Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 413.
Instituted on : 25.07.2012.
Decided on : 14.02.2017.
Ram Mehar son of Munshi Ram resident of VPO Singhpura, District Rohtak.
………..Complainant.
Vs.
- The Haryana Bank Staff Coop. Urban (Salary Earners) Non-Agriculture Thrift & Credit Society Ltd., Rohtak through President Ved Parkash resident of H.No.1491/4, Shiv Nagar, Bhiwani Road, Rohtak also employed with State Bank of India, Main branch, Rohtak.
- Parveen Kumar Jain resident of H.No.845, Sector-1, Rohtak vice president The Haryana Bank Staff Coop. Urban (Salary Earners) Non-Agriculture Thrift & Credit Society Ltd., Rohtak also employed with S.B.I., Bhalout.
- Madan Sehgal resident of H.No.150, Sector-1, Rohtak, Secretary, The Haryana Bank Staff Coop. Urban (Salary Earners) Non-Agriculture Thrift & Credit Society Ltd., Rohtak.
- Sunil Sehgal r/o H.No.150, Sector-1, Rohtak, Manager, The Haryana Bank Staff Coop. Urban (Salary Earners) Non-Agriculture Thrift & Credit Society Ltd. Rohtak.
- Rajender Patni, Cashier, The Haryana Bank staff Co-operative Urban (Salary Earners) Non-Agriculture Thrift & Credit Society Ltd. Rohtak.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
Sh. VED PAL, MEMBER.
Present: Sh.R.K.Sapra, counsel for the complainant.
Opposite party no.1 exparte.
Sh.A.K.Jain, Advocate for the O.P. No.2.
Sh.Shailender Chaudhary Advocate for O.P. no.3 & 4.
Sh.K.L.Katyal, Advocate for the O.P. No.5.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that opposite party no.1 is a registered society having its own seal and opposite party no.2 to 5 are officials of opposite party No.1. It is averred that opposite party no.1 is a Non-Agricultural T & C Society Ltd. Registered under Haryana Co-operative Societies Act 1984 and opposite party no.2 to 5 are office bearers of opposite party no.1 and are jointly managing the affairs of the society having direct control over all the functions of the society. It is averred that complainant has opened a saving account no.34 with the opposite party on 22.5.1998 and used to keep on depositing the amount with the opposite parties out of his saving from time and time and as per the entries available in the passbook issued by the opposite party no.1, a sum of Rs.30863/- was lying outstanding in the above said saving account of the complainant on 23.03.2005. It is averred that the complainant approached various times to the opposite parties and asked them to release the amount as per his entitlement lying outstanding in his above said saving account no.34 but the opposite parties said that it will be refunded after some days. It is averred that now it has been learnt by the complainant that the opposite parties No.2 & 3 alongwith other office bearer have committed fraud with the public at large including the complainant and they have embezzled the amount worth Rs. Lacs and the cheques issued by them have also been dishonored, and a criminal case has also been got lodged against them and they are facing trial before the Courts at Rohtak. It is averred that opposite parties are bound to release the amount and the complainant is entitled to get the amount refunded alongwith interest. As such it is averred that there is deficiency in service on the part of the opposite parties and it is prayed that opposite parties may kindly be directed to release the amount of Rs.30863/- along with interest @ 12% p.a. from its due date i.e. 23.3.2005 till realisation, Rs.25000/- on account of compensation for deficiency in service and harassment and Rs.11000/- as litigation expenses to the complainant.
2. On notice, the opposite party no.1 did not appear despite service and was proceeded against exparte vide order dated 07.09.2012 of this Forum. However opposite party no.2 to 5 appeared and filed their separate written statement. Opposite party no. 2 in its written statement has submitted that opposite party no.2 was not an authorized signatory to deposit the money in the accounts of the society. Opposite party no.2 has not even signed any documents or issued any receipts regarding depositing of any amount in the saving bank account of the complainant as per version of the complainant and has nothing to do with the issuance, retention or discharge of the amount deposited in the saving bank account of the complainant. It is averred that at the time of filing of the complaint, Board of Administration to run the affairs of the society has been appointed and now a days liquidator has been appointed to receive the outstanding amount worth Rs.8511660/- from the borrowers of the society. The complainant failed to implead the Board of Administrators at the time of filing complaint and even failed to implead party to the liquidator to receive his amount of saving bank, if any. It is averred that complainant has not said any word against opposite party no.2 in his complaint. The complainant himself is not sure who is responsible for non payment of the amount of his saving bank, if any, deposited in the society. It is averred that the managing committee of the society was suspended on 12.05.2006 and the answering opposite party has no concern with the alleged society in any manner. It is averred that opposite party no.2 in his individual capacity has no role to play in the day to day working of the society and even this fact is admitted by the complainant himself because no single word has been said against opposite party no.2 in the entire complaint. It is averred prayed that the present complaint qua opposite party no.2 be dismissed with heavy cost.
3. Opposite party no.3 in its reply has submitted that it is wrong and denied that an amount of Rs.30663/- was lying outstanding in the account of complainant on 23.3.2005. Anyhow the alleged claim is time barred. It is averred that the charge of the society is with Assistant Registrar Coop. Societies and answering opposite party has now no concern with the amount of the society. All the other contents of the complaint were stated to be wrong and denied. Opposite party prayed for dismissal of complaint with costs. Opposite party no.4 in its reply has reiterated the version taken by opposite party no.3 in its written statement.
4. Opposite party no.5 in its reply has submitted that the Deputy Registrar, Cooperative Societies, Rothak is to manage the affairs of the opposite party society hence, the answering opposite party is not liable to release the amount of the complainant. The complainant had never approached the answering opposite party to release his amount as alleged. For this very reason he has not mentioned any date on which he approached the answering opposite party. All the other contents of the complaint were stated to be wrong and denied. Opposite party prayed for dismissal of the complaint with costs.
6. Both the parties led evidence in support of their case.
7. Ld. Counsel for the complainant has tendered affidavit Ex.CW1/A and documents Ex.C1 to Ex.C3 and has closed his evidence. On the other hand, ld. counsel for the opposite party no. 2 tendered affidavit Ex.RW2/A, documents Ex.R2/1 to Ex.R2/3 and has closed his evidence. Opposite party no.3 & 4 tendered affidavit Ex.RW3/A & Ex.RW4/A, documents Ex.R3/1 to Ex.R4/1 and has closed his evidence. O.P.No.5 has tendered affidavit Ex.RW5/1 and has closed his evidence.
8. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
9. Ld. Counsel for the complainant has submitted that complainant has deposited the amount of Rs.30863/- with the respondent society but the same has not been paid by the opposite parties to the complainant despite his repeated requests. It is also submitted that respondent no.1 to 5 constitutes the managing committee of the society being President, Vice President, Manager and Honrary Secretary and Cashier and have direct control over all the functions of the society and are jointly & severally responsible to repay the amount with interest.
10. On the other hand ld. Counsel for the opposite parties have submitted that control of the society has been taken by the Assistant Registrar Co-operative Societies Rohtak and the opposite parties have no control over the affairs of the society and no-one is competent to receive or pay any amount. Hence this Forum has no jurisdiction in the matter. However opposite party no.2 to 5 have also submitted that they were only the employees of society and as such no liability can be fastened against respondent no.2 to 5.
11. After going through the file and hearing the parties it is observed that as per copy of pass book Ex.C1, complainant had deposited different amounts in his account with the opposite parties’ society w.e.f. 22.05.1998 to 23.03.2005 and an amount of Rs.30863/- was lying outstanding in the above said saving account of the complainant on 23.03.2005 but the same has not been refunded to the complainant till now. It is also not disputed by the respondents that the alleged amount was deposited by the complainant with the respondents. Contention of the opposite parties is that the control of the society has been taken by the A.R. Co-operative Societies Rohtak and they have no control over the affairs of the society and that the respondents were only the employees in that society and had resigned from the said society in the year 2006 so they are not responsible for the amount deposited by the complainant. In this regard it is observed that opposite party No.3 & 4 during the pendency of this complaint moved an application seeking direction to the complainant to collect the amount of FDRs from the office of Assistant Registrar, Co-operative Societies Rohtak which was dismissed by this Forum and the revision petition was filed by the opposite party no.3 & 4 and the same was dismissed by the Hon’ble State Commission, Haryana Panchkula vide its order dated 22.09.2016 submitting therein that: “Neither the A.R. Co operative Societies is a party to the complaint nor the amount has been deposited by the opposite parties against the FDRs of complainant with A.R.Co-Operative Societies”. We have also placed reliance upon the order of Hon’ble State Commission dt.4.9.2008 titled as Basant Rohilla Vs. Asha whereby it is held that: “The ground taken by the appellant in this appeal is that he was not member of the Society. We do not find any force in this contention of the appellant because he has not led any evidence in support of his contention that he was not member of the Society on the date of deposit of the amount by the complainants (consumers) and in the absence of any evidence, the plea set up by the appellant (opposite party No.9) remains unproved. Finding no merit in this appeal, it is dismissed in limine.” and reliance has been also placed upon order dated 27.10.2016 passed by Hon’ble State Commission, Haryana, Panchkula whereby appeal filed by Parveen Kumar Jain (opposite party no.2 in the present case) in Parveen Kumar Jain Vs. Rakesh Kumar was dismissed keeping in view the “The Secretarty, Thirumurugan.Co-operative Agricultural Credit Society Vs. M.Lalitha and Ors.(2004)1 SCC 305” wherein it has been observed by the Hon’ble Supreme Court that remedy against deficiency in service of the co-operative societies is permitted under the Consumer Protection Act 1986 and it has been recognized and established fully in this case. It has been specifically observed that Co-operative societies are covered under the Consumer Protection Act 1986 and the District Forum has jurisdiction for it” and as per Dr. Brijesh Kumar Mishra Vs. State Consumer Disputes Redressal Commission and Nasir Ali decided on 16.05.08 cited as 2008(IV) AWC 3377(Allahabad) Hon’ble High Court of Allahabad has observed that there is no such law that the Consumer Forum cannot be approached when a Civil or Criminal proceeding is pending”. Similarly as per 2002(1)CLT 101 titled Smt. Kalawati and others Vs. M/s United Vaish Co-operative Thrift and Credit Society Ltd., Hon’ble National Commission has observed that complaint before District Forum against respondent society is maintainable and the members who have deposited the money are consumers” and as per law cited in 1(2009) CPJ 200 (NC) titled as Ashish Rameshchandra Birla & Ors. Vs. Murlidhar Rajdhar Patil & Ors. it has held that: “ Amount not refunded on maturity- Complaint allowed by Forum- Directors of Society jointly and severally held liable-Order upheld in appeal- Hence revision- Direction of Registrar of Co-operative Society not obeyed- Corporate/cooperative veil removed- Directors correctly held liable for deficiency in service by Society- Order passed by Fora below upheld.” and the Hon’ble State Commission, Srinagar in 1(2004)CPJ 185 titled Mohan Lal Vs. AAR Kay Trader & Ors. has held that: “Deposits made to earn interest-O.P.closed their office-Refund of deposited amount with interest claimed-Amount deposited by complainant proved-O.P. directed to refund deposited amount with interest”.
12. After going through the file, hearing the parties and above referred case law which are fully applicable on the facts & circumstances of the case, it is observed that respondent no.1 to 5 are jointly and severally liable to refund the amount deposited by the complainant. As such it is directed that respondent no.1 to 5 shall refund the amount of Rs.30863/-(Rupees thirty thousand eight hundred sixty three only) as shown in Ex.C1 alongwith interest @ 9% p.a. from dated 23.03.2005 till its actual realization and shall also pay an amount of Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant maximum within one month from the date of decision failing which the awarded amount shall carry further interest @ 12% p.a. from the date of order. Complaint is allowed accordingly.
13. Copy of this order be supplied to both the parties free of costs.
14. File be consigned to the record room after due compliance.
Announced in open court:
14.02.2017.
................................................
Joginder Kumar Jakhar, President
..........................................
Komal Khanna, Member.
………………………….
Ved Pal, Member
