State Consumer Disputes Redressal Commission
Solapur Nagari Audyogik Sahakari Bank ... vs Vijaykumar Champalal Mutha on 10 September, 2015
1 F.A.No. :82 TO 86/14
Date of filing:05.02.2014
Date of order:10.09.2015
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO.: 82 TO 86 OF 2014
IN COMPLAINT CASE NO. : 158,159,160,161,162 OF 2012.
DISTRICT FORUM :
1. Solapur Nagari Audyogik Sahakari
Bank Ltd.,
340 A,Skharpeth, Solapur 413001.
2. Chief Executive Officer,
Chitrashekhar Somshekhar Babanagare,
Solapur Nagari Audyogik Sahakari
Bank Ltd.,
Solapur 413001.
3. Sidram Pundlik Ganji,
Solapur Nagari Audyogik Sahakari
Bank Ltd.,
R/o 238, M.I.D.C. Solapur 413 001.
4. Prakash Vyankatpati Konda,
Solapur Nagari Audyogik Sahakari
Bank Ltd.,
Branch Ahmednagar Shantiban Complex,
Dal Mandai, Ahmednagar 414001.
5. Sanjay Raut,
Administrator Solapur Nagri A.Sah.Bank,
Solapur 413001
6. Mr.Narayandas Jaskaran Rathi,
R/o 911, Ghati Galli, Solapur 413001.
7. Mrs.Shashikala Shankar Singam,
R/o 1813/14, Dattanagar, Solapur 413001.
8. Pandurang Sindramappa Diddi,
R/o 370/71, Sakharpeth, Solapur 413001.
9. Mr.Prabhakar Ambadas Dikonda,
R/o Madhavnagar, Solapur 413001.
2 F.A.No. :82 TO 86/14
10. Sidram Krishnahari Munagapatil,
R/o 1608, Kunchan Nagar, Solapur 413001.
11. Ashok Ramchandra Katake,
R/0 10/18, Bhavani Peth, Solapur 413001.
12. Ramchandra Bhagwandas Somani,
R/o 1574, Azad Bol, Barshi 413 001.
13. Prakash Sudarshan Jannu,
R/o 5B Rangrajnagar, Solapur 413001.
14. Dharmraj Narayan Konkatti,
R/o 92, Kuchannagar, Solapur 413001.
15. Raymallu Bakayya Kamtam,
R/o 1229, New Pacha Peth, Solapur 413001.
16. Raju Ramchandra Bhimanpalli,
R/o 724, New Pacha Peth, Solapur 413001.
17. Mr.Shashikant Shivram Kenchi,
R/o 1528, Daji Peth, Solapur 413001.
18. Madhukar Lingraj Katta,
R/o 155, Daji peth, Solapur 413001.
19. Prabhakar Ambaji Goranti,
R/o 43 A, Kuchannagar, Solapur 413001.
20. Ganesh Purushottam Gundewar,
R/o 2896/1, Paschim Dwar,
Pandharpur 413304.
21. Mr.Vijaya Krishahari Vaddepalli,
R/o 1043, Pacha Peth, Solapur 413001. ...APPELLANTS
VERSUS
1. Vijaykumar Champalal Mutha,
R/o 57, Punam Motinagar,
Ahmednagar 414001. ...RESPONDENT
(In F.A.No. 82/2014
& 83/2014)
3 F.A.No. :82 TO 86/14
2. Mohinibai Champalal Mutha,
R/o 57, Punam Motinagar,
Ahmednagar 414001. ...RESPONDENT
(In F.A.No. 84/2014)
3. Jyoti Vijaykumar Mutha,
R/o 57, Punam Motinagar,
Ahmednagar 414001. ...RESPONDENT
(In F.A.No. 85/2014)
4. Champalal Lalchand Mutha,
R/o 57, Punam Motinagar,
Ahmednagar 414001. ...RESPONDENT
(In F.A.No. 86/2014)
Coram : Mr.S.M.Shembole, Hon`ble Presiding Judicial
Member.
Mrs.Uma S.Bora, Hon`ble Member.
Present : Adv.D.B.Jetla for appellants, Adv.P.M.Bhandari for respondents.
O R A L JUDGMENT ( Delivered on 10th September 2015 ) Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.
1. Challenge in all these appeals are the separate judgments and orders dated 23.12.2013 passed by District Consumer Forum Ahmednagar allowing complainant's claim directing appellants/org.opponents to pay to the complainants maturity amount of fixed deposit with interest as per the chart given below and further compensation Rs.2000/- each complainant towards mental torture and Rs.1000/- towards cost of each complaint.
4 F.A.No. :82 TO 86/14Amount of deposits are as under:-
Sr.No. Appeal No. Consumer Amount of fixed
complaint No. deposit
1. 82/14 158/12 09,60,748/-
2. 83/14 159/12 11,04,308/-
3. 84/14 160/12 11,04,308/-
4. 85/14 161/12 05,56,500/-
+
07,68,581/-
5. 86/12 162/12 08,28,098/-
(For the sake of brevity appellants are hereinafter referred as opponents and respondents as complainants) As the appellants/opponents as well as points which are to be determined in all the appeals are common, we have decided to dispose of all these appeals by this common judgment.
2. Brief facts giving rise to these appeals are that:-
Opponent No.1 Solapur Nagari Udyog Sahakari Bank Ltd. is a co- operative bank. Opponent No.2 is Chief Executive Officer, opponent No.3 Shri.Sidram Pundlike is the Chairman and opponent No.4 Shri.Prakash Vyankatpati Konda is Manager, Opponent No.5 Shri.Sanjay Raut is 5 F.A.No. :82 TO 86/14 Administrator, opponents 6 to 22 are the directors of the opponent No.1 bank.
3. On 28.6.2011 complainants deposited their respective amount as shown in the above chart with the opponent No.1 bank as fixed deposit. Date of maturity was 27.9.2011. After date of maturity complainants claimed their amount with interest. But opponents avoided to repay the amount. It is alleged that complainants contacted main office of opponent No.2 at Solapur repeatedly but opponents avoided to repay the amount. Therefore lastly by notice dated 29.2.2011 complainants claimed amount. But opponents did not give any response. Therefore alleging deficiency in service on the part of opponents, complainants filed separate complaints claiming amount of their fixed deposits with interest and further compensation towards mental agony and cost of the proceedings.
4. Despite service of complaint notices, opponents 1 to 4 did not appear and resist the complaints before the District Consumer Forum. Public notice in newspaper Punyanagari of Solapur dated 27.7.2013 was also issued against respondents 6 to 22. But they did not appear and contest the complaint. Therefore complaints came to be proceeded exparte.
5. On hearing counsel for complainants and considering evidence on record Dist.Consumer Forum held that complainants are entitled to get refund of their fixed deposits with interest and opponents 1 to 22 are jointly and severally liable to pay the same. In keeping with this finding Dist.Consumer Forum allowed all the complaints.
6. Feeling aggrieved by that judgment and order, opponents came to this Commission in appeal.
6 F.A.No. :82 TO 86/147. We heard Mr.Jetla learned counsel for appellants and perused the written notes of argument submitted by counsel for both side. We also perused copies of impugned judgments and orders, complaints, fixed deposits and other documents including public notice in news paper. However, we have had no opportunity to hear the complainants as well as their counsel as they remained absent at the time of final hearing.
8. Undisputed facts are that on 28.6.2011 complainants deposited amount as fixed deposit and F.D.s were matured on 27.9.2011. On 11.11.2011 liquidator came to be appointed cancelling banking license of respondent as per direction of RBI. Thereafter complainants filed complaints on 17.4.2012. It is also not disputed that complaint notice was issued to opponents. But they were not served with notice. Therefore public notice in newspaper Punyanagari Solapur dated 27.7.2013 was issued against opponents 6 to 22. But according to opponents they were not aware about it. Thus according to opponents though they were not duly served with notice, District Consumer Forum wrongly passed exparte impugned judgment and order. It is further submitted that though it is contended by complainants that opponent No.5 Shri.Sanjay Raut is appointed as Administrator of opponent No.1 bank, no Administrator was appointed etc.
9. Further it is submitted by learned counsel for the opponents that since liquidator was already appointed prior to the date of filing the complaints, liquidator is a necessary party and in the absence of such necessary party complaints are not maintainable. It is also submitted that since license of opponent bank is already canceled dissolving executive body, its directors opponents 6 to 22 are not being directors they are not liable to pay the amount of deposits to the complainants. But District Consumer Forum without considering all these facts 7 F.A.No. :82 TO 86/14 committed serious error in allowing complainant's claim holding opponents 1 to 22 jointly and severally liable. As against the submission of learned counsel for the appellants/opponents, learned counsel appearing for complainants in his written notes of argument submitted that opponents though duly served with complaint notices did not appear and contest the complaints. Therefore District Consumer Forum has rightly proceeded the complaints exparty and passed the impugned judgment and order. It is further submitted that though the liquidator was appointed on 11.11.2012 since the date of maturity was on 27.9.2011 i.e. prior to the date of appointment of liquidator, opponents are jointly and severally liable to pay amount of fixed deposits with interest.
10. In view of the facts of the case and argument advanced by counsel for both side only point which arises for our determination is as to whether consumer complaints in the absence of liquidator as a necessary party are maintainable or not? and whether directors of the opponent No.1 bank can be held liable to pay amount of fixed deposits?
11. Mr.Jetla learned counsel appearing for the opponents submitted that since undisputedly opponent bank is liquidated and liquidator is appointed prior to the date of filing of complaints, consumer complaints against Chairman and Directors only are not maintainable. According to him complainants should have filed complaints against liquidator only. He has supported his contention by relying on the decision of Bombay High Court in case of Sow.Varsha Ravindra Isai -Vs- Sow.Rajashri Rajkumar Chaudhari & Ors., 2011(3) ALL MR 88 in which it is held by Hon'ble Bombay High Court that the "members or directors of the managing committee of the society cannot be held personally liable to pay dues etc." Further he has also relied on decision of this Commission in case of Madanrao Vishwanath Rao Patil & others -Vs- Jinesh Annasaheb 8 F.A.No. :82 TO 86/14 Sultane and others, 2013(4) CPR 34(Mum.) in which this Commission held that "once liquidator was appointed proceedings including consumer complaint cannot be allowed to be proceeded against bank or liquidator except by leave of Registrar of Co-operative Societies". It is further observed that "Forum has to apply doctrine of lifting the corporate veil" as held by Division bench of Bombay High Court in case Mandatai Sambhaji Pawar and Anr. -Vs- The State of Maharashtra and Ors., 2011(4) MLJ790.
12. This settled position of law cannot be disputed. However, as per the observations of Hon'ble High Court in the case Mandabai Pawar(Supra) "doctrine of lifting the corporate veil" is required to be applied fixing liability of the directors of the co-operative bank/society. Unless liability is fixed by Registrar of Co-operative Societies making enquiry U/s 88 of Maharashtra Co-operative Societies Act, directors of the society/bank cannot be held responsible. Therefore consumer complaint against directors of society/bank is not maintainable as held by this Commission in Sham Kamlakar Gite -Vs- Shilpa Shantilal Oswal, 2014(5) ALL MR (Journal) 59.
13. However, learned counsel appearing for the complainants in his written notes of argument submitted that since liquidator is appointed after date of maturity of F.D.s members of managing committee of the bank are liable to pay maturity amount to the complainants. But we find no force in this submission. Firstly, because there is no record to show that administrator was appointed on the opponent bank. No record to that effect is produced by the complainants though opponent No.5 Shri.Sanjay Raut is shown as administrator of opponent No.1 bank. Secondly it is not the contention of complainants that before filing complaints they were not aware about appointing liquidator by liquidating opponent bank. Even it is not the contention of complainants 9 F.A.No. :82 TO 86/14 that members of managing committee of the opponent bank committed any fraud or misappropriation of amount so as to hold them jointly and severally liable for the claims of complainants.
14. For the foregoing reasons it is obvious that since the liquidator is already appointed liquidating opponent bank prior to the date of filing of complaints, complaints are not maintainable against opponents in the absence of liquidator as necessary party and further unless the liability of the members of the managing committee of the opponent bank is fixed by making enquiry by Registrar, Co-operative Societies. Moreover as per provisions of Section 107 of the Co-operative Act, it is obligatory on the part of complainants to obtain permission of Registrar, Co-operative Societies for initiating complaints against liquidator. Therefore no such mandatory provision of law are not being followed by the complainants, consumer complaints should not have been entertained by District Consumer Forum.
15. However, it appears from the copies of impugned judgments and orders that the complainants purposely or knowingly suppressing the material fact about appointment of liquidator by liquidating opponent bank filed complaints and relying on the unchallenged complaints District Consumer Forum passed the impugned judgments and orders which cannot be sustained.
16. In the result, appellants succeed and appeals deserve to be allowed. However, complainants cannot be deprived from claiming amount of their deposits. They can file fresh complaints impleading liquidator party to the complaints in addition to the members of managing committee of the opponent bank by obtaining requisite permission U/s 107 of the Co-operative Societies Act. Hence the following order.
10 F.A.No. :82 TO 86/14O R D E R
1. All the five appeals bearing Nos.82 to 86/2014 are allowed and the impugned judgments and orders are set aside.
2. Consumer complaints No. 158 to 162/2012 stand dismissed.
3. No order as to cost.
4. However, in the light of above observation complainants are at liberty to file fresh complaints.
5. Copies of the order be sent to both the parties.
Sd/- Sd/- Uma S.Bora S.M.Shembole, Member Presiding Judicial Member Mane