PER SHRI.S.S. PATIL – HON’BLE MEMBER
1) This is the complaint regarding the deficiency in service on the part of the Opposite Party as the Opposite Party Society has wrongly shown the liability of Rs.2,88,678/- against the Complainant.
The facts of the complaint as alleged by the Complainant are that the Complainant is the member of Batliboy House Premises Co-operative Housing Society Ltd. (Opposite Party) and the Opposite Party is the duly registered Housing Society under Maharashtra Co-operative Society Act, 1960.
2) The Complainant has stated that, the Opposite Party filed a complaint against the Complainant in the year 2004 for recovery of the arrears of Rs.1,50,496/- towards maintenance. This complaint was filed before the Assistant Registrar of Co-op. Societies, B Ward Mumbai. The Asst. Registrar, by his order dtd.28/03/05 allowed the claim of Rs.23,937/- only against the Complainant. According to this order, the Complainant paid Rs.24,930/- (Rs.23,937 + Interest) to the Opposite Party by cheque on 26/05/05. This amount was accepted by the Opposite Party.
3) It is further alleged by the Complainant that, despite payment of dues of the Society as above, as per order dtd.28/03/205, the Opposite Party did not credit the said amount to the credit of the Complainant and kept on adding the interest and showing the same in every month’s bill. The Complainant has added that he has been paying the bills of the Society from time to time. Inspite of the payment of these dues the Opposite Party is publishing and displaying these dues against the Complainant on notice board of the Society showing the Complainant as defaulter and these arrears are shown to the tune of Rs.2,71,846/- as on 31/12/07. The Complainant requested the Opposite Party to give credit of the sum of Rs.24,930/- to him and not to circulate the list of defaulters portraying him as a defaulter, but invain. Again the Opposite Party has shown arrears of Rs.2,88,678/- in maintenance bill dtd.01/04/2008.
4) The Complainant further averred that the Opposite Party circulated the auditor’s report dtd.10/05/08, statement of income and expenditure and balance sheet dtd.31/03/08 and list of alleged defaulters.
5) The Complainant stated that thus, the Opposite Party displayed the list of defaulter and showing the Complainant as a defaulter who is required to pay Rs.2,88,678/- as on 31/03/08. This is the deficiency on the part of the Opposite Party as the Complainant had already paid the due of Rs.24,930/- as peer the order of the Asst. Registrar of the Co-op. Societies. The Opposite Party has not given the credit of this amount to the Complainant and charged the compound interest on this amount which is not payable to the Opposite Party.
6)The Complainant has finally prayed -
a) That the Opposite Party be directed to give credit of the sum of Rs.24,930/- towards the full & final claim of Opposite
Party as on 26/05/05.
b) It is also prayed that the Opposite Party be directed to desist from displaying/circulating any written/oral/maintenance
bills showing the Complainant as a defaulter for the sum of Rs.2,88,678/-.
c) Directing the Opposite Party to pay Rs.1 Lac as compensation to the Complainant and cost of the complaint of
Rs.20,000/-.
7) The Complainant has attached the xerox copies of the relevant documents alongwith his complaint. The complaint was admitted and notice was served on the Opposite Party, who appeared through the Ld.Advocate. The Opposite Party filed its written statement wherein it denied the allegations of deficiency in service against it and stated that the dispute is about Society’s arrears and this dispute is governed by the Maharashtra Co-operative Societies Act, 1960 and rules framed thereunder and hence, this Forum does not have the jurisdiction to entertain this complaint.
8) The Opposite Party has also stated that the complaint is time barred.
9) The Opposite Party has further stated that the Complainant was a secretary of the Opposite Party Society for a period from 1997 till May, 2002. During his tenure the Complainant mismanaged the affairs of the Society violated Byelaws and provisions of the Co-operative Societies Act, 1960. The Complainant did not deposit the property tax, State education cess to B.M.C. Thereafter the B.M.C. was to auction the Societies property (Penalty order dtd.28/03/02). Inspite of regular payment of the above taxes by the members, the Complainant did not pay these amounts to the B.M.C. He also did not pay electrical bills of the Opposite Party Society. Hence, the electricity of Opposite Party was disconnected. The Opposite Party Society’s accounts were not maintained and audited. No AGM was called by the Complainant in his tenure. No supporting voucher for the expenses. Cash expenses beyond the limit were made by the Complainant as against the provisions of Co-operative Societies Act. Books of accounts were not presented to members. Statutory registers were not maintained by him. After May, 2002 new Management Committee was elected. The Complainant did not hand over the books of accounts to the newly elected body. The new committee therefore, collected bank statements of the Society from the concerned banks. In these statements of accounts several discrepancies were noted such as short transfer fee, short receipts of repair fund from members. Cash on hand as on date of handing over the charge of Society was not handed over to the new body. A sum of approximately 3 lacs in the account of repair collection was temporally reflected in cash account as being received from members towards repairs. The Complainant was asked to clarify the queries regarding the major repair accounts but the Complainant failed to clarify the same. Hence, Opposite Party called a Special General Meeting on 08/05/03. In this meeting it was resolved to debit the account of the Complainant with a sum of Rs.4 lacs till the satisfactory clarification is received from the Complainant. Then Annual General Meeting was held on 19/05/03. In this meeting, the Complainant clarified certain queries and agreed to pay a sum of Rs.1,01,000/- by 9 post dated cheques. But he did not pay the same. Therefore, in the year 2004, Opposite Party filed a complaint with Asst. Registrar of Co-operative Societies to recover the dues of Rs.1,54,496/- which include the above said amount Rs.1,01,000/- and arrears of the maintenance.
10) The Opposite Party has further stated that the order of the Asst. Registrar directed to the Complainant to pay only Rs.23,937/- and directed the Opposite Party to raise the claim for remaining amount before Co-operative Court. It is not held that the remaining amount is not payable to the Opposite Party by the Complainant. The Opposite Party has vehemently stated that the Complainant is a defaulter in payment of dues of Rs.3,58,835/- as on 31/03/2009. The Opposite Party has averred that it has already credited the sum of Rs.24,930/- against maintenance only, in the Complainant’s account. The Opposite Party has vehemently denied that the Complainant has paid the entire dues of the Opposite Party on 26/05/05 or on any other date.
11) Opposite Party has further stated that the Complainant is a defaulter in paying the Opposite Party’s dues. Therefore, Opposite Party has displayed the list of the defaulters on notice board of the Opposite Party Society showing the Complainant as a defaulter. So sending the bills for dues and circulating the list of the defaulters does not amount to deficiency in service on the part of Opposite Party. Finally the Opposite Party has prayed for dismissal of the complaint with cost.
12) The Opposite Party also filed an affidavit in evidence and list of documents in support of its written statement. It also filed the written argument. The Complainant also filed the compilation of document in support of his complaint, rejoinder to the written statement and written argument. We heard the Ld.Advocates for both the parties and perused papers submitted by them. Our findings are as follows -
In this case the deficiency in service, as alleged by the Complainant is that the Opposite Party has not credited the amount of Rs.24,930/- to the account of the Complainant. It is his contention that as per the Asst. Registrar’s order dtd.28/03/05, he had paid this amount to the Opposite Party on 26/05/05 but the Opposite Party did not credit it to his account and showed the arrears of dues payable by the Complainant to the Opposite Party and at last on 31/03/08. This amount of arrears was raised upto Rs.2,88,678/-
13) It is seen from the papers that the Complainant was in arrears of certain amount payable to the Opposite Party i.e. Complainant owed some amount to the Opposite Party in the year 2004. (As per the complaint before Asst. Registrar the claim was of Rs.1,50,496/-). Therefore, Opposite Party has filed a complaint U/s.101 of Maharashtra Co-operative Societies Act, 1960 before the Asst. Registrar of the Co-operative Societies to recover Rs.1,50,496/- with interest. The Asst. Registrar passed an order dtd.28/03/05 allowing the claim of Rs.23,937/- to be paid to the Opposite Party with interest. The claim of the Opposite Party was of Rs.1,50,496/-. Out of this amount, the Asst. Registrar allowed only Rs..23,937/- alongwith interest. The rest of the arrears were against the vouchers. It has been alleged by the Opposite Party that the Complainant during his tenure, as a Secretary of the Opposite Party (In 1997-2002) had not deposited the property tax, education cess etc. collected from members, in the office of B.M.C. So the B.M.C. had issued notice to the Opposite Party for auction of its property. Opposite Party paid penalty of Rs.43,504/- for the fault of the Complainant. It was also alleged that there were no supporting vouchers and documents for the cash and cheque expenses. The Complainant also did not pay the electricity bill of the Opposite Party Society. Therefore, the electricity connection was disconnected on 01/11/2000 for arrears of Rs.26,445.30. A sum of Rs.37,250/- was shown as paid by the Complainant to the Accountant Mr.Rakesh Shah as a professional fee for auditing the accounts of Opposite Party. In fact no account for the period 1997 to 2002 was maintained. As per accounts papers the balance of Rs.29,881/- was lying in Opposite Party’s account with Bank of Baroda Batliboy Repair Fund Account. However, the Bank account statement reflected no such amount in the said account. Short transfer fee reflecting in the books of account amounting to Rs.38,937/- was debited to the Complainant’s account. Cash in hand was not handed over by the Complainant to the new Committee at the time of handing over the charge of the Opposite Party Society in 2002.
The Opposite Party filed the complaint before the Asst. Registrar to recover the above said amounts alongwith the maintenance charges to be paid by the Complainant.
14) The complaint before the Asst. Registrar was U/s.101 of the Maharashtra Co-op. Society Act. The Asst. Registrar allowed only the charges against maintenance. At the same time in the same order the Asst. Registrar also expressed at point no.3 that the amount against the vouchers, claimed from Shri. Nirmal Saraf (Complainant in this case) is a disputed amount therefore, the Society (Opposite Party in this complaint) may take a recourse U/s.91 of the Maharashtra Co-op. Society Act.
15) It seems from the averment of the Complainant in his complaint that he is under the presumption that as per this order, he is to pay only Rs.23,937/- but the Asst. Registrar has given the Opposite Party a leave to file complaint U/s.91 of the above said Act. From the papers it is seen that the Complainant was a Secretary of the Opposite Party for a period from 1997-2002 and during his tenure he mismanaged the affairs of the Society and owed an amount of Rs.1,01,000/- to the Society as alleged by the Opposite Party and there is a resolution to this effect in the Annual General Meting report of the Opposite Party. Under these circumstances the Opposite Party can take legal steps to recover the arrears from its members as per the law & rules under Maharashtra Co-op. Societies Act and as per its bye laws.
16) As per the Asst. Registrar’s order the Complainant had paid Rs.24,930/- to the Opposite Party On 26/05/05. It appears from the document produced by the Opposite Party i.e. the statement of account of the Complainant (Exh.‘U’ in the list of document) that the amount of Rs.24,930/- was adjusted against the regular maintenance charges to be paid by the Complainant. But the remaining arrears are to be recovered from the Complainant as per the law, rules and bye laws of the Society. Therefore, the prayer of the Complainant that the amount of Rs.24,930/- be credit to his account has already been complied with by the Opposite Party. Hence, cannot be conceded.
17) The Complainant has not proved that the Opposite Party cannot claim the amount of Rs.1,01,000/- from 2004. It is the duty of the Co-operative Society to recover its legitimate dues as per the law. Therefore, the Opposite Party can take legal steps to recover the arrears from its members as per the section of law, rules and bye laws governing the functioning of the Society (Opposite Party). Therefore, it would be an interference if the Opposite Party is forbidden from issuing a defaulter’s list showing the Complainant as a defaulter and preventing it from recovering the legitimate arrears from its members. Therefore, it would be just and proper to direct the Opposite Party, only to determine the dues payable by the Complainant to the Opposite Party as per the law and take steps to recover it as per the provision under Maharashtra Co-operative Society Act. The relief’s prayed for, by the Complainant, therefore cannot be conceded. Hence, we pass the following order -
O R D E R
i)Complaint No.46/2009 is hereby dismissed with no order as to cost.
ii)Copy of this order be furnished to both the parties.
