Subhash Tryambak Kolte Vs. Vasant Laxman Patil and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1107553
CourtMaharashtra State Consumer Disputes Redressal Commission SCDRC Mumbai
Decided OnFeb-21-2013
Case NumberF.A. Nos. 1251, 1252 & 1253 of 2008 in Complaint Case Nos. 267, 268 & 269 of 2008
JudgeTHE HONOURABLE MR. B.A. SHAIKH, PRESIDING JUDICIAL MEMBER & THE HONOURABLE MRS. UMA S. BORA, MEMBER
AppellantSubhash Tryambak Kolte
RespondentVasant Laxman Patil and Others
Excerpt:
oral order: b.a. shaikh, presiding judicial member: 1. these three appeals are being decided by its common judgment and order as common question of law and facts is involved in all of them. these three appeals are filed by the same appellant shri.subhash kolte, feeling dissatisfied by three separate orders passed by dist. forum jalgaon in three separate complaints no.267/08, 268/08 and 269/08 which were filed by three different complainants who are joined as respondent no.1 in these three appeals. 2. the common case of complainants in these three complaints in brief is that original opponent no.1 (respondent no.2 in all these appeals) is registered co-operative society. it is engaged in accepting term deposits. it pays interest on the said term deposits and it also advances loan to its members. original opponent no.2 (respondent no.3 in these appeals) is chairman of that society and original opponent no.4 to 13 (respondent nos.4 to 13) are its directors and original opponent no.14 to 16 (respondent no.14 to 16) are its administrators appointed by the government. said three complainants had deposited the amount as per various receipts described in the respective complaints with the original opponent no.1 society for a fixed term on different dates. the said amounts were to be repaid to them with interest described in the respective complaints after date of maturity of said term. the said complainants were in need of money. hence they demanded been amount of said term deposits from the original opponent no.1 and 2. but they did not pay the same. therefore said complainants filed aforesaid three separate complaints against aforesaid opponents nos.1 to 16 and prayed that direction be given to them to pay them amount with interest deposited by them with original opponent no.1. they also prayed that original opponent no.3, 4, 8, 10, 11 be restrained from alienating or transferring the immovable property described in complaints. they also sought compensation of rs.10,000/- towards mental agony and cost of rs.5000/- from opponent no.1 to 16. 3. original opponent no.1, 2 and 8 to 11 appeared and filed their common written version before dist.forum. original opponent no.3 (appellant herein) also appeared and filed his separate written version. original opponent no.4 to 7 and 12 to 16 did not appear before the dist.forum inspite of service of notice. dist.forum proceeded exparte against them. 4. original opponent no.1, 2 and 8 to 11 in their common written version denied the case of complainant and submitted that some of the directors of co-operative society (org. opponent no.1) all of sudden gave resignation. therefore district deputy registrar of co. operative society, jalgaon dissolved the board of directors and appointed administrative committee comprising of three members (original opponent nos. 14 to 16) for running the said society as per its order dated 5.6.2007. thus according to them since 5.6.2007 they have no concern with the aforesaid society (org.opponent no.1) and hence they submitted that complaint may be dismissed. 5. original opponent no.3 (appellant) in its written version also denied the case of complainant and submitted that he has already tendered resignation of post of director on 28.12.2000 and therefore he is not liable to refund of amount deposited by the complainant after 28.12.2000 with opponent no.1 society. hence he requested that complaint may be dismissed. 6. dist.forum below after considering evidence brought on record and hearing advocates of contesting parties came to the conclusion that complainants are the consumers as per definition u/s 2(1)(d)(ii) of consumer protection act. it also observed that complainants are entitled to refund of the amounts prior to the date of maturity and despite of service of legal notice no amount is repaid to them. dist. forum below also found that original opponent no.2 has already tendered resignation which is accepted and it is not liable to pay any amount to the complainants. however it also observed that opponent no.3 (appellant) produced attested xerox copy of his resignation dated 28.12.2000. but there is no cogent evidence to prove that he tendered resignation on 28.12.2000. therefore it did not accept case of opponent no.3 (appellant) about tendering of his resignation on 28.12.2000. it therefore partly allowed the complaints and directed opponent nos. 1 and 3 to 16 to pay amounts of fixed deposits to the respective complainants with interest @ 5% p.a. from the date of said order. it also directed them to pay rs.3000/- and cost of rs.2000/- to each of the complainants. it also directed if in case of default in payment of said amounts within a month, those amounts shall carry interest @ 6% p.a. till realization. it also attached the properties of original opponent no.3 (appellant), 4, 8, 10 and 11 and directed that they shall not dispose of those properties or transfer the same and declared that aforesaid order is binding on the opponents till the amounts are paid to the complainants. it dismissed the complaints as against original opponent no.2 as he already tendered resignation. 7. org. opponent no.3 preferred these three appeals. it is submitted by adv. s.p. katneshwarkar appearing for the appellant that dist. forum below ought to have believed the resignation letter dated 28.12.2000 produced before it, since it was not challenged by the complainants and it also shows that it was duly accepted. he further submitted that in several other complainants bearing no.190/08 to 197/08 the said dist. forum jalgaon held that opponent no.3 (present appellant) has already tendered resignation and it has been accepted and hence said complaints filed against him have been also dismissed. he produced on record the certified copies of judgments and orders passed in those complaints on 4.9.2009, before this commission. he also submitted that in report of enquiry, conducted by district deputy registrar, co-operative society jalgaon, it is accepted that present appellant sh. subhash kolte has tendered resignation on 28.12.2000. he produced copy of that report dated 15.4.2011 before this commission in these appeals. thus it is submitted by advocate of appellant that district forum has committed error in disbelieving the aforesaid copies of resignation of the appellant and erroneously partly allowed these three complaints against and hence said order passed against appellant may be set aside. 8. adv. shri. umesh shete holding for adv. shri. mukul kulkarni was heard for respondent no. 1 and 2 in all these appeals. he supported the aforesaid argument of learned advocate of appellant. none was present for the rest of the respondents though duly served with the notice. 9. the only common question involved in all these appeals is whether original opponent no.3/appellant herein has tendered resignation of the post of opponent no.1 society on 28.12.2000. the said opponent no.3/appellant in its written version raised specific plea about his tendering resignation and its acceptance on 28.12.2000. he also produced on record copy of that resignation letter before district forum. it was not the case of complainants that said letter of resignation dated 28.12.2000 is false or forge document. in our view when such material piece of document was produced before district forum, it was incumbent on the complainant to adduce evidence in its rebuttal. even complainant did not file affidavit to rebut the said letter of resignation. in our view the said letter of resignation can be believed keeping in view the admission of respondent no.1, 2, 8 to 11 given in their common written version to the effect that many of the directors of the board of directors all of sudden tendered resignation and that therefore committee of three administrator has been appointed by concerned district deputy registrar. 10. certified copies of the judgment and order passed in eight complaints bearing c.c.nos. 190/08 to 197/08 which are produced by learned advocate of appellant are not disputed by the respondents. in our view as they are duly certified by district forum jalgaon, and as they are of certified copies of final judgment and order, they can be perused in this appeal. district forum jalgaon exonerated present appellant who was opponent no.3 in these complaints from liability of payment of term deposits claimed by complainants in those complaints on the ground that he has already tendered resignation. from these documents also we find substance in the submission of the learned advocate of appellant that as appellant had tendered resignation prior to making of term deposits by the respective complainants with original opponent no.1 society, he is not liable to pay any amount to original complainant/respondent no.1 herein. therefore all these three appeals deserve to be allowed. f.a. no.: 1251 to 1253/2008 order 1. these three appeals bearing nos. 1251/08, 1252/08 and 1253/08 are allowed. 2. the impugned judgment and order passed by district forum in original complaint nos. 267/08, 268/08 and 269/08 on 6.11.2008 are hereby set aside to the extent of direction given to present appellant i.e. original opponent no.3 about payment of fixed deposit amounts to the complainants and about restraining him from alienating or transferring his properties described in those complaints and about his payment of compensation and cost to the said complainants. 3. no order as to cost in these three appeals. 4. copies of the order be sent to both the parties. appeal partly allowed.
Judgment:

Oral Order:

B.A. Shaikh, Presiding Judicial Member:

1. These three appeals are being decided by its common judgment and order as common question of law and facts is involved in all of them. These three appeals are filed by the same appellant Shri.Subhash Kolte, feeling dissatisfied by three separate orders passed by Dist. Forum Jalgaon in three separate complaints No.267/08, 268/08 and 269/08 which were filed by three different complainants who are joined as respondent No.1 in these three appeals.

2. The common case of complainants in these three complaints in brief is that original opponent No.1 (respondent No.2 in all these appeals) is registered Co-operative Society. It is engaged in accepting term deposits. It pays interest on the said term deposits and it also advances loan to its members. Original opponent No.2 (respondent No.3 in these appeals) is Chairman of that society and original opponent No.4 to 13 (respondent Nos.4 to 13) are its directors and original opponent No.14 to 16 (respondent No.14 to 16) are its administrators appointed by the Government. Said three complainants had deposited the amount as per various receipts described in the respective complaints with the original opponent No.1 society for a fixed term on different dates. The said amounts were to be repaid to them with interest described in the respective complaints after date of maturity of said term. The said complainants were in need of money. Hence they demanded been amount of said term deposits from the original opponent No.1 and 2. But they did not pay the same. Therefore said complainants filed aforesaid three separate complaints against aforesaid opponents Nos.1 to 16 and prayed that direction be given to them to pay them amount with interest deposited by them with original opponent No.1. They also prayed that original opponent No.3, 4, 8, 10, 11 be restrained from alienating or transferring the immovable property described in complaints. They also sought compensation of Rs.10,000/- towards mental agony and cost of Rs.5000/- from opponent No.1 to 16.

3. Original opponent No.1, 2 and 8 to 11 appeared and filed their common written version before Dist.Forum. Original opponent No.3 (appellant herein) also appeared and filed his separate written version. Original opponent No.4 to 7 and 12 to 16 did not appear before the Dist.Forum inspite of service of notice. Dist.Forum proceeded exparte against them.

4. Original opponent No.1, 2 and 8 to 11 in their common written version denied the case of complainant and submitted that some of the directors of Co-operative Society (org. opponent No.1) all of sudden gave resignation. Therefore District Deputy Registrar of Co. operative Society, Jalgaon dissolved the Board of Directors and appointed Administrative Committee comprising of three members (original opponent Nos. 14 to 16) for running the said society as per its order dated 5.6.2007. Thus according to them since 5.6.2007 they have no concern with the aforesaid society (org.opponent No.1) and hence they submitted that complaint may be dismissed.

5. Original opponent No.3 (appellant) in its written version also denied the case of complainant and submitted that he has already tendered resignation of post of director on 28.12.2000 and therefore he is not liable to refund of amount deposited by the complainant after 28.12.2000 with opponent No.1 society. Hence he requested that complaint may be dismissed.

6. Dist.Forum below after considering evidence brought on record and hearing advocates of contesting parties came to the conclusion that complainants are the consumers as per definition U/s 2(1)(d)(ii) of Consumer Protection Act. It also observed that complainants are entitled to refund of the amounts prior to the date of maturity and despite of service of legal notice no amount is repaid to them. Dist. Forum below also found that original opponent No.2 has already tendered resignation which is accepted and it is not liable to pay any amount to the complainants. However it also observed that opponent No.3 (appellant) produced attested Xerox copy of his resignation dated 28.12.2000. But there is no cogent evidence to prove that he tendered resignation on 28.12.2000. Therefore it did not accept case of opponent No.3 (appellant) about tendering of his resignation on 28.12.2000. It therefore partly allowed the complaints and directed opponent Nos. 1 and 3 to 16 to pay amounts of fixed deposits to the respective complainants with interest @ 5% p.a. from the date of said order. It also directed them to pay Rs.3000/- and cost of Rs.2000/- to each of the complainants. It also directed if in case of default in payment of said amounts within a month, those amounts shall carry interest @ 6% p.a. till realization. It also attached the properties of original opponent No.3 (appellant), 4, 8, 10 and 11 and directed that they shall not dispose of those properties or transfer the same and declared that aforesaid order is binding on the opponents till the amounts are paid to the complainants. It dismissed the complaints as against original opponent No.2 as he already tendered resignation.

7. Org. opponent No.3 preferred these three appeals. It is submitted by Adv. S.P. Katneshwarkar appearing for the appellant that Dist. Forum below ought to have believed the resignation letter dated 28.12.2000 produced before it, since it was not challenged by the complainants and it also shows that it was duly accepted. He further submitted that in several other complainants bearing No.190/08 to 197/08 the said Dist. Forum Jalgaon held that opponent No.3 (present appellant) has already tendered resignation and it has been accepted and hence said complaints filed against him have been also dismissed. He produced on record the certified copies of judgments and orders passed in those complaints on 4.9.2009, before this Commission. He also submitted that in report of enquiry, conducted by District Deputy Registrar, Co-operative Society Jalgaon, it is accepted that present appellant Sh. Subhash Kolte has tendered resignation on 28.12.2000. He produced copy of that report dated 15.4.2011 before this Commission in these appeals. Thus it is submitted by advocate of appellant that District Forum has committed error in disbelieving the aforesaid copies of resignation of the appellant and erroneously partly allowed these three complaints against and hence said order passed against appellant may be set aside.

8. Adv. Shri. Umesh Shete holding for Adv. Shri. Mukul Kulkarni was heard for respondent No. 1 and 2 in all these appeals. He supported the aforesaid argument of learned advocate of appellant. None was present for the rest of the respondents though duly served with the notice.

9. The only common question involved in all these appeals is whether original opponent No.3/appellant herein has tendered resignation of the post of opponent No.1 society on 28.12.2000. The said opponent No.3/appellant in its written version raised specific plea about his tendering resignation and its acceptance on 28.12.2000. He also produced on record copy of that resignation letter before District Forum. It was not the case of complainants that said letter of resignation dated 28.12.2000 is false or forge document. In our view when such material piece of document was produced before District Forum, it was incumbent on the complainant to adduce evidence in its rebuttal. Even complainant did not file affidavit to rebut the said letter of resignation.

In our view the said letter of resignation can be believed keeping in view the admission of respondent No.1, 2, 8 to 11 given in their common written version to the effect that many of the directors of the Board of Directors all of sudden tendered resignation and that therefore committee of three administrator has been appointed by concerned District Deputy Registrar.

10. Certified copies of the judgment and order passed in eight complaints bearing C.C.Nos. 190/08 to 197/08 which are produced by learned advocate of appellant are not disputed by the respondents. In our view as they are duly certified by District Forum Jalgaon, and as they are of certified copies of final judgment and order, they can be perused in this appeal. District Forum Jalgaon exonerated present appellant who was opponent No.3 in these complaints from liability of payment of term deposits claimed by complainants in those complaints on the ground that he has already tendered resignation. From these documents also we find substance in the submission of the learned advocate of appellant that as appellant had tendered resignation prior to making of term deposits by the respective complainants with original opponent No.1 society, he is not liable to pay any amount to original complainant/respondent No.1 herein. Therefore all these three appeals deserve to be allowed.

F.A. No.: 1251 to 1253/2008

Order

1. These three appeals bearing Nos. 1251/08, 1252/08 and 1253/08 are allowed.

2. The impugned judgment and order passed by District Forum in original complaint Nos. 267/08, 268/08 and 269/08 on 6.11.2008 are hereby set aside to the extent of direction given to present appellant i.e. original opponent No.3 about payment of fixed deposit amounts to the complainants and about restraining him from alienating or transferring his properties described in those complaints and about his payment of compensation and cost to the said complainants.

3. No order as to cost in these three appeals.

4. Copies of the order be sent to both the parties.

Appeal partly allowed.