Karnataka

Belgaum

CC/663/2013

Jayshree M Kumbar - Complainant(s)

Versus

The Chairman of Janavikas Co Op Cr Scty Ltd - Opp.Party(s)

M S Patil

09 Feb 2015

ORDER

(Order dictated by Shri. V.S. Gotakhindi, 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.R.

          2) The objections are filed by the O.P. 5, 7 and 10 have denying deficiency in service and contending that the allegations are false and the complaint is no way concerned to O.P. and also contended that O.Ps. they were not evading payment even if there was sufficient balance and also O.P. No.5 contended that the complainant has not produced any documentary evidence, chairman and secretary are responsible persons to answer the claim of the complainant and pray to dismiss the complaint against this O.Ps. The O.Ps. though appeared through the counsel have not filed their affidavit nor objections. O.P.No.1,2,6,8,9 are placed exparte. O.P. No. 10 contended in objection that the complainant has made him unnecessary party even he is no way concerned with the affairs and functioning of the society as he has resigned on 12/12/2010 and his resignation is accepted by the society by passing resolution. O.P. No.7 has also filed his objection and affidavit and has contended that the address furnished as shown in the cause title is false and he is not a director and with effect from 8/3/2010 his term is already expired and new body is elected and there is no nexus between complainant and this O.P. and this O.P. further denies that the deposit is not within the knowledge of him, complaint is pre-matured, there is no control and administration or charge over the society since 2010 as new committee is formed and he has handed over the charge and further that complainant has not approached this forum with clean hands and prayed to dismiss the complaint.

          3) In support of the claim in the complaint, the complainant has filed affidavit and produced original F.D.R. On the other hand, for O.P. No.7 has filed affidavit. O.P. No.5 & 10 though filed objection have not filed their affidavit. The O.P. No.3 and 4 represented by counsel but no objection nor affidavit are filed.

          4) We have taken the arguments for complainant and O.Ps., as heard and  we have perused the records and proceeded to pass the order.

          5) Now the point for our consideration is that, whether the complainant has proved deficiency in service on the part of the O.Ps. 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) Oral and documentary evidence on record establish that the complainant kept the amount in fixed deposit under F.D.R.No.319 and A/c. No.328 with the O.P society a sum of Rs.20,000/- on 29/3/2009 for a period of 5 years, 6 months and maturity values is Rs.40,000/- and maturity date was 30/9/2014.        

8) The facts mentioned above are pleaded in the complaint and stated by the complainant in affidavit. That statement is supported by the original F.D.R.        

9) Grievance of the complainant is that, after maturity deposited amount remained unpaid inspite of the demands made. This fact is pleaded in the complaint and stated by the complainant in the affidavit. Thus, the evidence establish that inspite of the demands made, after maturity, the amount remained unpaid. It amounts to deficiency in service.

10) The objections are filed by the O.P.5,7 and 10 have denying deficiency in service and contending that the allegations are false and the complaint is no way concerned to O.P. and also contended that O.Ps. they were not evading payment even if there was sufficient balance and also O.P. No.5 contended that the complainant has not produced any documentary evidence, chairman and secretary are responsible persons to answer the claim of the complainant and pray to dismissed the complaint against this O.Ps. The O.Ps. though appeared through the counsel have not filed their affidavit nor objections. O.P.No.1,2,6,8,9 are placed exparte. O.P. No. 10 contended in objection that the complainant has made him unnecessary party even is no way concerned with the affairs and functioning of the society as he has resigned on 12/12/2010 and his resignation is accepted by the society by passing resolution. O.P. No.7 has also filed his objection and affidavit and has contended that the address furnished his as shown in the cause title is false and he is not a director and with effect from 8/3/2010 his term is already expired and new body is elected and there is no nexus between complainant and this O.P. and this O.P. further denies that the deposit is not within the knowledge of him, complaint is pre-matured, there is no control and administration or charge over the society since 2010 as new committee is formed and he has handed over the charge and further that complainant has not approached this forum with clean hands and prayed to dismiss the complaint.

O.P. No.7 has filed a memo and submitted order passed by election officer showing list of elected members to the O.P. society. This O.P. further submits in his affidavit and objection that new body is elected and have taken charge of the O.P. society. This O.P. has also contended that in his objection that he is no way concerned with the O.P. Society. But this O.P. has not produced document to show that his resignation is accepted by the society or by the concerned authority and also have not produced a document to show that the elected body have taken up the charge of the society.

11) The counsel for complainant has referred citations of Hon’ble National Commission and State Commission. In one of the reporting ruling passed by Hon’ble Uttar Pradesh State Commission in I (2011) CPJ 23 wherein the Hon’ble commission have held that relevant portion is “hence appeal – contention, appellant resigned from post of director had no concerned with management or transaction of company- Not accepted-appellant was functional director even after he has submitted resignation- appellant shall be liable along with company to make the payment good.

Similar facts are been held by the Hon’ble National commission hence considering the citation supra and facts and circumstances of the case as the O.Ps. have failed to prove that the new elected body has taken of the charge and O.P. No.5 & 10 have merely denied the contention taken by the complainant with no cogent documents. Hence, the complainant has proved deficiency of service on the part of the O.Ps.

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. as shown in the cause title jointly and severally are hereby directed to pay Rs.40,000/- to the complainant in respect of F.D.R. No.319 and A/c. No.328 with interest at the rate of 8% P.A. from 30/9/2014 till realization of the entire amount.

Further, The O.Ps. as shown in the cause title jointly and severally are hereby directed to pay a sum of Rs.2,000/- to the complainant towards costs of the proceedings.

Order shall be complied within one month from the date of the order.

 If the order is not complied within stipulated period, O.Ps. jointly and severally are hereby directed to pay a sum of Rs.50/- per day to the complainant from the date of disobedience of order, till the order is complied.

(Order dictated, corrected and then pronounced in the open Forum on: 9^th day of February 2015).    

 

 

  Member                                   President

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