Case of the complainant in brief is that he is an account holder with OP no. 1 society and as on 31-03-2008, there was a credit balance of Rs. 97,142/- in his account with the said society. Subsequently, because of some urgent requirements he intended to withdraw money from his account. However, despite his repeated letters (dated 26.3.2008, 3.4.2008 and 02.5.2008), the OP no. 1 put its foot down and refused to pay the balance amount as per his requirement> Hence, the instant case.
In support of his contention, the complainant enclosed the original passbooks, deposit slips, his correspondences with the OPs etc. (marked as Ext. 1 to Ext. 6 series).
Despite proper service of notice, none appeared on behalf of OP no. 1.
The OP no. 2 contested the instant case by filing written version with the contention that the instant complaint is not maintainable under the Consumer Protection Act; that the complainant deposited money with Mr. Biswajit Mitra, the then Secretary of OP no. 1 society with whom the OP no. 2 has/had no connection. Accordingly, they denied any deficiency in service on their part and prayed for rejection of the instant case.
Points for consideration
- Whether the case is maintainable in its present form?
- Whether there is any deficiency in service on the part of the OPs?
- If so, to what relief the complainant is entitled to?
Decisions with reasons
Point nos. 1,2 & 3:
All the aforesaid points are taken up collectively for the sake of convenience of discussion.
We have heard the learned counsels for the parties and have also perused the materials on record being submitted by the parties.
It is to be noted that upon strong objection on the part of the OPs regarding maintainability of the instant case, an interim order was passed by this forum on 22-03-2011 rejecting such objection on the part of the OPs and subsequently the said order was upheld by the Hon’ble State Commission, W. Bengal. Thus, while the matter is already settled, we feel no cogent ground to discuss it afresh.
In support of his claim, the complainant filed his Examination-in-Chief supported by affidavit. In order to resist the case, the OP no. 2 deposed after filing his Examination-in-Chief.
There is no dispute that the complainant, as a Member of OP no. 1 Cooperative Society, opened a savings account being no. Dr. 1/93 and as on 31-03-2008 there was a credit balance of Rs. 97,142/- in his said savings account.
In his defense OP no. 2 stated that all transactions were held in between the complainant and the OP no. 1 and since the then Secretary, Mr. Biswajit Mitra personally received the money from the complainant and issued receipts thereof, the OP no. 2 cannot be held responsible under any circumstances.
In our considered view, however, it is completely a misplaced notion in so far as the said Mr. Mitra received money from the Members of the society in his official capacity being the Secretary against which he issued official receipts. No case has been made out by the OP no. 2 that those receipts and the pass book issued to the complainant were all fake/manufactured documents. Therefore, while the genuineness of the receipts/pass book is not in question, the society concerned cannot escape its liability on the pretext of any wrongdoing on the part of its authorized representative.
The contestant OP no. 2 also stated that ‘Purba Medinipur Dist. Hospital Employees Co-Operative Credit Society Ltd’. and ‘Tamluk S.D. Hospital Employees Co-operative Credit Society Ltd’. are completely two separate entities and therefore, the complainant is not entitled to get any relief from the latter society. However, on perusal of the observation dt. 22-03-2011 of Assistant Registrar of Co-Operative Societies, Purba Medinipur in Dispute Case No. 75 of 2009-2010 we find that “Tamluk Sub-Divisional Hospital is presently known as Purba Medinipur Hospital. Because of this in some records of this case, the name Purba Medinipur District Hospital Emp. Coop. Credit Society Ltd. has been referred’. Taking into consideration such observation, it would not be unwise to infer that both ‘Purba Medinipur District Hospital Employees Co-operative Credit Society Ltd.’ and ‘Tamluk Sub-Divisional Employees Co-operative Credit Society Ltd.’ are same and identical society. Moreover, the OP no. 2 admitted in his application dated 10-02-2011 on record that the complainant was/is a Member of the Tamluk Sub-Divisional Hospital Employees’ Co-operative Credit Society Ltd.
Further, it transpires from paragraph 19 of the written version of the OP no. 2 that said Biswajit Mitra handed over his charge in favour of OP no. 2 on 29.10.2008.
The OP no. 2, in his deposition i.e. Affidavit-in-Chief filed on 19-06-2012 specifically stated that he was the Ex-Secretary of ‘Tamluk Sub-divisional Hospital Employees’ Co-operative Credit Society Ltd.’ In his answer/reply against the questionnaire put forth on behalf of the complainant dated 09-07-2012, the OP no. 2 categorically stated (Answer to Question No. 5) that ‘on 06-02-2012 the Board of Directors of the Tamluk Sub-Divisional Hospital Employees Co-operative Credit Society Ltd. was dissolved as per provision of the West Bengal Co-operative Societies (Amendment) Act 2011 and I have been relieved from the post of the Secretary.’ Then the question arises in what capacity or authority he deposed on 19-06-2012 by filing the Examination-in-Chief on affidavit on behalf of the OP no. 2. So, in our considered opinion no reliance can be placed upon such Affidavit-in-Chief as submitted by the OP no. 2.
From the passbook filed on record of Purba Medinipur District Hospital Employees’ Cooperative Credit Society Ltd. issued in the name of the complainant it appears that on 31-03-2008 there was a credit balance of Rs. 97,142/- in account no. Dr.1/93 which stands in the name of the complainant.
Considering the facts and circumstances of the case as also the materials on record, we are of view that both OP nos. 1 & 2 are the same and identical society and while the bonafideness of complainant’s claim as regards the credit balance to the tune of Rs. 97,142/- is beyond all dispute, both the OPs are jointly and severally liable to return the same amount to the complainant along with interest @ 6% p.a. over the said balance from 01-04-2008 till full and final settlement together with litigation cost Rs. 3,000/-.
All the above points are thus disposed of accordingly.
Hence, it is
O R D E R E D
that the instant CC case no. 35/2009 be and the same is allowed on contest against the OP no. 2 and ex-parte against OP no. 1. The OPs are jointly and severally directed to return Rs. 97,142/- to the complainant along with interest @ 6% p.a. from 01-04-2008 till full and final realization of above payment along with litigation cost Rs. 3,000/- within 45 days from the date of communication of this order i.d. the complainant is at liberty to execute the order in accordance with law.
