Karnataka

Belgaum

CC/305/2014

Vaishali A Jadhave - Complainant(s)

Versus

Represented By Its Board Of Directors Of Om Ganesh Cr Sou Saha Nyt - Opp.Party(s)

S S Chougule

23 Feb 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.Ps. alleging deficiency in service of non payment of the amount of the matured F.D.Rs.

          2) Inspite of service of notice O.P.1 remained absent and placed exparte. 

          3) O.Ps. 2 to 10 have appeared through advocate and filed their objection, in their objection they contended that the Liquidator came to be appointed for the said society as per the order of ARCS Chikkodi dated 21/09/2011. Since then till today the entire business of the said society being look after by the said liquidator that is O.P. No.12 and as such the present O.Ps. No.2 to 10 are noway concerned to the said society. Hence, the complaint of the complainant is deserve to be dismissed with compensatory cost. The O.P.11 appeared Inperson in his objection he contended that he has resigned from the service as a secretary on 12/9/2011 and since then this O.P. is noway concerned with society.

          4) The O.Ps.3 & 5 in their objection contended that the Liquidator has been appointed he is holding the affairs of the society. Therefore the O.P.12 the Liquidator is liable for all the act and consequences for the same.  Hence, these O.Ps. are not at all maintainable in the eye of law. The O.P.12  Liquidator has denied the deficiency in service alleged and contend that complaint is bad for non joinder of parties etc., and it is submitted that efforts are being made to recover the loan and as per the priority list, the claim will be settled etc.,

           5) The complainant has filed his affidavit and certain documents are produced. 2^nd O.P. has filed his affidavit and certain documents are produced.

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

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

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

REASONS

          9) The complainant claim that they had kept deposits in the O.P. society. These facts alleged in the complaint are stated by the complainant in the affidavit. That statement is supported by the original F.D.R. bearing A/c. No.11568 and 12026 an amount of Rs.17,000/-  and Rs.5,000/- respectively as on 18/6/2003 and 15/9/2003 for a period of 6 years and the maturity date was 18/6/2009, 15/9/2009 respectively and maturity value is Rs.34,000/- and Rs.10,000/- respectively.

          10) The grievance of the complainant is that after maturity inspite of the demands made, the amount remained unpaid.  Hence it is proved that inspite of the demand made the deposit is not been refunded and consequently deficiency in service is proved.

          10) The O.P.11 appeared Inperson in his objection he contended that he has resigned from the service as a secretary on 12/9/2011 and since then this O.P. is noway concerned with society. From oral and documentary evidence on record the O.P. No. 11 secretary has proved that he has already been resigned which has been accepted and hence he is not answerable to the claim of the complainant. The O.Ps. 2 to 10 have appeared through advocate and filed their objection, in their objection they contended that the Liquidator came to be appointed for the said society as per the order of ARCS Chikkodi dated 21/09/2011. Since then till today the entire business of the said society being look after by the said liquidator that is O.P. No.12 and as such the present O.Ps. No.2 to 10 are noway concerned to the said society. Hence, the complaint of the complainant is deserved to be dismissed with compensatory cost. The O.Ps. 3 & 5 in their objection contended that the Liquidator has been appointed he is holding the affairs of the society. Therefore the O.P.12 the Liquidator is liable for all the act and consequences for the same. Hence, these O.Ps. are not at all maintainable in the eye of law. The O.P.12  Liquidator has denied the deficiency in service alleged and contend that complaint is bad for non joinder of parties etc., and it is submitted that efforts are being made to recover the loan and as per the priority list, the claim will be settled etc.,

          11) As regards liability of the chairman and other directors firstly it is suffice to note that there were many cases against the present O.Ps. and those cases this forum is held that said O.Ps. are liable answer the claim of the complainant.  One of such case is complaint No.213/12 in which order has been passed on 27.08.2012.  The fact that the Liquidator has been appointed will not come in the way to held other directors are responsible as held Hon’ble High Court in the ruling reported in AIR 1997 Delhi 182 in the above referred decision good number decisions are referred to in which it is held that all directors are liable.  It is pertaining to note that specifically allegation are made in the complaint that the chairman and all directors have acquired property by misusing the deposit of the society these facts alleged in the complaint has not been denied or deposited. Hence, considering these facts at the evidence on record as well as the decision, all the directors are jointly and severely liable to answer the claim of the complainant.

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

          13) Accordingly, following order.

          ORDER

          The Complaint is partly allowed.

          The O.Ps. Credit Souhard represented by the Liquidator, Chairman and Directors as shown in the cause title of the complaint, jointly and severally are hereby directed to pay to the complainant an amount of Rs. 44,000/- in respect of F.D.R. bearing A/c. No.11568 & 12026 with interest at the rate of 8% from 18/6/2009, 15/9/2009 respectively till realization of the entire amount.

          The claim against O.P. No.11 secretary is hereby dismissed.

          So also, the O.Ps. Credit Souhard represented by the Liquidator, Chairman and Directors as shown in the cause title of the respective complaint, jointly and severally are 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.Ps. within 30 days from the date of the order.

          If the order is not complied within 30 days the O.Ps. Credit Souhard represented by the Liquidator, Chairman and Directors as shown in the cause title of the complaint, jointly and severally are hereby directed to pay to  the complainant a sum of Rs.50/- per day the amount till compliance of the order.

 (Order dictated, corrected & then pronounced in the Open Forum on this 23^rd day of February 2015).

 

 

                      Member              Member                        President.

gm*