Haryana

Ambala

CC/260/10/2014

NEELU CHANDNA - Complainant(s)

Versus

THE VANKHANDI COOP.SOCIETY - Opp.Party(s)

NANEET GUPTA

31 Jul 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

Complaint Case No.    : 260 of 2010

Date of Institution       : 16.06.2010/21.01.14

Date of Decision         : 31.07.2017.

 

 

1.Neelu Chandna wife of Sh.Pankaj Chandna

2.Ansh Chandna minor son of Sh.Pankaj Chandna through his mother being natural guardian & next friend both residents of House No.156/7, Jawahar Nagar, Ambala City.

                                   

……Complainant.

Versus

 

1.         The Van Khandi Co-operative. Non-Agriculture Thrift & Credit Society Ltd. (Regd.), Ambala City through its President Sh. Parmod Singh Rana.

 

2.         Parmod Singh Rana, President, The Van Khandi Co-operative Non Agriculture Thrift & Credit Society Ltd. (Regd.), Ambala City both the addressee C/o at present Central Jail, Ambala City and H.No.170, Sector-9, Urban Estate,Ambala City.

 

3.         M.L. Sehgal, Vice President, The  Van Khandi Co-operative N.A.T.C society Ltd. (Regd.) Ambala City (since deceased) now represented by his L.R.S: -

            (i)        Vanita Sehgal            (wife)

            (ii)       Amit Sehgal               (son)

            (iii)     Mohit Sehgal             (son)

            All residents of Kothi No.58L,Sector 50, Ground Floor, Ist Block, South City, Gurgaon (Haryana).           

 

4.         Satish Kumar, Member Managing Committee,    The  Van Khandi Co-operative Non Agriculture Thrift & Credit Society Ltd. (Regd.), Ambala City, resident of H.No.4373/2, Charian Wala Behra, Ambala City at present R/o 430, Soniya Colony, Ambala City.

                                                                                                            ……Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act

 

CORAM:        SH. D.N.ARORA, PRESIDENT.

                        SH.PUSHPENDER KUMAR, MEMBER.

                        MS. ANAMIKA GUPTA, MEMBER.

                       

Present:          Sh. Navneet Gupta, Adv. for complainant.

                        Sh. Sudhir Sehgal, Adv. for OPs No.1 & 2.

                        Sh. Mohinder Bindal, Adv. for OP No.3 (i) & (ii).

                        OP Nos. 3(iii) & 4 exparte.

 

ORDER

 

                        The brief facts leading to the institution of present complaint are that the OPs No.2 to 4 are running the aforesaid society i.e. OP No.1 and used to receive money from the public at large with the assurance to them to earn attractive rate of interest, high returns & secured investment. It has been further alleged that the Complainant after inspiring the assurance as well as representation of the OPs agreed to deposit a sum of Rs.63,000/- with the society vide FDR No.10796 dated 23.11.2008 @ 12.5 % per annum having due date of maturity as 23.11.2009.  At the time of maturity of FDR in question, OPs failed to pay the matured amount despite various visits and requests. As such, the Complainant has submitted that the OPs have attributed bad & deficient services to them by not making the payments on due date which caused great mental pain & harassment to them. Hence, the Complainant has filed the present complaint seeking relief as mentioned in prayer clause of the complaint.

2.                     Upon notice, OPs No.1 & 2 appeared through counsel and filed a joint written statement raising preliminary objections qua non-maintainability of complaint being barred by jurisdiction as the OP society is registered under the Haryana Co-op Societies Act and all the disputes can be heard and decided by the Assistant Registrar or Registrar of the Co.Op. Societies. On merits, it has been urged that the Complainant has received the amount in question alongwith interest thereon and thus prayed that there is no deficiency in service on their part. Objections about jurisdiction and estoppal etc. have also been taken. Lastly, prayer for dismissal of complaint with costs has been made.

3.                     OP No.3 filed his separate written statement raising preliminary objections qua non-maintainability of complaint. Further, it has been stated that answering OP was the Vice President of the said society for a short period and thereafter his resignation has been accepted by the Assistant Registrar, Cooperative Societies, Ambala, Haryana vide letter dated 11.12.2009 addressed to Deputy Registrar, Cooperative Societies, Kurukshetra.  The answering respondent is not concerned with the affairs of the society which is very much apparent from the receipt of FDR duly signed by President, Sh. Parmod Rana because he had never attended an meeting of the society after the year 2005. It is further submitted that the payment under the said FDR has been made by the Complainant to OP No.2 and OP No.3 has neither received any amount on behalf of the society nor signed the FDR in question as the resignation of the OP No.3 had already been accepted vide letter dated 20.10.2009. Therefore, the OP No.3 has been wrongly arrayed as OP in this complaint particularly when the OP No.3 is neither Vice President nor Member of the Executive Body and is not in any way concerned with the affairs of the society as he had resigned long ago. Hence, there is no deficiency in service on his part and prayed for dismissal of the complaint with costs.

4.                     OP No.4 did not bother to appear despite service. As such, he was proceeded against exparte vide order dated 19.03.2015.

5.                     In evidence, counsel for the complainant tendered affidavit Annexure C-X alongwith documents Annexure C-1 to C-12. On the other hand, the counsel for OP Nos.1 & 2 have tendered affidavit of Sh.Pramod Singh Rana and the LRs of OP No.3 M.L.Sehgal (since deceased) have tendered separate documents Annexure R1 to Annexure R2 and affidavit of Sh.Amit Sehgal as Annexure RA. The LRs 3 (i) & 3 (ii) of Op No.3 had filed an application for additional evidence which was allowed and thereafter document Annexure R3 was filed by them, however, no rebuttal has been adduced by the complainant.

6.                     We have heard the learned counsel for the Complainant and gone through the record very carefully.  The learned counsel for the Complainant argued that the Complainant had invested  an amount of Rs.50,000/- in the shape of FDR with the OPs-society and the maturity amount of the FDR was not paid to the Complainant hence, a prayer for acceptance of the complaint against the OPs has been made. In support of his contentions he has placed reliance of similar case recently decided by Hon’ble State Consumer Disputes Redressal Commission, Haryana titled as Shalu Chandna etc. Vs. The Vankhandi Co.OP NATC Society Ltd. and others bearing First Appeal No.216 of 2013 decided on 22.07.2013 wherein it has been  held that OP No.3 Sh. M.L.Sehgal would also be liable jointly and severally alongwith other opposite parties to make the payments under relief granted by the Forum.  OP No.3 M.L.Sehgal (since deceased) had filed a revision petition bearing No.223/2013 against the order dated 22.07.2013 before Hon’ble National Commission but the same was dismissed on 03.11.2014 and it has been held that the main liability lies with the petitioner (M.L.Sehgal since deceased), therefore OP No.3 cannot be absolved from the liability of making the payment to the complainant jointly and severally alongwith other opposite parties.

7.                     On the other hand, the learned counsel for OPs No.1 & 2 argued that the complaint is not maintainable under the Provisions of Haryana Co.Op. Societies Act.  Moreover, the complainant has already received the amount of FDR alongwith interest thereon and prayed for dismissal of the complaint with costs.

8.                     It is an admitted fact on record that the FDR in question was issued by the OP-society.  It is also admitted that name of the society was changed and its certain bye-laws were amended on 25.06.2004 as evident vide Annexure C11.  The OPs No.1 & 2 in their written statement has averred that the Complainant has already received the amount of FDR alongwith interest thereon but no any document in support of aforesaid version has been placed on record by them.  As such, it is not proved on file that the Complainant has received the matured amount of FDR.  Moreover, where a company or a firm invites deposits from the public for the purpose of using money for its business on promise or giving attractive rate of interest with security of investment and prompt repayment of the principal after the stipulate terms, the transaction of such nature would clearly make the depositor a consumer under the Consumer Protection Act. As such, non-payment of maturity value of the FDR in question itself is a grave deficiency in service on the part of OPs. 

9.                     Further the contention of OP No.3-M.L.Sehgal (since deceased) who had filed reply to the complaint when he was alive, that he is not liable to make the payment of FDR alongwith other OPs is not tenable since no any document has been placed on the file by OP No.3 wherefrom it is proved that the resignation of OP No.3 was accepted by the Managing Committee of the Society. The document Annexure R-3 photocopies of OP-society register reveals that the OP No.3 has made application for his resignation from the society but the said request of resignation was not accepted by the Managing Committee of the Society.  Mere accepting of resignation of OP No.3 by the Assistant Registrar, Co.OP.Societies, Ambala is not recognized  under the provisions of Cooperative Act unless the same is not accepted by Managing Committee of the society. Moreover, from the perusal of documents Annexure C-5 & C-6 (Audit report dated 31.03.2007, Information supplied by Assistant Registrar, Co.Op. Societies, Ambala under RTI Act, letter No.3085 dated 17.12.2009 & letter No.3222 dated 31.12.2009 respectively), it is proved that OP No.3 i.e. M.L. Sehgal, was Vice President of the society on 31.12.2009.   It is also evident from the Annexure C-9 & C-10 (photocopy of cheques dated 13.06.2007 and 13.07.2007 which have been issued by Sh. M.L.Sehgal, to one Ms.Poonam Mittal, in the capacity of authorized signatory of the society) that Sh. M.L. Sehgal OP No.3 was not only actively participating in the day to day functioning of the society but has also been signing important financial documents in the nature of issuing cheques. 

10.                   During the pendency of this complaint OP No.3 (M.L.Sehgal) died on 12.05.2015 and thereafter learned counsel for the complainant moved an application for impleading his LRs on the case file vide application dated 29.02.2016. Said application was allowed by this Forum vide order dated 29.02.2016, therefore, LRs of M.L.Sehgal (since deceased) were impleaded as OP No.3 (i) to (iii). On notice OP No.3 (i) & (ii) appeared whereas OP no.3 (iii) was proceeded against exparte vide order dated 06.02.2017.

11.                   On dated 27.04.2017 OP No.3 (i) & (ii) moved an application for deleting their names which was duly replied by complainant. Vide order dated 22.05.2017 this Forum had opined that the application would be decided at the time of final decision of the case.

12.                   Now, the question arises before this Forum is that whether LRs of M.L.Sehgal-OP No.3 (since deceased) are liable to pay the FDR amount alongwith the other OPs or not. Learned counsel for the OP Nos. 3 (i) & (ii) has argued that cause of action ceased to exist with the death of M.L.Sehgal (since deceased) and further the complaint was filed against M.L.Sehgal (since deceased) being a representative/officer of a cooperative society and with his death the cause of action had ceased to exist because nobody can inherit his said official capacity as a representative/agent/ officer of the cooperative society. Moreover, the complaint is based on tortuous cause of action, which is wrongful act which law does not permit and as such, such case of action died with the deceased and proceedings and cause of action regarding tort cannot continue after the death and the definition of legal representative elaborately clear that until somebody received or intermeddles with the estate of deceased cannot be impleaded as LR. There is noting on the record to show them as his legal heirs.  It has been further argued that LRs are not members of the society and even they have not inherited anything from the society in any manner.  Further, the counsel argued that as per Annexure R1 and Annexure R2, Parmod Singh Rana, was the President of the society and Vanita Sehgal wife of M.L.Sehgal have been acquitted by the Judicial Magistrate Ist Class, Ambala in FIR No.92 dated 11.06.2009 u/s 420, 120-B & 201 IPC vide judgment dated 31.01.2017 and the criminal court has already hold that no offence of cheating has been made out against Parmod Singh Rana and Vanita Sehgal, therefore, the LRs of OP No.3 M.L.Sehgal are not liable for any wrongful act on the part of M.L.Sehgal (since deceased). Further, argued that in the law of Tort when any person did any wrongful act for his personal gain then after his death his LRs cannot be held liable. In support of his contentions he placed reliance of case laws titled as Karamjit Kaur & Anr. Vs. Gurbant Singh & Ors. 2003 (3) Civil Court Cases 88 (P&H), Mehant Pawan Kumar Dass Vs. Parkash Dass  2002 (2) RCR (Civil) 210 (P&H), Baikunt nath Das (Dead) by LRs Vs. VII Additional District Judge, Gorakhpur AIR 2004 Allahabad 382 and Rekha Rani Vs. Ranjana Bhardwaj and another  2004 (2) CLT (NC).  

                        On the other hand, learned counsel for the complainant has rebutted the arguments that M.L.Sehgal (since deceased) had filed written statement in this case and his LRs are stepped into his shoes and they are barred from taking any new defence under the law. It has been further argued that deceased M.L.Sehgal was employee of State Bank of India and after his death his LRs have received the death emoluments from the bank and are still receiving the pension after his death being his legal representatives besides succeeding the properties moveable and immovable of deceased M.L.Sehgal during his lifetime and thereafter. In support of his contentions learned counsel for the complainant has also relied upon case laws titled as Chetan Singh now deceased through LRs Vs. Nirmal Singh and others 2017 (1) RCR (Civil) 750 (P&H), Basudev Yadav Vs. State Bank of India through Chairman, 2017 AIR (Jharkhand) 95, Gurmail Singh Vs. The Registrar, Co-operative Societies 2015 (3) PLR 402 (P&H) and Kamal Gupta etc. Vs. Bank of India and Anr. 2009 (1) ISJ (Banking) 333 (Delhi).

13.                               From the perusal of file, it is evident that the complainant had deposited the amount and FDR was issued on 23.11.2008 by the opposite parties which was to be matured on 23.11.2009. It is also clear that the opposite parties did not pay any amount to the complainant which tantamount to deficiency in service on the part of opposite parties. It is a settled law that on the death of tort feaser during the pendency of his appeal, his legal heirs are liable to discharge legal liability. In the present case OP No.3  M.L.Sehgal (since deceased) has died during the pendency of the complaint and even otherwise when Op No.3 alongwith other OPs being members of the society had received the amount from the consumers, therefore, it can be easily held that the members have legal liability qua the deposited amount towards the consumers. However, in Annexure R1 i.e. judgment of criminal court (titled as State Vs. Parmod Singh Rana etc. bearing No.123/20.10.2014 under Section 420, 120B& 201 IPC decided on 31.01.2017) it has been held that the matter in dispute was of civil nature and not of the criminal nature.  If the action of bearers of the society including M.L.Sehgal (since deceased proceedings against whom were dropped by said court on 17.07.2015 being dead while deciding the criminal case vide judgment dated 31.01.2017), was treated as wrongful then criminal court would not have discharged the accused/OP No.2 (Parmod Rana, President of the society) and the wife of M.L.Sehgal (since deceased). The contention of LRs of deceased M.L.Sehgal that they are not the member/agent/officer of the society, therefore, they are not liable to pay anything to the complainant has no substance because they are entitled to inherit the property left by M.L.Sehgal (since deceased), so his LRs are liable to the extent property inherited from deceased although they might not be personally liable. Hence, the application for deleting the names of LRs of deceased M.L.Sehgal as well as for dismissal of the complaint stands rejected.

14.                               In view of the above discussed facts, we allow the present complaint with costs and all the opposite parties are held liable jointly and severally to comply with the following directions within a period of thirty days from the receipt of this order. However LRs of OP No.3 are not personally liable but they are liable to discharge the liability to the extent of estate of M.L.Sehgal inherited by them. The order to be complied with by the Ops are as under:-

1. To pay the amount of FDR No.10796 amounting to Rs.63,000/- to the Complainant alongwith simple interest @ 12.5% per annum from the date of deposit till the date of maturity i.e. (w.e.f. 23.11.2008 to 23.11.2009) and thereafter on the matured amount, pay simple interest @ 9% Per Annum w.e.f. 24.11.2009 to till its actual realization.
2. To pay Rs.5,000/- as cost of litigation.

 

                        So, the complaint is allowed in above terms. Copies of this order be sent to the parties free of costs. File be consigned to the record room. 

 

Announced in open court: 31.07.2017

                                                         

                                                                   (D.N.Arora)                                                                                                          President                                 (Anamika Gupta) (Pushpender Kumar)   Distt.Consumer Disputes                    Member                   Member                   Redressal Forum, Ambala.