State Consumer Disputes Redressal Commission
Mukund Moreshwar Bhokarikar, vs Dnyaneshwar Ramdas Shinde, on 14 July, 2011
1 F.A.No.:1954 to 1960/2011
& 1292/2004.
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
Date of filing :11.12.2001
Date of order :14.07.2011
FIRST APPEAL NO. :1954 TO 1960 OF 2001
IN COMPLAINT CASE NO.: 6,7,9,10,13,14,15 OF 2000
DISTRICT CONSUMER FORUM : JALGAON.
Mukund Moreshwar Bhokarikar,
R/at Raver, Dist.Jalgaon.
(Ex.Chairman of Saraswati Nagari
Sahakari Pat Pedhi Ltd., Raver,
Dist.Jalgaon.) ...APPELLANT
(Org.Opp.No.1)
VERSUS
1. F.A.No.:1954/2001 in C.C.NO.9/2000
Dnyaneshwar Ramdas Shinde,
R/o Raver, Dist.Jalgaon.
2. F.A.No.:1955/2001 in C.C.NO.7/2000
Shailabai Vishavanath Wani,
R/o Raver, Dist.Jalgaon.
3. F.A.No.:1956/2001 in C.C.NO.10/2000
Kamalabai Ramdas Shinde,
R/o Raver, Dist.Jalgaon.
4. F.A.No.:1957/2001 in C.C.NO.6/2000
Ramdas Pandharinath Shinde,
R/o Raver, Dist.Jalgaon.
5. F.A.No.:1958/2001 in C.C.NO.15/2000
Vishwanath Rangnath Shinde,
R/o Raver, Dist.Jalgaon.
6. F.A.No.:1959/2001 in C.C.NO.13/2000
Sunanda Vishawanath Wani,
2 F.A.No.:1954 to 1960/2011
& 1292/2004.
R/o Raver, Dist.Jalgaon.
7. F.A.No.:1960/2001 in C.C.NO.14/2000
Mahavir Vishawanath Wani,
R/o Raver, Dist.Jalgaon. ...RESPONDENTS.
(Org.Complainants)
AND
Date of filing :11.12.2001
Date of order :14.07.2011
FIRST APPEAL NO. :1292 OF 2004
IN COMPLAINT CASE NO.: 75 OF 2004
DISTRICT CONSUMER FORUM : JALGAON.
Mukund Moreshwar Bhokarikar,
R/at Raver, Dist.Jalgaon.
(Ex.Chairman of Saraswati Nagari
Sahakari Pat Pedhi Ltd., Raver,
Dist.Jalgaon.) ...APPELLANT
(Org.Opp.No.2)
VERSUS
1. Shri.Arjun Kisan Patil,
R/o Shivaji Chowk, Raver,
Dist.Jalgaon.
2. The Liquidator,
Shri.J.B.Bari,
Saraswati Nagri Sahakari Pat Sanstha Ltd.,
Raver, Assistant Registrar`s Office,
Station Road, Raver,
Dist.Jalgaon. ...RESPONDENTS
(No.1-Org.Complainant,
No.2-Org.Opp.No.1)
CORAM : Mrs.Uma S.Bora, Hon`ble Presiding Member,
Shri.K.B.Gawali, Hon`ble Member.
Present : None for both sides.
3 F.A.No.:1954 to 1960/2011& 1292/2004.
O R A L O R D E R Per Mrs.Uma S.Bora, Hon`ble Member.
1. All these appeals are filed by Mukund Bhokarikar resident of Jalgaon against the order passed by Dist.Forum, Jalgaon whereby directed the appellant to refund maturity amount of the deposit made by complainants. Dissatisfied with the said judgment and order present appeals were filed.
2. It is the contention of appellant that notices by Forum were issued to Chairman, Saraswati Nagari Sahakari Pat Pedhi Ltd. As the appellant was not the Chairman at the relevant time he did not accept the notice. Therefore Forum proceeded exparte against him. He further submitted that on 8.8.99 new Chairman was elected on said society. Therefore he is not liable for any transaction of the society. Appellant stated that society in which deposits are made by complainants is not party to the complaints and instead of society, Chairman & Manager were held responsible for the refund of amount. It is also stated that letter was issued by Registrar, Co-operative Societies, Raver to the appellant informing not to conduct any activity on behalf of Society. Administrator was appointed on the said society. It is further stated by appellant that Dist.Forum without considering all the facts and without affording opportunity to the appellant directed the appellant to refund maturity amount of all the complainants.
3. One of the appeal filed by appellant is dismissed by this Commission( Per Shri.S.G.Deshmukh,Judicial Member). Therefore he filed transfer application before the State Commission, Mumbai. He filed application on 28.4.2008 before Aurangabad Bench praying for 4 F.A.No.:1954 to 1960/2011 & 1292/2004.
adjournment of all the appeal Nos. 1954 to 1960/2001 and 1292/2004. Thereafter no order alleged to be passed by the State Commission is produced by the appellant before this Commission. Appeals came for final hearing on 14.07.2011. None appeared for appellant. No order of transfer of appeals produced by the appellant. We therefore proceed in the matter.
4. As per Section 188 of the Maharashtra Co-operative Society Act 1960 scheme is provided for conducting enquiry and for holding Directors/Member of the managing committee responsible for any act done by them which is detrimental to the society. On conducting enquiry U/s 88 Registrar is empowered to assess the damage against delinquent and fix liability. During the course of enquiry U/s 88, if the Registrar comes to the conclusion that persons has become liable for payment of money or the property or in respect of restoration of property or any part thereof, he is empowered to pass an appropriate order. On the determination of the amount, the Registrar may direct such person, by way of compensation in regard to misapplication, retention, misfeasance or breach of trust, as he may determine. The amount so arrived at can also be directed to be recovered U/s 155 as arrears of land revenue. Thus it is clear that Maharashtra Co.op.Societies Act, 1960 provides for a scheme for holding an enquiry against member of managing committee, past or present, to assess the damages, to pass the order in respect of payment of amount towards the compensation etc. and also provides for recovery of the same.
5. Consumer Protection Act 1986 however does not provide for any such scheme. The Directors or member of the Managing Committee, present or past, can not be held responsible under Consumer Protection Act. Thus in view of the specific provisions of the Maharashtra 5 F.A.No.:1954 to 1960/2011 & 1292/2004.
Co.op.Societies Act, determination of liability against a member of managing committee, past or present, unless such procedure is adopted the members/managing committee cannot be held responsible. As per Section 36 of Maharashtra Co.op.Societies Act, the society can be sued or society may defend any action in Civil Court or Fora. So far as members are concern, they stand on different footing and they cannot be held responsible to contribute to the damages or make payment in respect of dues recoverable from the society unless methodology prescribed under the Act for holding them responsible for making payment is adopted. Consumer Protection Act does not prescribe modalities for holding inquiry against the Directors in respect of act or omission committed by them. In 'P.C.Agarwal -Vs- Payment of Wages Inspector, M.P. & Others, reported in 2006 AIR SCW 146', it held by Apex Court that " The Directors cannot be held personally liable for making the payment". The status of a Director of company is at par with the member of managing committee of the society. The society is a body corporate having a common seal and is entitled to sue and also be sued. In the light of above discussion we are of the view that in the present case society was not made party. Therefore complaint is liable to be dismissed on the ground of non-joinder of necessary party. Even otherwise the appellant was Director at the relevant time and Directors cannot be held liable personally. Dist.Forum while deciding complaint did not consider the fact that society was not made party, when it is necessary. We are relying on orders of High Court of Bombay bench at Aurangabad in Writ Petition No.11176/2010 and 5223/09 wherein Hon`ble High Court held that Directors or members of Managing Committee cannot be held personally liable.
6. In the peculiar facts and circumstances of these appeals and reasons recorded above, we are of the view that Forum committed error 6 F.A.No.:1954 to 1960/2011 & 1292/2004.
by holding Chairman and Manager of the Society liable for refund of maturity amount. We are therefore quashing and setting aside the order passed by Dist.Forum. We pass the following order.
ORDER
1. Appeal Nos. 1954 to 1960/2001 and 1292/2004 are allowed.
2. The impugned judgment and order passed by Dist.Forum is hereby quashed and set aside.
3. Complaints stands dismissed.
4. Liberty is granted to the complainants to sue the society for redressing their grievances.
5. No order as to cost.
6. Copies of the judgment be issued to both the parties.
K.B.Gawali, Uma S.Bora, Member Presiding Member. Mane