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Varinder Thakur Vs. Sheetal Duggal and Another - Court Judgment

LegalCrystal Citation
CourtUnion Territory Consumer Disputes Redressal Commission SCDRC UT Chandigarh
Decided On
Case NumberFirst Appeal No. 178 of 2014
Judge
AppellantVarinder Thakur
RespondentSheetal Duggal and Another
Excerpt:
.....holders/complainants. 5. show cause notice was served upon the opposite parties, through sh. varinder thakur, chairman/ secretary/cashier of the society, but he did not put in appearance, and therefore, he was ordered to be summoned through bailable warrants. ultimately, objection petition was filed by judgment debtor no.2/ opposite party no.2, stating therein, that he was appointed as secretary of the state bank of india staff association urban salary earners thrift and credit society limited, chandigarh, for a period of one year, which expired on 14.10.2011, but he had ceased to be the chairman of the said society, much earlier to that. it was further stated that the proceedings were initiated for the appointment of an administrator, under the provisions of the punjab cooperative.....
Judgment:

Sham Sunder (Retd.), President:

1. This appeal under Section 27 A of the Consumer Protection Act 1986 (hereinafter to be referred as the Act only), is directed against the order dated 07.04.2014, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), in Criminal Petition No.18 of 2013, vide which, it dismissed the objection petition, filed by Judgment Debtor No.2/Opposite Party No.2 (now appellant), and directed him to show cause, as to why, he be not punished, in accordance with the provisions of Section 27 of the Act.

2. Consumer Complaint, bearing No.537 of 2012, titled as Sheetal Duggal wife of Anup Kumar and Anup Kumar husband of Sheetal Duggal Vs. State Bank of India Staff Association and another, was filed by the complainants, on 30.08.2012.

3. The District Forum, accepted the said Complaint, vide order dated 26.10.2012, and directed the Opposite Parties, as under:-

œAccordingly, we find merit in the complaint and the same is allowed. The OPs are directed :-

i) To pay a sum of Rs.54,140/- to the complainants.

ii) To pay an amount of Rs.10,000/- to the complainants towards compensation and litigation expenses.

This order be complied with by the OPs within one month from the date of receipt of its certified copy, failing which, OPs shall be liable to refund the awarded amount to the complainants along with interest @ 9% p.a. from the date of filing of the complaint, till its realization.?.

4. Since the order dated 26.10.2012, was not complied with by the Opposite Parties/Judgment Debtors, Execution Application/Criminal Petition, bearing No.18 of 2013, was filed by the Decree Holders/complainants.

5. Show cause notice was served upon the Opposite Parties, through Sh. Varinder Thakur, Chairman/ Secretary/Cashier of the Society, but he did not put in appearance, and therefore, he was ordered to be summoned through bailable warrants. Ultimately, objection petition was filed by Judgment Debtor No.2/ Opposite Party No.2, stating therein, that he was appointed as Secretary of the State Bank of India Staff Association Urban Salary Earners Thrift and Credit Society Limited, Chandigarh, for a period of one year, which expired on 14.10.2011, but he had ceased to be the Chairman of the said Society, much earlier to that. It was further stated that the proceedings were initiated for the appointment of an Administrator, under the provisions of the Punjab Cooperative Societies Act, 1961, wherein, it was specifically mentioned that the term of the Managing Committee of the Society had expired on 14.10.2011. It was further stated that vide order dated 07.05.2012, passed by the Joint Registrar, Cooperative Societies, U.T., Chandigarh (exercising the powers of the Registrar), the Managing Committee of the Society, was removed with immediate effect. The Joint Registrar, appointed Sh. D.P. Singh, Inspector, Cooperative Societies, as Administrator, to manage the affairs of the Society, for a period of three months. It was further stated that the said Society was informed vide letter dated 23.08.2012, Annexure R-3, to hand over its complete record to the Administrator. It was further stated that the complete record, aforesaid, was handed over to the Administrator, between 24.08.2012 to 05.09.2012. It was further stated that the Objector/ Judgment Debtor No.2/Opposite Party No.2, ceased to have any relationship with the Society, as a Secretary, subsequent to 07.05.2012, or at least from 21.08.2012. It was further stated that, in terms of reply to the legal notice (Annexure R-4) issued by the Administrator, it was maintained that the Society was not in a position to pay the amount of the FDRs, because a number of cases of recoveries, were pending in various Courts and only a sum of Rs. 3 lakhs and 25 thousand, was lying in the Bank account of the said Society. It was further stated that the order, in the Consumer Complaint, bearing No.537 of 2012, titled as Sheetal Duggal wife of Anup Kumar and Anup Kumar husband of Sheetal Duggal Vs. State Bank of India Staff Association and another, was obtained by the complainants/respondents No.1 and 2/decree holders, from the District Forum, on the basis of fraud, by misrepresenting the facts and by not bringing the complete facts to its (District Forum) notice. It was further stated that had the complete and true facts, been brought to the notice of the District Forum, at the time of filing the complaint, the District Forum would not have passed such an order. It was further stated that since the order dated 26.10.2012, passed in the Consumer Complaint, bearing No.537 of 2012, was obtained by fraud, by the complainants/decree holders, the same was a nullity. It was further stated that if there was any liability to pay amount, that was of the Society, and not of the appellant/objector/Judgment Debtor No.2/Opposite Party No.2, who was at one time the Secretary thereof.

6. In their reply to the objection petition, it was stated by the decree holders/complainants that the Opposite Parties were proceeded exparte, by the District Forum. It was further stated that when the execution proceedings were started against the appellant/ objector/Judgment Debtor No.2/Opposite Party No.2, he instead of appearing before the District Forum, filed a Writ Petition bearing No.9222 of 2013, before the Punjab and Haryana High Court, which was dismissed by it. It was further stated that, thereafter, the appellant/ objector/Judgment Debtor No.2/Opposite Party No.2, filed the objection petition, before the District Forum, out of the decision whereof, the instant appeal has arisen. It was further stated that the act and conduct of the appellant/objector/Judgment Debtor No.2/Opposite Party No.2, had misled the District Forum. It was further stated that had the appellant/objector/Judgment Debtor No.2/Opposite Party No.2, given reply to the legal notice, the decree holders/respondents No.1 and 2/complainants would have taken an appropriate action, by filing their claim, before the Registrar Cooperative Societies. It was further stated that the appellant/objector/Judgment Debtor No.2/Opposite Party No.2, had not worked according to the Act, Rules and Bye-laws of the Society. It was further stated that the Joint Registrar was not satisfied with the reply of the Secretary of the Society, and order Annexure R-2, was passed. It was further stated that the facts brought by the appellant/ objector/Judgment Debtor No.2/Opposite Party No.2, in the objection petition, were never brought to the notice of the complainants, at the time of filing the complaint. It was further stated that the appellant/objector/Judgment Debtor No.2/Opposite Party No.2, had played fraud, with the decree holders/complainants, by committing the offence of cheating and embezzled the amount of the investors, in the name of the Society.

7. After hearing the Counsel for the parties, and, on going through the record of the case, the District Forum, dismissed the objection-petition, vide the order impugned, as stated above.

8. Feeling aggrieved, the instant appeal, under Section 27A, has been filed by the appellant/ objector/Judgment Debtor No.2/Opposite Party No.2.

9. We have heard the Counsel for the appellant/objector/Judgment Debtor No.2/Opposite Party No.2, at the preliminary stage, and, have gone through the record of the case, carefully.

10. It may be stated here, that the complainants/Decree Holders/respondents No.1 and 2, filed the Consumer Complaint, bearing No.537 of 2012, against two Opposite Parties, i.e. (1) State Bank of India Staff Association having its office at 858, Shivalik Apartments, Sector 49-A, Chandigarh, through its Chairman/Secretary Sh.Varinder Thakur (now as SBI Cooperative Urban Salary Earners Thrift and Credit Society Limited) and (2) Varinder Thakur, Chairman/Secretary State Bank of India Staff Association having its office at 858, Shivalik Apartments, Sector 49-A, Chandigarh (now as SBI Cooperative Urban Salary Earners Thrift and Credit Society Limited). The Opposite Parties were duly served, but no authorized representative, on their behalf, put in appearance, before the District Forum, as a result whereof, they were proceeded against exparte. Ultimately, as stated above, the Consumer Complaint, bearing No.537 of 2012, titled as Sheetal Duggal wife of Anup Kumar and Anup Kumar husband of Sheetal Duggal Vs. State Bank of India Staff Association and another, was accepted, against both the Opposite Parties, vide order dated 26.10.2012, by the District Forum. Thus, in the Consumer Complaint, Varinder Thakur, was impleaded as Chairman/Secretary of the Society, in his personal capacity, as well. In case, Mr. Varinder Thakur, appellant/objector/Judgment Debtor No.2/Opposite Party No.2, was aggrieved against the order dated 26.10.2012, which was passed by the District Forum, in the Consumer Complaint, bearing No.537 of 2012, he was required to avail of the legal remedy, by filing an appeal, under Section 15 of the Act, but he failed to do so. In these proceedings, the legality and the validity of the order dated 26.10.2012, could not be questioned. The Executing Court/Tribunal could not go behind the order/decree passed by it, in the execution proceedings. Whether, Mr. Varinder Thakur, was the Chairman/Secretary of the said Society, at the time of filing the complaint, or not, hardly mattered. He, himself, admitted that, at one point of time, he was the Chairman/Secretary of the Society, and payments by the investors, including the decree holders/complainants were made to him, and he issued receipts thereof. Even otherwise, as stated above, such a question, in these proceedings, cannot be agitated. The District Forum was also right, in holding so. The findings of the District Forum, in this regard, being correct, are affirmed.

11. The Counsel for the appellant, however, submitted that the appellant/objector/Judgment Debtor No.2/Opposite Party No.2, was never impleaded, in his personal capacity, in the Consumer Complaint. This submission of the Counsel for the appellant, does not appear to be correct. As stated above, in the foregoing paragraph, Mr. Varinder Thakur was impleaded as Chairman/Secretary-State Bank of India Staff Association having its office at 858, Shivalik Apartments, Sector 49-A, Chandigarh (now as SBI Cooperative Urban Salary Earners Thrift and Credit Society Limited), in his personal capacity also. The order dated 26.10.2012, in the Consumer Complaint, bearing No.537 of 2012, was also passed, against him, in his personal capacity, in addition to the Society. Under these circumstances, the submission of the Counsel for the appellant, being devoid of merit, must fail, and the same stands rejected.

12. It was next submitted by the Counsel for the appellant, that since fraud was committed by respondents No.1 and 2/decree holders/complainants, at the time of filing the Consumer Complaint, bearing No.537 of 2012, by not disclosing the fact that Mr. Varinder Thakur was not the Chairman/Secretary of the said Society, at that time, and the order dated 26.10.2012, passed therein, could be challenged even in these proceedings, as the same was a nullity. It may be stated here, that the amount was deposited by respondents No.1 and 2/decree holders/complainants, with Mr. Varinder Thakur, in the capacity of Chairman/Secretary/Cashier of the Society. It was Mr. Varinder Thakur, who issued receipts, in favour of respondents No.1 and 2/decree holders/complainants. The third party does not know, with regard to the internal affairs of the Society. The third party is only concerned with the refund of amount alongwith interest, deposited by it, with the Society, through its office bearers. The Society was not to act itself, but it was to act through its office bearers i.e. Chairman/Secretary/Cashier. Under these circumstances, by no stretch of imagination, it could be said that respondents No.1 and 2/decree holders/complainants played any fraud, with the appellant/objector/Judgment Debtor No.2/Opposite Party No.2, at the time of filing the Consumer Complaint, on 30.08.2012. Rather, it is evident, from the letter dated 14.01.2014, sent by Mr. Jagdish Chander, Administrator of the Society to Sh.Varinder Thakur, that he (Varinder Thakur), had given loans, without obtaining the proper documents/ procedure, as per the Rules and Bye-laws of the Society. It was further stated, in this letter, that most of the loan bonds were incomplete, and, in most of the cases, there was no proper resolution, on the record of the Society. It was also stated, in this letter, that there was no record of the cheques, issued to the loanees, and this was a serious lapse, on his (Sh.Varinder Thakur) part. From this letter, it was, thus, apparent that it was not respondents No.1 and 2/decree holder/complainant, but Mr. Varinder Thakur, objector/appellant/Judgment Debtor No.2/Opposite Party No.2, who allegedly played fraud, with the innocent consumers, who deposited amounts with him, on the pretext of getting interest thereon. Under these circumstances, the District Forum was right, in holding that no fraud was played by the complainants/decree holders, upon Mr. Varinder Thakur, but, on the other hand, the aforesaid letter showed that he (Mr. Varinder Thakur) played the same (fraud). The submission of the Counsel for the appellant, therefore, being devoid of merit, must fail, and the same stands rejected.

13. The Counsel for the appellant, placed reliance on various judgments of the Hon`ble Supreme Court of India, titled as Meghmala and Ors Vs. G.Narasimha Reddy and Ors, Civil Appeal Nos.6656-6657 of 2010, decided on 16.08.2010, A.V. Papayya Sastry and Ors. Vs. Government of A.P. and Ors., decided on 07.03.2007, Hamza Haji Vs. State of Kerala and Another, Appeal (Civil) 3535 of 2006, decided on 18.08.2006, Ram Chandra Singh Vs. Savitri Devi and Ors., 2004 (2) ALT 15 SC, I (2004) BC 187 SC, United India Insurance Co. Ltd., Vs. Rajendra Singh and Ors., Special Leave Petition (Civil) 8479 of 1999, decided on 14.03.2000, S.P. Chengalvaraya Naidu Vs. Jagannath, (1995-1-PLR 293 SC, AIR 1994 853, 1994 SCC (1)1), and State of Maharashtra Vs. Dr. Budhikota Subharao, 1993 SCR (2) 311, 1993 SCC (3) 339, to contend that if an order/decree has been obtained by playing fraud, upon the Tribunal/Court, then the same can be challenged, even in the collateral proceedings. He further submitted that since, in this case, fraud was committed by the complainants, at the time of filing the Consumer Complaint, bearing No.537 of 2012, by not disclosing true facts therein, that Mr. Varinder Thakur was not the Chairman/Secretary/Cashier, at that time, so the order dated 26.10.2012, passed in the Consumer Complaint, could be challenged in the Execution Proceedings, the same being a nullity. Careful perusal of the facts of the aforesaid cases, clearly goes to show that the same are distinguishable, from the facts of the instant case. In the aforesaid cases, deliberate false statements were made by the complainant, before the Court concerned, and, as such, he was successful in obtaining the wrong orders, from the Court. It was, under these circumstances, held that the order obtained, on the basis of fraud, could be challenged even during the collateral proceedings. In the instant case, as stated above, Mr. Varinder Thakur was the Chairman/Secretary/Cashier of the said Society, as admitted by him, at one point of time. The amounts were deposited by the complainants/decree holders, with him. The receipts thereof, were issued by him, in the capacity of Chairman/Secretary/Cashier. If, later on, Mr. Varinder Thakur, no longer remained Chairman/Secretary/Cashier of the Society, later on, and it was taken over by the Administrator, that hardly mattered. Mr. Varinder Thakur, being an important office bearer of the said Society, at the relevant time, when the amount was deposited by the complainants, could be held personally liable, if the same was not refunded, with interest, when demanded. Had the Consumer Complaint, bearing No.537 of 2012, been filed solely against the Society, and Mr. Varinder Thakur been not impleaded as a party, as Chairman/Secretary, in his individual capacity, the matter would have different. As stated above, third party does not know, with regard to the internal affairs of the Society. Third party cannot suffer, for the fault of the office bearers of the Society. Under these circumstances, no fraud, whatsoever, was committed by the complainants/decree holders, at the time of filing the Consumer Complaint, bearing No.537 of 2012, but, on the other hand, it (fraud) was allegedly committed by Mr. Varinder Thakur. The order dated 26.10.2012, passed in the Consumer Complaint, bearing No.537 of 2012, could not be challenged, in the collateral proceedings. No help, therefore, can be drawn by the Counsel for the appellant, from the ratio of law, laid down, in the aforesaid cases. The submission of the Counsel for the appellant, being devoid of merit, must fail, and the same stands rejected.

14. No other point, was urged, by the Counsel for the appellant.

15. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

16. For the reasons recorded above, the appeal, under Section 27A, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld

17. Certified copies of this order, be sent to the parties, free of charge.

18. The file be consigned to Record Room, after completion.


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