First Appeal No.648 of 2010,First Appeal No.649 of 2010,First Appeal No.854 of 2010,First Appeal No.855 of 2010

20th September, 2011

Petitioner Counsel: Mr. SHIVAJI MASAL
Respondent Counsel: Mr. G.F. SHIRKE, Mr. MADHAV TAMHANKAR

Cases Cited:
Sou. Varsha Ravindra Isai Vs. Sou.Rajashri Rajkumar Chaudhari & Ors., 2011(3) ALL MR 88=AIR 2011 Bom 6 [Para 10]

JUDGMENT

Mr. S.R. KHANZODE, Hon'ble Presiding Judicial Member :- There is delay of 16 days in filing Appeal nos.A/10/854 & A/10/855. Their sister appeals are already for consideration along with these appeals. The short delay is neither intentional nor any malafides could be attributed to the applicants/appellants. Hence, for the reasons mentioned in the application, finding them as sufficient to explain delay, we condone the delay in filing the appeals. Misc.application nos.MA/10/441 & MA/10/442 are allowed, accordingly.

2. This group of four appeals is being disposed of this common order since they involve identical facts and common question of law. Appeal no.648/2010 and Appeal no.854/2010 pertains to the order passed in consumer complaint no.680/2009, Dhansampada Nagari Sahakari Patsanstha Maryadit, Gadhinglaj v/s. Vasantdada Shetkari Sahakari Bank Ltd. Sangli & others, while Appeal no.649/2010 and Appeal no.855/2010 arises out of order passed in consumer complaint no. 681/2009, Dhansampada Nagari Sahakari Patsanstha Maryadit, Gadhinglaj v/s. Vasantdada Shetkari Sahakari Bank Ltd. Sangli & others. Both these consumer complaints were disposed of by a common order dated 30/04/2010 passed by District Consumer Disputes Redressal Forum, Kolhapur (herein after referred as the 'forum'). Original complainant-Dhansampada Nagari Sahakari Patsanstha Maryadit, Gadhinglaj, who is respondent no.1 in all these appeals is described herein after as 'Pat Sanstha', while Vasantdada Shetkari Sahakari Bank Ltd. which is respondent/original opponent no.1 in A/10/648 & A/10/649 and appellants in A/10/854 & A/10/855 is described as 'Vasantdada Bank'.

3. Undisputed facts are that as per the Resolution of the Management of the Pat Sanstha and, as further, approved by Assistant Registrar of Co-operative Societies, Gadhinglaj; Pat Sanstha had kept deposits with the Vasantdada Bank. Those deposits were kept between period 2008 and 2009 as mentioned in the operative part of the impugned order. It reflects the respective deposits pertaining to the respective consumer complaints, hence they are not mentioned in detail. It is the grievance of the Pat Sanstha that on maturity these deposit amounts were not received by them and, therefore, consumer complaints were filed. Forum upholding the case of the Pat Sanstha, directed opponent no.1 to pay the amount as per the impugned order. Feeling aggrieved by the said order, Directors/original opponent nos.6 to 26 of Vasantdada Bank filed these appeals nos.648 and 649 while the Vasantdada Bank and the Liquidator (original opponent nos.1 to 3) preferred Appeal nos.854 and 855 (all the appeals are of the Year 2010).

4. All these appeals are admitted and heard forthwith with consent of both the parties.

5. While disposing the consumer complaints, the forum assumed its jurisdiction overruling the objection of the opponents, particularly, in respect of cancellation of banking business license of Vasantdada Bank by the Reserve Bank of India as per provisions of Banking Regulation Act 1949 and, further, referring to the legal consequences as per the Maharahstra Co-operative Societies Act when a Liquidator is appointed on the Vasantdada Bank and continuing of consumer complaints in absence of any permission obtained from the authority. We find the approach of the forum is erroneous. No doubt section 3 of the Act speaks for additional remedy and for which jurisdiction is vested with the Consumer Fora. However, it does not mean that the provisions of the other Statute are to be ignored. As far as these appeals are concerned, the permission required to continue with the dispute once the Liquidator is appointed should not have been ignored or at least that objection of the opponents ought to have been taken into consideration and forum should have dealt with it specifically. As per the provisions of Section 107 of Maharashtra Co-operative Societies Act 1960, in absence of permission of the Registrar of Co-operative Societies is specifically obtained either to file the proceeding or to continue with the proceeding in the nature of consumer dispute, the consumer complaints ought not to have been continued. To join Liquidator as a party is not synonymous with obtaining requisite permission under the Maharashtra Co-operative Societies Act, 1960, supra, once the Liquidator was appointed.

6. In this respect a reference can be made to section 107 of the Maharashtra Cooperative Societies Act 1960. It specifically bars continuation of the proceedings of consumer complaints before the Consumer Fora once the Liquidator is appointed except by lieu of Registrar and subject to such terms. Mention to 'other legal proceedings' in the said section would certainly cover proceeding before the Consumer Fora.

7. Besides that before assuming jurisdiction, complainant Pat Sanstha must be shown as a 'consumer' within the meaning of the Act, particularly, in view of the provisions of section 2(1)(d)(ii) of the Act. Objection taken by the opponents that it is a commercial transaction and, therefore, complainant Pat Sanstha is not a consumer, is not at all dealt with by the Forum. In the instant case, obviously, the deposits are kept as a part of banking business by the Pat Sanstha which generates profit in terms of interest. Therefore, primafacie, it is a commercial transaction and, therefore, unless the complainant Pat Sanstha brings out a case within the explanation of section 2(1)(d)(ii) of the Act, the complainant is not a 'consumer' and vis-à-vis present consumer complaint cannot be termed as consumer dispute. Admittedly, no case is made out by the complainant Pat Sanstha or even such case not pleaded. Further, their case would not fall within the explanation since it is not a Living but juridic person and in case of a juridic person, no question of self employment to earn livelihood would arise.

8. As far as personal liability of the Directors of Vasantdada Shetkari Sahakari Bank Ltd. is concerned, even if it is assumed for the sake of argument that present disputes are the consumer disputes, still such liability cannot be fastened the way it is tried to be done in these consumer complaints.

9. Thus, in the instant cases all these four appeals needs to be allowed and they cover all the opponents as appellants except opponent no.4-Mr.Balkrishna Ramchandra Tawase, who was an official at the relevant time but not in the employment of Vasantdada Shetkari Sahakari Bank Ltd. Forum erroneously fastened liability on him to some extent without probing in which capacity he was there, if at all relevant to the transactions in question. Therefore, since all the appeals filed by other opponents are to be allowed, we find in effect appeals are to be allowed covering the opponent no.4- Mr.Balkrishna Ramchandra Tawase also.

10. In view of the decision of the Bombay High Court in the matter of Sou.Varsha Ravindra Isai V/s. Sou.Rajashri Rajkumar Chaudhari & Ors. Reported in AIR 2011 BOMBAY 6 : [2011(3) ALL MR 88], wherein it is held that in a consumer complaint against the Society, in this case Patsanstha, the Director and members of Managing Committee cannot be held personally liable to pay the dues.

11. For the reasons stated above, we hold accordingly and pass the following order:-

ORDER

All the appeals nos.648/2010, 649/2010, 854/2010 & 855/2010 are allowed.

Impugned order dated 30/04/2010 is set aside and in the result, consumer complaint nos. 680/2009 & 681/2009 stands dismissed.

In the given circumstances, both the parties to bear their own costs.

Copies of the order be furnished to the parties.

Appeals allowed.