apparent from the FD Receiptproduced in this case it was not marked. For the sake ofconvenience it is now marked at Ex.A1. In the notes of argument the learned counsel for opposite party No. 4 and No. 6 mentions acceptance of the resignation of opposite party No.4 and No.6 however as mentioned no documents for thcoming to substantiate the claim Reference was made by the learned counsel for the opposite party No.4 and No.6 with two reported cases in 2015 (2) K.L.J paged 559, Ramesh SanthanamVsSadashiva Rao and Others. (2016(1) KLJ page 80 and (2013(1) KLJ page 524.  But however these reported judgments are under section 138 of NIAct and they cannot make facts on hand.  On the other hand the learned counsel for complainant relied on the reported judgment of MandataiSambhajiPawar and AnrVsThe State of Maharashtra on 3 May, 2011, Bombay High Court, Bench: Justice D.G. Karnikon going to the extracted portion of the judgment of the Bombay High Courtdated 3.5.2011 as under:

By lifting the corporate veil, in many cases the Courts have passed orders against the directors of the company. When and how the corporate veil is to be lifted in a matter which would be required to be decided on the facts of each case.  Needless to say that the doctrine of lifting the corporate veil would be equally of applicable in respect of a co operative society where the members seek a direction or order against the members of the managing committee on the ground of fraud of other well recognised grounds.

Ongoing through this we are of the view that there has been no document produced to show by contesting opposite party who has managing the society and that thecontends of opposite parties were not directors.  In circumstances the only conclusion that as to arid is that opposite party No.1 represented by its Presidents, Vice President and Directors opposite party No.2 to 9,CEO opposite party No.11 are liable to pay the amount due to complainant. Hence we are on the view that the complainant is entitled for Rs.1,12,000/ towards the deposits subsequent interest till file of the petition of Rs. 4,480,legal notice cost of Rs.1,000/ and damage fixed at Rs.10,000/ and cost of litigation at Rs. 5,000/. Opposite party shall also pay future interest at 12% from the date of litigation on Rs.1,00,000 till the date of payment. We answer point No.2 in the affirmative.

POINTS No. (ii):Wherefore the following order:

ORDER

The complaint is allowed.  The opposite parties are directed to pay Rs.1,12,000/ (Rupees One lakh Twelve thousand only) towards the deposits subsequent interest till file of the petition of Rs. 4,480,(Rupees Four thousand Four hundred Eighty only)legal notice cost of Rs.1,000/ (Rupees One thousand only) and damage fixed at Rs.10,000/ (Rupees Ten thousand only)and cost of litigation at Rs. 5,000/  (Rupees Five thousand only).  Opposite party shall also pay future interest at 12% from the date of litigation on Rs.1,00,000/ (Rupees One lakh only)till the date of payment.  Payment shall be made within 30 days from the date of receipt of copy of this order.

Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Page No.1 to 9 Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 25^thNovember 2016)

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. Devaprasad

Document marked by this Forumon judgment behalf of the Complainant:

Ex.A1: Original fixed deposit receipt

Document produced on behalf of the Complainant:

No.1: Ten receipt

No.2: five acknowledgments

No.3: Copy of legal notice

No.4: Returned postal legal notice.

Witnesses examined on behalf of the Opposite Parties:

RW1: Mr. Ananda Shetty

RE2:   Mr. Shivaraj

Documents marked on behalf of the Opposite Parties:

Ex.R1:  Copy of the resignation letter for post of Director

Ex.R2:  Postal acknowledgement

Ex.R3: 04.01.2014   legal notice.

Ex.R4: Un served postal envelope

Ex.R5: 16.11.2013 office copy of reply notice sent to Sri. B. Arun Bangera, Advocate.

Dated:  25.11.2016                             PRESIDEN