State Consumer Disputes Redressal Commission
. Manager-Cum-Secretary, Shyam Sundar ... vs . Sudam Rout, Son Of Maguni Rout, ... on 29 April, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK STATE CONSUMER DISPUTES REDRESSAL COMMISSION: ORISSA: CUTTACK C.D. APPEAL NO.95 OF 2005 From an order dated 16.12.2004 passed by the District Consumer Disputes Redressal Forum, Kendrapara, in C.D. Case No.83 of 2004. 1. Manager-cum-Secretary, Shyam Sundar Mini Bank, At-Shyamsundarpur, P.O. Dosia, P.S. Pattamundai, Dist. Kendrapara 2. Branch Manager, Cuttack Central Cooperative Bank Ltd., At/P.O. Pattamundai, Dist. Kendrapara 3. Area Officer-cum-Branch Manager, Cuttack Central Cooperative Bank L.T.D., At/P.O./Dist. Kendrapara 4. Secretary, Cuttack Central Cooperative Bank Ltd., Nimchouri, P.O. Chandinichouk, Dist. Cuttack (O.Ps.1 to 4 in the complt. Petn.) Appellants -Versus- 1. Sudam Rout, son of Maguni Rout, At-Anandapur, P.O. Dosia, P.S. Pattamundai, Dist. Kendrapara (Complainant before the D.F.) Respondent 2. Assistant Registrar, Cooperative Societies, At/P.O./ Dist. Kendrapara (O.P. 5 in the complt. Petn.) Proforma Respondent For the Appellants : Mr. G. Dash For the Respondent : N o n e P R E S E N T : THE HONBLE SHRI JUSTICE A.K. SAMANTARAY, PRESIDENT A N D SHRIMATI SMARITA MOHANTY, MEMBER
O R D E R DATE:- The April, 2010.
Justice A.K. Samantaray, President.
By means of this appeal of the year 2005, the judgment and order dated 16.12.2004 passed in C.D. Case No.83 of 2004 by the District Forum, Kendrapara, has been assailed.
2. We have heard learned counsel for the appellants. None appeared for the respondent during the hearing of the appeal. No mention was also made on behalf of the learned counsel for the respondent for any adjournment. Since this is an appeal of the year 2005, we have heard the matter in full with the assistance of the learned counsel for the appellants and have gone through the L.C.R.
3. The complaint was filed by the complainant-respondent Sudam Rout with the allegation that he had opened an S.B. Account under opposite party no.1-Mini Bank on 04.11.1997 and was allotted account number 230. In the said account, the complainant had deposited Rs.1,00,000/- on 30.06.2000 for the purpose of purchasing a power tiller. In May, 2001, the complainant and other depositors of the said Mini Bank were denied payment by opposite party no.1. As a large number of depositors money was misappropriated, grievance was placed before the higher authorities (the other opposite parties-appellants). Since there was no positive response from the authorities, a Dharana was staged in front of the branch of opposite party no.1 where opposite party no.4, i.e., the Secretary of the Cuttack Central Cooperative Bank Ltd., appeared and committed to the depositors to appoint a special auditor to audit the accounts involved/alleged to have been misappropriated by opposite party no.1. That apart, a vigilance case was also instituted bearing Case No.36 of 2001. The audit report revealed that the complainant had deposited Rs.1,00,000/-, which accrued interest of Rs.3,760/- up to 31.03.2001. The audit report further revealed that the deposited amount of the complainant, i.e., Rs.1,00,000/- was not posted in the ledger or day book towards receipt of the deposit. As there were two pass books in connection with the complainants savings bank account, the auditor recommended the case of the complainant for a further high level administrative enquiry. In spite of submission of audit report and assurance from the opposite parties on different occasions, payment of the complainants deposited amount was withheld. According to the complainant, cause of action for the consumer dispute arose on 14.02.2004 when opposite party no.1 flatly refused to pay his deposited amount. For that, the complainant filed the consumer complaint before the District Forum seeking a direction to the opposite parties to pay Rs.2,90,760/- including his deposited amount with interest and compensation for both financial loss and mental agony.
4. Opposite parties 1 to 4 (appellants 1 to 4 herein) appeared on notice and filed joint written version admitting the fact of opening of an S.B. account by the complainant on 04.11.1997 by depositing a sum of Rs.500/- and allotment of account number SB-230 at the time of opening of the account. It is their case in the written version that at the time of opening of the account by the complainant, one Partha Sarathi Das was acting as the Manager-cum-Secretary of the Mini Bank and all the banking transactions including maintenance of ledger, day book, signature in the counterfoil, etc., were being done by the said Partha Sarathi Das. It is stated in the written version that the day to day banking transactions were operated by the guidelines/instructions of the Reserve Bank of India.
There are certain stringent rules and guiding principles in the matter of issuance of duplicate/second pass book. The original pass book issued to the complainant on 04.11.1997 was tallied with the concerned account ledger/day book of the Bank and the said transactions did not reflect the alleged deposit of Rs.1,00,000/- by the complainant on 30.06.2000. It is also stated in the written version that the complainant never produced the original pass book before the vigilance authorities during enquiry, nor did he give any explanation in that regard in the complaint petition. As per the opinion of the audit report regarding submission of two S.B. pass books by the complainant, and when the complainant failed to explain under what circumstance he filed a second pass book, the administrative panel enquiry arrived at a conclusion that the complainant was not eligible to get back the alleged deposited amount reflected in the second pass book. It was further averred in the written version that if at all there was any misconduct or deficiency, the same has been committed by the then Secretary Partha Sarathi Das in his personal capacity and the other opposite parties could not be held liable for the illegal acts of the then Secretary of the Mini Bank. Opposite parties 1 to 4 have taken all precautions and remedial measures available to bring the culprit to book and as such they cannot be held liable for deficiency in service. The complaint, according to them, should be dismissed.
5. Opposite party no.5, the Assistant Registrar, Cooperative Societies, on notice filed written version disclosing the fact that after receipt of the letter from one Maguni Charan Rout and others regarding misappropriation of their deposited amounts, prompt action was taken at their end and the Branch Manager, Credit Cooperative Society was asked for making arrangement of payment of the respective depositors, if any. On suggestion of the special audit report, a committee was constituted to enquire into the matter. On the date of the joint enquiry, the complainant was present and he produced to S.B. pass books. His say is that in view of the recital in the written version of the other opposite parties, he has no liability in the matter relating to deficiency in service, and that the complainant is not entitled to get the claimed amount.
6. After hearing learned counsel for the parties, the District Forum by the impugned judgment and order has allowed the complaint and directed the opposite parties to pay Rs.1,00,000/- along with permissible savings bank interest calculating it from 30.06.1997 to 16.12.2004 when the complainant submitted the necessary withdrawal application before opposite party no.1-Mini Bank. The District Forum has also awarded compensation of Rs.10,000/- and litigation cost of Rs.1,000/- as against the opposite parties. The amounts have been directed to be paid within one month, failing which they would carry interest at the rate of 9% per annum.
7. Learned counsel for the appellants brings to our notice the second paragraph at page 7 of the impugned judgment, where it is stated by the learned District Forum that several decisions, both of the State Commission as well as of the Honble National Commission, were filed wherein it has been held that where there are disputed and controversial facts gathered after reading the plaint and the written version, such disputes cannot be effectively adjudicated by the consumer fora. After reading the said paragraph of the impugned judgment, we find that the submission put forth by the learned counsel for the opposite parties before the District Forum was that there were allegation of misappropriation or fraud and elaborate evidence was necessary for adjudication of the dispute by the Forum. In that regard, several decisions were cited. But the District Forum did not take them into consideration as those decisions, according to the Forum, were not befitting.
8. Before us it was argued by the learned counsel for the appellants that admittedly there is a vigilance case pending investigation and there are certain suspicious circumstances, which have also been reflected in the body of the impugned judgment, such as, possession of two pass books for the self-same account by the complainant, allegation of misappropriation of fund by someone in the past, holding of repeated audits, finding of the joint enquiry committee that the complainant is not entitled to the alleged amount of Rs.1,00,000/-, etc. These are circumstances which go to show that the dispute is not a simple one and there are controversial questions of fact involved in the dispute. Adjudication of such dispute requires exhaustive probe through examination and cross-examination of witnesses, which is not possible in the consumer fora.
9. After going through the L.C.R. including the impugned judgment, we agree with the contentions raised by learned counsel for the appellants, and we feel that this is not the appropriate forum where dispute involving such controversial questions of fact can be adjudicated. In our considered opinion, the learned District Forum has actually erred in entering into the controversy and arriving at a decision. We, therefore, allow the appeal, set aside the impugned judgment and order dated 16.12.2004 passed by the District Forum, Kendrapara in C.D. Case No.83 of 2004 and direct dismissal of the said consumer complaint.
Records received from the District Forum may be sent back forthwith .......
(Justice A.K. Samantaray) President ...............................
(S. Mohanty) Member SCDRC, Orissa, Cuttack Aapril , 2010/Nayak