Complaint filed on: 14.12.2016
Complaint Disposed on:30.06.2017
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT CHICKMAGALUR.
COMPLAINT NO.149/2015
DATED THIS THE 30th DAY OF JUNE 2017
:PRESENT:
HON’BLE SRI RAVISHANKAR, B.A.L, LL.B., - PRESIDENT
HON’BLE SMT B.U.GEETHA, M. COM., LL.B., -MEMBER
HON’BLE SMT H. MANJULA, B.A.L., LL.B., - MEMBER
COMPLAINANT:
Mohammed Hussain,
S/o Late Abubekar Sab,
Aged about 62 years,
Bavaji Compound,
3rd cross, Vijayapura
Extension, Chickmagalur.
(By Sri/Smt. V.B.Veerendra Kumar, Advocate)
V/s
OPPONENT/S:
1. S.M.Pasha (Chillu),
Aged about 49 years,
Potato and Onion Merchant,
President, Millath Crdit
Co-Operative Society Ltd.,
I.G. Road, Chikkamgalur City,
R/o Dr.Ambedkar Road, Opp:
Santhe Market, Chikkamagalur.
2. M.K.Nadeem S/o Mohammed Ali,
Aged about 44 years, Secretary,
Millath Credit Co-operative Society
Ltd., I.G Road, Chikkamagalur City,
R/o Behind Gurukula School,
Gowri Kaluve, Chikkamagalur City.
(OP No.1 By Sri/Smt. S.Prakash, Advocate)
(Op No.2 –Exparte)
By Hon’ble President Sri. Ravishankar,
:O R D E R:
The complainant filed this complaint U/s 12 of the Consumer Protection Act 1986 against OP Nos.1 & 2 alleging deficiency in service in not paying the amount of Rs.25,831/- which was kept in his S/B account. Hence, prays for direction against Op Nos.1 & 2 to pay the said amount along with interest @ 21% p.a. from the date of closure of the society and compensation of Rs.25,000/- for deficiency in service.
2. The brief facts of the complaint is that:
The complainant is an account holder at Millath Credit Co-operative Society situated at I.G. Road, Chikmagalur. Op No.1 was the president of the said society, Op No.2 was a secretary of the said society.
The complainant after opening the S/B account in the said society he was regular in transacted the S/B account by debiting and crediting the amounts. Such being the case, on 15.09.2010 the complainant has balance amount of Rs.1,09,516/- in his account and he withdrawn Rs.57,685/- on 15.09.2012. There afterwards there was a balance amount of Rs.51,831/- in his S/B account. But all of sudden the Op Nos.1 & 2 have closed the said society and after knowing the same the complainant approached the Op Nos.1 & 2 and requested to pay the balance amount of Rs.51,831/-. But inspite of repeated requests and demands made by complainant the Ops have not paid the said amount to the complainant. There afterwards on 26.04.2013 the complainant issued a legal notice and called upon them to pay the balance amount. After receiving the said legal notice Op Nos.1 & 2 on 27.05.2013 have paid an amount of Rs.26,000/- through cheque bearing no.115243 and also agreed to pay the balance amount within a short period to the complainant. But so far Ops have not paid the balance amount of Rs.25,831/- along with up-to-date interest to the complainant inspite of several requests. But Op Nos.1 & 2 for the one or other reasons are postponing to pay the balance amount of the complainant. Finally again on 09.11.2015 complainant issued another legal notice to Ops and called upon them to pay the balance amount along with interest @ 21% p.a. The notice was service on Op No.1 and Op No.1 issued untenable reply on dated 20.11.2015, but the notice on Op No.2 was not served.
Even after receipt of the legal notice Op Nos.1 and 2 have not paid the balance amount. Hence, Op Nos.1 and 2 rendered a deficiency in service in not paying the balance amount of Rs.25,831/- to the complainant. Hence, prays for direction against Op Nos.1 and 2 to pay the balance amount along with compensation for deficiency in service as prayed above.
3. After service of notice Op No.1 appeared through his counsel and filed version. Op No.2 not appeared before this forum to defend the allegations. Hence, Op No.2 placed exparte.
4. Op No.1 in his version has contended that, it is true that this Op No.1 was a president of the Millath Credit Co-operative Society situated at I.G. Road, Chikmagalur and during time of existence of the society the complainant opened a savings bank account under S/B account No.1148 and complainant has transacted the said amount till 15.09.2012 and it is also true that on the same day the complainant has withdrawn Rs.57,685/- from his S/B account.
It is also true that the Millath Credit Co-operative Society was closed, but it is false that the complainant approached this Op and requested to pay the balance amount of Rs.51,831/- with accrued interest and also false that the complainant had made a requests and demands for payment of the said balance amount.
Op No.1 further contended that, the Op No.2 was the secretary of Millath Credit Co-Operative Society and another one Sri.Imdad Ali was working as Accountant in the said society by colluding with Op No.2 both have mis-appropriated funds of the Millath Credit Co-Operative Society and in this regard the Assistant Registrar of Co-operative Societies have appointed one Enquiry Officer U/s 64 of Co-operative Society Act. Further this Op also lodged a police complaint against Secretary (2nd Op) and Accountant to the nearest police and the police have registered the case against them. Further police have filed a charge-sheet before JMFC at Chikmagalur.
There afterwards the complainant approached this Op for refund of the balance amount of Rs.51,831/- after conciliation complainant agreed to receive an amount of Rs.26,000/- from this Op and also agreed that the balance amount will be payable after recovery of mis-appropriated funds from the Secretary and Accountant. They have paid the said amount only an undertaking taken by the complainant. The complainant by suppressing these material facts has filed this false complainant alleging deficiency in service. There is no any deficiency in service on the part of this Op in this regard.
The complainant had not made the Enquiry Officer as a party to this complaint. Hence, the complaint is bad for non joindar of the necessary parties.
Op No.1 further contended that, the Millath Credit Co-Operative Society is now under the Administration of Assistant Registrar of Co-operative society. Management of the said society has filed recovery petition against Secretary and Accountant, which is pending before Assistant Registrar of Co-operative society and till the disposal of the said petition, this complaint is also not maintainable. Hence, prays for dismissal of the complaint in the interest of justice and equity.
5. Complainant filed affidavit and marked documents as Ex.P.1 to Ex.P.6 and Op Nos.1 also filed affidavit and marked documents as Ex.R.1 to Ex.R.3.
6. Heard the arguments.
7. In the proceedings, the following points do arise for our consideration and decision:
- Whether there is deficiency in service on the part of OPs.
- Whether complainant entitled for any relief & what Order?
8. Our findings on the above points are as follows:-
- Point No.1: Negative.
- Point No.2: As per Order below.
: R E A S O N S :
POINT NOs. 1 & 2:
9. There is no dispute that complainant is having an S/B account No.1148 in Millath Credit Co-Operative Society Limited at Chikmagalur and also no dispute that the Op No.1 was the President of the said society. We observed that as per Ex.P.1 complainant is having a balance amount of Rs.51,831/- as on 15.09.2012. Further on 27.05.2013 the complainant withdrawn an amount of Rs.26,000/- through cheque No.115243. There afterwards the balance amount in his S/B account is Rs.25,831/-, for which the complainant approached the Op No.1 for realization of the said amount. But Op No.1 had not paid the balance amount to the complainant. Hence, complainant alleges deficiency in service.
10. Whereas, Op No.1 in his version and affidavit has sworn that the complainant has a balance amount of Rs.25,831/- in his S/B account, but they are not able to pay the said amount to the complainant as there is a criminal complaint was filed against Secretary and one Accountant Imdad Ali and now the Administration is under control of Assistant Registrar of Co-operative society. Hence, shown his inability to pay the said amount to the complainant. The Op No.1 further had produced FIR marked as Ex.R.1 to show that he has given a police complaint against Secretary (2nd Op) and another one Imdad Ali, Accountant of the society for the offence punishable U/s 406, 409, 417, 420, 468 R/w 34 of Indian Penal code. We also noticed that the society is under control of Assistant Registrar of Co-operative Society. Hence, we are of the opinion that the Op No.1 has no power to pay the balance amount maintained by complainant in his S/B account to the complainant. We found the Op No.1 has not shown or denied to pay the balance amount to the complainant, but at this junction of time the complainant is not able to withdrawn the amount as the case against Secretary and Accountant is pending and also the administration is under control of Assistant Registrar of Co-operative Society. Hence, we found there is no any deficiency in service on the part of Op No.1 as alleged by complainant when there is no any refusal or denial by Op No.1 with respect to the payment of the balance amount. We found there is no any deficiency in service on the part of Op No.1. Hence, the complaint is liable to be dismissed and for the above said reasons, we answer the above point no.1 and 2 in the Negative and proceed to pass the following:-
: O R D E R :
- The complaint filed by the complainant is hereby dismissed. No order as to costs.
- Send free copies of this order to both the parties.
(Dictated to the Stenographer transcribed typed by her, transcript corrected by me and then pronounced in Open Court on this the 30th day of June 2017).
(B.U.GEETHA) (H. MANJULA) (RAVISHANKAR)
Member Member President
ANNEXURES
Documents produced on behalf of the complainant/S:
Ex.P.1 - Pass book.
Ex.P.2 - Office copy of legal notice.
Ex.P.3 - Another legal notice dtd:09.11.2015.
Ex.P.4 - Reply to the legal notice.
Ex.P.5 - Postal ack. due.
Ex.P.6 - Un-served RP cover.
Ex.P.6(a) - Original legal notice.
Documents produced on behalf of the OP/S:
Ex.R.1 - True copy of FIR.
Ex.R.2 - True copy of Enquiry Report.
Ex.R.3 - True copy of Order.
Dated:30.06.2017 President
District Consumer Forum,
Chikmagalur.
RMA
