State Consumer Disputes Redressal Commission
The Nandurbar Urban Co.Op.Credit ... vs Smt.Kamini Mahindra Wani on 19 December, 2012
1 F.A.No. : 178/2012
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL COMMISSION,
MUMBAI.
CIRCUIT BENCH AT AURANGABAD.
First Appeal No. FA/178/2012
(Arisen out of Order Dated 21/03/2012 in Case No. 11/2011 of District Nandurbar )
1.The Nandurbar Urban Co.Op.Credit Society Ltd.
Head Office, Subhash Chowk Nala,Nandurbar,Tq.&
Dist.Nandurbar.
2. Sandeep Onkar Chaudhary,Chairman,
The Nandurbar Urban Co.Op.Credit Society
Ltd.R/O.Desaipura,Nandurbar,Tq.& Dist.Nandurbar.
3. Rajendra Babulal Shaha,Branch Officer,
The Nandurbar Urban Co.Op.Credit Society
Ltd.Shahade,Tq.Shahade,Dist.Nandurbar. ...........Appellant(s)
Versus
1. Smt.Kamini Mahindra Wani,
R/O.Shahade,Dist.Nandurbar.
2. Mahindra Bacchula Wani,
R/O.Shahade,Dist.Nandurbar. ...........Respondent(s)
BEFORE:
HON'ABLE MR. B.A.SHAIKH PRESIDING MEMBER
HON'ABLE MR. K.B.GAWALI MEMBER
PRESENT:S.P.Brahme, Advocate for the Appellant 1
Adv.Shri.R.S.Wani, Advocate for the Respondent 1
Adv.Shri.R.S.Wani , Advocate for the Respondent 2
ORDER
Date : 19.12.2012.
Per Mr.K.B.Gawali, Hon`ble Member.
2 F.A.No. : 178/20121. Appellants are the original opponent No.1 to 3, have filed the present appeal challenging the judgment and order dated 21.3.2012 passed by Dist.Forum Nandurbar in C.C.No.11/2011, whereby appellant society is directed to pay maturity amount of the term deposit with interest and also compensation towards mental agony and cost of the complaint. Respondent No.1 & 2 are the original complainants.
2. The facts of the case in a nutshell are that respondent No.1 & 2 are husband and wife. They had invested money in term deposits with the appellant society which carries banking business through out Nandurbar district. Appellant No.2 & 3 are the office bearers of the said society. The details of the said term deposits are given as under.
Sr.No. Deposit Date of Amount of Date of Maturity
receipt deposit deposit maturity amount
number
1. 5033 21.02.09 1,40,000/- 17.12.10 1,67,721/-
2. 5034 24.02.09 60,000/- 20.12.10 71,881/-
3. 5035 24.02.09 1,50,000/- 20.12.10 1,79,701/-
4. 2 06.07.09 50,000/- 06.08.10 54,500/-
Total : 4,73,803/-
That, first three term deposits are in the sole name of respondent No.1 and forth deposit is in the joint name of respondent Nos.1 & 2. It was contended that after date of maturity when respondents approached to the society for payment of maturity amount same was denied by the society on the ground that they were kept as security against loan which was given to one Shri.Jayesh Amrutlal Shaha for which respondent No.2 was guarantor. It was contended that though respondent No.2 was guarantor, the term deposit receipts were not kept as security deposit against the said loan. It was also contended that first three term 3 F.A.No. : 178/2012 deposits were solely in the name of respondent No.1 who was not a guarantor and therefore there was no reasons for the appellant society to withhold the maturity amount of the said term deposits. Therefore contended that appellant society has provided deficient service and hence complainants filed the complaint before Dist.Forum seeking direction to the appellant No.1,2 & 3 to pay the maturity amount of Rs.4,73,803/- of all the four deposits along with interest of Rs.1352/- upto the date of application and also Rs.25,000/- towards mental harassment and Rs.10,000/- as cost of the complaint.
3. Appellant No.2 & 3 i.e. opponent No.2 & 3 appeared before the Forum and filed written version denying the claim of complainants. It was contended that respondent/org.complainants being member of said society, they were required to raise dispute as per provision of Co- operative Societies Act. Hence Dist.Forum has no jurisdiction to entertain the said complaint. It was further contended that the relative of complainant namely Jayesh Amrutlal Shaha was given loan of Rs,2,50,000/- by the society as on 16.5.2006 for which the respondent No.2 was one of the guarantors. That, the loanee Jayesh Shaha had gone in default and hence the recovery notice dated 2.6.2008 was served on the loanee as well as guarantor. That, the present respondent No.2 appeared before the society and requested that they are ready to keep their FDR as lien until the loan is not repaid by the said loanee Shri.Jayesh Shaha. Therefore appellant society was empowered to get a general lien on the said term deposits and withheld maturity amount until the loan was not repaid by the concern loanee. Hence it was contended that there was no deficiency in service on the part of appellant.
4. Dist.Forum after going through the papers and hearing the parties 4 F.A.No. : 178/2012 has partly allowed the complaint and directed said society to pay to the respondent No.1 the maturity amount of her three term deposits along with interest @ 6% p.a. from the date of maturity i.e. 20.12.2010 till its realisation. In addition it was directed to pay to the complainants amount of Rs.3000/- towards mental agony and Rs.2000/- towards cost of complaint.
5. Feeling and dissatisfied by the said judgment and order present appeal is filed in this Commission which was finally heard on 21.11.2012. Adv.Shri.Santosh Bhosale holding for Adv.Brahme present for appellant, Adv.Shri.R.S.Wani was present for respondent No.1 & 2. We heard both the counsels with their consent at admission stage finally and appeal was reserved for the judgment.
6. Learned counsel Shri.Bhosale for the appellant submitted that as per consent given by respondent No.2 the said term deposits were kept in lien till the recovery of loan which was given to Mr.Jayesh Shaha and that as per Rule 17 of the Byelaws, the society is empowered to have general lien. That, even Section 171 of "Contract Act" provides banker the lien over the amounts of deposits kept by the guarantor. It was also contended that respondent Nos.1 & 2 being wife and husband are indivisible in the eyes of law and that she was only shown ostensible owner for convenience. It was further contended that complaint as filed by respondent was maintainable against appellant No.2 & 3 being Chairman and office bearer respectively in their personal capacity. It was submitted that in view of the judgment of Hon`ble Bombay High Court, Bench at Aurangabad dated 2.12.2011 in the matters of "Sau.Varsha Ravindra Isai -Vs- Sow.Rajashri Rajkumar Chaudhari and others", the office bearers of the society cannot be held personally responsible for any liability which lie against the society. Thus on these 5 F.A.No. : 178/2012 grounds the learned counsel Shri.Bhosale submitted that Dist.Forum has not appreciated defense of the appellant in proper perspective and wrongly passed the impugned judgment and order which requires to be quashed and set aside. Learned counsel for the appellant in support of his above said contention has relied on following citations;
i) Janak M.Chandan -Vs- Ahmednagar Sahakari Bank Ltd., reported in 1994(3) Bom.C.R.(Cons.) 1 (NCRDC New Delhi).
ii) Punjab National Bank -Vs- Surendra Prasad Sinha, reported in 1992 DGLS(Soft.) 302 by Hon`ble Supreme Court of India.
7. On the other hand, learned counsel Shri.R.S.Wani submitted that although respondent No.2 was guarantor to the loan as raised by Mr.Jayesh Shaha from the appellant society, the said FDRs were not pledged with the society for the security of the said loan. He further submitted that appellant society has not produced any cogent evidence on record to show that these FDRs were pledged to it against loan advanced to Shri.Jayesh Shaha. It was also his contention that first three FDRs were solely in the name of respondent No.1 and she was not in any way concerned with the guarantee given by respondent No.2 in respect of said loan. He therefore contended that appellant society had no reason to withheld the maturity amount of the FDR which were in the name of respondent No.1 and hence he contended that by withholding maturity amount the appellant society has committed deficiency in service. Therefore the judgment and order passed by Dist.Forum is quite just and proper which does not require any inference.
8. In support of his above said contention the learned counsel for respondent has relied on "Anumati -Vs- Panjab National Bank" reported 6 F.A.No. : 178/2012 in 2004 SAR(Civil) 961, Supreme Court, in which it is held that respondent bank should not have accepted any pledge of amount of such FDR without informing the appellant and getting her consent as FDRs were in the joint name of appellant and her husband. Therefore further held that by accepting pledge of FDR, bank has committed deficiency in service and was further held appellant as entitled to recover half of the amount of FDR.
9. We have perused the papers and also gave anxious thoughts to the arguments as put forth by counsels of both sides. The points which come up for our consideration and decision are;
i) Whether the deficiency in service is proved against appellant?
ii) Whether impugned judgment and order as passed by Forum below calls our intervention?
10. As regards point No. i). We have to verify whether the act of withholding payment of said FDR on the ground of 'general lien' is just and proper. Answer is certainly in 'negative'. Although present respondent No.2 was guarantor to the loan of one Jayesh Shaha, we find that FDRs in question have not been pledged as security to the said loan. Secondly, it is admitted that three out of the said 4 FDRs are in the name of respondent No.1 i.e. wife of respondent No.2. Secondly, it is also admitted fact that respondent No.1 is not guarantor to the said loan. Therefore FDRs which were in the name of respondent No.1 cannot have 'general lien' as claimed by the appellant and hence amount of said FDRs ought to have been paid by appellant to respondent No.1. Even forth FDR as being in the joint of name of respondent No.1 & 2 cannot have "general lien" and cannot be withheld the payment for recovery of 7 F.A.No. : 178/2012 defaulted loan. The ratio in the above cited case law as relied on by Adv.R.S.Wani for respondent and also by Forum below is quite applicable in the present case. In the case under citation the husband of appellant had pledged FDR with the respondent bank which were in the joint name and hence, Hon`ble Supreme Court held that respondent bank should not have accepted the pledge amount of such FDR without getting consent of appellant. Thus, we hold that by withholding maturity amount of FDRs especially those which are in the name of respondent NO.1 i.e. wife of respondent No.2, appellant society has committed deficiency in service which has also rightly held by Dist.Forum.
11. It is also to be noted that the appellant in their appeal have also challenged impugned judgment and order on the ground that appellant No.2 & 3 who are office bearers of the appellant society No.1 cannot be held personally liable for the payment of FDR or any compensation. However, operative part as passed by Dist.Forum is only against respondent No.1 i.e. the society and hence said ground of appellant needs no consideration. Citations as relied on by appellant learned counsel does not support his contention as facts and circumstances existed in those cases are different from the same in the present case.
12. In view of the above said observations we find that there is no material in the present appeal and that the judgment and order passed by Dist.Forum being well reasoned requires no intervention. In the result, we pass the following order.
O R D E R
1. Appeal is dismissed.
8 F.A.No. : 178/2012
2. No order as to cost.
3. Copies of the judgment be issued to both the parties.
Pronounced on 19.12.2012.
[HON'ABLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'ABLE MR. K.B.GAWALI] MEMBER Mane