Karnataka

Belgaum

CC/250/2015

Damodar D Patel - Complainant(s)

Versus

B S Mantoor The Liquidator Of Om Ganesh Cr Sou Saha Nyt Nippani - Opp.Party(s)

V C Bembalgi

12 Apr 2016

ORDER

(Order dictated by Shri. B.V.Gudli, President)

ORDER

          U/s.12 of the C.P. Act, complainant has filed the complaint against the O.P. alleging deficiency in service of non payment of the amount of the matured F.D.R.

          2) After service of notice O.P. appeared In person before the forum and has filed written version.

          3) In support of the claim in the complaint, complainant has filed affidavit and original F.D.R. is produced by the complainant.

          4) We have heard the argument of the complainant counsel and perused the records.

          5) Now the point for our consideration is that whether the complainant has proved deficiency in service on the part of the O.P. and entitled to the reliefs sought?

          6) Our finding on the point is partly in affirmative, for the following reasons.

:: R E A S O N S ::

          7) On perusal contents of the complaint and affidavit filed by the complainant. The opponent society had offered to pay the better rate of interest and as such the complainant had invested the money in form fixed deposits. The complainant deposited Rs.20,000/- dated 29/6/2003 and rate of interest was 12% P.A. and date of maturity as on 29/6/2009 and maturity amount is Rs.40,000/-.  The complainant requested the opponent to return the matured amount, inspite of that opponent went on postponing the same by assigning one or other reasons. Thereafter the opponent got issued legal notice dated 20/4/2015 through his counsel said notice was duly served on the opponent. Inspite of that the opponent did not return the F.D.R. amount to the complainant. Hence opponent committed deficiency in service as contemplated under the provision of the consumer protection act 1986.

8) On the other hand the opponent appeared Inperson and filed his objection contending that the complaint is not maintainable, false and vexation and the opponent is government employee and holding additional charge of Sahakari appointed by A.R.C.S. Chikodi. The opponent further contends that the complainant has not deposited any amount with the Sahakari after taking charge as Liquidator of the society and the deposit made when the earlier committee was in existence and the Committee is not a party to the proceedings. Hence complaint is not maintainable for non joinder of appropriate parties. The opponent further contends that the office is represented by Secretary and Board of Managements as they are necessary party to the case and the deposit is matured when board was not in existence. The opponent contends that the complainant had not made any request for the payment of amount and no application is made for recovery and documents of deposit are not made available and there is no demand, hence there is no cause of action. The Liquidator in addition to the regular Job is to take of all the day today affairs of the society and is not having entire details of amounts deposited by the complainant and society personnel have already resigned from the society and the opponent is making payment in court cases and making efforts to collect the amount and the Liquidator has not rendered any service and is not the trader and is not in receipt of any of the amount towards the rendering the service and there is no deficiency of service on the part of the Liquidator and prayed to dismiss the complaint.

9) It is pertaining to note that the opponent after filing objection the complainant filed his evidence on affidavit of the complainant, but the opponent inspite of giving sufficient opportunity did not file his affidavit evidence. The complainant has produced the original F.D.R. and also the copy of legal notice and the postal receipt and acknowledgement to show that the legal notice was served to the opponent. As contended by the opponent in his objection that he is not aware of the deposit made by the complainant cannot be belied because the complainant in his legal notice has clearly mentioned the F.D.R. No. and amount invested in the opponent society with the date etc., Therefore the opponent contention that is not aware of the fact that the complaint is holding F.D.R. in the opponent society cannot be believed and accepted. The another contention that the complainant has not made demand of F.D.R. amount to the opponent also cannot be believed and accepted as the legal notice dated 24/4/2015 to the opponent clearly shows that there was demand made by the complainant. The one of the contention of the opponent that the complaint is hit by non joinder of the parties that is secretary and Board of management cannot be accepted because after liquidation of the society the opponent has been appointed as a Liquidator and as per the Karnataka Co-Operative societies Act the Liquidator has given vide power to recover the dues from the borrowers and also the Liquidator has to look after day today affairs of the society. Hence as a sole, the Liquidator is liable to answer the claim of the complainant and the contention that the complaint is not maintainable for non joinder of necessary parties cannot be accepted. Though the O.P. liquidator in the version has stated that the previous acts of the management is not concerned to him and that there is no deficiency in service, taking in to consideration of the entire facts he being the liquidator of the society, is also equally liable and responsible. Of course, personally he may not be liable but in the capacity of liquidator, he is responsible. However, the liquidator in the version has made a submission that he has started recovery of the loan of the cooperative and he will settle the claim of the complainants on the priority basis. Hence, the liquidator is also liable.

10) On perusal evidence affidavit of the complainant, after maturity of F.D.R. the opponent has not paid F.D.R. amount. inspite of the demands made to the O.P. has not paid the amount. Hence, the claim of the complainant that inspite of the demands made the amount remained unpaid, has to be believed and accepted. It is well settled legal position that non payment of the amount deposited, amounts to deficiency in service.

          11) Taking in to consideration of various aspects and the decision of Hon’ble Apex Court reported in (2011) SCCR 268 and of the Hon’ble Apex Commission reported in 2013 (2) CPR 574 as well as other subsequent decisions absolutely it is just and necessary to impose cost on daily basis if order remains uncomplied within the period fixed for compliance of the order, so as to have feeling and pinch.

          12) Accordingly, following order.

ORDER

          The complaint is partly allowed.

          The O.P. represented by the Liquidator is hereby directed to pay a sum of matured amount of Rs.40,000/- in respect of F.D.R. A/c. No.12469 to the complainant with future interest at the rate of 8% P.A. from 30/6/2009 till realization of the entire amount.

          Further, the O.P. represented by the Liquidator is hereby directed to pay a sum of Rs.3,000/- to the complainant towards costs of the proceedings.

          The order shall be complied within 30 days from the date of the order.

If the order is not complied within stipulated period, O.P. is hereby directed to pay a sum of Rs.50/- per day to the complainant from the date of disobedience of order, till the order is complied.

 (Order dictated, corrected and then pronounced in the open Forum on: 12^th day of April 2016)

Member                   Member                                  President.

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Annexure

Witnesses examined on behalf of the complainant

1. CW-1Shri. Damodar Devashibhai Patel,

 

Documents produced by the complainant

1. Original F.D.R. No.12469
2. Copy of legal notice dated 24/4/2015
3. Postal receipts dated 24/4/2015
4. Postal acknowledgements

 

Witnesses examined on behalf of the opponent

1. RW-1 Liquidator opponent society/Sahakari

 

Documents produced by the opponent

Nil

Member                   Member                                  President.