BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR
Consumer Complaint No. : 50 of 20.05.2015
Date of decision : 12.08.2016
Baldev Ram, son of Sh. Sheeta Ram, resident of Village Makkowal, Tehsil Chamkaur Sahib, District Rupnagar.
......Complainant
Versus
1. The Dalla Multipurpose Cooperative Agriculture Services Society Limited situated at Village Dalla, P.O. Behrampur Bet, Tehsil Chamkaur Shaib, District Rupnagar through its Secretary.
2. The Dalla Multipurpose Cooperative Agriculture Services Society Limited, situated at Village Dalla, PO Behrampur Bet, Tehsil Chamkaur Sahib, District Rupnagar through its President Swaran Singh
3. Deputy Registrar, Cooperative Society Limited, Office at 2nd Floor, Mini Secretariat Rupnagar.
....Opposite Parties
Complaint under Section 12 of the Consumer Protection Act, 1986
QUORUM
MRS. NEENA SANDHU, PRESIDENT
SMT. SHAVINDER KAUR, MEMBER
ARGUED BY
Sh. K.S. Rana, Advocate, counsel for the complainant
None for O.Ps. No.1 & 3
Sh.K.S. Longia, Advocate, counsel for Opposite Party No.2
ORDER
MRS. NEENA SANDHU, PRESIDENT
Sh. Baldev Ram has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘the O.Ps.’) praying for the following reliefs:-
i) To release the amount of Rs. 8,80,000/- along with interest @ 9% P.A. from the date of deposit till realization,
ii) To pay Rs.1,00,000/- as compensation for harassment caused to him
iii) To pay Rs.15,000/ as litigation costs,
2. In brief, the case of the complainant is that he is having a saving account bearing No.107, LF No.21, with the Dalla Multipurpose Cooperative Agriculture Society Limited, situated at Village Dalla, Tehsil Chamkaur Sahib, District Ropar, which is working under the supervision of the O.P. No.3, who is the final authority to supervise the day to day functioning of the said Society and all the employees & Committee of the said Society also work under the supervision of the O.P. No.3. As on 3.1.2013, he was having an amount of Rs.8,80,000/- in his above said saving account and the said amount is still lying in the said account. He is totally dependent upon the said money deposited by him. For withdrawal of the said amount, he had visited the office of the said Society so many times and had also met its President & Secretary, but they had been putting off the matter on one pretext or the other and had failed to pay the said amount. He had also given a written application to the O.P. No.3 on 15.4.2015 regarding non payment of the above said amount. Even then the amount has not been paid to him. At the time opening of the said account Secretary of the said Society had disclosed to him that the Society would pay interest @ 9% P.A., but till date nothing has been paid to him. For the said act & conduct, all the O.Ps. are liable, as they have committed negligence & deficiency in service, due to which the complainant is under depression and has spent has spent heavy amount for his treatment and has suffered mental agony, physical harassment & financial loss. Hence, this complaint.
3. On being put to notice, the O.Ps. No.1 & 3 appeared through their counsel, who filed written version on behalf of O.Ps. No.1 & 3 taking preliminary objections; that the complaint is not maintainable in the present form against the answering O.P. as complainant is not a consumer of the answering O.P.; that the O.P. No.3 has been wrongly impleaded as party in this case as the O.P. No.3 has only supervisory and administrative control of the society. The society is juristic person and has independent identity. The society is being controlled by the managing committee of the society; that the complaint is bad for non joinder and mis joinder of necessary parties, as Sh. Jaspal Singh, has not been impleaded as party; that the complaint is beyond limitation; that this Forum has no jurisdiction to entertain and try the present complaint, as there is no dispute between the complainant and the O.P. nor there is any deficiency on the part of the O.P. As per the provisions of the Punjab Cooperative Socities Act and rules framed thereunder, in case of any dispute interse between the parties, the same should have been referred to the Arbitrator under Section 55 and 56 of the Punjab Cooperative Societies Act and the rules framed there under: that Sh.Baldev Ram, who is member of the O.P. No.1, society had taken agriculture loan of Rs.2,33,641/-, but he has not paid the same to the society inspite of repeated requests made by the O.P. As such, O.P. No.1 had referred the matter to the Assistant Registrar Cooperative Societies, Rupnagar exercising the powers of Registrar Under section 55 & 56 of the Punjab Cooperative Societies Act and rules framed there under; that while filing the present complaint, the complainant has not disclosed this fact that there is a dispute regarding the outstanding amount, which is to be recovered by the O.P. No.1. The O.P. had advanced the agriculture loan to the complainant on 28.1.2013, but he had not repaid the same; that Sh. Jaspal Singh, who was salesman of the society and had been performing the duty of the Secretary, in connivance with some other officials/officers had committed the embezzlement in the funds of the society to the tune of Rs.1,08,25,923/- and the property of the then committee members and property of Sh. Jaspal Singh has got attached for effecting recovery of the said embezzled amount. The O.P. had tried to fix auction of the attached properties of the members and Sh.Jaspal Singh. Due to embezzlement committed by Sh. Jaspal Singh in the funds of O.P. society, the society had stopped to make the repayment of the loan amount of the members because of crisis. The O.P. society had already started the recovery proceedings for the embezzled amount against Sh. Jaspal Singh and others. In fact, the complainant had alleged that he had made the payment to Sh.Jaspal Singh, who without depositing the said amount with the society had wrongly made the entry in the record of the society, as such, Sh. Jaspal Singh, had committed embezzlement in the funds of the society. Absolutely, there is no resolution passed by the society to receive the disputed amount from the complainant as Amant. The O.P. No.1 society is a body cooperate registered under the Punjab Cooperative Societies Act and rules framed there under and the Secretary or any individual persons has no independent identity to Act as society. As per provisions of the Punjab Cooperative Societies Act and rules framed there under, the society is a body corporate and as such, the society has become statutory juristic and Sh. Jaspal Singh has no independent authority to recover the Amant from any person in his individual capacity. It is an intricate question of law and it is to be tried by the Civil Court, as Sh. Jaspal Singh, Secretary of the society was never authorized by the society to receive an amount of Rs.8,80,000/- as Amant from the complainant. So being intricate question of law, the same could not be decided by this Forum and it should have been decided by the civil court, as matter in dispute cannot be decided in summary proceedings; that the complainant has not come to this Forum with clean hands; that the complainant has suppressed the material facts from this Forum. On merits, it is stated that the complainant is having an account bearing No.107 with the O.P. No.1, society. The O.P. No.1 society is working under the supervision of O.P. No.3, which is not a final authority to supervise the day to day function of the society or its employee. The employees of the societies are not directly working under the control of O.P. No.3. The O.P No.1, society is body corporate and is juristic person, the O.P. No.3, Deputy Registrar, Cooperative Societies, Rupnagar, is not directly involved in the functioning of the society. It is important to mention here that functioning of the society is to be carried out as per the Punjab Cooperative Societies Act and rules framed there under. In case of any dispute between the members and society the said dispute should have been referred to the Arbitrator by the Registrar exercising the powers under the Punjab Cooperative Societies Act. It is further stated that in fact, Sh. Jaspal Singh, who was performing duty as Secretary of the society had committed embezzlement in the funds of the society, who has tempered with the record of the society and committed the embezzlement more than of Rs. One Crore in the funds of the society, for which the society had already started the recovery proceeding to recover the embezzled amount from the said Jaspal Singh. The O.P. has no concern with the domestic needs of the complainant. In fact, the complainant himself is defaulter of the society, who refused to repay and the loan amount is still standing against him in the audit report for the year 2013-14. Inspite of the repeated requests, he has not deposited the loan amount. The complainant had paid Rs.8,80,000/- to Sh. Jaspal Singh, which has not been deposited by said Jaspal Singh in the accounts of the society and he has got embezzled this amount alleged to have been paid by the complainant to Jaspal Singh. The complainant had never visited the office of the society opposite party for affecting the recovery, as he is a defaulter of the society. The complainant has given false application to the Deputy Registrar, Cooperative Societies, Rupnagar and the Deputy Registrar had sent the said complaint to the Inspector Incharge for conducting inquiry. Inspector Incharge was told by the society that the complainant is the defaulter and he never met the President and Secretary of the society. The complainant is not entitled to any interest on the alleged amount from the society. There is no negligence, failure and deficiency in services on the part of the answering O.Ps. as alleged. Therefore, the complaint be dismissed against the answering O.Ps. being devoid of merits. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal of the same with cost.
4. The learned counsel for the O.P. No.2 has filed written version in the shape of affidavit of Sh. Swaran Singh, Ex. President of the Society taking preliminary objections; that the complaint is not maintainable in the present form as earlier answering O.P. was the President of the Dalla Multipurpose Cooperative Agriculture Service Society Limited and Jaspal Singh was the Secretary of the said society, who mis appropriated the Society funds to the tune of Rs.1,08,25,693/- and due to embezzlement, society suffered a great loss. The answering O.P. has no personal liability being the President. The affairs of the society were looked after by the answering O.P. Even the answering O.P along with all committee Members has resigned from the society and resignations have been accepted vide order dated 27.4.2015 by Assistant Registrar, Cooperative Societies, Rupnagar and Sh. Raj Pal, Inspector, Cooperative Society Kanjhla, has been appointed as Administrative for the management of the affairs of the society. On merits, it is reiterated the averments made in the preliminary objections and rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal thereof, with costs.
5. The learned counsel for the complainant has also filed rejoinder to the written version filed by the O.Ps. No.1 & 3, stating therein that complaint is maintainable under section 12 of the Consumer Protection Act, 1986. The O.P. No.3 is equally liable along with the other O.Ps. and the O.P. No.3 has a supervisory and administrative control of the societies and he is equally liable for any negligence on the part of the other O.Ps. The complaint has made all
the necessary parties in the present complaint. The complaint is within limitation. The false and fabricated facts have been mentioned in preliminary objections and this Forum has jurisdiction to entertain, try the present complaint and detail regarding the deficiency on the part of the O.Ps. No.1 & 3 have already described in the complaint and it is specifically denied that complainant Baldev Ram has taken agriculture loan of Rs.2,33,641/- as falsely alleged by the said O.Ps. The complainant has never taken any penny as loan from the society and it has manipulated the record, in order to debar the right of the complainant. The society has made a false and fabricated documents against the complainant in order to cheat the complainant for which the complainant has separate right to file a complaint before the police and the Court as per the rule of law. From the documents, it is clear that the complainant is a consumer qua the O.Ps. and he has right to file a complaint for the deficiency in service committed by the O.Ps. before the Consumer Forum. It is further stated that the embezzlement took place in society with connivance of the all O.Ps. and Jaspal Singh, in order to safe guard their personal interest. All the O.Ps. have made false story of taking of loans by the complainant. The para relating to the attachment of the property of the members is not in the knowledge of the complainant. The complainant has made the payment to the society and deposited the same in the saving account and has not made any payment to any persons in his personal capacity. The complainant has putforth true and fair facts before this Forum and he is entitled to get relief from this Forum. It is, prayed that the complaint of the complainant be accepted in the interest of justice.
6. On being called upon to do so, the complainant tendered affidavit of the complainant, Ex. CW1/A, photocopies of documents Copy of Passbook issued by Dalla Multipurpose Cooperative Agriculture Services Society Limited Ex.C1 and application moved to Deputy Registrar, Rupnagar, Ex.C2. The O.P. No.1 tendered his affidavit Ex.OP1/A and closed the evidence. The learned counsel for the O.Ps. No.1 & 3 has suffered a statement, which has been recorded separately, to the effect that he does not want to tender any documents in evidence and closed the evidence on behalf of O.P. No.3. The learned counsel for the O.P. No.2 tendered affidavit of Sh. Swaran Singh, Ex President of the Society Ex.OP2/A and copy of document Loan account of Sh. Baldev Ram, Ex.OP2/2, attested order dated 1.12.2015 Ex.OP2/3 and closed the evidence.
7. We have heard the learned counsel for the complainant and O.P. No.2 and gone through the record of the file carefully.
8. The stand of the O.Ps. No.1 & 3 is that the present complaint is bad for non joinder and mis joinder of necessary parties as Sh. Jaspal Singh, who was the then Secretary of the said society has not been impleaded as party in the arrays of O.Ps by the complainant. The learned counsel for the complainant submitted that complainant had deposited the amount in his saving account with the society and not with Sh. Jaspal Singh. The said society has not allowed him to withdraw the amount lying in his saving account. Therefore, for redressal of his grievance the complainant has rightly filed the complaint against the society, which has been sued through its Secretary/President.
Therefore, the stand taken by the O.Ps. No.1 & 3 may not be considered.
From the copy of saving account passbook Ex.C1, it is clear that complainant has a saving account with the society and a sum of Rs.8,80,000/- is lying deposited in the said account since 3.1.2013. Since, the complainant has deposited the amount with the said society and for redressal of his grievance he has rightly filed the complaint against the said society. Therefore, the stand taken by the O.Ps. No.3 that the Jaspal Singh, the then Secretary of the society was necessary party to be impleaded as O.P. is baseless.
Another stand taken by the O.Ps. No.1 &3 is that the Deputy Registrar, who has been impleaded as the O.P. No. 3 in the array of the O.Ps. is not liable for any default committed by any member of the Society, because the Deputy Registrar exercises the supervisory jurisdiction over all the societies in the District and discharges quasi judicial functions and has administrative control over the Society. Even the Hon’ble National Commission in the case of ‘Registrar Co-operative Societies and another vs. Tamil Nadu Consumer Protection Council’ 2007 (1) CPC 698, has categorically held that the Registrar is discharging his statutory duty, which may be either administrative, supervisory or quasi judicial. The special officer is appointed for administration of the society because of supersession and for the past deeds of the society, he cannot be held liable. Therefore, Deputy Registrar would not be personally liable for the acts or mis-deeds of the cooperative Societies or holders of office of Cooperative Society. Hence, the findings recorded by the State Commission that the Registrar and the Special Officer are personally liable for the refund of the deposits to the complainant cannot be justified. In the present case, also there is no question of hiring or availing of service or facility of the Deputy Registrar and the complaint filed against the Deputy Registrar is liable to be dismissed.
The learned counsel for the complainant argued that the complainant had filed an application dated 15.04.2015, Ex.C2, before the O.P. No.3 for redressal of their grievance, but nothing was been done by it. Hence, it is deficient in providing services and the complaint is maintainable qua it.
It may be stated if no action has been taken on the application filed by the complainant, then he could have approached the higher authority for redressal of his grievance. In view of the law laid down by the Hon’ble National Commission in the case of ‘Registrar Co-operative Societies and another vs. Tamil Nadu Consumer Protection Council’ (supra), The complaint filed against the Deputy Registrar i.e. O.P. No.3 is liable to be dismissed.
The learned counsel for the OP No.2 has raised objection that the President of the O.P. society cannot be held liable in the individual capacity because the complainant had deposited the amount in the joint saving account with the Society and the amount was to be released by the said Society only. In rebuttal, the learned counsel for the complainant submitted that the complainant has not sued the President in his personal capacity; rather the Society has been sued through them because the Society being a juristic person can only be sued by its representatives i.e. President/Secretary.
From the array of the O.Ps. as mentioned in the complaint, it is evident that the complainant has filed the instant complaint against the Dalla Multipurpose Co-op. Agri. Service Society Ltd., through its Secretary & President i.e. O.Ps. No. 1 & 2, thus, it cannot be said that the President and the Secretary have been sued in their individual capacity. Since the President & Secretary are nominated out of the members of the Society and the Society, being a juristic person, can only be sued by its representatives i.e. President/Secretary, thus, this objection raised by the learned counsel for the O.P. No.2 is found to be misconceived.
9. From the perusal of copy of saving account passbook, Ex.C1, it is evident that the complainant is having saving account bearing No.107 of LF No.153 with the Dalla Multipurpose Agriculture Cooperative Service Society Limited and a sum of Rs. 8,80,000/- is lying deposited in the said account since 3.1.2013. The O.Ps. alleged that the complainant had taken a agriculture loan for a sum of Rs. 2,33,641/- on 28.01.2013, to corroborate this fact, they have placed on record the copy of statement of account, Ex.OP2/2. Whereas, the stand of the complainant is that the O.Ps. have wrongly alleged that he had taken agriculture loan. No document in the shape of photocopy of cheques vide which the O.Ps. disbursed the loan amount to him, copy of passbook of loan account, copy of loan agreement or guarantee to repay the loan amount, has been placed on record except a copy of statement of account. Merely on the basis of said statement of account, which is prepared by the society itself only. It cannot be said that he had taken the agriculture loan. The O.Ps. have concocted the said story just to avoid to release the amount to the complainant. It may be stated that in order to prove aforesaid fact, no other document has been placed on record except the copy of statement of account. We have perused the copy of statement of account and found that the said statement of account is neither signed nor stamped and as such, no reliance can be placed on the said document. Thus, in the absence of any cogent and convincing evidence, the O.Ps. have failed to prove that complainant had taken agriculture loan from the said society. The complainant is thus, entitled to withdraw Rs.8,80,000/- lying in his saving account and the O.P society by not allowing him to withdraw the said amount have committed deficiency in service, therefore, complainant is entitled to get the said amount along with interest. Due to the said act of the society, complainant has suffered mental agony, physical harassment and financial loss, hence, he is also entitled to get compensation along with litigation expenses, which is prepared by the O.Ps. themselves.
10. In view of the aforesaid discussion, we dismiss the complaint against the O.P. No.3 and allow the same against Dalla Multipurpose Agriculture Cooperative Society Limited and the O.Ps. No.1 & 2 are directed, in the following manner:-
i. To release the amount of Rs.8,80,000/- to the complainant along with interest as applicable during the relevant period on the saving bank account from the respective dates of deposit till its realization.
ii. To pay Rs.10,000/- as compensation
iii. To pay Rs.5000/- as litigation costs.
The O.Ps. No.1 & 2 are further directed to comply with the order within 30 days from the date of receipt of the certified copy of this order.
11. The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file indexed & consigned to the Record Room.
ANNOUNCED (NEENA SANDHU)
Dated .12.08.2016 PRESIDENT
(SHAVINDER KAUR)
MEMBER.
