JUDGMENT Per Justice Sham Sunder , President Originally, Anil Pahwa filed the Revision Petition against the impugned order. Since, only an appeal under Section-27-A was maintainable, against the order impugned passed U/S 27 of the Consumer Protection Act,1986(hereinafter to be called as the Act only), the Revision Petition was treated as an appeal, vide separate order of the even date. 2. This appeal is directed against the order dated 5.7.2010, passed by the District Consumer Disputes Redressal Forum-I, U.T.Chandigarh (hereinafter to be referred as the District Forum only), U/S 27 of the Act vide which it sentenced Amarjit Singh and Anil Pahwa(OP Nos.1 & 2 in the original complaint) to undergo imprisonment for two years and to pay a fine of Rs.10,000/- each, and in default of payment of fine, to undergo further imprisonment for a period of six month each, and at the same time, ordered the issuance of warrants of arrest against them. 3. Complaint No.821 of 2009, was filed by the complainant Virain Sandhu, against the OPs, stating therein, that she was approached by Amarjeet Singh OP-1/respondent No.2 to invest some money with OP-3 Society and assured to give interest @ 16% per annum. She invested an amount of Rs.6,14,000/-, in the form of Fixed Deposit Receipt, and the same was renewed from time to time. The interest continued to be received by the complainant, till 16.4.2006. Thereafter, she(complainant) requested the OPs to pay her the principal amount, alongwith interest. OPs No.1 & 2 assured the complainant regarding the payment of amount, but it was not paid. Subsequently, from newspapers, the complainant came to know about the complaints lodged against the OPs, with regard to the embezzlement, committed by them. She also came to know that the Inspector Cooperative Societies was appointed, as Administrator for liquidating the assets of the Society, recovering the money from the defaulters and finally disbursing the same to the depositors. The complainant again approached OPs No.1 & 2 for refund of the amount, but to no avail. 4. The complaint filed by the complainant was accepted by the District Forum vide order dated 11.12.2009, in the following manner ; “In view of the above discussion, we are of the opinion that the present complaint must succeed. The same is accordingly allowed. The OPs are directed to pay jointly & severally the amount of Rs.6,14,000/- along with interest at the agreed rate of 16% per annum since 16.4.2005 till the amount is paid to the complainant. The OPs shall also pay to the complainant Rs.5000/- towards cost of litigation. It is however, made clear that initially OP No.3 shall make the payment to the complainant within 3 months from today and if the full amount is not paid or no amount is paid by OP No.3, then the remaining amount or entire amount, as the case may be, would be paid jointly and severally to the complainant by Opposite Parties No.1 & 2.” 5. The OPs did not comply with the order dated 11.12.2009. An execution application under Section 27 of the Act was filed, by the complainant, to punish the OPs, for not complying with the aforesaid order. 5. A show cause notice to OP Nos. 1 & 2 was issued, as a result whereof, they put in appearance on 14.5.2010, and sought time to make the payment. They failed to show cause, as to why, they should not be tried in a summary manner, and be punished for non-compliance of the order dated 11.12.2009. Despite giving a number of opportunities to OP Nos.1 & 2 to comply with the order, they failed to do so. Ultimately, the order impugned, in the manner, referred to, in the opening para of the judgment, was passed. 6. Feeling aggrieved, the instant appeal was filed by Anil Pahwa, appellant/OP No.2. 7. We have heard the Counsel for the parties, and have gone through the record of the case, carefully. 8. No doubt, a number of grounds, were mentioned, in the revision petition(now treated as appeal), yet, at the time of arguments, the only argument advanced by the Counsel for the appellant, was that since the Society OP NO.3 with which the amount was deposited, had been superseded, and a liquidator had already been appointed, no execution application, was maintainable against Anil Pahwa, appellant, in his individual capacity, for the recovery of the amount. He further submitted that the complainant/respondent, could move an application, before the liquidator, as a creditor, for the payment of the amount. He further submitted that even the liquidator has been making the payments, in installments, to the creditors of the Society. He also placed reliance on National Public Cooperative Non-Agriculture Thrift & Credit Society Ltd Vs Suman Munjal & Ors, Revision Petition No.1161 of 2010 decided on 19.1.2011 by the Hon’ble National Commission, in support of his contention. He further submitted that the order impugned, passed by the District Forum, being illegal, is liable to be set aside. 9. On the other hand, the Counsel for respondent No.1, submitted that the appellant was also liable, in his individual capacity, to pay the amount, as held by the District Forum, vide order dated 11.12.2009, as he committed the acts of misfeasance, malfeasance, as also embezzled the amount of the Society. He further submitted that, performance of such acts, had not been authorized, by the Society. He further submitted that the order impugned was not passed, against respondent NO.3 Society, by the District Forum. He further submitted that had the impugned order been passed against the Society, help could be drawn, by the Counsel for the appellant, from the decision, in the revision petition, referred to above. He further submitted that the order impugned being legal and valid, is liable to be upheld. 10. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. The procedure adopted by the District Forum, in passing the order dated 5.7.2010, which is impugned, has not been challenged by the Counsel for the appellant. It is evident from para-3 of the order impugned that the OPs, through their Counsel, appeared on 14.5.2010, in pursuance of the show cause notice, and sought time to make the payment. They, however, failed to show cause, as to why, they be not tried in a summary manner, and be punished for non-compliance of the order dated 11.12.2009. Thereafter, the case was adjourned to 21.5.2010, for making payment, but the same was not made. Thereafter, the case was adjourned to 18.6.2010 but no payment was made even on that date. Sh.Baldev Singh, liquidator, appeared on 18.6.2010, and the case was adjourned to 2.7.2010, on which date the payment was not made by the appellant. The case was then adjourned to 5.7.2010, for making payment, and it was held by the District Forum, that since neither payment had been made, nor any stay had been granted by any Higher Forum, nor any sufficient cause had been shown, as to why the order had not been complied with, the OP/appellant was liable to be punished. The OP/appellant intentionally and willfully failed to comply with the order dated 11.12.2009. It was, in these circumstances, that the order impugned was passed by the District Forum. This clearly goes to show that the appropriate procedure, was adopted by the District Forum, while passing the impugned order, by resorting to the principles of natural justice. The order, therefore, cannot be said to be in any way, illegal. 11. Para-18 of the order dated 11.12.2009, passed in the complaint, by the District Forum reads as under ; “The learned Counsel for the complainant has also referred to the letter Annexure C-6 written by the Joint Registrar, Cooperative Societies, Patiala Division, Patiala to the Chief General Manager, State Bank of India in which OPs No.1 & 2 were working. It was pointed out that there were two societies floated by these persons, who, in connivance with other committee members committed serious irregularities of advancing wrong & fictitious loans, to a number of individuals, due to which FIR has been lodged against them and their properties have been attached under the appropriate provisions under the Punjab Cooperative Societies Act, 1961. It shows the manner in which the amount collected by the OPs No.1 & 2 was being squandered by them to benefit their near and dears.” 12. It is evident, from the aforesaid para of the order dated 11.12.2009,of the District Forum, that the appellant alongwith other members of the Societies committed serious irregularities of advancing wrong and fictitious loans to a number of individuals, due to which, an FIR was lodged against them, and their properties had been attached under the appropriate provisions of the Punjab Cooperative Societies Act,1961. This clearly showed that the appellant alongwith other members of the society committed acts of misfeasance, malfeasance and embezzled the amount of the Society. The performance of such acts by them, was not at all authorized, by the Society. It was, under these circumstances, that the District Forum, came to the conclusion, vide order dated 11.12.2009, that the appellant, alongwith Amarjeet Singh, respondent NO.2, were jointly and severally liable to pay the amount, to the complainant/ respondent No.1, in case respondent NO.3 Society failed to make payment, within three months. The appeal filed by the appellant, against the order dated 11.12.2009, has already been dismissed. Admittedly, the amount has not yet been paid to the complainant, either by the Society, or by the appellant. Under these circumstances, the District Forum was right, in holding the appellant and Amarjit Singh jointly and severally liable, in their individual capacity, to pay the amount, to the complainant. The order impugned, was passed against the appellant/OP No.2. It was not that the order impugned dated 5.7.2010 was passed against the Society OP NO.3. In National Public Cooperative Non-Agriculture Thrift & Credit Society Ltd Vs Suman Munjal & Ors,’s case (supra), the Society was under liquidation, and a liquidator had been appointed, which opposed the continuation of execution proceedings, against it. In these circumstances, the Hon’ble National Commission held that since the Society was already under liquidation, and a liquidator had been appointed, the execution proceedings against it (Society), were not maintainable. The Hon’ble National Commission did not hold, in the aforesaid case, that any office bearer of the Society, who had committed acts of misfeasance, malfeasance and embezzled the amount, which were not authorized by the Society, could neither be held liable, in his personal capacity, nor an execution application was maintainable against him, due to the appointment of a liquidator. In case, the impugned order had been passed against the society, certainly it could take an objection that no execution was maintainable against it, as the liquidator had already been appointed. The facts of National Public Cooperative Non-Agriculture Thrift & Credit Society Ltd’s case (supra) being distinguishable, from the facts of the instant case, no help can be drawn, from the ratio of law, laid down therein, by the Counsel for the appellant. The submission of the Counsel for the appellant, in this regard, being devoid of merit, must fail and same is rejected. 13. For the reasons recorded above, the appeal, being without merit, must fail, and the same is dismissed with costs quantified at Rs.5000/-. The order dated 5.7.2010 is upheld. The District Forum is directed to comply with the order dated 5.7.2010 passed by it, and affirmed by this Commission, in accordance with law. 14. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
