BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad, B.A., LL.B President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Wednesday the 25th day of March, 2009
C.C.No. 91/06
Between:
Akhila Bharatiya Brahmana Karivena Nitya Annadana Satram,
Srisailam, By its Secretary M.D.Y.Rama Murthy,
S/o. Late M.D.Ramaiah, Practicing Advocate,
D.No.67/87, Fort, Kurnool. … Complainant
Versus
1. Andhra Bank, Srisailam Branch,
Represented by its Branch Manager,
Srisailam.
2. Zonal Manager, Zonal Office,
Andhra Bank,
Kurnool.
3. The General Manager,
Andhra Bank,
Hyderabad.
4.T.Rama Murthy, S/o. T.Krishan Murthy,
R/o.25/204-A, Srinivasa Nagar, Nandyal.
Kurnool District. … Opposite parties
This complaint is coming on this day for orders in the presence of Sri.K.Vijayalakshmi , Advocate, for the complainant, and Sri.A.Rama Subba Reddy, , Advocate, for opposite party No.1, 2 and 3, and Sri.T.Siva Kumar, Advocate, for the opposite party No. 4 and upon perusing the material papers on record, the Forum made the following.
ORDER
( As per Sri. K.V.H.Prasad, President )
CC.No.91/06
1. This case of the complainant is filed U/S 12 of C.P. Act seeking direction on opposite party No. 1 / opposite parties not to resort to Unilateral and whimsical acts of alleged freezing of the SB A/c No. 909 of the complainants society , to pay Rs.4,90,000/- to the complainant as amount allowed by the opposite party No. 1 from being drained out from the complainants SB account , Rs.9,90,000/- as damages for the gross deficiency and willful negligency of services and Rs.5,000/- as cost of the case alleging the deficiency of service of the opposite parties in spite of due acknowledgement of the receipt of the notarized Xerox of the resolution dated 19-02-2006 intimating to it the unanimous election of Dr.Venugopal as a treasurer of complainants society in place of its erstwhile treasurer T.Ram Murthy for the joint operation of the A/c No.909 of complainants society with Secretary and honoring of the cheque No.012843 dated
04-03-2006 for Rs.30,000/- issued by said new Treasurer and Secretary of complainants society and the opposite party No. 1 thereafter dishonoring the cheque No. 012844 for Rs.16,045/- issued in favor of one T. Govinda Krishnaiah Setty for printing expenses alleging unilateral freezing of said account of complainants society and reply on 24-03-2006 of opposite party No. 3 to complainant in response to the letter of objection dated 19-05-2006 of complainant to undertaking to repay after hearing opposite parties 2 and 3 and in contra to it the opposite party No. 1 in his reply dated 05-06-2006 not only justifying the act of freezing of the account but also its allowing the operation of said account in strict compliance of the bye laws of the complainants society and allowing the honoring of cheques Nos . 0607926 dated 20-05-2006 for Rs.90,000/- in favor of K.Padmavathi , cheque No 0607927 dated 22-05-2006 for Rs.2,00,000/- in favor of K. Padmavathi cheque No. 0607928 dated
22-05-2006 for Rs. 1,20,000/- in favour of T.Rama Linga Setty and cheque No. 0607929 dated 22-05-2006 for Rs. 80,000/- in favor of Subramanya Kumar respectively issued by the said erstwhile removed secretary cum treasurer – T. Ram Murthy ( opposite party No. 4) and there by allowing the draining of said amount at the determinant of the interest of complainants society and also issuing fresh cheque book in their favor in ignorance of the cheque book issued to the complainants society.
2. In pursuance of the receipt of the notice of this forum as to this case of the complainant the opposite parties 1 to 3 and in pursuance of the orders in RP NO. 241/06 dated 28-02-2007 of the Hon’ble State Commission on suitable impleading amendment of complaint , the opposite party No. 4 caused their appearance through their counsel and contested the case filling their written version denying any of its deficiency and there by their liability to the complainants claim and seeking dismissal of complaint with cost.
3. The written version of the opposite party No.1 adopted by the opposite parties 2 and 3 , denies of any deficiency on its part as it acted in bonafide believing the FIR and , resolution dated 04-05-2006 electing T.Ram Murthy as General Secretary and Mr. O. A. Malik as Treasurer , freezing the account and in allowing them to operate the account and in view of the dispute as to the status of the complainant in between the complainant and his rivals and pendency of original petition No. 18/05 in Principal District Judge Court , Kurnool , questions the maintainability of the complaint as he does not amount to any consumer dispute and second the in view of the pendency of original petition 18/05 and secondly the badness of the case as the rival party of the complainant who is disputing the status of the complainant is not on record .
4. The written version of the opposite party No. 4 firstly deny the status of the complainant as Secretary of complainant society and there by his authority to file this case especially when as per Rule 14 of the bye laws of said society President of Society alone he is competent for suing and being sued for the said society , secondly dispute the bonafides of the executive meeting and resolution dated 19-02-2006 electing Dr.Venu Gopal as Treasurer in replacement of himself and Thyagaraja Sarma as in fact the complainant has been removed from the post of Secretary of complainants said society under resolution which was intimated to the opposite party No. 1 for allowing the operation of complainants society bank account by them and the cheques being issued on behalf of the complainant society to legally entitled for said payment it deny the alleged pollution of the opposite party in honoring the cheques . Since the dispute as to the status of the complainant is pending in O.P. 18/05 of PDJ Court , Kurnool where in the complainant here in as sought for a declaration consequent to his unsuccessful attempt for being elected in the general body meeting held on 23-01-2005,questions the maintainability of the complainants case in the forum as the dispute is beyond the jurisdiction of the forum seek dismissal of the complaint for want of any deficiency of service or of any unfair trade practice on its side.
5. In substantiation of the contentions while the complainant side has taken reliance on documentary record in Ex.A1 to A8 and the sworn affidavit of the complainant , the opposite party side has taken reliance on documentary record in Ex.B1 to B7 and sworn affidavits of the opposite parties 1 and 4 and a third party affidavit of R.Sudhakar Chowdary .
6. Hence, the point for consideration is whether the complainant has made out the alleged deficiency of the opposite parties and there by their liability to the complainants claim.
7. The Ex.A2 is notarized copy of minutes of the executive committee of the complainants society of the meeting dated 19-02-2006 . Its perusal indicates that it was an emergency executive committee meeting held on the request of executive members on 19-02-2006 at 3-30 p.m and bears the signatures of the working presidents and members present in witness there of . It has taken in its minutes for its resolution four items there are (1) regarding auditing of accounts of said Akila Brahmana Karivena Satram at Srisailam , (2) regarding activities and behavior of Sri.
C. Thyagaraja Sarma and Sri. T. Ram Murthy and action to be taken against them , (3) regarding appointment of new executive council members and office bearers , (4) regarding effective administration of Satram . Among them in second one which is meant for consideration of activities and behaviour of Thyagaraja Sarma and T.Ram Murthy and action to be taken in its them , on detailed discussion of the alleged activities and behavior alleging them as against rules and constitution of said Satram , resolves unanimously firstly to relive said C. Thyagaraja Sarma and T. Ram Murthy from their duties of Vice President and Joint Secretary cum Treasurer respectively with immediate effect , secondly appointing Sri. B. Sivaiah as Executive Member at the proposing of T.V.Ramana and seconding of K.V.V. Prasad at the unanimity of Executive counsel members and conferring the reasonability of treasurership on DR.Venu Gopal at the proposing of M. Chandra Sekharan and at the seconding of K. Satyanarayana , thirdly substituting the executive council membership of M. Harinatha Sastry – for his continuous absence to three executive committee meetings – with G.Hari Hara Rao – co-opted Executive Member conferring on him the duties of Joint Secretary at the proposing of T.V. Ramana and seconding of Harinatha Sarma , fourthly appointing S. Prabhakar Rao in the vacancy of Vice President conferring of him the powers of vice president and with power to necessary action to change bank account and caused publication of substance of the meetings in the newspapers and that was done at the proposing of M. Venu Gopal and seconding of K. Satyanaraya and lastly authorizing the Secretary to appoint suitable persons as administrators , advisers and in other capacities .
8. The complaint and the sworn affidavit of the complainant avers that the said resolution was intimated to the opposite party No. 1 under a covering letter dated 22-02-2006 requesting for acknowledging the changes occurred on account of said resolution . Neither the written version of the opposite party No. 1 , adopted by opposite parties 2 and 3 – nor the sworn affidavit of the opposite party No. 1 nor the sworn affidavit of its third party denies the said fact conveniently avoiding any reference to it . In the absence of any specific denial casting its burden of proof on the complainant side the said fact is remaining proved in favor of the complainant holding the opposite party No. 1 was in know of the resolution dated 19-02-2006 and the changes that were effected under said resolution .
9. The averments of complaint and his sworn affidavit avers that in due recognition of the changes effected under said resolution dated 19-02-2006 , the opposite party No. 1 in due recognition of the said newly constituted body has entertained the cheque bearing No. 012843 dated 04-03-2006 for Rs.30,000/- issued by said newly constituted body under said resolution . This fact finds any denial from the opposite party No. 1 in its written version or sworn affidavit warranting any proof of it by the complainant side .
10. The complaint and the sworn affidavit of the complainant contends not only that a subsequent cheque bearing No. 012844 issued by the said electric body in favor of T. Govindaiah Krishna Setty for Rs.16,045/- was dishonored by the opposite party No. 1 but also says of the issual of another cheque book in favor of said removed persons of said resolution for enabling them the draining of said amount from SB account of the society and honored four cheques mentioned in complaint issued for a total of Rs.4,90,000/- alleging on one hand the freezing of said account on account of disputes in said society and at the other hand honoring the above said cheques issued by the rivals of the complainant . The sworn affidavit of its third party response to this contention justifying its action of freezing account and honoring of the said four subsequent cheques as they was obligation from T. Ram Murthy alleging the illegality in the resolution of their removal and the FIR issued against M.D.Y. Ram Murthy and G.Rama Rao and K. Radhakrishna Murthy for offences Under Sec. 403 , 406 , 408 and 420 and placing another resolution dated 04-05-2006 as to the election of T. Ram Murthy as General Secretary and O.A. Malik as Treasurer and their operating instructions furnishing their specimen signature . It contends that its actions of allowing the operation of account by them is bonafide one in the above state of circumstances as it believes their bonafides .
11. From the perusal of Ex.B2 – an unattested Xerox of proceedings of the board of management of ABBNK Satram dated 04-05-2006 it appears that it is subsequent to as an order dated 04-05-2006 of the Principal District Session Judge , Kurnool – the particulars of which case not taken mention of there in to understand to its scope as mentioned in para 4 of Ex.B2 . But the Ex.B4 an unattested Xerox of the order dated 04-05-2006 of Principal Session Judge, Kurnool it appears that the complainant of this case was granted an anticipatory bail in Cr.No. 11/06 of Srisailam I Town P.S covered under Ex.B1 and there appears any restrictions alleged in para 4 of Ex.B2 .
12. The resolution in Ex.B3 referred in Ex.B2 said to have been communicated under covering letter of Ex.B1 was said to have been made on 04-05-2006 as per bye –law No.6 A .
13. The Ex.A1 is the certificate of registration of society as to Akila Bharatiya Karivena Nitya Annadhana Satram at Srisailam – Complainant Society – contains its memorandum of association with relevant details particulars and rules and regulations governing the said registered satram and the amendments brought to some of its bye laws .
14. Rule .6 (a) of said bye laws incorporated in Ex.A1 – which is not put to any amendments subsequently empowers one of the vice president to preside over the general body or governing body meeting in the event of the absence of the president .
15. The resolution dated 04-05-2006 in Ex.B3 says the said meeting was held by C.Thyagaraja Sarma as Incharge President / Vice President and it was attended by the signatory there in . In the absence of any cogent material as to when the said C. Thyagaraja sarma has became Vice President and any cogent material as to the event which has caused the absence of the president there appears any bonafides in the said resolution in Ex.B3 and its binding effect on all concern to said satram and its bank accounts .
16. There being any specific mention in the written version of the opposite party No. 1 as to C.Thyagaraja Sarma and T.Ram Murthy addressing a letter to opposite party No. 1 requesting for stopping of the operation of the Account No. 909 and any payments from there in as disputes arisen between the executive council members , there appears any bonafides in the undated Ex.B6 especially when anything whispered as to said Ex.B6 either in written version or in sworn affidavit of the opposite party No. 4 – T. Ram Murthy and there by not it is not remaining beyond doubt of its fabrication some how or other to suit the said 11th hour thought of the opposite parties without any basis for them in their pleadings.
17. Further either the written version of the opposite party No. 1 or the written version of the opposite party No. 4 does specify the relevant particulars of resolution as to when the complainant - M.D.Y .Ram Murthy was stripped of his post of Secretary . In the said circumstances it is not remaining clear that when M.D.Y. Ram Murthy was removed of his post for having a proper substitution under resolution dated 04-05-2006 .
18. When the bonafides of Ex.B3 and its binding force on all concerned is in doubt as per reasons assigned in the earlier paras the opposite party No. 1 without affording a reasonable opportunity of hearing to all concerned effected there under , is not remaining justified in permitting the drawl of amounts by the so called elected member of Ex.B3 resolution in detriment to the interest of the complainant , especially when any rules of Ex.A1 warrants the replacement of any of its office bearers when accused of some penal offences . So there appears every deficiency of the opposite party No. 1 in exercising his proper discretion in favor of the rival of the complainant and permitting the drawl of cheques issued by them to the detriment of complainant interest and in dishonoring the cheque issued by the complainant for Rs.16,045/- .
19. The written version of the opposite parties 1 and 4 allege that the complainant here in has filed original petition 18/05 before Principal District Judge Court , Kurnool , as complainant was not successful in his attempts for his election as Secretary to new body in the general body meeting held on 23-01-2005 and filed the said case seeking declaration to continue him as to Secretary with its existing executive committee to administer the society . From the perusal of Ex.B7 – C.C of. Order in O.P 18/05 , it is clear that the claim of T. Ram Murthy ( opposite party No.4 in the present case ) as elected secretary of complainant society i.e., Akhila Bharatiya Brahmana Karivena Nitya Annadhana Satram – Srisailam – along with his alleged other office bearers on 23-01-2005 is baseless and contrary to bye laws of said satram as well as the provisions of A.P. Societies Registration Act and hence there remains any bonafides in the approach to opposite party No. 1 as to the SB A/c.No. 909 of complainants society and so there appears any wisdom in the action of the opposite party No. 1 in entertaining the rivals of the complainant in swindling the considerable amounts from the said SB.A/c.No.909 of the complainant society . It is no matter even if the complainant is not entitled to the relief of declaration sought in said original petition as it would not justify the opposite party No. 1 for allowing the strangers having any bonafide basis to operate the said SB.A/c No. 909 in detriment to complainants societies interest and especially when as from the tenor of the order in O.P.No.18/05 it appears that the said court appeared to have felt for settlement of the problems more for elections of the new body on the efflux of schedule tenure of said body rather than acceding to the request of the petitioner there in and so made directions in that regard . Hence merely because the complainant status to the said society till elections are held as schedule under A.P. Societies Act there appears any wiseness in the conduct of the opposite party No. 1 in allowing the operation of said account No. 909 by the persons who are having any basis to their alleged status . If the opposite party No. 1 have applied his wise discretion in a bonafide manner he would have given reasonable opportunity of hearing to all concerned to said account and would have taken appropriate decision as to the operation of said SB account . Instead of that as opposite party no. 1 has taken an unilateral decision of not only freezing the account for some time on the representation of others and dishonored the cheque issued by the complainant for Rs.16,045/- but also allowed the honoring of cheques to the tune of Rs.4,90,000/- issued by the other than the complainant and the said contact of the opposite party No. 1 , thus is amounting to deficiency of its service for proper operation of complainants society’s SB.A/c.No.909 at the cost of mental annoyance of the complainant society and there by exposes the liability of the opposite party No. 1 and the vicarious liability of opposite parties 2 and 3 as the controlling and supervisory authorities of opposite party No. 1 .
20. Another question raised in this case by the opposite parties is as to the competency of the complainant to file this case in his alleged status of secretary to complainant society i.e., Akhila Bharatiya Brahmana Karivena Nitya Annadhana Satram – Srisailam – as Rule 14 of the bye laws in Ex.A1 vests the power of suing and being sued for the said society in the president of said society alone .
21. Who ever might have filed this case – as the deficiency of service at the conduct of the opposite parties occurred to the monitory interest of said society and the operation of the bank accounts of said society as to monitory matters being vested in secretary in joint liability with treasurer as Rule No. 10 -C of Ex.A1 by laws the real aggrieved for said society having any cause of action to agitate for any of said deficiency shall be the said secretary further he being in more know of the relevant particulars of said matters rather than the president and there by a fit person to safeguard the justifiable interest of the said society and this being the endeavor of complainant to get the benefit of reimbursement of the financial loss occurred to the complainant society at the deficient acts of the opposite party and not for any of his personal gain the filling of this case by the complainant does not appear to be in any serious violation of the statutory intentions of said bye laws of the complainant society .
22. The liability of the opposite party in this case remains in positive at his conduct of participation and protracting the case on vexatious and frivolous grounds .
23. The learned counsel of the opposite parties 1 to 3 without any of its reference in its written arguments takes reliance on the following decisions.
24. The decision of the Hon’ble National Commission in Vishamber Sundardash Badlani and another Vs Indian Bank and three others reported in I ( 2008) CPJ Pg.76 wherein the relegation of the matter to Civil Court ordered folding that matters not adjudicable in summary proceedings when involved huge amounts and recording of voluminous evidence relating to forgery and conspiracy . But in this case there being any such circumstances warranting regarding of voluminous evidence as contemplating in said decision and the material available in record of this case being just sufficient for disposal of the matter in summary proceedings the said decision is having any relevant application for this case.
25. The decision of Hon’ble Haryana State Consumer Disputes Redressal Commission in Haryana Urban Development Authority and another Vs Rajesh Ahlawat reported in I (2008) CPJ Pg.82 holds forum not to act as revisional / appellate authority against the orders passed by competent authority . But the said is having any relevant applicability to the fact and circumstances of the present case as this case was filed against the orders of any such competent authority in appellate or revisional jurisdiction before this forum .
26. The decision of the Hon’ble Supreme Court of India in Godfrey Philips India Limited Vs Ajay Kumar reported in Supreme 2 ( 2008 ) 851 as dealing with the aspects other than the aspects concerned in the adjudication of the present case the said decision is having bearing on this case .
27. The decision of National Consumer Disputes Redressal Commission in M/s. Kailash Chand Jain – Managing Director M/S. Saraogi Oxygen Limited Vs Bihar State Electricity Board and others reported in 2002 (3) CPR Pg 284 (NC) holding complex issues raised could not be decided in summary jurisdiction and complainant is at liberty to approach civil court is having any relevant application to the facts and circumstances of the case for want of any such complex issues which could take the case for adjudication by a civil court alone and there being any corresponding pleading from the opposite parties questioning the maintainability of the complaint for want of any complex issues exclusively triable by civil court alone.
28. The decision of Hon’ble Supreme Court in Bharathi Knitting Company Vs D.H.L World Wide Express Courier Division of Air Frieght Limited reported in 1996 ( 4) Supreme Court cases pg.704 also appear to be having any relevant application to the facts and circumstances of this case as there in the competency of state and National Commissions to pass award of damages of beyond the limit stipulated in the contract was dealt and no such circumstances or existing in the present case for the adoption of the said decision .
29. The decision of Hon’ble Supreme Court in Swinco Industries Vs State Bank of Bikaner and Jaipur and others reported in (2002) 2 SCC Pg.1 holds the filing of the complaint invoking the provisions of C.P.Act when the matter is warranting detailed evidence to prove claim and damages and expenses which could not be decided in a summary fashion but only by a civil court enquiry amounts to abuse the process of consumer forum – appears to be having any relevant application to the facts and circumstances of this case as warranting any detailed enquiry as contemplated in the said decision.
30. The decision in T.V.Narayan , Nambiar Vs Divisional Manager , New India Assurance Company and another reported in CPR (1) 1993 Pg.374 holding the consumer forum will not consider rejection of claim of insurance when the said claim was sub-judice in Civil Court as the finding in pending civil suit would be final – is having any relevant application to the facts and circumstances of this case as the nature of claim and subject matter of the O.P.No.18/05 of Principal District Court Kurnool, and this case is quite different as the farmers claims as declaration of the petitioner and his executive council members for continuance as secretary and executive council members in said society the and subject matter of this case as one for seeking relief against at the deficient acts and services of the opposite parties .
30. Consequently, in the result of the above discussion, the complaint is allowed directing the opposite parties 1 to 3 at their joint and several liability to make good of into the SB.A/c.No.909 of the complainant’s society Rs.4,90,000/- with 12% interest from the date of honoring of said four cheques by giving credit of the same in said account No.909 of complainant’s society and the opposite parties 1 to 4 at their joint and several liability to pay to the complainant’s society an amount of Rs. 5,000/- as costs of this case by giving its due credit into the SB.A/c 909 of the complainants society . Time granted to the opposite parties for compliance of the this order is one month from the date of receipt of this order. In default of the said compliance the opposite parties 1 to 4 in their joint and several liability to credit to the complainants society A/c.No.909 their ordered liability of supra sated award with a future interest of 12% from the date of default till its crediting the same into the complainants SB.A/c.No909 .
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 25th day of March, 2009.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1. Certificate of registration of societies and bye laws.
Ex.A2. Notarized copy of minutes of the executive committee meeting dated 19-02-2006.
Ex.A3. Xerox copy of the cheque 012843 dated 04-03-2006 for Rs.30,000/-.
Ex.A4. Original cheque dated 18-04-2006 for Rs.16,045/- along with two cheque returns memos.
Ex.A5 Office copy of letter dated 19-05-2006 of the complainant to OP.No. 1.
Ex.A6. Reply dated 24-05-2006 of OP.No.3.
Ex.A7. Reply dated 05-06-2006 of OP.No.1.
Ex.A8. xerox copy of order in IA.No.242/2005 in OP.No.18/2005 dated 29-04-2005.
List of exhibits marked for the opposite parties:
Ex.B1. Xerox copy of FIR.
Ex.B2. Proceedings of Board meeting of complainant dated
04-05-2006.
Ex.B3. Resolution passed by the complainants society dated
04-05-2006.
Ex.B4. Bail orders.
Ex.B5. Specimen signature of Ram Murthy.
Ex.B6. Letter dated nil addressed by OP NO.4 to OP.No.1.
Ex.B7. Certified copy of order in 18/2005 of PDJ Kurnool along
With decree.
Sd/- Sd/-
MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
Copy was dispatched on
