STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. | : | 117 of 2012 | Date of Institution | : | 09.04.2012 | Date of Decision | : | 12.10.2012 |
Sh. Ram Pal Sharma, Administrator, All Banks Employees Coop USETC & C Society Limited, Top Floor, Government Press Building, Sector 18, Chandigarh. Appellant Versus 1.Dr. Dinesh Menon son of Sh. K.L. Menon resident of H.No. 379, Phase-II, Mohali. 2.Mukesh Menon son of Sh. K.L. Menon 3.Kanta Menon wife of Sh. K.L. Menon 4.K.L. Menon son of Sh. R.R. Menon All residents of K.No. 379 Phase-II, Mohali. … Respondents Appeal under Section 27-A of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER. Argued by: Sh. Deepak Aggarwal, Advocate for the appellant. Sh. K. L. Menon, Respondent No.4 in person and on behalf of respondents No.1 to 3. First Appeal No. | : | 122 of 2012 | Date of Institution | : | 11.04.2012 | Date of Decision | : | 12.10.2012 |
1.Dr. Dinesh Menon son of Sh. K.L. Menon resident of H.No. 379, Phase-II, Mohali. 2.Mukesh Menon son of Sh. K.L. Menon 3.Kanta Menon wife of Sh. K.L. Menon 4.K.L. Menon son of Sh. R.R. Menon All residents of K.No. 379 Phase-II, Mohali. Appellants Versus - All Bank Employees Cooperative USET&C Society Ltd., Chandigarh C/o SBI Br. Sector 34, Chandigarh.
- Sh. Khazan Singh, Secretary, All Bank Employees Society, H.No.5799, Sector 5, ARY, Chandigarh.
… Respondents Appeal under Section 27-A of the Consumer Protection Act, 1986. Argued by: Sh. K. L. Menon, Appellant No.4 in person and on behalf of appellants No.1 to 3. Sh. Deepak Aggarwal, Advocate for respondent No.1. Name of respondent No.2 deleted vide order dated 09.07.2012. PER MRS. NEENA SANDHU, MEMBER. Vide this common order, we propose to dispose of two appeals under Section 27-A of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), one filed by Sh. Ram Pal Sharma, Administrator, of Opposite Party No.1, and the second filed by the complainants, against the order dated 24.02.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), in Criminal Petition No.55 of 2004, directing the Opposite Parties as under: - “9. Accordingly, we saddle the OPs No.1 and 2 with a fine of Rs.10,000/- each for non compliance of order dated 24.03.2011 of this Forum, to be deposited with State Legal Services Authority, U.T., Chandigarh within 30 days of the receipt of the certified copy of this order failing which, they will suffer a punishment of simple imprisonment for a period of six months each along with the said fine. However, the applicant/complainant is at liberty to claim the outstanding dues as per law. 10. It is also observed that the present execution application though had been filed for the compliance of order dated 22.03.1999, which was partially complied with by the OPs. It is nearly 14 years since the order dated 22.03.1999 that the complainant/applicant is running from pillar to post for his rights. Hence, while finding the plight of the complainant/applicant to be genuine, we also saddle OPs No.1 and 2 with costs to the tune of Rs.15,000/- to be paid by them jointly and severally to the complainant/applicant within 30 days from the date of receipt of certified copy of this order. Failure in compliance of this order would attract interest @ 18% on Rs.15,000-/ till it is paid. Accordingly, this criminal petition stands disposed of in the aforementioned terms.” 2. The facts, in brief, are that the complainants filed a Consumer Complaint bearing No.673 of 1996, which was allowed by the District Forum, vide order dated 22.03.1999, in the following manner: - “7- After having considered the matter, we feel that the request made by the complainant is correct. It is admitted that the funds at the disposal of the Society are short and therefore, the depositors are not being paid. In such circumstances, it is necessary that the sincere and earnest efforts should be made to collect the amounts due to the Society from its debtors. It should not be difficult to do so as the members of the society are employees and the sources from where they draw the salaries are well-known. We would, therefore, except the administrator of the Society to make all that efforts and submit his report regarding the financial status of the Society and the recoveries affected by the administrator upto date after the expiry of the period of six months. 8- The complaint, therefore, stands disposed of accordingly without any order as to costs. Copies of this order be sent to the parties, free of costs.” 3. Thereafter, Execution Application bearing No.219 of 1999 was filed by the complainants, which was disposed of vide order dated 29.10.2004, in the following manner: - “Sh. K.L. Menon, Advocate for the decree holder. ………. The Chandigarh State Cooperative Bank Limited has sent a cheque for Rs.14,000/- in the name of Sh. Dinesh Menon, decree holder. It has been delivered to Sh. K. L. Menon, counsel for the complainant. He has accepted it. He has made a statement accepting this cheque and he has further stated that his execution may be consigned to record room as partly satisfied, and that if need, he shall file a fresh application for the balance amount. In view of his statement, this execution is consigned to record room as partly satisfied. If so advised, the decree holder may file an execution for recovery of the balance amount. Certified copy of this order be communicated to the complainant/decree holder free of charge.” 4. Thereafter, Criminal Petition No.55 of 2004 was filed by the complainants/decree holders before the District Forum, on 01.11.2004, wherein the appellant i.e. Sh. Ram Pal Sharma (in appeal No.117 of 2012) was impleaded as one of the Judgment Debtors, as the original decree, was not being satisfied against the original Judgment Debtor, who was Opposite Party before the District Forum. 5. Subsequently, Sh. Ram Pal Sharma, moved an application before the District Forum assailing the order impleading him, as one of the Judgment Debtors, as he was not in any manner, whatsoever, personally liable to satisfy the order passed in the Consumer Complaint. The District Forum disposed of the said application vide order dated 27.10.2011 and held that the application filed by Sh. Ram Pal Sharma was only a feeble attempt to wriggle out of this situation, by assigning different meanings, to his designation. 6. Subsequently, the order dated 27.10.2011 was challenged by Sh. Ram Pal Sharma, before this Commission, by filing FA No.313 of 2011 under section 27-A of the Act. The said appeal was dismissed being premature. 7. However, Criminal Petition No.55 of 2004 was finally disposed of by the District Forum vide the impugned order dated 24.2.2012, in the manner, refered to above. 8. Feeling aggrieved, against the order dated 24.02.2012, Sh. Ram Pal Sharma has filed appeal No.117 of 2012 under Section 27-A of the Act, whereas the complainants/appellants filed appeal No.122 of 2012 for setting aside the order dated 24.02.2012, and remanding the case to the District Forum for execution of the order dated 22.03.1999 to their complete satisfaction. 9. We have heard the Counsel for the appellant in appeal No.117 of 2012, Mr. K. L. Menon in appeal No.122 of 2012 and, have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellant (Sh. Ram Pal Sharma) has assailed the order dated 24.02.2012, on the ground, that the Executing Court could not go beyond the decree. He further submitted that the Administrator could not be made individually liable for satisfying the decree, passed by the District Forum. He also submitted that the order impugned, could have only been passed against the person, who was a party to the original Consumer Complaint, in view of the provisions of Section 27(1) of the Act. He further submitted that as per this provision, no order could be passed against a trader or a person, who was never a party before the District Forum. He further submitted that the provisions of Section 27 could only be invoked for the purpose of punishment for non-compliance of the orders passed in original Consumer Complaint. He further submitted that the decision rendered by the National Consumer Disputes Redressal Commission, New Delhi, in Revision Petition No.822-929 of 2003, on 09.02.2007 was brought to the notice of the District Forum, by moving an application dated 29.8.2011, wherein it was held that the Registrar of the Cooperative Societies and the Special Officer would not be personally liable for the defaults, committed by the Society, but the District Forum dismissed the said application, without appreciating the law. He further submitted that the District Forum also failed to appreciate that as the Society had gone bankrupt due to mismanagement, hence it was not paying back the investors their hard earned money. He further submitted that the Government had vide order dated 8.5.2006 appointed the appellant (Sh. Ram Pal Sharma) as Administrator of the said Society in supersession of previous order, in place of Shri Santokh, to manage the affairs of the same (Society) and to complete the record ready for audit/inspection immediately after removing the irregularities noticed in the working of the Society and arrange for the constitution of new managing committee. He further submitted that the District Forum also failed to appreciate that under Section 84 of the Punjab Cooperative Societies Act, 1961, no prosecution or other legal proceedings lie against the Registrar or any person subordinate to him in respect of anything done in good faith. He further submitted that the District Forum wrongly held in the order dated 27.10.2011 that the appellant (Sh. Ram Pal Sharma) being appointed by the Registrar, was not an Officer subordinate to him (Registrar of Societies). He also submitted that the District Forum wrongly held in the order dated 27.10.2011 that Sh. Ram Pal Sharma was called upon to show cause as to why he be not sentenced and fined under Section 27(1) of the Act, for non-compliance of its order dated 22.3.1999, however, no show cause notice was received by Sh. Ram Pal Sharma in his name at the address mentioned in the order dated 24.3.2011. He further submitted that the address in the said orders was ‘C/o SBI Branch, Sector 34, Chandigarh’ i.e. without the name of the Administrator, whereas Sh. Ram Pal Sharma (appellant) is having office on Top Floor, Government Press Building, Sector 18, Chandigarh, and hence there was no question of the appellant having replied to the show cause notice dated 24.3.2011.He further submitted that the costs of Rs. 15,000/- imposed vide the order impugned, are totally bad in law, because of two reasons, firstly, no more relief could be given by the Fora below beyond the decree and secondly, such costs could not have been imposed on the appellant (Sh. Ram Pal Sharma) who was never a party, in the original Consumer Complaint. 11. The Counsel for the appellant (Sh. Ram Pal Sharma) also cited the judgment in case Ashish Kumar Biswas Vs. D.D.A. & Ors, 1996 (2) CPJ 154, wherein it was held that whatever award was passed (rightly or wrongly) had to be executed by the Tribunal under sections 25 or 27 of the Act. He also cited T.P.Singh Sodhi Vs. Central Coalfield Ltd., IV (2006) CJP 193 (NC), wherein it was held that Executing Court could not go beyond the decree. Further, in the case Corporate Communication System Vs. Mahesh Choudhary, RP No.1432 of 2006, decided on 13.10.2010, by the National Commission, it was held that Forum could not go beyond the findings recorded by it, in the main case, in the Execution Petition. He further relied on the judgment of this Commission dated 22.10.2009 passed in Appeal No.350 of 2009 titled Veena Gautam v. Chairman, NABARD and others, wherein, this Commission had taken the view that the Administrator would not be individually liable for satisfying the decree passed by the District Forum. He also cited Union of India and others Vs. K. Thiruvengadam, R.P. No.94 of 1992, decided on 13.4.1993, wherein the National Commission held that composite orders were bad in the eyes of law, and could not be sustained. Finally submitting that the order impugned, impleading Ram Pal Sharma, as a party, for the first time, in Execution Proceedings and thereafter saddling him with costs and in default to undergo imprisonment, is totally illegal and against the settled principles of law, the Counsel prayed that his appeal be accepted and the order impugned be set aside. 12. On the other hand, the complainants/appellants, in appeal bearing No.122 of 2012, filed under Section 27A of the Act, also sought setting aside of the order dated 24.02.2012, which has been impugned by Sh. Ram Pal Sharma (Administrator), in appeal bearing No.117of 2012. The Counsel for the complainants/appellants assailed the order dated 24.02.2012, on the ground, that the District Forum did not pass any order in the main Execution moved by the complainants, in the year 1999 and rather, fined the Opposite Parties for non compliance of order dated 24.03.2011 vide the impugned order. 13. A bare perusal of the record of the District Forum, shows that initially the Consumer Complaint bearing No.673 of 1996, was filed by the complainant, before the District Forum, which was allowed by it vide order dated 22.03.1999, directing the Administrator of the Society to make all efforts and submit his report regarding the financial status of the Society and the recoveries effected by the administrator upto date after the expiry of the period of six months. Thereafter, the complainants filed Execution Application under Section 27 of the Act, on 09.11.1999, against the All Bank Employees Cooperative U.S.E.T&C Society. The District Forum while ignoring the fact that the name of the Opposite Party mentioned, in the Execution Application was different, from the name of the Opposite Party impleaded in the Consumer Complaint, by treating this application under Section 27 of the Act, issued a show cause notice for 31.01.2000. This Execution Petition was disposed of by the District Forum vide order dated 29.10.2004, as partly satisfied, in view of the statement made by the complainants. Subsequently, the complainants filed another application before the same District Forum, by impleading the All Bank Employees Cooperative U.S.E.T&C Society as also Sh. Khazan Singh, Secretary of the Society. However, the District Forum ignored the fact, that the complainants impleaded Sh. Khazan Singh, for the first time, in the array of the parties in the Execution Application, whereas, the order dated 22.3.1999 passed in the original Complaint, was to be executed against the Administrator, All Bank Employees Cooperative USET & C Society Limited, issued show cause notice vide order dated 24.3.2011 to the Opposite Parties for non compliance of the order dated 22.03.1999 passed in the complaint case, for 29.04.2011. It was on 29.04.2011 that the complainants provided the name of Sh. Ram Gopal Sharma (infact Sh. Ram Pal Sharma), Inspector of the Society, being the administrator of the Society. In lieu of the summons issued by the District Forum, Sh. Ram Pal Sharma, Administrator of the Opposite Party (Society) appeared before the District Forum for the first time on 31.05.2011 and subsequently moved an application dated 29.08.2001, assailing the order dated 24.03.2011, on the ground, that he was not, in any manner, personally liable to satisfy the decree dated 22.03.1999 as no prosecution or other legal proceedings, lay against the Registrar or any person subordinate to him in respect of anything done in good faith u/s 84 of Punjab Cooperative Societies Act, 1961. However, the said application was disposed of, by the District Forum vide order dated 27.10.2011, holding that the application was only a feeble attempt to wriggle out of this situation, by assigning different meanings, to his designation, and finally the impugned order dated 24.02.2012 was passed. 14. The issues for determination before us, are as under:- (1) Whether the Executing Court can go beyond the decree? (2) Whether the Administrator of the Society can be held personally liable for the defaults committed by the Society? 15. Admittedly, the District Forum vide order dated 22.03.1999, awarded relief against the administrator, whereas, the Complainants/Decree Holders filed execution only against All Bank Employees Cooperative USET & C Society Limited, which was not impleaded as a party in the complaint. As such, the orders passed by the Executing Court dated 24.3.2011 and 24.02.2012 are beyond its original decree, and hence, are not legally sustainable. Even otherwise, the impugned order dated 24.02.2012 is not tenable, as no sentence in default of payment of fine could be imposed upon the Society under Section 27 of the Act, it being a juristic person. Hence, the order passed by the District Forum u/s 27 of the Act is not sustainable, in the eyes of law. It is well settled law that the Executing Court cannot go beyond the decree, as held in the cases T.P.Singh Sodhi Vs. Central coalfield Ltd., IV (2006) CJP 193 (NC), and Corporate Communication System Vs. Mahesh Choudhary, RP No.1432 of 2006, decided on 13.10.2010, by Hon`ble National Commission. 16. Regarding the second issue, whether the Administrator of the Society can be held personally liable for the defaults committed by the Society, a bare perusal of the record reveals that Sh. Ram Pal Sharma (Administrator) who appeared before the District Forum for the first time on 31.05.2011, in lieu of the show cause notice, could not be sued or personally held liable. It is also on record that The Joint Registrar, Cooperative Societies U.T, Chandigarh exercising the powers vested u/s 57(2)(b) of the Punjab Cooperative Societies Act, 1961 (as applicable to U.T, Chandigarh) had ordered that the affairs of the Society should be wound up and while exercising the powers vested u/s 58 of the Punjab Cooperative Societies Act, 1961, he appointed Sh. Ram Pal Sharma, as its liquidator, vide order dated 12.1.2012. In one of the decisions rendered by the National Consumer Disputes Redressal Commission, New Delhi in bunch of Revision Petition No.726-821, 822-923, 1517-1635, 1636-1762 and 1414-1421 all of 2003, decided on 09.02.2007, it was held that the Registrar of the Cooperative Society and the Special Officer would not be personally liable for the defaults, committed by the Society and made liable to repay the deposited amounts. The Hon’ble National Commission after exhaustively discussing the provisions of Sections, 39, 32, 88, 166 and 176 of the Cooperative Societies Act, 1983 held that the Special Officer comes into picture only after the supersession of the Board of any registered society and he cannot be held personally liable for the failure of the society to repay the deposited amounts. Even this Commission has already, vide order dated 22.10.2009 passed in Appeal No.350 of 2009 titled as Veena Gautam v. Chairman, NABARD and others, had taken the view that the Administrator would not be individually liable for satisfying the decree passed by the District Forum. 17. Therefore, the impugned order dated 24.02.2012 passed by the District Forum is not sustainable, in the eyes of law, as no proceedings under Section 27 of the Act, could be initiated against the Administrator (Sh. Ram Pal Sharma) of the Opposite Party – Society. As such, the impugned order, is liable to be set aside. 18. Even otherwise, the complainants/appellants, in their appeal No.122 of 2012 while seeking setting aside the order dated 24.02.2012 made a prayer that the District Forum be directed to get the order dated 22.03.1999, complied with, in its letter and spirit. We find force in the contention of the complainants/appellants, as the impugned order passed by the District Forum, is against the provisions of law, and the same is liable to set aside, as discussed above. 19. In view of the foregoing discussion, both the appeals bearing No.117 of 2012 filed by Sh. Ram Pal Sharma, Administrator and No.122 of 2012 filed by the complainants/ appellants are accepted, with no order as to costs. The impugned order dated 24.02.2012 is set aside. 20. However, the appellants/complainants, in Appeal No.122 of 2012, shall be at liberty, to file a fresh Execution Petition under Section 25 of the Act, for recovery of the remaining amount, in pursuance of the order dated 22.03.1999, passed in the consumer complaint. If such an execution petition is filed by the complainants, the same shall be decided by the District Forum, strictly in accordance with the provisions of law, expeditiously. 21. Certified Copies of this order be sent to the parties, free of charge. 22. The file be consigned to the Record Room, after completion. Pronounced. 12th October, 2012. Sd/- [JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/- [NEENA SANDHU] MEMBER AD
STATE COMMISSION (First Appeal No.117 of 2012) Argued by: Sh. Deepak Aggarwal, Advocate for the appellant. Sh. K. L. Menon, Respondent No.4 in person and on behalf of respondents No.1 to 3. Dated the 12th day of October, 2012. ORDER Vide our detailed order of the even date, recorded separately, this appeal and FA No.122 of 2012 have been accepted, vide the same detailed order, with no orders as to costs, as per directions. (NEENA SANDHU) MEMBER | [JUSTICE SHAM SUNDER(RETD.)] PRESIDENT | |
AD
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. | : | 122 of 2012 | Date of Institution | : | 11.04.2012 | Date of Decision | : | 12.10.2012 |
1.Dr. Dinesh Menon son of Sh. K.L. Menon resident of H.No. 379, Phase-II, Mohali. 2.Mukesh Menon son of Sh. K.L. Menon 3.Kanta Menon wife of Sh. K.L. Menon 4.K.L. Menon son of Sh. R.R. Menon 5. All residents of K.No. 379 Phase-II, Mohali. Appellants Versus 1.All Bank Employees Cooperative USET&C Society Ltd., Chandigarh C/o SBI Br. Sector 34, Chandigarh. 2.Sh. Khazan Singh, Secretary, All Bank Employees Society, H.No.5799, Sector 5, ARY, Chandigarh. … Respondents Appeal under Section 27-A of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER. Argued by: Sh. K. L. Menon, Appellant No.4 in person and on behalf of appellants No.1 to 3. Sh. Deepak Aggarwal, Advocate for respondent No.1. Name of respondent No.2 deleted vide order dated 09.07.2012. PER MRS. NEENA SANDHU, MEMBER. 1. For orders, see the orders passed in First Appeal No.117 of 2012 titled “Sh. Ram Pal Sharma Vs. Dr. Dinesh Menon and others”, vide which this appeal has also been accepted, with no orders as to costs. 2. Copies of this order be sent to the parties free of charge. Pronounced. 12th October, 2012. Sd/- [JUSTICE SHAM SUNDER(RETD.)] PRESIDENT Sd/- [NEENA SANDHU] MEMBER AD
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
