Karnataka

Belgaum

CC/857/2013

Vijaykumar A Salunkhe - Complainant(s)

Versus

P J Sagar. Liquidator For Hanuman Cr Sou Saha Nyt Nippani - Opp.Party(s)

O B Joshi

19 Jan 2015

ORDER

(Order dictated by Smt. S.S.Kadrollimath, Member)

ORDER

          U/s. 12 of the C.P. Act, the complainant has filed the complaint against the O.P. alleging deficiency in service of non payment of the amount of the matured F.D.R., and amount lying in S.D. Account.

          2) O.P. in the version denying deficiency in service has contended that the complaint is bad for mis-joinder of this party and another liquidator by name Sri. G.S. Topannavar has taken charge and the present liquidator Sri.P.J. Sagar has handed over the charge therefore he is not liable to be prosecuted and prayed to dismiss the complaint against this liquidator.  

          3) Both parties have filed affidavits and the complainant has produced certain documents including original F.D.Rs and original passbook.

          4) We have heard the arguments of both learned counsel and perused the records.

          5) Now the point for our consideration is that whether the complainant has proved deficiency in service on the part of the O.P. and entitled to the reliefs sought?

          6) Our finding on the point is partly in affirmative, for the following reasons.

:: R E A S O N S ::

            7) The oral and documentary evidence on record establish that under F.D.Rs. No. 1274 on 14/06/2001 a sum of Rs.41,000/- with the O.P. society for a period of 46 days and above and the agreed interest rate is 16% P.A. and amount lying in S.D. A/c. No. 1047 of Rs.3432/- as on 18/01/2006.

          8) Admittedly, after maturity of the deposits, the maturity value is not paid to the complainant and also the amount kept in S.B. A/c. Hence, there is deficiency in service.

          9) O.P. has contended that the complaint is bad for mis-joinder of the necessary party. The O.P. further contended that now at present he is not the liquidator of the O.p. society and he has handed over the charge to ARCS., Chikodi on 19/10/2013 and One Sri. G.S.Toppanavar is appointed as liquidator and he is managing the entire affairs of the society since from appointment. The liquidator further contented in his affidavit and objection that by the virtue of new Liquidator the circumstances warrants him and discharge him from the present post and there is no evidence against him to proceed and prayed to dismiss the complaint. This present liquidator has produced the order passed by A.R.C.S., Chikkodi stating that new liquidator has been appointed. Even though at this juncture it may be true that the Liquidator P.J. Sagar has been promoted and in his place new Liquidator is appointed as submitted but a single piece of evidence/document is not coming forth before this forum as to Sri. G.S. Topannavar has taken charge and the said liquidator since from the date of taking charge has never appeared in any case pending before the forum nor in this case contested and putforth is objection. Hence, the liquidator Sri. P.J.Sagar is liable to answer the liability of the complainant as the complaint is filed in his name as a liquidator. Therefore unless and until in his place the new liquidator  who has taken a charge comes and appears before the forum, the present liquidator has to answer the claim of the complainant and is liable for the same. After going through the objection and affidavit filed by the present liquidator except stating that he is not incharge of the society as a liquidator at present there is no denial in regards to the claim made by the complainant nor there is any whisper of a world in regards to the F.D. and S.D. A/c. and mere denying that he is not liable for the claim of the complainant will not suffice. Therefore considering the facts and circumstances it is just and proper to allow the complaint of the complainant and looking to the natural justice if we consider the submission made by the liquidator it will be in justice to the complainant. Hence, there is deficiency in service on the part of the O.P. same is proved. 

          10) The complainant has also claim the share amount kept in O.P. Society bearing share certificate 000540. But the forum is outstayed from the jurisdiction in regards to the claim of the share. Hence, the claim of the complainant in respect of share certificate cannot be ordered.  

11) Taking in to consideration of various aspects and the decision of the Hon’ble Apex Court reported in (2011) SCCR 268 as well as Hon’ble Apex Commission in a ruling reported in 2013 (2) CPR 574 as well as the purpose and object of the Act, absolutely it is just and necessary to impose heavy cost on daily basis if order remains uncomplied within period fixed for compliance of the order, so as to have feeling and pinch.

12) Considering the fact, evidence and discussion made here before, following order.

ORDER

          Complaint is partly allowed.

          The O.P. represented by the liquidator is hereby directed to pay to the complainant a sum of Rs.41,000/- in respect of F.D.R. Nos. 1274 with interest at the rate of 10% P.A. from 14/06/2001 till realization of the entire amount. The interest paid if any in respect of said F.D.R. shall be deducted at the time of compliance of the order.

          So also, O.P. represented by the liquidator is hereby directed to pay to the complainant a sum of Rs.3432/- in respect of S.D. A/c. No.1074 with interest at the rate of 4% P.A. from 18/01/2006 till realization of the entire amount.

          So also, the O.P. represented by the liquidator is hereby directed to pay to the complainant a sum of Rs.2,000/- towards costs of the proceedings.

          The order shall be complied by the O.P. within 30 days from the date of the order.

          If the order is not complied within 30 days the O.P. represented by the liquidator is hereby directed to pay to the complainant a sum of Rs.50/- per day till compliance of the order.

(Order dictated, corrected and then pronounced in the open Forum on:19^th day of January 2015)   

      Member                          Member                               President.

gm*