Karnataka

Belgaum

CC/544/2015

Kiran B Shah - Complainant(s)

Versus

Represented by its Board of Directors. Om Ganesh Cr Sou Saha Ltd - Opp.Party(s)

S I Adin

05 Apr 2017

ORDER

                 

ADDITIONAL  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BELAGAVI

C.C.No.544/2015

 

                     Date of filing: 02/11/2015

 

                                                                  Date of disposal: 05/04/2017

 

P R E S E N T :-

 

	(1)	Shri. A.G.Maldar, B.Com,LL.B. (Spl.) President.
	(2)	Smt.J.S. Kajagar, B.Sc. LLB. (Spl.)  Lady Member.

   

 

COMPLAINANTS

1.         2.         3.

Shri. Kiran Bagwan Shah, Age: 60 Years, Occ: Service, R/o: H.No.1198, Guwar Peth, Nipani, Tq: Chikodi, Dist.Belagavi.   Smt. Chandraprabha Kiran Shah, Age: 55 Years, Occ: Service, R/o: H.No.1198, Guwar Peth,  Nipani, Tq: Chikodi, Dist.Belagavi.   Sankalp Kiran Shah, Age: 28 Years, Occ: Service, R/o: H.No. 1198, Guwar Peth, Nipani, Tq: Chikodi, Dist.Belagavi.                        (Rep. by Miss.S.I.Adin, Adv.)

 

 

 

- V/S -

 

OPPOSITE PARTIES

1.         2.           3.           4.             5.           6.             7.           8.           9.           10

Om Ganesh Credit Souharda Sahakari Ltd., Nipani, Tal: Chikodi, Dist.Belgaum. Rep. by its Board of Directors.   Shri. Vikasrao Vithalrao Savant, The Chairman, Om Ganesh Credit Souharda Sahakari Ltd., R/o: Sakharwadi, Nipani, Tal: Chikodi, Dist.Belgaum.   Shri.Appasaheb Dattatray Sugate, The Vice-Chairman, Om Ganesh Credit Souharda Sahakari Ltd., R/o: Mane Plot, Nipani, Tal: Chikodi, Dist.Belgaum.   Shri.Jaikumar Vijayakumar Sawant, The Director, Om Ganesh Credit Souharda Sahakari Ltd., R/o: Mane Plot, Nipani, Tal: Chikodi, Dist.Belgaum.   Shri.Mahadev Ramchandra Lad, The Director, Om Ganesh Credit Souharda Sahakari Ltd., R/o: Mane Plot, Nipani, Tal: Chikodi, Dist.Belgaum.   Shri.Raisuddin Jamaluddin Solapure, The Director, Om Ganesh Credit Souharda Sahakari Ltd., R/o: Mane Plot, Nipani, Tal: Chikodi, Dist.Belgaum.   Shri.Annasaheb Baburao Shitole, The Director, Om Ganesh Credit Souharda Sahakari Ltd., R/o: Mane Plot, Nipani, Tal: Chikodi, Dist.Belgaum.   Shri.Rajendra Hanumanth Pol, The Director, Om Ganesh Credit Souharda Sahakari Ltd., R/o: Mane Plot, Nipani, Tal: Chikodi, Dist.Belgaum.   Sou Sushma Sudhakar Potadar, The Director, Om Ganesh Credit Souharda Sahakari Ltd., R/o: Mane Plot, Nipani, Tal: Chikodi, Dist.Belgaum.   The Liquidator, Om Ganesh Credit Souharda Sahakari Ltd., Nipani, In the Office of the ARCS,  Chikodi, Dist.Belgaum.       (OP.No.1 Society, OP.No.2 to 9 Rep. by Shri.A.F. Bhalare,                  Adv. and Op.No.10 Rep. by Shri.B.M. Hosali, Adv.)

 

JUDGEMENT

 

By  Sri.A.G. Maldar, President.

 

 

1.      This is a Complaint filed by the complainants under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Parties (in short the “Ops”) directed to pay an amount of Rs.6,31,215/- with interest @ 18% p.a. from the date of maturity to till it’s complete realization and Rs.50,000/- towards the damages on account of mental agony and Rs.10,000/- towards cost of the proceedings and any other reliefs etc.,

 

 

 

2.      The facts of the case in brief are that;

 

It is case of the complainants that, the complainants have kept fixed deposits with Ops society on different dates, the details of amounts deposited as shown below:-

 

Sl. No.	Name of the Depositor	FD A/c No.	Amount Deposited	Date of Deposit	Date of Maturity	Maturity Amount
01	C. K. Shah	13794	20,000/-	18.04.05	18.04.13	40,000/-
02	S. K. Shah	13795	20,000/-	18.04.05	18.04.13	40,000/-
03	S. K. Shah	13796	20,000/-	18.04.05	18.04.13	40,000/-
04	K. B. Shah	13793	20,000/-	18.04.05	18.04.13	40,000/-
05	K. B. Shah	20262	72,000/-	13.09.10	13.09.12	77,040/-
06	K. B. Shah	20263	1,22,000/-	13.09.10	13.09.12	1,30,540/-
07	K. B. Shah	20928	40,000/-	26.07.10	26.07.12	46,400/-
08	K. B. Shah	21339	30,000/-	08.12.10	08.12.11	32,100/-
09	K. B. Shah	21340	30,000/-	08.12.10	08.12.11	32,100/-
10	K. B. Shah	21343	64,800/-	22.12.10	22.12.11	69,336/-
11	K. B. Shah	21344	78,224/-	24.12.10	24.12.11	83,699/-
Total						Rs.6,31,215/-

 

It is further case of the complainant that, after the maturity the complainants have approached and requested to the OPs to refund the above said fixed deposited amounts. But, the OPs society postponed the same by giving one or the other reasons. Inspite of repeated requests, the Ops failed to return the above said F.D. amounts to the complainants.

 

Finally, the complainants have got issued a legal notice to the Ops on dtd: 19.01.2015, the said notices were duly served to the Ops. But, the Op.No.5 to 7, 9 and 10 replied to the said notice and contended that, they have now resigned from their respective posts and they are not liable to pay any amount to the complainants and the other Ops did not reply to the said notices. Hence, the Ops have failed to comply with the said notices, thereby there is deficiency of service on the part of Ops as contemplated under the provisions of the C.P. Act, 1986 and further submitted that, earlier the complainants have filed compt.No.85/2015 before this Forum and the said case was withdrawn due to some technical problem and Hon’ble Court has permitted the complainants to file fresh complaint. Hence, the complainants have constrained to file this complaint.  

 

3.      After issue of notice to the Opponents. The Op.No.2 to 9 have appeared through their Counsel and neither filed written version nor contest the case and further the Op.No.10 has appeared through his counsel and resisted the claim of the complainants filing his written version.

 

          The OP.No.10/Liquidator has contending and he denied the contents of the complaint paras and he further taken contention that complaint filed by the complainants are time barred, there is no proper reason to condone the delay. Hence complaint of the complainants are not maintainable for non-joinder of the appropriate parties and further the Hon’ble Forum has no jurisdiction to entertain this complaint as compliance of the K.Y.C. norms and further the complainants have not approached this Forum with clean hands.

 

It is further Op.No.10 contended that, when the committee was existing the complainants have deposited the amounts. Later on he took charge of the society. Hence he is not liable to pay the FD amounts. The complaint against this OP is not maintainable. Hence prays for dismissal of the complaint.

 

 4.     The Adv. for complainant has filed his affidavit and produced  documents i.e. Original F.D. receipts, Certified Copy of order-sheet in C.C.No.85/2015, Postal Receipts, Postal Acknowledgement, Office copy of Legal Notice and List of Board of Directors, for sake of our convenience we have marked as Ex.P-1 to Ex.P-6. On the contrary the OP.No.10 has not filed his affidavit and not produced any document. Heard the argument on both sides.

 

Now, the following points that arise for our consideration in deciding the case are;

 

 

 

01.Whether the complainants have prove that there is deficiency in service on the part of the OPs for not settling/refunding the F.D. amounts?

 

02. What order?

 

5.      Our findings on the above points are as fallow;

 

 

01. Point No.1  in the Affirmative.

02. As per final Order.

 

 

 

 

 

 

R E A S O N S :-

6.      Point No.1:  By detail scanning the complaint pleadings, written version of Op.No.10 and  affidavit evidence of complainant No.1 and as well as documents on records. It is admitted fact that, the complainants have kept fixed deposit to secure their future and made deposit to the OPs society.

 

On perusal of affidavit evidence of the complainant No.1 and the document produced by the complainants i.e. the F.D receipts which are marked as Ex.P-1. The claim of the complainants in respect of above said F.Ds amount, though the complainants are depending on said FDs amount and interest accrued on FDs to solve the domestic financial problems and it is very difficult for lead the life in the absence of the respective FDs amount and interest.

 

When, the complainants requested to the Ops for refund of F.D. amount and interest, the OPs  have failed to pay the interest as promised to the complainants despite request and even the OP society is not ready to give the said amounts. Hence, these attitude and acts of the OPs is amounts to deficiency of service on the part of the OPs society as contemplated under the C.P. Act.

 

 

The case of the OP.No.10/Liquidator contended that, the complaint filed by the complainants are time barred, there is no proper reason to condone the delay. Hence complaint of the complainants are not maintainable. When the committee was existing the complainants have deposited the amounts. Later on he took charge of the society. Hence he is not liable to pay the FD amount. The complaint against this OP is not maintainable. Hence prays for dismissal of the complaint.

 

Looking to the facts and circumstances that, the alleged FD receipts kept in Ops society, it is a mandatory duty of the OPs Society, whenever the said respective FDs amount are matured on demand, the Ops would have been refund the above said FDs amount to the complainants. But, in the instant case, the Ops did not returned the above said FDs amount to the complainants, even after request, demand and issued legal notices, it means that, from the date of legal notices, the cause of action arose and the above said instant complaint is within the limitation in our views. Therefore, the contention of the Op.No.10 regarding limitation does not have merit. So, the contention of the OP.No.10 is not acceptable. More ever, if the Ops could have returned the above said FDs amount to the complainants, they would not have been filed the instant complaint against the Ops and did not arise question to file this complaint. Under such circumstances and above observation no question of limitation arises and already the same issue has been decided in C.C.No.85/2015 by this Forum itself on dtd: 24.02.2015 and the same is marked as Ex.P-2.  

 

 As regards the liability of the chairman and other directors, firstly it is suffice to note that, there were many cases against the present OPs and in those cases this forum is held that, said OPs are liable to answer the claim of the complainant.  One of the such case is i.e. complaint No.213/12 in which the 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 in AIR 1997 Delhi 182, in the above referred decision hold good and the number of 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 by the Ops and the OP.No.2 to 9 have not disprove the case of the complainants as stated in reply to legal notice and further the Ops No.2 to 9 have not established the case that, they are not liable to pay the F.D. amounts.  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 complainants.

 

It is a duty of the OPs that, the OPs ought to have paid or settled the F.Ds amount and further it is the right of the complainants that, the respective F.Ds maturity amount. However, the complainants are entitled to receive the respective F.D. maturity amount as per the F.D. receipts and the Ops liable to pay  interest @ 6 % p.a. from the date of legal notice i.e. 05.08.2015, which is marked as Ex.P-5 till realization and the complainants have established their case by producing FDs receipts which is not disputed by the Ops. Therefore, in our considered opinion that, the Ops not only liable to pay the respective F.Ds amount, but they are also liable to pay compensation of Rs.2,000/- each complainant towards inconvenience and mental agony and Rs.1,000/- towards cost of litigation to the complainant, with this we answer to Point No.1 in partly Affirmative. Accordingly, we proceed to pass the following;

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 

O R D E R

 

For the reason discuss above, the complaint filed by the complainants U/s 12 of the C.P. Act – 1986 is here by partly allowed with costs.

 

 

The OP.No.1 to 10 are hereby directed to pay the respective F.D. maturity amount as per the F.D. receipts and further the Ops are  liable to pay interest @ 6 % p.a. from the date of legal notice i.e. 05.08.2015 till realization as shown below;

 

Sl. No.	Name of the Depositor	FD A/c No.	Amount Deposited	Date of Deposit	Date of Maturity	Maturity Amount
01	C. K. Shah	13794	20,000/-	18.04.05	18.04.13	40,000/-
02	S. K. Shah	13795	20,000/-	18.04.05	18.04.13	40,000/-
03	S. K. Shah	13796	20,000/-	18.04.05	18.04.13	40,000/-
04	K. B. Shah	13793	20,000/-	18.04.05	18.04.13	40,000/-
05	K. B. Shah	20262	72,000/-	13.09.10	13.09.12	77,040/-
06	K. B. Shah	20263	1,22,000/-	13.09.10	13.09.12	1,30,540/-
07	K. B. Shah	20928	40,000/-	26.07.10	26.07.12	46,400/-
08	K. B. Shah	21339	30,000/-	08.12.10	08.12.11	32,100/-
09	K. B. Shah	21340	30,000/-	08.12.10	08.12.11	32,100/-
10	K. B. Shah	21343	64,800/-	22.12.10	22.12.11	69,336/-
11	K. B. Shah	21344	78,224/-	24.12.10	24.12.11	83,699/-
Total						Rs.6,31,215/-

 

 

 

The OP.No.1 to 10 also hereby directed to pay compensation of Rs.2,000/- each of the complainant towards mental agony and Rs.1,000/- towards cost of the litigation within 10 weeks from the date of this order, failing to which, the complainants are entitled to recover Addition interest @ 2 % p.a. from the date of complaint i.e. 02.11.2015 till realization.

 

         

            (This order is dictated to the Stenographer, transcript edited, corrected and then pronounced in the open forum on this 5^th day of April, 2017).

 

 

Sri. A.G.Maldar,     President.

Smt.J.S. Kajagar,    Lady Member.