Delivered on 10/10/2017)

PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.

1.         This appeal is filed by the original opposite party ( hereinafter referred  to as appellant) feeling aggrieved by the order dated 22/12/2010 passed by the District Consumer Forum, Nagpur in consumer complaint No. 227/2010, by which  the said complaint  has been  partly allowed.

2.         The case of the  original complainant who is respondent  in this appeal as set out in the consumer complaint  filed  before the  District Consumer Forum in brief is as under,

            The husband of the original complainant/respondent  herein was serving in the school of the appellant.  The respondent opened an account with the appellant in the year 2006.  His account number was  375. The respondent deposited  Rs. 1,58,563/- in that account.   Rs. 2,08,563/- were shown balance in that account including  interest. The appellant allowed the respondent to withdraw Rs. 50,000/-  from that account.  However, when the respondent requested  the appellant  to allow her to  withdraw the entire amount from her account,  the appellant avoided to pay  the entire amount of her account.  Therefore, she made complaint to the Sub Registrar of Cooperative Society on 27/07/2009 who directed the appellant vide letter dated 10/09/2009 to pay the entire amount to her. But appellant  did not pay balance  amount. Therefore, she filed consumer complaint before the District Consumer Forum seeking direction to appellant  to  pay her balance of Rs. 1,58,563/- with interest at the rate of 15% p.a.  and also to pay her compensation of Rs. 1,00,000/- for physical and mental harassment  and litigation cost of Rs. 10,000/-.

3.         The appellant appeared before  the District Consumer Forum and  filed reply and thereby resisted the complaint.  The sum and substance  of the  submission of  the appellant as made in  the reply is as under,

            The appellant is duly registered society. The employees  of the school run by the appellant  are the members of the said society.  The misappropriation of the fund of the society  is made and it was noticed  in the year 2008-2009 and therefore, as per order  dated 16/01/2010 of Sub Registrar, Cooperative Societies,  an Administrator  has been appointed  to look after the affairs of the said society.  The complaint  is not maintainable  before the District Consumer Forum. The Society has no right to accept  the deposit  from the person  who are not  its members. As per bylaws, only  the members can  make  deposit  with the society.  The respondent  was not  the member of the society.  The society  acted  in contravention of the rules.  The Reserve Bank of India  passed an order under section  35-A of  Banking Regulation Act, 1949, the amount cannot be paid  to the respondent  unless the enquiry  in  detail about misappropriation  of the fund of the society is made  and account  of the society  is settled. The respondent deposited with appellant society as per her own wish  and she had not made application  to the  society  or its official  seeking permission/consent  for making  the  said deposit. Therefore, on these grounds, it was  prayed by the appellant that the  complaint  may be  dismissed with cost.

4.         The District Consumer Forum after hearing both the parties and considering evidence brought on record, passed the impugned order  holding that  though the husband of the original complainant  is the member of the appellant – society, still she being  the beneficiary  is a consumer of the appellant society  and she deposited  amount in her account as seen from the passbook  produced  on record.  Moreover,  the defence raised  by the appellant is technical and baseless and same cannot be accepted,  particularly when the Sub Registrar of Cooperative Society already directed the appellant to refund the amount deposited with it by the respondent. Thus holding  deficiency  in service on the part of the appellant, the District Consumer Forum directed the appellant  to pay Rs. 1,58,563/- with interest at the rate of 6% p.a.  from 15/04/2010  till its realization  to  the respondent and also to pay her compensation of Rs. 10,000/- towards  physical and mental  harassment and  litigation cost of Rs. 1,000/-.

5.         As observed above, this appeal is filed by the original O.P. During pendency of the appeal the Liquidator was appointed by the competent authority and he is duly brought on record of the appeal as appellant.  The learned advocate of both the parties filed their respective written notes of arguments. However, perusal of the record and proceeding of the appeal shows that none appeared for the appellant for final hearing on last three dates i.e. on 20/03/2017, 02/05/2017 and 16/08/2017. Today also none appeared for the appellant. Therefore, after hearing advocate of the respondent,  we proceeded to decide the appeal on merit.

6          The learned advocate of the appellant  in his Written Notes of Arguments reiterated  the aforesaid case of the appellant   as stated in reply and submitted that the  District Consumer Forum failed to consider the material aspect of the case  that  the respondent  is not  a member of the appellant  society  and hence, she cannot file the  complaint for refund of  the amount  of her account and that the appellant society has no provision  to pay  the fixed deposit  amount   as per bylaws to the respondent.  He also submitted that there is misappropriation of  funds of the society and therefore report is lodged with the Police. He also submitted that enquiry is  in progress  against the Directors of the appellant society about misappropriation of fund and he thus  requested that appeal may be allowed and impugned order may be set aside.

7.         On the other hand,  the learned advocate  of the respondent  supported the impugned  order and submitted that  appeal may be dismissed.

8.         We find that passbook produced by the respondent on record fully supports the case of the respondent. It is also not the case of the appellant  that no such amount was deposited by the respondent with it.  The appellant has raised pure technical ground for avoiding the claim.  We find that the appellant cannot blow hot and cold at the same time. The appellant once accepted the deposit from the respondent, cannot subsequently deny the legality and correctness of the society in acceptance of that amount. In our view once the appellant society  accepted  huge deposit  from the respondent  it is obligatory  on its  part  to refund   that amount with interest at least at the rate of 6% p.a. as  awarded by the District Consumer Forum. We also find that  the defalcation   and misappropriation  of funds  made by the some Directors of the appellant society,  has  got no concern with  right  of the respondent   to get refund  of the  amount deposited with the appellant.  It is for the appellant to recover the misappropriated amount from the Directors or Members of the society who committed the misappropriation. We are therefore of considered view that the District Consumer Forum, below has considered the evidence and submission of both the parties in right perspectives and no interference is called for in this appeal in impugned order. Therefore, the appeal deserves to be dismissed.  Hence, the following order.

ORDER

i.          The appeal is dismissed.

ii.          No order as to cost in appeal.

iii.         Copy of  order be furnished to both the parties, free of cost.