BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BAGALKOT.

C.C.No.09/2019

Date of filing: 25/01/2019

 Date of disposal: 31/03/2021

PRESENT :-

- V/S -

JUDGEMENT

By Smt. Sharada. K. President.

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Parties (in short the “OPs”) directed the OPs to release the invested amount and maturity value alongwith accrued interest there upon to the complainant till realization and to pay Rs.50,000/- towards mental agony and pay Rs.5,000/- towards cost of the proceedings and any other reliefs.

2.      The facts of the case in brief are that;

The case of the complainant is that, as per the requests of the OPs, the complainant has invested the amount in the form of F.D with OPs CBT Multipurpose Souharda Co-op. Ltd., Bagalkot. The details of amount invested is as shown below;

It is further complainant contended that, the complainant is in need of money for her personal problems. So she has approached and requested the OPs for refund of pre-matured F.D. amount with interest. But, the OPs avoided to make payments by giving one or the other reasons. Inspite of repeated request, the OPs failed to refund the above said F.D. amount to the complainant and thereby OPs committed the deficiency of service as contemplated under the provision of C.P. Act 1986.

          Finally the complainant has got issued legal notices to the OPs through their Counsel on dtd:09.06.2018 and after the receipt of the notices, the Ops are not replied, these attitude and acts of the Ops are clearly shows that, there is deficiency in service on the part of the OPs. Hence, the complainant has constrained to file this complaint.

3.      After service of notice to the O.Ps. The OP.No.1 to 3, 5,  7 to 9, 12 and 14 have not appear before this Commission. Hence this Commission has considered the OP.No.1 to 3, 5, 7 to 9, 12  & 14 are placed Ex-parte. The OP.No.4, 6, 10, 11 & 13 are appeared through their counsel and filed their objection.

 The OP.No.4, 6, and 13 have contended that, the contents of complaint is false, vexatious and not tenable under the law and facts and denies all allegation made out in the complaint and further contended that, the OP.No.4, 6 & 13 are nominal directors of the said society having no authority to make transactions with public on behalf of the society and these Ops have no knowledge about the transactions made by complainant with the society and further these Ops have resigned to their directorship on dtd:18.03.2016 and the same was accepted by the OP.No.2-President of the society on dtd:24.06.2016 by giving endorsement letter and moreover these Ops have given advertisement in Vijay Karnataka Daily News Paper on dtd:05.07.2016 and Sanje Darshana Local News Paper on dtd:13.07.2016 regarding resignation to the directorship to the society for the purpose of bringing knowledge to the general public and further these Ops are not active directors, but they are passive director of the society and they are not authorized to sign and operate the accounts of the society. Hence, the complainant cannot ask any repayment from these Ops and prayed for dismissal of the complaint against these Ops.

The OP.No.10 and 11 have contended that, the contents of complaint is false, vexatious and not tenable under the law and facts and denies all allegation made out in the complaint and further contended that, the OP.No.10 & 11 are directors of the said society and OP.No.2 is president of Co-OP. society who is looking after all business affairs of Co-op. the OP.No.2 who is president of Co-Op. society without the knowledge of these Ops, the OP.No.2 enter into certain agreement by way of taking F.D. amount from the customer and issued F.D. receipt and he has not taken any consent from the directors by calling the director meeting. Therefore, transaction enter by the President of Co-op. is not binding upon these Ops. Accordingly, President has issued an undertaking latter infavour of OP.No.10 & 11 where he admits his liability to pay amount upon the F.D. receipt and others and the said letter is producing before this Commission. Hence, on these grounds, the OP.No.10 & 11 are prayed to dismiss the complaint against these Ops.  

 5.     The Complainant has filed his affidavit in support of his claim and produced Original F.D. Receipt, Copy of legal notice, Reply notices, Xerox copy of the returned covers with endorsement, Xerox copy of the Postal Receipts, Xerox copy of the Acknowledgement. On the other hand, the OP.No.4, 6, and 13 have filed their affidavits and OP.No.10 on behalf of OP.No.11 has filed his affidavit and OP.No.4, 6 & 13 have produced Xerox copy of the documents i.e. OP.No.4, 6 & 13 have produced R.T.I. application, Postal order, Application given to C.B.T. Bank for verify the documents on dtd:25.01.2016, Applications for resignation letters issued by OP.No.4, 6 & 13 on dtd:18.03.2016, N.O.C. issued by OP.No.2 regarding the acceptance of resignation to the OP.No.4, 6 & 13, Application regarding the acceptance of resignation letter to the OP.No.4, 6 & 13 has been intimated to the A.R.C.S, Bagalkot and the same has been intimated to the Director, K.S.S.S. Bangalore, Application and personal bond issued to publish the matter in news papers on dtd:12.07.2016, Paper publications in Vijay Karnataka on dtd:05.07.2016, Sanjay Darshan in local news paper on dtd:13.07.2016, Samajveer in local news paper on 09.07.2016, OP.No.4 letter issued to ARCS office, on dtd:16.06.2020 regarding clarifications of Manager/ Chief Officer, Reply given by ARCS office, Baglalkot to OP.No.4 on dtd:17.06.2020 and OP.No.10 & 11 produced the true copy of  undertaking letter issued by the OP.No.2/President on dtd:10.10.2019. Heard the argument on both sides.

Now, the following points that would arise for our consideration in deciding the case are;

1. Whether the complainant has prove that there is deficiency in service on the part of the OPs for not settling/refunding the payment of F.D. amount?

2. What order?

6.     Our findings on the above points are as fallow;

1. Point No.1 Partly in the Affirmative.
2. As per final Order.

          R E A S O N S

7.      Point No.1: By detail scanning the complaint pleadings,  affidavit evidence and document on record of F.D. receipt and further the case of the complainant is that, the complainant has deposited the amount in F.D. Scheme with the Ops society.
Of course, the Complainant has not specifically mentioned the date of approaching the OPs for demanding to pay the prematured F.D. amount and even also the complainant has not produced a single document to show that, the complainant has approached to the OPs society for return/refund the invested amount to the Ops society.

        It is an important to note that, the complainant has kept F.D. amount to the Ops society and the Ops have issued F.D. receipt to the complainant, the above said Original F.D. receipt is marked as Ex.P-1 and the same is produced before this Commission which is already marked and further the complainant contended that, after the issue of legal notice to the Ops, the OPs society have failed to pay the above said F.D. amount to the complainant, the attitude and acts of the Ops, it amounts to deficiency of service on the part of the Ops.

On the other hand, the OP.No.4 to 6, 10, 11, 13 & 14 are filed their separate written statement and contended that, they are directors of the said society and OP.No.2 is president of
Co-OP. society who is looking after all business affairs of Co-op. society and the OP.No.2 who is president of Co-Op. society without the knowledge of these Ops, the OP.No.2 enter into certain agreement by way of taking F.D. amount from the customer and issued F.D. receipts and he has not taken any consent from these directors by calling the director meeting. Therefore, transaction enter by the President of Co-op. is not binding upon these Ops and OP.No.4, 6 and 13 have filed their resignation letter to the OP.No.2 and the same was accepted by the OP.No.2  and further the OP.No.10 & 11 contented that, the OP.No.2 has issued an undertaking letter infavour of OP.No.10 & 11 whereas he admits his liability to pay amount upon the F.D. receipt. Hence, on these grounds they prayed to dismiss the complaint against these Ops.  

In order to prove their contention, the Ops have produced their resignation letter and the same was accepted by the OP.No.2 by giving endorsement letter to the OP.No.4, 6 & 13 and also the OP.No.4, 6 and 13 have given advertisement in Vijay Karnataka Daily News Paper on dtd:05.07.2016 and Sanje Darshana Local News paper on dtd:13.07.2016 and Samajveer Daily Local News Paper on dtd:09.07.2016 and further this Commission has observed and noticed that, the above said directors there appears any signature on F.D. receipt or not?. Hence, we are of view that, the signatures appearing on the F.D. receipt under president and Manager only. Under such circumstance, we are of the considered opinion that, during the time of deposits the OP.No.3 to 14 were not the signature of the above said F.D. receipt. So, the OP.No.4, 6 & 13 have established that, they have resigned from the post and there were not liable to pay the F.D. receipt amount to the complainant. Hence, the contention of complainant is not acceptable as alleged and the contention of OP.No.4,  6 & 13 are acceptable and has got merit. For that, proposition, we would like to refer a decision of Hon’ble National Commission, New Delhi Revision Petition No.3261 of 2018 in this case, the Hon’ble National Commission has observed the Amarjit Singh V/s. Gangandeep Singh & Ors. Revision Petition No.2512 of 2011 and the said decision produced by the complainant before this Commission. In this regard, the Hon’ble National Commission observed that, the question as to whether a Consumer Complaint can be maintained against the office bearers of the society came up for consideration for that, in our view, if a consumer has availed of services of the cooperative credit society for consideration, the cooperative credit society alone would be service provider qua that, consumer and the office bearers of the said society who by virtue of being elected to the said position to manage the affairs of the society would have no privity of contract with the consumer and could not be termed as service provider. In our aforesaid view, we find support from the judgement of Bombay High Court in the matter of Sou.Varsha Ravidra Isai V/s. Sou.Rajashri Rajakumar Chaudhari & Ors. Reported in AIR 2011 Bombay 6. Wherein Hon’ble High Court after discussing the provision of Maharashtra Cooperative Societies Act, particularly Section 36 has observed thus:

“ As stated above, in view of the provisions of Section 36 of the Maharashtra Co-operative Societies Act, the society can be proceeded against and can be sued or the society may defend any action in Civil Court of Forum. However, so far as members of the Managing Committee are concerned, they stand on totally different footing and they cannot be held responsible to contribute to the damages or make payment in respect of dues recoverable from the society unless the methodology prescribed under the Act for holding them responsible for making such payment is adopted. In my view, the Consumer Protection Act, 1986, does not prescribe modalities for holding inquiry against the Directors in respect of acts or omissions committed by them. Unless the members of the managing committee are held responsible for any act detrimental to the interest of the society or any inaction on their part, which caused wrongful loss to the society, they cannot be held responsible to contribute the loss or in respect of liability, which is required to be borne by the society. The forum created under the Consumer Protection Act 1986 does not provide for an audit, inquiry or inspection, as laid down under Sections 81, 83 and 84 of the Maharashtra Co-operative Societies Act, 1960, nor provides for any methodology for assessing the damages against the members of the managing committee, as contemplated by Section 88 of the Act. The members of the managing committee or the directors cannot be held responsible in their individual capacity. The complaint can be instituted against the society before the Consumer Forum by a depositor or a member of the society and a relief can also be granted as against the society. However, so far as members of the managing committee/directors are concerned, they stand on a different footing and unless the procedure prescribed under the special enactment i.e. Maharashtra Co-Operative Societies Act, 1960 is followed and unless the liability is fixed against them, they cannot be held responsible in respect of payment of any dues recoverable from the society.”

  Therefore, the above said decision is aptly applicable to the instant case and we are of the view that, the OP.No.3 to 14 are not liable to answer the claim of the complainant and there is no deficiency in service on the part of OP.No.3 to 14. Therefore we dismissed the complaint against OP.No.3 to 14.

It is a duty of the OP.No.1 & 2 that, after the maturity of F.D. amount a mandatory duty on the part of OP.No.1 & 2 to disburse or settle the F.D. amount by giving the make good payment which was fixed by the complainant in OP society, but the OP.No.1 & 2 have failed to pay the F.D. matured amount to the complainant and one or the other reason dragging and alleging untenable contention, it amounts to deficiency of service on the part of OP.No.1 & 2.  Hence, due to non-payment of F.D. matured amount by the OP.No.1 & 2 are caused mental agony and harassment to the complainant. In our considered opinion by looking to above observation made that, it is just and proper to award a compensation of Rs.3,000/- to the complainant for inconvenience and mental agony. Added to this we also award litigation expenses of Rs.2,000/-. Hence, we answer to Point No.1 in partly affirmative. Accordingly, we proceed to pass the following;

O R D E R

            The complaint is hereby partly allowed with costs. The claim against OP.No.3 to 14 are dismissed.  

          The Opponents No.1 & 2 are hereby jointly and severely directed and liable to pay the complainant as ordered below;

The matured F.D. receipt amount as per column.7 with agreed rate of interest paid to the complainant, if said F.D. is matured, along with future interest @ 6 % P.A. from the date of this order till realization of the entire amount.

Further, Opponents No.1 and 2 are hereby jointly and severely directed and liable to pay a sum of Rs.3,000/- for inconvenience and mental agony and Rs.2,000/- towards cost of the proceedings to the complainant.

The order shall be complied within 2 months from the date of this order.

Send the copies of this order to the parties free of cost.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Commission on this 31^st day of March, 2021).