ORDER
( Passed this on 11th October, 2017)
Shri Shekhar P. Muley, President
01. The non applicants/ Opposite Parties (OPs) are charged u/s 27 of the C.P. Act for willful disobedience of the order passed by the forum against them.
02. One of the O.P./N.A. No.-3 Shri Chandu K. Lute is died during pendency of the proceedings. Hence, trial against him is abated.
03. The OPs were President and Vice- President of a society, namely, Bhartiya Swatnatra Dhanvriksh Nagari Pat Sanstha, Kampetee. The complainants are mother and daughter. The complainant 1 was account holder of the bank of said society. She had invested some amount in her and in the name of complainant 2 in the account of the society for a fixed pariod. Since the OP did not pay her the matured amount after maturity period, the complainants filed consumer complaint against the OPs. The forum passed order on 26/2/2014, directing the OPs to refund the matured amount with 12% interest to the complainants and also pay compensation of Rs. 5000/- and litigation cost Rs. 5000/- to them. The order was to be complied with within one month from receipt of th order copy. But the OPs did not comply wit the order even after one month time. Hence this execution application is filed.
04. The O.Ps. appeared in response to the summons. Particulars of the offence punishable u/s 27 of the Act are explained to them. They have pleaded not guilty and claimed trial. Their defence is that the society has no sufficient funds, hence the order could not be complied with. There was no deliberate avoidance to pay the amount.
05. The complainant No.1 examined herself. She filed some documents. The O.Ps. did not examine themselves or any witness. Statements of the O.Ps. u/s 313 Cr. P.C. are recorded. Their defence is same that the society has no funds to pay amount to the complainants. Further, they cannot be held personally liable for the acts done by the society as it has distinct entity.
06. Following points arise for our consideration and we have given our findings thereon for the reasons given below.
POINTS FINDINGS
- Whether the OPs are service
providers ? No
- Whether the OPs can be held
liable for non compliance of the
order ? No
- What order ? As per final order
REASONS
POINT NO.1 & 2:-
07. The OPs have denied their liability to pay the amount. It is undisputed that the complainants invested amount with the society when these OPs were office bearers of the said society. It is stated by the OPs that the premises of the society is put on sale to raise money. The District Registrara of Co-operative Society has given permission. But no customer is ready to buy the property for the amount fixed by the society. The process of sale is still not over. But no such evidence is placed on record. Except bare statement of the OPs there is no supportive evidence.
08. It is further tried to contend that the OPs being office bearers of the society cannot be held personally liable for liabilities of the society. Same question was before the Haryana State Commission in Vanita Sehgal v/s R.K. Tuli & Othrs 2017 (3) CLT 114 (Haryana). It was held that the forum has jurisdiction to decide such type of controversy and office bearers of a society also can be held liable regarding financial liabilities of the co-operative society. Therefore this defence is not available to the OPs.
09. On behalf OPs it is contended that the office bearers of a co-operative society do not fall within the catagory of service providers in respect of any dealing of depositors with such society. Reliance is placed on Amarjit Singh v/s Gagandeep Singh 2017 (1) CLT 102 (NC). What is held in that judgment is that ordinarily Ex- Secretary or the Ex-President or other office bearers of any Co-operative society shall not fall within the category of service providers in respect of any dealings of the depositors with such society, however, if it is established that the Ex- Secretary or Ex-President has indulged in fraudulent activity with view to defraud depositors, such person shall fall within the category of service provider and shall be liable to compensate the consumers for deficiency in service. It was held, the office bearers of the society have an entity distinct from the co-operative society. They have no privity of contract with the complainant. Therefore they cannot be held responsible for any deficiency in service on the part of the co-operative society.
10. In fact, in Amarjit Singh case, a reference was made to a Larger Bench for answering the following question:
¨Whether the Ex- Secretary or the Ex- President or other office bearers of any Co-operative Credit Society fall within the category of the service provider?¨
The question was answered in the above terms.
11. So, the point is, whether the OPs indulged in fraudulent activities with a view to defraud the complainants. Perusal of the averments in the complaint as described in the order of the forum do not reveal any fraud palyed by the OPs. Even in the affidavit evidence, the complainant No.1 has not alleged fraud or dishonest intention on the part of the OPs. What is said is that the OPs did not pay the matured amount even after maturity period was over. It is also mentioned in the order that the due to bad financial position of the society the amount could not be paid and to raise funds the society has sought permission to sell the building of the society. The forum in its order also has not said the OPs committed fraud or by deceitful means they lured the complainants to invest amount.
12. It may not be out of place to mention that the District Sub Registrar Co-operative Society, Nagpur has passed order against the OP society and directed the society to take stern action for recovery of loan amount and refund fixed amount to its members. In that order there is no mention of fraud committed by the OPs. The allegations are only regarding wrong procedure adopted by the society in the matter of its financial activities.
13. Therefore, considering the complaint in the light of the order in Amarjit Singh case, we are satisfied that the OPs cannot be held as service provider being Ex- President, Ex- Vice President and Ex- Secretary of the society in their personal capacity.
For aforesaid reasons, the first two points are held in the negative.
POINT No. 3:-
14. In view of our findings on first two points in the negative, there is no question of conviction of the OPs. They are entitled to be discharged from the charge. We therefore pass the following order.
ORDER
- The OP-1-Anand D. Chakole and OP-2- Ramdas T. Uke are acquitted of the offence punishable u/s 27 of the Consumer Protection Act.
- Their bail bonds are cancelled.
- Copy of the order be given to both the parties, free of cost.
