State Consumer Disputes Redressal Commission
The Chalisgaon Peoples Co.Op.Bank ... vs Sau.Sharda Gangsing Rathod, And Others on 15 February, 2013
1 F.A.No.:1067/08 & 1224 to
1231/07
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
Date of filing :16/11/2007
Date of order :15/02/2013
FIRST APPEAL NO. :1224 TO 1231 OF 2007
IN COMPLAINT CASE NO.:146 TO 153 OF 2007
DISTRICT CONSUMER FORUM :JALGAON.
i) The Chalisgaon Peoples Co.op.Bank Ltd.,
Chalisgaon, Dist.Jalgaon,
Through its Chief Executive Officer.
ii) The Liquidator,
Chalisgaon Peoples Co.Op.Bank,
Chalisgaon. ...APPELLANTS
(Org.Opponent)
VERSUS
1. F.A.NO. : 1224/2007 IN C.C.NO.:146/2007
Sau.Sharda Gangsing Rathod,
Through Gangasing Dodhusing Rathod,
R/o Parag, Kargaon Road,
Chalisgaon, Dist.Jalgaon. ...APPELLANT
(Org.Complainant)
2. F.A.NO. : 1225/2007 IN C.C.NO.:147/2007
Shila Dnyaneshwar Shelar,
Through Gangasing Dodhusing Rathod,
R/o Parag, Kargaon Road,
Chalisgaon, Dist.Jalgaon. ...RESPONDENT
(Org.Complainant)
3. F.A.NO. : 1226/2007 IN C.C.NO.:148/2007
Gangasing Dodhusing Rathod,
R/o Parag, Kargaon Road,
Chalisgaon, Dist.Jalgaon. ...RESPONDENT
(Org.Complainant)
2 F.A.No.:1067/08 & 1224 to
1231/07
4. F.A.NO. : 1227/2007 IN C.C.NO.:149/2007
Karan Rajendrasing Rathod,
Through its Guardian
Gangasing Dodhusing Rathod,
R/o Parag, Kargaon Road,
Chalisgaon, Dist.Jalgaon. ...RESPONDENT
(Org.Complainant)
5. F.A.NO. : 1228/2007 IN C.C.NO.:150/2007
Sujay Jayendrasing Rathod,
Through its Guardian
Gangsing Dodhusing Rathod,
R/o Parag, Kargaon Road,
Chalisgaon, Dist.Jalgaon. ...RESPONDENT
(Org.Complainant)
6. F.A.NO. : 1229/2007 IN C.C.NO.:151/2007
Rajaji Rajendra Rathod,
Through Guardian
Gangasing Dodhusing Rathod,
R/o Parag, Kargaon Road,
Chalisgaon, Dist.Jalgaon. ...RESPONDENT
(Org.Complainant)
7. F.A.NO. : 1230/2007 IN C.C.NO.:152/2007
Ankita Mahendrasing Rathod,
Through Guardian,
Gangasing Dodhusing Rathod,
R/o Parag, Kargaon Road,
Chalisgaon, Dist.Jalgaon. ...RESPONDENT
(Org.Complainant)
8. F.A.NO. : 1231/2007 IN C.C.NO.:153/2007
Ajay Mahendrasing Rathod,
Through its Guardian
Gangasing Dodhusing Rathod,
R/o Parag, Kargaon Road,
Chalisgaon, Dist.Jalgaon. ...RESPONDENT
(Org.Complainant)
3 F.A.No.:1067/08 & 1224 to
1231/07
AND
Date of filing :30/09/2008
Date of order :15/02/2013
9. FIRST APPEAL NO. : 1067 OF 2008
IN COMPLAINT CASE NO.:1101 OF 2007
DISTRICT CONSUMER FORUM :JALGAON.
The Liquidator,
Chalisgaon Peoples Co.Op.Bank,
Chalisgaon, Dist.Jalgaon. ...APPELLANTS
(Org.Opponent)
VERSUS
Rashtriya Sahakari Gruha Nirman
Sanstha Maryadit, Chalisgaon,
Through its Secretary,
Shri.Bhanudas Sonaji Sonawane,
R/o Hirapur Road, Chalisgaon,
Tq.Chalisgaon, Dist.Jalgaon. ...RESPONDENT
(Org.Complainant)
CORAM : Mr.B.A.Shaikh, Hon`ble Presiding Judicial
Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.Shri.P.S.Gaikwad for appellant, Adv.N.S.Bakshi for respondent in F.A.No.1067/08, Adv.Shri.H.A.Patankar for respondents in rest of appeals.
O R A L O R D E R Per Mr.B.A.Shaikh, Hon`ble Presiding Judicial Member.
1. These nine appeals are being decided by this common order as they involve common question of law and facts. Nine complaints were 4 F.A.No.:1067/08 & 1224 to 1231/07 made separately by the complainants before District Forum Jalgaon against the same respondent namely Chief Administrator/Manager, Chalisgaon Peoples Co-operative Bank, Chalisgaon. Their common case in brief is that they had deposited amount for fixed terms mentioned in their respective complaints with said original opponent. The said amounts were to be repaid to them with interest @14% p.a. from the date of deposit till the date of maturity. Opponent bank did not repay the said amount with interest to the respective complainants despite of making oral demand and service of legal notice for that purpose. Therefore in each of the complaints request was made to direct the original opponent to pay to the respective complainants amount which was due on the date of maturity of the fixed deposit with interest @ 14% p.a. and also to pay Rs.2000/- towards cost of the litigation.
2. Original opponent appeared in all the complaints and filed written version. It raised objection that the District Forum has no jurisdiction to decide the complaint in view of the provisions of Section 91 of the Co-operative Societies Act 1960. It did not dispute about receiving respective amounts from respective complainants for fixed term, which were to be repaid with interest @ 14% p.a. on the date of maturity. It submitted that the said amounts were given by way of loan to the members of the opponent society and that as when the said loan is repaid, amounts of each of the complainants will be refunded by preference in instalment. It therefore submitted that complaints filed against it may be dismissed.
3. District Forum below after considering evidence brought on record and hearing advocates of both sides, held that each of the complainant is a consumer as defined U/s 2(1)(d)(ii) of the Consumer Protection Act. It also held that as the amounts deposited by each of the complainants with the opponent is not repaid after the date of maturity, it amounts to unfair trade practice on its part and therefore 5 F.A.No.:1067/08 & 1224 to 1231/07 complainants are entitled to said amount with interest and compensation towards loss sustained by them. It therefore directed opponent to pay amount due on the maturity to each of the complainants with interest @ 5% p.a. from the date of maturity till the date of said order. It also directed opponent to pay Rs.2000/- to each of the complainants towards mental harassment and Rs.1000/- towards cost of litigation. It also directed that if aforesaid amounts are not paid within one month from the date of that order, said amounts will carry interest @ 6% p.a. till their realisation.
4. Feeling aggrieved by the said order passed in aforesaid nine complaints, original opponent filed these 9 appeals. During the pendancy of these nine appeals, on the application of advocate of appellant, Liquidator is joined as appellant as it has been appointed as per provisions of law and liquidation proceeding in respect of appellant Bank is going on. We have heard Adv.Shri.P.S.Gaikwad appearing for the appellant Liquidator and Adv.Shri.N.S.Bakshi appearing for respondent in appeal No.1067/08. We have also heard Adv.P.S.Gaikwad for the appellant and Adv.Shri.H.A.Patankar for respondents in rest of the said eight appeals. Advocate of both sides filed written notes of arguments along with citations. We have also perused the papers placed before us in these appeals.
5. It is not disputed that during the pendancy of present appeals R.B.I. cancelled the license of the appellant Bank and said bank has gone under liquidation and Committee of Liquidation has been appointed. It is submitted by learned advocate of appellant that Deposit Insurance and Credit Guarantee Corporation( DICGC) sanctioned insurance of Rs.1 lakh and said amount has been disbursed to concern respondents which comes to Rs.6,92,313/- and amount remained to be disbursed is Rs.8,44,376/- only. He also 6 F.A.No.:1067/08 & 1224 to 1231/07 argued that as per provisions of Section 35A of Banking Regulatory Act 1949, direction has been issued restricting activities of the appellant bank. He further submitted that as per provision of Section 105 of Maharashtra Co-operative Societies Act 1960, the liquidator appointed has got power to decide the question of priority arising out of claim and to pay any class or classes of creditors in full or rateable according to amount on such debts, the surplus being applied in payment of interest from the date of liquidation at a rate to be approved by the Registrar, but not exceeding the contract rates. He therefore submitted that as in the instant cases Liquidator has been appointed under the said provision of Section 105 (a) of Maharashtra Co-operative Societies Act 1960, complainants are entitled to amount claimed by them as per said provision only. He also invited our attention to provision of Section 107 of Maharashtra Co-operative Societies Act 1960 under which there is bar of suit in winding up and dissolution matters. He also submitted that as per provision of DICGC, first priority is to be given to the payment of amount due from DICGC. He relied upon the observation made in the following cases.
i) First Appeal No. 110/2011, M/s Hardayal Singh Patel -Vs-
Indira Priyadarshani Mahila Nagrik Sahakari Bank Maryadit ( NC). Following observation are made in it.
Perusal of Section 16(1) would make it amply clear that the liability of the corporation could be only to the extent of Rs.1500/- qua a single depositor. The DICGC has already accepted the liability of Rs.1 lakh in accordance with the amendment made w.e.f. 1.5.1993. The liquidator is required to disburse the amount having regard to various other claims. The liquidator cannot shun the other claims by giving preference only to the claim of the appellant. The official liquidator has commenced recovery proceedings against the defaulters and those who have misappropriated the bank`s fund. It is obvious that as and when such amounts would be made available to the 7 F.A.No.:1067/08 & 1224 to 1231/07 official liquidator of the cooperative bank, proportionate disbursement of the amount will have to be effected. There appears no escape from such conclusion.
ii) Mig Ozar Gramin Bigar Sheti Sahakari Pat Sanstha Ltd.
-Vs- Ravindra Chimanlal Juneja, FA No.11/434, wherein Hon`ble National Commission made following observations. In the last para of this judgment this Hon`ble Commission held that "Other aspect is that though, admittedly, Mig Ozar Gramin Bigarsheti Sahakari Patsanstha Maryadit with whom deposits were kept is under liquidation and liquidator is appointed who is also made a party in the consumer complaint. When we made enquiry with Ld.counsel appearing for the original complainant, about compliance of Section 107 of the Maharashtra Co.Op. Societies Act, the answer came in negative. No such permission is obtained from the Registrar. Under the circumstances, consumer complaint or related proceedings in appeal cannot be continued.
iii) Nanda Kumar Tukaram Jabde -Vs- The Administrator Wasant Dada Shetkari Sahakari Bank Ltd., CC/10/130, following observations are made.
This Hon`ble National Commission held that without permission U/s 107 of the MCS Act, no proceeding can be initiated or continued against the liquidator. Similar view is taken in the case F.A.No.A/04/917 Shri.Ramesh G.Tepale Vs. Solapur zillar Audyogic Bank Ltd., Solapur. The appellant is also relying on the judgment of the National Commission in Revision Petition No.3686/2006 in the case of Nagpur Mahila Nagari Sahakari Bank Vs.Mahadeo B.Dhakate, wherein the Hon`ble Commission held that the depositors have to get their claims as per the scheme of the liquidators.
iv) The Registrar, Co-operative Societies -Vs- Tamil Nadu Consumer Protection Council, Revision petition No.726-821 of 2003.
8 F.A.No.:1067/08 & 1224 to 1231/07The National Commission in this matter has at internal page No.13 of the order has held that the Registrar of the Co- operative Societies, Tamil Nadu, is not discharging any service as contemplated under the Consumer Protection Act 1986, nor is providing any facility under the Act, but is exercising statutory, administrative, supervisory power or and discharging quashi-judicial functions under the Tamil Nadu Co-operative Societies Act. There is no question of hiring or availing of service or facility of Registrar of the Special Officer by the complainant who have deposited their amount with the society.
6. Learned advocate of appellant lastly submitted that in these appeals clarification may be given that proportionate claim of the appellant may be considered by liquidator and it may also take into account their claims along with accrual interest on the deposited amount, as and when required funds are available for purpose of disbursement and that amount so due may be disbursed within period of three months after availability thereof.
7. On the other hand, learned advocate of respondent in these appeals submitted that District Forum has got jurisdiction to entertain and decide these complaints as the Hon`ble Apex Court in the case of Secretary, Thirumurugan Co.Operative Agriculture Credit Society -Vs- M.Lalitha (Dead) Through L.Rs. and other, (2004) 1 SCC 305 held that such complaints are maintainable. It is also their common submissions that in case of "Lucknow Development Authority
-Vs- M.K.Gupta" (1994) 1 SCC 243, it has been directed by Hon`ble Apex Court that " the liquidator shall abide by final order passed by District Forum and to make payment of amount which is crystallised by the said Forum within period of six weeks from the date of that order. He also submitted that amount paid can be recovered from DICGC on the basis of insurance cover. Hence they submitted that these appeals may be dismissed.
9 F.A.No.:1067/08 & 1224 to 1231/078. Admittedly, Chalisgaon People Bank is under liquidation process. Liquidator who is present appellant has been appointed for the said proceedings. Only question involved in the present all appeals is that as to whether said Liquidator can be directed to pay entire amount due from the said bank under award when liquidation proceeding is admittedly pending. It is not disputed that Liquidator is authorised to effect the payment after releasing all the assets proportionately. Therefore if assets are not sufficient for full repayment then proportionate payment on uniformity basis only can be made. Under these similar facts and circumstances the Hon`ble Bombay High Court in Writ Petition No.10908/2010 in case "Indira Sahakari Bank Ltd. -Vs- Union of India and others" passed an order on 9.8.2012 and thereby directed the Liquidator to take note of the claim as allowed by District Forum and to effect payment to respective consumers, after list of creditors and their entitlement is settled in accordance with provision U/s 105( e) of Maharashtra Co-operative Act. Time of six months was given to the Liquidator to complete necessary proceeding in that revision petition. We also find similar direction is to be given in the present cases. Moreover we also find the facts and circumstances of the cases relied upon by learned advocate of respondent are different from those of the present case and hence said decisions are not of any assistance to respondent No.1. We therefore proceed to pass the following order.
O R D E R
1. All these nine appeal Nos. 1067/08 and 1224 to 1231/2007 are partly allowed as under.
2. The impugned orders passed by District Forum below in nine complaints pertaining to present nine appeals are hereby modified and substituted as under.
10 F.A.No.:1067/08 & 1224 to 1231/07It is directed that amounts deposited by each of the complainants in nine appeals and due on the date of maturity shall be paid by the appellant Liquidator to respective complainants with interest at the rate of 6% p.a. from the respective date of maturity of each term deposit, after list of creditors and their entitlement is settled in accordance with provision of Section 105( e ) of Maharashtra Co.Operative Societies Act. Liquidator shall complete necessary proceeding in this respect within a period of six months from the date of this order. After making of said payment, the balance if any, shall be paid with interest as above , as per availability of further funds.
3. No order as to cost.
4. Copies of the judgment be issued to both the parties.
K.B.Gawali, B.A.Shaikh Member Presiding Judicial Member Mane