State Consumer Disputes Redressal Commission
Sau.Sunita Vijay Tharval & Ors vs The Goregaon Urban Co-Op. Bank Ltd. & Ors on 3 April, 2014
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
First Appeal Nos. A/10/250, A/10/251,
A/10/252& A/10/253
(Arisen out of Order Dated 18/01/2010
in Case No. CC/09/36, CC/09/38,
CC/09/39 & CC/09/40 of District Forum Alibag)
Sau.Sunita Vijay Tharval (A/10/250)
R/o.Juni Peth, Mahad
Taluka Mahad, District Raigad
Mr.Rahul Vijay Tharval (A/10/251)
R/o.Juni Peth, Mahad
Taluka Mahad, District Raigad
Mr.Vijay Pandurang Tharval (A/10/252)
R/o.Juni Peth, Mahad
Taluka Mahad, District Raigad
Sau.Dipali Vaibhav Gandhi (A/10/253)
R/o.Mumbai
Sau.Richa Rahul Tharval
R/o.Juni Peth, Mahad
Taluka Mahad, District Raigad
Sau.Sarika M.Govekar
Sarika Vijay Tharval, R/o.Mumbai
...........Appellant
Versus
1. The Goregaon Urban Co-op. Bank Ltd.
Controller, through Avasayak Samiti
Headoffice Laxmi Peth
Goregaon, Taluka Mangaon
District Raigad
2. The Goregaon Urban Co-op. Bank Ltd.
Branch Manager
At post Mahad, District Raigad
3. Mr.Pradeep R.Joshi
Immediate Chairman
Goregaon, Taluka Mangaon, Dist.Raigad
4. Mr.Vinay S.Sheth
Immediate Vice Chairman
R/o.B-702, Shri Ganesh Co-op.Hsg.Society
Room no.107, Sector 14
Palm
Beach Road, Sanpada, Navi Mumbai
5. Shri Amrutlal B Jain-Director
6. Shri Vikas R.Gandhi Director
7. Shri Kanu M Uchate-Director
8. Shri Hitesh C Shah-Director
9. Shri Subhash B Bamnolkar-Director
10.Shri Azzimuddin A.Pansare-Director
11.Shri A Samad Umar Kardekar-Director
12. Shri Sakharam V.Goregaonkar-Director
13. Shri Vatatre M Kadu-Director
14. Smt.Devshri R.Pitale-Director
(Respondent no.5 to 14)
All Res.Goregaon, Taluka Goregaon
District Raigad
15. Dr.Punjalal R Mehta-Director
Indapur, Taluka Mangaon, District Raigad
16. Shri Narendra Tukaram Mehta-Director
R/o.Mangaon, Taluka Mangaon, Dist.Raigad
17. Shri Ramesh Tatkare-Director
Varasgaon, Taluka Roha, Dist.Raigad
18.Sau. Rohini P.Joshi-Director
Taluka Indapur, Dist.Raigad
19.Sau. Chetana P Gandhi-Director
Lonere, Taluka Mangaon, Dist.Raigad
...........Respondent
AND
First Appeal Nos. A/10/1048, A/10/1049,
A/10/1050 & A/10/1051
(Arisen out of Order Dated 18/01/2010
in Case No. CC/09/36, CC/09/38,
CC/09/39 & CC/09/40 of District Forum Alibag)
1. Shri Pradip R.Doshi
2. Shri Amrutlal B Jain
3. Shri Vikas R.Gandhi
4. Shri Kanu M Uchate
5. Shri Hitesh C Shah
6. Shri Subhash B Bamnolkar
7.Shri Azzimuddin A.Pansare
8.Shri Shri Sakharam V.Goregaonkar
9. Shir Kunjlal R.Mehta
10. Shri Narendra J.Mehtra
11. Shri Ramesh S.Tatkar
12. Mrs.Chetanan P.Gandhi
13. Smt.Rohini Prabhakar Joshi
All R/o.Goregaon, District Raigad
........Appellant
Versus
1.Sou.SunitaVijay Tharval (A/10/1048)
R/o.Mahad, District Raigad
2. The Goregaon Urban Co-op. Bank Ltd.
Under liquidation, through Liquidator, Laxmi Peth, Goregaon,
Dist.Raigad
3. Smt.Devashri R.Pitale
At Post Goregaon, Taluka Mangaon, District Raigad
1. Mr.Rahul Vijay Tharval (A/10/1049)
R/o.Juni Peth, Mahad
Taluka Mahad, District Raigad
2. The Goregaon Urban Co-op. Bank Ltd.
Under liquidation, through Liquidator, Laxmi Peth,
Goregaon, Dist.Raigad
3. Smt.Devashri R.Pitale
At Post Goregaon, Taluka Mangaon, District Raigad
1.Mr.Vijay Pandurang Tharval (A/10/1050)
R/o.Juni Peth, Mahad
Taluka Mahad, District Raigad
2. The Goregaon Urban Co-op. Bank Ltd.
Under liquidation, through Liquidator, Laxmi Peth,
Goregaon, Dist.Raigad
3. Smt.Devashri R.Pitale
At Post Goregaon, Taluka Mangaon, District Raigad
1.Sau.Deepali Vaibhav Gandhi (A/10/1051)
R/o.Mumbai
2.Sau.Richa Rahul Tharval
R/o.Juni Peth, Mahad
Taluka Mahad, District Raigad
3.Sau.Sarika M. Govekar
Nee Ms.Sarika Vijay Tharval
R/o.Mumbai
4.The Goregaon Urban Co-op. Bank Ltd.
Under liquidation, through Liquidator, Laxmi Peth,
Goregaon, Dist.Raigad
5. Smt.Devashri R.Pitale
At Post Goregaon, Taluka Mangaon, District Raigad
...........Respondent
BEFORE:
HON'ABLE MR.
JUSTICE R.C.Chavan PRESIDENT
HON'ABLE MR.
Dhanraj Khamatkar Member
PRESENT:
In appeals bearing No.1048 of 2010 to 1051 of 2010, Adv. Dr. D. R. Talankar is present on behalf of the Appellants. Adv. Asim S. Vidyarthi is present on behalf of the Respondent No.1. Adv. H. G. Misar is present on behalf of the Respondents Nos.3 and 4. Other Respondents are absent.
In appeals bearing Nos.250 of 2010 to 253 of 2010, Adv. Asim S. Vidyarthi is present on behalf of the Appellants. Adv. H. G. Misar is present on behalf of the Respondents Nos.1 and 2.
Adv. Dr. D. R. Talankar is present on behalf of the Respondents Nos.3, 5, 6 to 10, 12, 15, and 16 to 20. Other Respondents are absent.
ORDER Per Honble Justice Mr.R.C.Chavan, President Per Honble Justice Mr.R.C.Chavan, President All these appeals are being disposed of by this common order. Appeal nos.A/10/1048 to A/10/1051 are filed by Mr.Pradip R. Doshi original opponent no.3, against the order passed by the District Consumer Disputes Redressal Forum at Alibag in consumer complaint nos.36/2009, 38/2009, 39/2009 & 40/2009, whereby the District Forum dismissed the complaints as against Goregaon Urban Co-operative Bank Ltd. through its liquidator and Branch Manager of the said Bank at Mahad, while it allowed the complaints against the directors of the bank, directing them to repay certain sums as mentioned in the operative part of the order with interest to the original complainants. The Directors of the bank are aggrieved because they have been made personally liable to repay the amounts. Appeal nos.A/10/250 to A/10/253 are filed by the original complainants taking exception to the exoneration of opponent nos.1&2, the bank and its Manager.
Facts which are material for deciding this group of appeals are as under:-
The original complainants in the above mentioned four consumer complaints had deposited certain amounts with the opponent bank. The deposits had matured. The bank however did not repay the amounts under deposits as agreed. Bank informed the complainants about financial difficulties of the bank and assured to pay the amounts in small installments. The complainants suffered considerable difficulty in raising amounts for the marriage of complainants daughter. The complainants therefore filed complaints against the bank and its directors, alleging that the directors were responsible in misappropriating the amounts in the bank and, therefore, were personally liable to repay the amounts. It is not in dispute that the banking license of the bank was cancelled by the Reserve Bank of India w.e.f.03/12/2008 because the affairs of the bank were conducted in a manner detrimental to the interest of the depositors. Bank then went into liquidation.
It appears that the bank filed written responses in these complaints stating that the bank would be in a position to repay the amounts only upto `1 lakh as per the restrictions imposed by the Reserve Bank of India. The Directors of the bank themselves did not file any written responses before the District Forum. They have however stated in these appeals that one of them had attempted to file written response before the District Forum, which was not taken on record by the District Forum. Their written response which was not taken on record however echoes what was stated by the bank.
After considering the rival contentions, forum came to pass the impugned orders. Aggrieved thereby, complainants and directors are before this Commission.
We have heard learned counsel for the parties. We had also called for the Record & Proceeding from the District Forum, since there was an allegation that the written version of the Directors was not taken into consideration. The record however, did not show that adequate opportunity for rendering written version was given to the appellant-directors. Though the written version was not considered by the District Forum, we have gone through the written versions which have been annexed to the appeals. In the written versions, the appellants/directors had denied the allegation in the complaints that they indulged in any corruption, fraud, cheating or any impropriety in transaction to global up the deposits of the complainants. It was stated that since 2006, the depositors started withdrawing the amounts in deposits which led to a difficulty in liquidity position of the bank. Therefore, some restrictions were imposed.
Learned counsel for the appellant directors also sought to place reliance on the judgement of the Learned single judge of Bombay High Court in the matter of Sou.Varsha Ravindra Isai V/s. Sou.Rajashri Rajkumar Chaudhari & Ors. Reported in AIR 2011 BOMBAY 6, where the learned single judge had held that the directors of the bank cannot be held personally liable to pay the dues.
Thereafter, Division Bench of Bombay High Court in the matter of Mandatai Sambhaji Pawar & another v/s. State of Maharashtra and ors. reported in 2011(5) ALL MR 731 held that the directors can be personally made liable provided that fraud or other recognized ground has been made for lifting the corporate veil.
In the case in hand, there is a specific allegation of corruption, fraud, cheating made by the complainants, which was sought to be denied by the appellants/directors. Had the written version of appellants-directors been taken on record, the forum could have allowed the complainants to tender the evidence to prove that there was such fraud or misappropriation on the part of the opponents, which resulted in the complainants being denied refund of deposits. Though corporate veil can be lifted in fit cases, it would be necessary to find out what is the complicity of the directors to make the directors personally liable. In the case in hand, what the District Forum has observed is that the appellants were the directors of the bank during the period when the complainants were denied refund of the deposits and, therefore, they are jointly and severally liable for the lapse. This conclusion was drawn by the forum because the appellants allegedly did not place their written version on record.
Apart from this there is nothing in the judgment to show that the forum had examined the question of individual complicity of the directors in order to make them personally liable to pay the amounts. In our view, it would therefore be necessary to set aside the impugned orders against the appellants-directors and remit the complaints back to the District Forum for considering written versions of the appellants-directors and to decide the question of their complicity. Complainants would be at liberty to give evidence to show as to what was the role of each of the individual appellants in misappropriation of the funds of the bank, which led to failure of the bank to pay the complainants dues. Appellants too would be at liberty to tender such evidence in form of affidavits or documents as they may please, to show that they had no personal complicity in the matter.
As far as complainants appeals against dismissal of the complaints by the District Forum as against the bank and its branch manager, we may observe that this Commission, in the matter of Madanrao Vishwanathrao Patil v/s. Dhhansampada Nagari Sahakari Pat Sanstha Ltd. held as under:-
While disposing the consumer complaints, the forum assumed its jurisdiction overruling the objection of the opponents, particularly, in respect of cancellation of banking business license of Vasantdada Bank by the Reserve Bank of India as per provisions of Banking Regulation Act 1949 and, further, referring to the legal consequences as per the Maharahstra Co-operative Societies Act when a Liquidator is appointed on the Vasantdada Bank and continuing of consumer complaints in absence of any permission obtained from the authority. We find the approach of the forum is erroneous. No doubt section 3 of the Act speaks for additional remedy and for which jurisdiction is vested with the Consumer Fora. However, it does not mean that the provisions of the other Statute are to be ignored. As far as these appeals are concerned, the permission required to continue with the dispute once the Liquidator is appointed should not have been ignored or at least that objection of the opponents ought to have been taken into consideration and forum should have dealt with it specifically. As per the provisions of Section 107 of Maharashtra Co-operative Societies Act 1960, in absence of permission of the Registrar of Co-operative Societies is specifically obtained either to file the proceeding or to continue with the proceeding in the nature of consumer dispute, the consumer complaints ought not to have been continued. To join Liquidator as a party is not synonymous with obtaining requisite permission under the Maharashtra Co-operative Societies Act, 1960, supra, once the Liquidator was appointed.
In this respect a reference can be made to section 107 of the Maharashtra Co-operative Societies Act 1960. It specifically bars continuation of the proceedings of consumer complaints before the Consumer Fora once the Liquidator is appointed except by lieu of Registrar and subject to such terms. Mention to other legal proceedings in the said section would certainly cover proceeding before the Consumer Fora.
In view of these observations, it is clear that the complaints could not have been proceeded without obtaining permission of the Registrar of Co-operative Societies under section 107 of Maharashtra Co-operative Societies Act, as the bank had gone in liquidation. We would make it clear that as the bank has gone in liquidation, the complainants would obviously be entitled to press their claims before the liquidators who would be deciding the claims of all the creditors of the bank. In view of this following order is passed:-
ORDER Appeal nos. A/10/1048 to A/10/1051 are partly allowed.
Impugned order in consumer complaint nos. 36/2009, 38/2009, 39/2009 & 40/2009 are set aside and the complaints are remitted back to the District Forum. District Forum is directed to rehear the complaints only against appellants after taking on record the written versions of the appellants/ original opponents and allowing the parties to tender further additional evidence in form of affidavits and documents and decide the complaints afresh as against appellants- directors.
Appeal nos. A/10/250 to A/10/253 filed by the original complainants questioning dismissal of the complaints as against the bank and the branch manager are dismissed.
Pronounced on 3rd April, 2014.
[HON'ABLE MR. JUSTICE R.C.Chavan] PRESIDENT [HON'ABLE MR. Dhanraj Khamatkar] Member Ms.