National Consumer Disputes Redressal
Arun Singla & Ors. vs Swami Geeta Giria @ Indu Arora & Ors. on 8 February, 2023
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 763 OF 2010 (Against the Order dated 20/10/2009 in Appeal No. 258/2009 of the State Commission Punjab) 1. ARUN SINGLA & ORS. R/o. Street No. 9-B, Guru Angad Nagar Muktsar 2. SHAM SUNDER BEDI, SON OF SHRI GURBAX SINGH R/o. Street No. 9, Dashmesh Nagar Muktsar Punjab 3. AKSHONI KUMAR SON OF SHRI JASRAJ R/o. House No. 1134, Street No. 4, Gandhi Nagar Muktsar Punjab ...........Petitioner(s) Versus 1. SWAMI GEETA GIRIA @ INDU ARORA & ORS. Resident of Satsang Bhawan Chanu Mal Street Muktsar Punjab 2. MUKTAR STATE BANK OF INDIA EMPLOYEE'S CO-OP URBAN SOCIETY EARNERS THRIFT AND CREDIT SOCIETY LTD. MUKTSAR Through its President Shri. Arun Singla. Officer State Bank of India Doda Muktsar Punjab 3. KRISHNA KUMAR GAWRI, ASSTT. STATE BANK OF INDIA MAIN BRANCH MUKTSAR Now Resident of Chhannu Mal Street Muktsar Punjab 4. KARNAIL SINGH, S/O. GULJAR SINGH, SENIOR ASSISTANT, STATE BANK OF INDIA Resident of Gandhi Nagar Muktsar Punjab 5. VIJAY SUKHIJA, MEMBER Now Resident of Dhannu Mal Street Muktsar Punjab 6. CHIEF GENERAL MANAGER, STATE BANK OF INDIA Local Head Officer Sector - 17 Chandigarh 7. BRANCH MANAGER STATE BANK OF INDIA Main Branch Muktsar Muktsar Punjab ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE DR. S.M. KANTIKAR,MEMBER For the Petitioner : For the Petitioner : Mr. Naeem Ilyas and Mr. Gurjinder Singh Chahal, Advocate For the Respondent : For the Respondent : Ms. A. Subhashini, Amicus Curiae Dated : 08 Feb 2023 ORDER
1. Challenge in this Revision Petition filed by Mr. Arum Singh, Mr. Sham Sunder Bedi and Mr. Akshoni Kumar (Opposite Party No. 2, 3 and 6 in the Complaint respectively) under Section 21 (b) of the Consumer Protection Act 1986 (for short "the Act") is to the Order dated 20.10.2009 passed by the State Consumer Disputes Redressal Commission, Punjab, Chandigarh (for short "the State Commission") in in First Appeal No. 271 of 2009. By the Impugned Order, the State Commission while affirming the finding of facts returned by the District Consumer Disputes Redressal Forum, Muktsar (for short, "the District Forum") has dismissed the Appeal preferred by the Petitioners herein. The District Forum vide its Order dated 23.01.2009 allowed the Complaint filed by the Complainant/Respondent No. 1 herein and directed the Petitioners and Respondents No. 2 to 5 herein to pay jointly and severally the maturity value of the FDRs to the Complainant along with interest accrued thereon, compensation etc.
2. The facts material to decide the present case, are that the Complainant/ Respondent No.1 was holding a Savings Bank Account with State Bank of India, Muktsar Branch (for short, "the Bank"). On 01.01.2003, she deposited a sum ₹1,00,000/- with the Bank and was issued FDR No. 2440 with the rate of interest @12% p.a. for a period of one year. Complainant/Respondent No.1 raised her doubt about the sanctity of the FDR since by appearance it was not looking a Fixed Deposit Receipt. However, she was given assurance by the Branch Manager of the Bank that the amount was being invested in a Society approved by the Central Office of the Bank and the Society is used to provide higher rate of interest in comparison to the Bank itself. Believing this representation, Complainant/Respondent No.1 in good faith, further invested a sum of ₹10,00,000/- in the FDR with the Society on various occasions through the same Branch Manager of the Bank.
03. Complainant/Respondent No.1 has entered into an agreement with some persons at Pathankot for purchase of a plot and therefore, demanded back the money from the Bank in order to execute the Sale Agreement in time, however, it was informed to her that the entire amount had been mis-appropriated by the Secretary-Cum-Cashier of the Society and arranging the same would take time. As a result of delay, Complainant/ Respondent No.1 could not execute the Sale Deed in time and her earnest money was forfeited. Despite several requests, repeated remainders and service of a legal notice, Opposite Parties/ Petitioners herein, did not pay the amount to the Complainant. Being aggrieved, Complainant/ Respondent No.1, alleging deficiency in service on part of Opposite Parties filed a Complaint before the District Forum for releasing the amounts of FDRs/TDRs with interest and compensation.
04. Upon notice, the Complaint was contested by the Opposite Parties by filing separate Written Statement and raising a common preliminary objection that the Complaint is not maintainable as the Complainant was not a "Consumer" as defined in the Act. The other plea taken by the Opposite Parties was that the complaint was bad for mis-joinder of the necessary parties and further they are not responsible for the fraud committed by the Respondent No.4, Secretary-Cum-Cashier of the Society.
05. Upon evaluation of the material placed on record by both the parties, the District Forum came to the conclusion that the failure to return the amount by the Society to its depositors amounted to deficiency in service as by accepting the deposits, it undertook to provide a service of returning the amount to the depositors, upon maturity along with the promised interest. Consequently, the District Forum allowed the Complaint in above terms. The District Forum held as under:-
" Therefore, from the material available on the record we are satisfied that Swami Geeta Griri had deposited the amount of Rs.10,00,000/- with the society Opposite Party No.1 through Opposite Party No.4 on various dates i.e. Rs.1,00,000/- on 01.01.2003 Ex. C-10, Rs.2,00,000/- on 04.08.2004 Ex C-11 and Rs.20,00,000/- on 04.08.08.2004 EX. C-8, Rs.2,00,000/- on 01.03.2005 Ex C-6, Rs.1,00,000/- on 01.04.2005 Ex C-11 and Rs.2,00,000/- on 01.04.2005 Ex.CP-9. The Opposite Party No.4 indubitably enjoyed the authority of the members Opposite Party No.2,3,5, to 7 to conduct such business, being their duly authorized agent of act. His acts therefore, clearly bind the Opposite parties No. 2,3,5, to 7 for all actions including misappropriation of the amount deposited. The members of the society cannot regal out from their liability on account of they being not present on the dates of issue of FDRs and not signatory to these, even if there were not, nevertheless they were vicariously liable to the every act of Krishna Kumar Gawari the Opposite Party No.4 whom they had made the secretary/cashier of the society to transact the business which fact has not denied. Even if the society has become non-functional, the members would not cease to be members and absolved of their liability by disowning the acts of Opposite Party No.4 on the ground that it was he who maintained the record and transacted the business.
XXXXX No doubt cases involving complicated issues cannot be in entertained by the Consumer Forums as would the decision above referred show but in the case no such complicated issues are involved. The forming of the Society, its registration, accepting of the deposits and failure to return the said deposits on maturity is clearly proved by the evidence and replies filed by the Opposite Parties No.2 to 4 who have tried to pass on the blame on one another, therefore no complied issues are involved in the case so as to oust jurisdiction of the Forum. The liabilities of the members of the society towards the depositors is also well recognized in law, they cannot therefore allowed to hijack the justice by taking such cantankerous pleas. The contention of the Ld. Counsel for the Opposite Parties No. 2 and 6 that cross-examination of the witnesses was necessary in this case of find out the truth and fix the liability, is devoid of any force. The facts as such did not require cross examination of the witnesses to elicit the truth, which prima facie is visible on the record and in replies of the Opposite parties."
XXXXXXXX The sum and substance of our discussions therefore is that the complainant Swami Geeta Giri is a consumer of the Opposite Parties No.1 to 7 and there has been deficiency is service provided by Opposite Party No.1 and he Opposite Parties No.1 to 7 are held jointly and severally liable to return the amount of the FDRs along with interest @ 12% p.a. from the date of deposits Party except Opposite Party No.8 & 9 is ordered to pay compensation of Rs. 5000/- to the complainant who had certainly undergone a grant deal of harassment mental as well a physical by their act and conduct. She is also held entitled to cost of litigation fixed at Rs. 5000/- Order accordingly."
06. Aggrieved by the said Order, the Opposite Parties No. 2, 3 & 6/ Petitioners herein, filed First Appeal No. 271 of 2009 before the State Commission. The State Commission dismissed the said Appeal in terms of its decision dated 20.10.2009 passed in First Appeal No. 258 of 2009 filed by the Opposite Party No.7, i.e. Vijay Sukhija. The First Appeal No. 258 of 2009 was dismissed by the State Commission affirming the order passed by the District Forum as under:-
"62. Since the appellant and respondents No. 3. 4, 6 and 7 were also the office bearers of the respondent Society, therefore, they were deemed to be running the affairs of the respondent Society in the eyes of law even if the amount had been accepted by Krishan Kumar Gawri, Secretary-Cum-Cashier, respondent No.5 alone on behalf of the respondent Society. Obviously, it was so done by him in his capacity as Secretary-Cum-Cashier. The appellant and Respondents No.3. 4, 6 and 7 cannot avoid their liability as they were the office bearers of the respondent Society at that time. Therefore, it is held that appellant and respondents No. 3, 4, 6 and 7 along with respondent No. 5 are equally liable to pay the amount to respondent No. 1. Besides that, the respondent Society is also liable.
63. In view of the discussion held above, respondent no. 1 is held entitled to the refund of Rs.10,00,000/- with interest at the rate of 12% per annum from the date of deposit till the date of payment. Since the money has been accepted on behalf of the respondent Society, therefore, the respondent Society is liable to pay the whole amount of Rs.10,00,000/- with interest at the rate of 12% per annum to respondent No.1.
64. The appellant and respondents No. 3 to 7 being the office bearers of the respondent Society are also liable to make the payment of Rs.10,00,000/- along with interest at the rate of 12% per annum from the dates of deposits till the date of payment to respondent No.1 in equal share. They are also liable to make payment of Rs.5,000/- each to respondent No. 1 as directed by the learned District Forum.
65. Accordingly all these appeals, namely, First Appeal No.258 of 2009, First Appeal No. 271 of 2009 and First Appeal No. 283 of 2009 are dismissed."
07. Hence, the Petitioners (Opposite Party No. 2, 3 and 6 in the Complaint respectively) are before us by filing the present Revision Petition.
08. Heard the Learned Counsels for the Parties at some length and also perused the Written Submissions available on record.
09. Learned Counsel appearing for the Petitioners vehemently submitted that by virtue of the Bye laws, the Petitioner No. 1 and 2 ceased to be the Member of the said Society. Further, there was no finding of fact returned by the State Commission or any evidence to show that the present Petitioners had colluded with the Secretary-Cum-Cashier of the Society or abetted in the commission of the act of fraud by him, hence, the liability could not have been fastened on them. He further urged that there was no master-agent relationship so as to make the Petitioners vicariously liable for the dishonest act of the Secretary. The Petitioners had no access to the records and Fixed Deposit Receipts issued by the Secretary of the Society. It is also contended by him that the State Commission had committed a grave error by holding that the Petitioners were the office bearers of the said Society and were managing the affairs of the Society and that even if the Petitioners were transferred from Muktsar, they continued to hold their office in the said Society.
10. As against this, Learned Amicus-Curiae for the Complainant/Respondent No.1 supported the well-reasoned order passed by the Fora below based on correct appreciation of the material available on record and evidence adduced by the parties.
11. Having bestowed our anxious consideration to the rival contentions of the parties, we are of the considered view that none of the submissions made by the Learned Counsel for the Petitioners deserves any merit. There is no dispute to the fact that a Society (Opposite Party No.1) under the name and style as Mukstar State Bank of India Employee Co-Operative Urban Salary Earners Thrift and Credit Society Ltd was formed by the Opposite Parties No. 2 to 7 when they were posted in the State Bank of India at Mukstar Branch. The Society was got registered with the Registrar Co-operative Societies Punjab. The Complainant was maintaining a Saving Bank Account with the SBI, Muktsar and when she went to the Bank to invest the amount in the FDR she was allured by the Opposite Party No.4, Secretary-Cum-Cashier to invest the amount with the Society on a higher rate of interest and further she was informed by the O.P. No. 4 that the Society was constituted with the approval of the Central Office of the SBI. Accordingly, the Complainant invested a sum ₹10,00,000/- in the FDR with the Society on various occasions and the Opposite Party No.4 issued the Receipts against the said deposits, however, when she approached to the Bank for refund of the maturity amount she was refused to pay the same. On proper appreciation of the facts of the case and the evidence adduced by the parties, the fora below came to the conclusion that the Opposite Party No.2 to 7 were office bearers of the Society and the Opposite Party No.4, Secretary-Cum-Cashier had accepted the amount from the Complainant and issued the Fixed Deposits Receipts under his signature and as such the Opposite Party Nos. 2, 3 and 5 to 7 were vicariously liable for the dishonest act of fraud or misappropriation of the funds by the Secretary-Cum-Cashier. We fully agree with the conclusion arrived at by the Fora below after due appreciation of the facts of the case and the evidence adduced by the parties that the Opposite Party No.2 to 7 are equally liable to refund the amount of ₹10,00,000/- to the Complainant along with interest.
12. It is well settled by the Hon'ble Supreme Court of India in 'Sunil Kumar Maity vs. State Bank of India & Anr.' [Civil Appeal No. 432 / 2022 Order dated 21.01.2022] that the Revisional Jurisdiction of this Commission under Section 21(b) of the Consumer Protection Act, 1986 is extremely limited and this Commission cannot set aside the Order passed by the State Commission in Revisional Jurisdiction until and unless there is any illegality, material irregularity or jurisdictional error in the Order passed by the State Commission. The relevant paragraph of the said judgment is quoted as under:-
"9. It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the respondent-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. ....."
13. Recently, the Hon'ble Apex Court in the case of "Rajiv Shukla vs. Gold Rush Sales and Services Ltd. and Ors. - (2022) 9 SCC 31 while affirming its earlier view taken in the case of "Rubi (Chandra) Dutta Vs. United India Insurance Company - (2011) 11 SCC 269 that the National Commission has no right to interfere with the concurrent finding of facts of the Fora below in its Revisional Jurisdiction, has held as under:-
" At this stage, it is required to be noted that on appreciation of evidence on record the District Forum as well as the State Commission concurrently found that the car delivered was used car. Such findings of facts recorded by the District Forum and the State Commission were not required to be interfered by the National Commission in exercise of the revisional jurisdiction. It is required to be noted that while passing the impugned judgment and order the National Commission was exercising the revisional jurisdiction vested under Section 21 of the Consumer Protection Act, 1986. As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction. In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record. Therefore, while passing the impugned judgment and order the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21(b) of the Consumer Protection Act."
14. In view of the law laid down by the Hon'ble Supreme Court in afore-noted Judgments, we do not find any good ground to interfere with the well-reasoned Orders passed by the Fora below in Revisional Jurisdiction u/s 21 (b) of the Act. Consequently, the present Revision Petition fails and is hereby dismissed. Keeping in view the facts and circumstances of the case, there shall be no Order as to costs.
15. Vide Order dated 08.04.2010, the Petitioners were directed to deposit a sum of ₹4,00,000/- with this Commission which order was complied with. Further, vide Order dated 08.09.2010, the Registry was directed to release the deposited sum of ₹4,00,000/- in favour of the Complainant. As submitted in the Written Submissions filed by the Amicus-Curiae for the Complainant the amount of ₹4,00,000/- had been withdrawn by the Complainant on 11.01.2011. The Petitioners are directed to pay the balance amount in terms of the Order passed by the District Forum and affirmed by the State Commission within a period of six weeks from today.
......................J R.K. AGRAWAL PRESIDENT ...................... DR. S.M. KANTIKAR MEMBER