State Consumer Disputes Redressal Commission
Noorahmed vs Ibrahim on 30 September, 2022
Daily Order BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE DATED THIS THE 30TH DAY OF SEPTEMBER 2022 PRESENT SRI. RAVI SHANKAR : JUDICIAL MEMBER
SMT. SUNITA C. BAGEWADI : MEMBER Appeal Nos. 23/2014 to 42/2014 Noorahmed S/o. Umarali Momin, Ex-Chairman, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum Appellant is common in all the cases. (By Sri. K.A. Patil) V/s ....Appellant Appeal No.23/2014 1. Ibrahim S/o. Khajasab Mujawar R/o. Maldar Galli, Gokak, Dist. Belgaum 2. The General Manager, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum .....Respondents Appeal No.24/2014 1. Ibrahim S/o. Khajasab Mujawar R/o. Maldar Galli, Gokak, Dist. Belgaum 2. Mainuddin S/o. Ibrahim Mujawar R/o. Maldar Galli, Gokak, Dist. Belgaum 3. The General Manager, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum .....Respondents Appeal No.25/2014 1. Shainajbi W/o. Alisab Mujawar R/o. Maldar Galli, Gokak, Dist. Belgaum 2. The General Manager, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum .....Respondents Appeal No.26/2014 1. Mubarak Mohammedgous Matte R/o. Maldar Galli, Gokak, Dist. Belgaum 2. The General Manager, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum .....Respondents Appeal No.27/2014 1. Tajbi W/o. Dadasab Malladi R/o. Maldar Galli, Gokak, Dist. Belgaum 2. The General Manager, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum .....Respondents Appeal No.28/2014 1. Banobi W/o. Mohammedgous Matte R/o. Maldar Galli, Gokak, Dist. Belgaum 2. The General Manager, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum .....Respondents Appeal No.29/2014 1. Kundmeermehadi S/o.Mohamood Kamana R/o. H.No. 2638, Mugali Chawl, Colony Road, Sankeshwar, Tq. Hukkeri, Dist. Belgaum 2. The Manager, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum 3. Appasaheb Desai, Administrative Officer Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum .....Respondents Appeal No.30/2014 1. Chandrakant S/o. Satagoud Patil R/o. H.No. 2626, Maddi Galli, Sankeshwar, Tq. Hukkeri, Dist. Belgaum 2. The Manager, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum 3. Appasaheb Desai, Administrative Officer Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum .....Respondents Appeal No.31/2014 1. Irashadahamad S/o. Mohamod Kamana R/o. H.No. 2638, Mugali Chawl, Colony Road, Sankeshwar, Tq. Hukkeri, Dist. Belgaum 2. The Manager, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum 3. Appasaheb Desai, Administrative Officer Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum .....Respondents Appeal No.32/2014 1. Shainaz M. Momin R/o. Hukkeri Tq. Hukkeri, Dist. Belgaum 2. The Branch Manager, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum .....Respondents Appeal No.33/2014 1. Abdul Tanesab Shaikh R/o.Pachapur Tq. Hukkeri, Dist. Belgaum 2. The Branch Manager, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum .....Respondents Appeal No.34/2014 1. Kutejabi Kutubuddin Desai R/o.Pachapur Tq. Hukkeri, Dist. Belgaum 2. The Branch Manager, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum .....Respondents Appeal No.35/2014 1. Rehamunnissa Niyazahmed Desai R/o.Pachapur Tq. Hukkeri, Dist. Belgaum 2. The Branch Manager, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum .....Respondents Appeal No.36/2014 1. Ashraf Shabuddin Gadamphalli R/o. Gandhi Nagar, Near Peerapanna Darg, Hukkeri, Tq. Hukkeri, Dist. Belgaum 2. The Secretary, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum .....Respondents Appeal No.37 /2014 1. Sarfaz Shabuddin Gadamphalli R/o. Gandhi Nagar, Near Peerapanna Darg, Hukkeri, Tq. Hukkeri, Dist. Belgaum 2. The Secretary, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum .....Respondents Appeal No.38/2014 1. Hamid Shabuddin Gadamphalli R/o. Gandhi Nagar, Near Peerapanna Darg, Hukkeri, Tq. Hukkeri, Dist. Belgaum 2. The Secretary, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum .....Respondents Appeal No.39/2014 1. Hasina W/o. Abdulkarim Momin 2. Kum. Sana D/o. Abdulkarim Momin Age: Minor (Rep. by her Natural Guardian Mother, Respondent No. 1) Both are R/at H.No. CCB 138/W44, Opp. Kumar Hall, Indal Boxite Road, Sangameshwar Nagar, Belgaum 3. The General Manager, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum .....Respondents Appeal No.40/2014 1. Neha W/o. Uday Chinchanikar R/o. Gandhinagar Hukkeri Tq. Hukkeri, Dist. Belgaum 2. The Secretary, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum .....Respondents Appeal No.41/2014 1. Javedakhtar M. Sulebenavi R/o. Hukkeri, Tq. Hukkeri, Dist. Belgaum 2. The Branch Manager, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum .....Respondents Appeal No.42/2014 1. Hasina W/o. Abdulkarim Momin 2. Nure-e-saba D/o. Abdulkarim Momin Rep. by her natural guardian mother, Respondent No. 1 Both are R/at CCB 138/W44, Opp. Kumar Hall, Indal Boxite Road, Sangameshwar Nagar, Belgaum 3. The General Manager, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Tq. Hukkeri Dist. Belgaum .....Respondents O R D E R BY SMT. SUNITA C. BAGEWADI, MEMBER
These appeals are filed under Section 27A of the Consumer Protection Act, 1986 against the order passed in E.P.Nos. 6/2012, 7/2012, 8/2012, 9/2012, 10/2012, 11/2012, 158/2012, 161/2012, 163/2012, 488/2011, 309/2011, 310/2011, 311/2011, 337/2010, 338/2010, 339/2010, 432/2012, 47/2013, 487/2011, 433/2012 on the file District Consumer Disputes Redressal Forum, Belgaum.
The brief facts of the case are that the Shahe Nyamat Urban Co-operative Credit Society Ltd., is duly registered financial institution having its own Bye-Laws. The administration of the said institution is governed by the Rules & Regulations which have been duly registered and approved by the competent authority. The financial institution being registered with the Karnataka State Souhard Federation Co-operative Ltd., Bangalore is bound by any decision rendered by the competent authority. The present appellant was previously the Chairman of the financial institution. The competent authority i.e, the Managing Director, Karnataka State Souhard Federation Co-operative Ltd., Bangalore has removed the appellant from the post of Chairperson of the financial institution with effect from 29.09.2009 by its order under No.SMS/BGM-251/PR-3/2009. The effect of the said order passed by the competent authority is that the appellant is no more the Chairperson of the financial institution from 29.09.2009 and hence, he is having no powers to take any decision in the financial affairs of the financial institution. By the said order the Managing Director, Karnataka State Souhard Federation Co-operative Ltd., Bangalore has appointed one Mr. Appasaheb Desai as an administrator to manage the day to day affairs of the institution. The complainant filed the complaint seeking refund of the fixed deposit amount in the year 2011 i.e., when the appellant was no more the Chairperson of the financial institution in view of the order passed by the competent authority. It is submitted that the said proceedings were filed against the Chairman of the financial institution as on November 2011. No person appeared before the District Commission, Belgaum, hence, the proceedings were decided ex-parte. Pursuant to the order execution petitions were filed by the respondent/complainants under Section 27 of the Consumer Protection Act, against the Chairman, Shahe Nyamat Urban Co-operative Credit Society Ltd. The said execution petition was not filed against the Ex-Chairman i.e., the appellant. It is most respectfully submitted that though the appellant was not a party in the original complaint nor the order was passed against him, notices of the execution were served upon him. The appellant appeared before the executing court i.e., District Consumer Disputes Redressal Forum, Belgaum and brought to the knowledge of the Hon'ble Court that he was no more Chairperson of the Shahe Nyamat Urban Co-operative Credit Society Ltd., with effect from 29.09.2009 by virtue of the order passed by the competent authority. The executing court however did not accept the case set up by the appellant. The Hon'ble District Consumer Redressal Forum, Belgaum after recording the evidence of respondent No.1 and the present appellant, has been pleased to convict the appellant though he is not a party in the original complaint as well as in the execution proceedings thereby sentencing imprisonment for a period of 3 years and to pay a fine to undergo further simple imprisonment for a period of 3 months. The appellant has already deposited the fine of Rs.10,000/- before the District Consumer Disputes Redressal Forum, Belgaum on the said day. It is further contended that the District Forum ought to have considered that when the appellant was no more the Chairman of Shahe Nyamat Urban Co-operative Credit Society Ltd., as on the date of ifling of complaint and as on the date when the order was passed, he could not have been convicted as the complaint was never made against the appellant nor the order was passed against him. Thus, prays for setting aside of the order.
Perused the appeal memo, order passed by the District Commission and materials on record. We noticed that the respondent No.1 in all cases have filed consumer complaints against Chairman and the General Manager, Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri in the year 2011 before the District Commission and District Commission has passed exparte orders against the Chairman and the General Manager. Subsequently, respondent No.1 in all cases filed execution applications before District Commission and the District Commission has ordered in E.P. 6/2012, 7/2012, 8/2012, 9/2012, 10/2012, 11/2012, 158/2012, 161/2012, 163/2012, 488/2011, 309/2011, 310/2011, 311/2011, 337/2010, 338/2010, 339/2010, 432/2012, 47/2013, 487/2011, 433/2012 and convicted accused No.2/ Chairman Mr.Noorahmed under Section 255(2) of Cr.PC for the offence punishable under Section 27 of Consumer Protection Act and Sentenced to suffer simple imprisonment for a period of three years and to pay fine of Rs.10,000/- and in default of payment of fine to undergo further SI for a period of three months though he is not a party in the original complaints.
Perused the order passed by the District Commission in Consumer Complaints. The District Commission has passed an exparte order against Chairman of Shahe Nyamath Co-operative Ltd. and in Execution Applications passed an order against Chairman of Shahe Nyamat Urban Co-operative Credit Society Ltd., Mr.Noorahmed on personal capacity. In so far as order passed by the District Commission in Consumer complaint concerned liability is on Chairman and General Manager, Shahe Nyamat Urban Co-operative Credit Society Ltd., but, not against the Chairman Mr.Noorahmed on a personal capacity. Moreover, the said complaints were filed in the year 2011 and at that time appellant was not Chairman of the society. The competent authority i.e., Managing Director, Karnataka State Souhard Federation Co-operative Ltd., Bangalore has removed the appellant from the post of Chairman of the society with effect from 29.09.2009 by its order No. SNS/BGM-251/PR-3/2009 and he has no powers to take any decision in the financial affairs of the society. One Mr.Appasaheb Desai, Secretary, Sri Basaveshwara Urban Credit Co-operative Society Ltd., Sankeshwar Belagavi District was appointed as Administrator of Shahe Nyamat Urban Co-operative Credit Society Ltd., Hukkeri, Belgaum under order No.SMS/BGM-251/Property-3/2009, dated 29.09.2009. However, District Commission without considering this passed an order against Chairman, Mr. Noorahmed on his personal capacity merely because the appellant did not disclose the name of CEO who has to act and work as per the directions of the member and without ascertaining whether the appellant Noorahmed and Board of Directors who were incharge of the society handed over entire charge including assets of the society to the administrator and also to ascertain whether they mismanage society by his frivolous activities with a view to defraud complainants/respondents in respective cases under Co-operative Societies Act. At the time of filing of complaints Shahe Nyamat Urban Co-operative Credit Society Ltd. was already removed by the authority and appellant was ex-chairman of the society.
We relied on the judgement reported in (2017) 1 ConLT 102 of Hon'ble National Consumer Disputes Redressal Commission in the case of Amarjit Singh Vs. Gagandeep Singh decided on 19.12.2016 wherein at para 19 (a) held 'Ordinarily Ex-Secretary or the Ex-President or other office bearers of any co-operative credit society shall not fall within the category of service providers in respect of any dealing of the depositors with such society." In (2017) 4 ConLT 521: (2017) 3 CPJ 645 of the Hon'ble National Consumer Disputes Redressal Commission in V.C. Sindhwani Vs. PNB Employee Co-operative (S.E.) Thrift & Credit Society Ltd. in para 9 on facts it was held, 'as there is no evidence of the petitioner having personally defrauded the complainant in any manner. There is no allegation that the money collected from the complainant was not deposited by the petitioner in the account of the society'.
Moreover, the Chairman or Directors cannot be held responsible in their individual capacity. They will fall within the category of service provider in respect of any dealing of the depositors with the society only in the case where it is established that said person has induced in any frivolous act with a view to defraud depositors and would be liable to compensate the depositors for deficiency in service. In present cases also the respondent made the party the Chairman and General Manager of Shahe Nyamat Urban Co-operative Credit Society Ltd. in consumer complaints and there is no any evidence that appellant having personally defrauded the respondent in any manner and there is also no allegations that the money was collected from the respondent was not deposited by the appellant in the account of the society. Thus, as per the aforesaid principles laid down by the Hon'ble National Commission, even in these cases such fact could have been ascertained by the District Commission before making conviction against the appellant in respect of cases sentencing him to suffer simple imprisonment.
In this regard a question may come to our mind whether he was alone responsible for mismanagement of society by his frivolous activity in the matter the deposit amount of these complainants. We cannot find such material on record to connect such allegations against this appellant is concerned. Hence, considering the facts and the discussions made here we are of the opinion that the order passed by the District Commission is not just and proper and requires to be re-considered. Accordingly, appeal Nos. 23/2014 to 42/2014 are allowed. Consequently, set aside the order passed by the District Commission, Belgaum in E.P.Nos. 6/2012, 7/2012, 8/2012, 9/2012, 10/2012, 11/2012, 158/2012, 161/2012, 163/2012, 488/2011, 309/2011, 310/2011, 311/2011, 337/2010, 338/2010, 339/2010, 432/2012, 47/2013, 487/2011, 433/2012 with a direction to reconsider and re-examine the application filed under Section 27 of Consumer Protection Act, 1986 by respective Dhrs. from all angle affording opportunity to both parties. It is needless to say to extend the recovery proceedings to satisfy the Dhrs. either from General Manager, Secretary or from Administrator/Liquidator or with any management of the said society Shahe Nyamat Urban Co-operative Credit Society.
Keep the original of this order in Appeal No.23/2014 and copies thereon in connected files.
MEMBER JUDICIAL MEMBER CV*