RESERVED
State Consumer Disputes Redressal Commission
U.P., Lucknow.
(1) Appeal No.68 of 2000
Apace Saving and Mutual Benefit Ltd.,
Reg. Office, 201, 202, Vinay Place, 11,
Ashok Marg, Lucknow-226001 through
Managing Director Sri D.K. Nautiyal. …Appellant.
Versus
1- Gazala (Minor) D/o Mohd. Khalid,
Under Guardianship of Mother Ukoohus Fatima.
2- Ukoohus Fatima W/o Mohd. Khalid,
R/o Sindhi Mill, Elahitola, Dewaria. ….Respondents.
(2) Appeal No.910 of 2001
Ex-Branch Manager, Hasarat Ali s/o Lyakat Ali,
Apesh Saving and Mutual Benefit Ltd.,
Branch Deworia R/o Abubakar Nagar,
Deworia. …Appellant.
Versus
1- Gazala (Minor) D/o Mohd. Khalid,
Bablayat Mother Urus Fatima.
2- Urus Fatima W/o Mohd. Khalid,
Both R/o Sindhi Meal, Elahitola, Dewaria.
3- Apesh Saving and Mutual Benefit Ltd.,
Reg. Office, 201, 202, Vinay Place, 11,
Ashok Marg, Lucknow-226001 through
Managing Director Sri D.K. Nautiyal. ….Respondents.
(3) Revision No.61 of 2001
Ex-Branch Manager, Apace Saving and Mutual
Benefit Ltd., Hasrat Ali s/o Liyakat Ali,
R/o Abubakar Nagar, Deoria. …Revisionist.
Versus
1- Gazala (Minor) D/o Mohd. Khalid,
Through Mother and natural guradian Urus Fatima.
2- Urus Fatima W/o Mohd. Khalid,
Both R/o Sindhi Meal, Elahitola, Deoria.
3- Apace Saving and Mutual Benefit Ltd.,
Reg. Office, 201, 202, Vinay Place, 11,
Ashok Marg, Lucknow through its
Managing Director Sri D.K. Nautiyal. ….Opp. Parties.
(2)
Present:-
1- Hon’ble Sri Vijay Varma, Presiding Member.
2- Hon’ble Sri Raj Kamal Gupta, Member.
None for the appellant of appeal no.68 of 2000.
Sri S.K. Srivastava for appellant Hasrat Ali.
Sri B.K. Upadhyay for the respondents/complainants.
Date 16.2.2018
JUDGMENT
(Delivered by Sri Vijai Varma, Member)
The above two appeals and a revision stem out from the impugned judgment and order dated 6.9.1999 passed by the ld. Forum in complaint case no.173 of 1999, hence, they are decided together. The appeal no.68 of 2000 shall be the leading case.
The facts leading to aforesaid appeals, in brief, are that the respondents/complainants Gazala and her mother Smt. Urus Fatima had deposited Rs.10,000.00 in the name of complainant no.1 in the FD account no.2580114 which was to mature on 20.11.1998 with maturity amount Rs.20,395.00. The complainant no.2 had deposited Rs.15,000.00 on 21.11.1994 in the account no.2588115 and she was to receive Rs.30,600.00 on maturity on 20.11.1998. The aforesaid FDs were opened by the complainants in the Branch Office of the OP Apace Savings and Mutual Benefits Ltd. When the complainants demanded the matured amount after maturity period then the amount was not given to them. Therefore, the complainants filed complaint case in the Forum below wherein notices were issued to the OPs. None appeared from the side of the OPs hence, the ld. Forum passed the exparte order as under:-
(3)
"उपरोक्त विवेचना के आधार पर विपक्षीगण का आदेश दिया जाता है कि परिवादिनीगण को फिक्स डिपाजिट के परिपक्वता के दिन से 12% वार्षिक ब्याज के साथ उनकी परिपक्वता राशियों पर अर्थात रू020395.00 तथा रू030600.00 एक माह में दे दें। इस अवधि के बाद 18% ब्याज देना पडेगा। परिवादिनीगण किसी अन्य अनुतोष को पाने का हकदार नहीं है। परिवादिनीगण का दावा आंशिक स्वीकृत हुआ।"
The facts leading the revision no.61 of 2001, is short, are that the revisionist/OP no.2 Hasrat Ali had moved an application before the Forum below in case no.25 of 1999 for setting aside the exparte order passed against him and to provide opportunity to file the WS but the same was rejected vide orders passed by the Forum below on 28.2.2000 on the ground that in the case no.173 of 1999 notices were issued to the OPs and that the OP no.1 Shri V.K. Nautiyal had appeared but the revisionist/OP no.2 had not appeared. therefore, as the OP no.2 did not appear despite opportunities given hence, the application was rejected as it was found without any substance. It also transpires that the revisionist was arrested in consequence of an execution case filed by the respondents/complainants and was sent to jail where he was released on depositing Rs.25,000.00 as per the order passed in execution case no.88 of 1999 on 2.5.2001 by the Forum below. So it is against the order passed on 2.5.2001 that this revision has been filed.
Appeal no.68 of 2000 has been filed by the Apace Savings and Mutual Benefits Ltd. against the impugned order passed by the Forum below on 6.9.1999 on the grounds that the District Forum had entertained the complaint which was time barred. Besides, the appellant
(4)
was not served and an exparte order has been passed against him. Another ground taken is that some creditors of the Company have filed a petition before the Hon'ble High Court of Allahabad at Lucknow Bench wherein the order has been passed whereby the Company was restrained to dispose off the assets of the Company or any part of the assets till the next date of listing of the case and therefore, the Forum should not have passed any order but as the ld. Forum has passed the order illegally therefore, the order is liable to be set aside and the appeal allowed.
Appeal no.910 of 2001 has been filed by the appellant Hasrat Ali, Branch Manager against the impugned order passed on 6.9.1999 in complaint case no.173 of 1999 on the grounds that the appellant was an employee of the Leasing Company and the amount deposited by the respondents/complainant was remitted to the Company and the appellant could not be personally responsible for any fraud or cheating by the Company. Besides, proper notices were not issued to the appellant and without any opportunity of being heard, the Forum below has passed the orders against him. Since the ld. Forum has passed a wrong order, therefore, it is liable to be set aside and the appeal allowed.
Heard counsel for the parties and perused the entire records.
In this case, there is no dispute that the complainants had deposited Rs.10,000.00 in the name of the complaint no.1 and Rs.15,000.00 in the name of the complainant no.2 on 21.11.1994 and that the complainants were to be
(5)
paid the maturity amount of Rs.20,395.00 and Rs.30,600.00 on 20.11.1998 respectively. It is also clear from the records that the amount was accepted by the appellant/OP no.2 for the Apace Savings and Mutual Benefit Co./OP no.1. It is also borne out from the record that the appellant Hasrat Ali has deposited Rs.25,000.00 in the Forum for being released from the jail, sent as per the order passed in execution case no.88 of 1999. The appellant in appeal no.68 of 2000 Apace Savings and Mutual Benefit Co. have not been able to contradict the fact that the amount as specified by the complainants were deposited in savings scheme floated by them. Only point that has been raised is that the complaint was time barred but this is also of no relevance as the amount was to mature in the year 1998 and the case has been filed in the year 1999. Therefore, the complaint obviously was not time barred. Another ground taken by the appellant Company is that the order was passed in a petition filed before the Hon'ble High Court Allahabad Bench Lucknow wherein an order was passed whereby Company was restrained from disposing of the assets etc. but interestingly no writ petition number has been given nor any order of the Hon'ble High Court filed whereby the true facts could be discerned, has been filed. Besides, from the alleged order itself, it can not said that the Forum below was not empowered to pass orders in a complaint filed before it in the aforesaid regard. Therefore, this ground is also meaningless. It is also clear from the records that the appellant/OP no.1 had appeared before the Forum below but did not file any written statement therefore, even when
(6)
he had had the opportunity to put-forth his case, the opportunity was not availed of by the person concerned. Besides, on merits, nothing has been challenged so far as the contention of the complainant with regard to deposit of the amount and its maturity etc. in the scheme floated by the Company was concerned.
As discussed above, the appellant Hasrat Ali in appeal no.910 of 2001 was the Branch Manager and was running the Company and it is he who had accepted the amount from the complainants and it is on his faith that the amount was deposited by the complainants. Besides, he was given an opportunity to present his case but he failed to do so and therefore, he can not say that he did not have opportunity to put-forth his case. Therefore, the ld. Forum has rightly concluded the deficiency in service of the appellants/OPs finding them deficient in not being able to refund the amount with interest to the complainants and therefore, we are in agreement with the conclusion of the Forum below that the OPs committed deficiency in service. However, the ld. Forum has passed the impugned order without specifying individual liability of the OPs which was necessary in the instant case.
Considering the circumstances of the case, the OPs were jointly responsible for deficiency in service and therefore, the amount payable with interest is to be also shared by them. Therefore, the impugned order deserves to be amended and the appeals are liable to be partly allowed. Since in the instant case Shri Hasrat Ali, the appellant in appeal no.910 of 2001 has already made payment of Rs.25,000.00 which is kept in the Forum
(7)
hence, under the circumstances, we consider is proper to amend the impugned order to the extent that the appellant Hasrat Ali shall be liable to make payment of Rs.25,000.00 only which is already paid by him and out of the entire amount due with 12% p.a. interest minus Rs.25,000.00 shall be payable by the appellant Apace Saving and Mutual Benefit Ltd.
With regard to revision no.61 of 2001, it transpires that the revision has been filed against the order passed on 28.2.2000 and the order passed on 2.5.2000 in execution case no.88 of 1999. So far as the order dated 28.2.2000 is concerned, as the revision has been filed on 26.5.2001, therefore, it has been filed with much delay. Besides, the order has been passed wherein the application for recall of the order passed on 6.9.1999 in the complaint case no.173 of 1999 was rejected as it was found by the Forum below that despite opportunity given to the revisionist/OP no.2 he did not appear, even though the OP no.1 had appeared in the Forum below. So the ld. Forum found that the revisionist/OP no.2 himself had not availed an opportunity to appear before the Forum below and therefore, the application for recalling of the order passed on 6.9.1999 was rejected.
With regard to the order passed on 2.5.2000 is concerned, it is clear that it is an order which is passed in consequence of an order passed in execution no.88 of 1999 when the revisionist did not comply with the orders passed by the Forum below on 6.9.1999 in complaint case no.173 of 1999 and was sent to jail in non-compliance of the order passed by the Forum. It is interesting to note that
(8)
the order whereby the revisionist was ordered to be sent to jail in execution case no.88 of 1999 has not been assailed therefore, the impugned order dated 2.5.2000 which is in consequence of the order passed in execution case no.88 of 1999 whereby the revisionist was sent to jail for non-complying with the orders of the Forum below under section 27 of the Consumer Protection Act, was passed. Therefore, this order which has been passed with certain conditions for being released from jail appears to be absolutely in order. There is no illegality or irregularity in the impugned order passed on 28.2.2000 and 2.5.2000 therefore, the revision is liable to be dismissed.
ORDER
The appeals are partly allowed. The impugned order dated 6.9.1999 passed in the complaint case no.173 of 1999 is amended to the extent that the appellant Hasrat Ali shall be liable to make payment of Rs.25,000.00 only which is already paid by him and out of the entire amount due with 12% p.a. interest minus Rs.25,000.00 shall be payable by the appellant Apace Saving and Mutual Benefit Ltd. The rest of the order shall remain as it is.
The revision is dismissed.
No order as to costs. Certified copy of the judgment be provided to the parties in accordance with rules. Let a copy of this judgment be placed on the records of the Appeal no.910 of 2001 and Revision no.61 of 2001.
(Vijai Varma) (Raj Kamal Gupta)
Presiding Member Member
Jafri PA-II
Court No.2
