Date of filing:-29/12/2017.
Date of Order:-11/05/2018
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM(COURT)
B A R G A R H.
Consumer Complaint No. 67 of 2017.
Bhagabati Behera W/o. Hadu Behera aged about 45(forty five)years of Pudapali P.s. Bheden Dist-Bargarh.
Subodh Kumar Bhoi S/o-Murali Bhoi, aged about 40(forty)years, Vill-Udepali Ps.Bhatli, Dist-Bargarh.
Krushna Chandra Dash S/o-Udhhaba Dash aged about 40(forty)years Vill-Birmal, Ps/Dist-Bargarh.
Chandrasekhar Dash, S/o-Udhhaba Dash Vill-Birmal, Ps/Dist.-Bargarh. ..... ..... .... Complainants.
-: V e r s u s :-
Secretary ,Bargarh Co-Operative Agriculture and Rural Development Bank Ltd, Bargarh, At-Shaktinagar, Po/Ps/Dist- Bargarh.
Management-in-Charge Bargarh Co-Operative Agriculture and rural Development Bank Ltd cum Asst-Regisrar Co-Operative Societies, Bargarh Circle, Bargarh, Po/Ps/Dist-Bargarh. ..... ..... .... Opposite Parties.
Counsel for the Parties:-
For the Complainant :- Sri R.K.Satpathy with Advocate with other Advocates.
For the Opposite Party No.1(one) :- Himself.
For the Opposite Party No.2(two) :- Himself.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).
Dt.11/05/2018. -: J U D G E M E N T:-
Presented by Sri Krishna Prasad Mishra, President:-
Brief fact of the Case :-
In pursuance to Section 12 of the Consumer Protection Act 1986, the Complainants have Jointly filed the Complainant having a common interest in the case as envisaged hereunder.
The Case of the Complainants in nut shell is that all the Complainants are the Cultivators and also are the members of the Opposite Parties and as all have a common interest against the Opposite Parties as such have filed the case Jointly. And the Opposite Parties No.1(one) & 2(two) are the office bearers of the Co-operative Agriculture and Rural Bank Ltd Bargarh vide Regd-No 10 SM Dtd 08.12.1960 registered under the Odisha Co-Operative Society Act 1962( in short Card Bank), the Apex body of which is the Odisha State Co-Operative Agricultural and Rural Development Bank, Bhubaneswar (OSCARD). In furtharence to the case of the Complainants is that the said Apex Body of the Opposite Parties launched a thrift deposit Scheme in the year 2002 to which the Opposite Parties adopted in the year 2003 for it’ Member Cultivators .
And being attracted towards the said scheme of the Opposite Parties the Complainants deposited in their respective Account time to time and to which the Opposite Parties agreed to pay the interest as per the declaration made by the said Apex Body of the Opposite Parties.
But In the mean time one of the employee of the Opposite Party bank misappropriated the money of the depositors and after knowing the facts the Complainant asked to refund their hard earned money with interest before the Opposite Parties, failing which the Complainant made a representation on Dt.11.03.2016 before the Principal Secretary to Govt but to no effect, subsequently the Deputy Registrar Co-operative society Bargarh Division sent a Letter vide No-1576 to the Registrar co-Operative society about the non taking of any steps by the MD,OSCARD Bank. Subsequently thereafter a special Audit was conducted for the period of Dt. 01.10.2009 to Dt.22.02.2016 by the special auditor.
The Further case of the Complainant is that even after taking all required steps for refund of their respective deposited amount it is not yet refunded to them hence have preferred to file the case claiming therein that the Dt. 11.03.2016 and subsequent dates as the cause of action of the case claiming thereby to issue a direction to the Opposite Parties to refund their respective amount with interest @ 18 % (eighteen percent) per annum in accordance with their respective calculation as have mentioned therein against their name (1) Bhagbati Behera vide acc No-338, ledger Folio-3/323 for an amount of Rs.3,20,006/-(Rupees three lakh twenty thousand six)only (2) Subodh Kumar Bhoi vide Account No.58, folio No-2/115 for an amount of Rs.6,02,585/-(Rupees six lakh two thousand five hundred eighty five)only (3) Krushna Chandra Dash, Account No-57 ,Folio No-1/113 for an amount of Rs.70,802/-(Rupees seventy thousand eighty hundred two)only. (4) Chandrasekhar Dash account No-330 ,folio No-3/207 for an amount of Rs.3,56,438/-(Rupees three lakh fifty six thousand four hundred thirty eight)only in grand total amount for an amount of Rs.13,49,831/-(Rupees thirteen lakh forty nine thousand eight hundred thirty one)only besides that have also claimed for harassment Rs.1,34,000/-(Rupees one lakh thirty four thousand)only and litigation expenses amounting to Rs.13,000/-(Rupees thirteen thousand)only. And in support of his such claim have relied on a voluminous of documents as follows.
Xerox Copy of Pass Books of four Members. (sheets).
Xerox Copy of representation Dt.11.03.20016 with postal endorsement. (4 sheets).
Letters No-1574 of Dt.15.07.2016 of DRCS ,Bargarh. (1 sheet).
Representation.(16 Sheets).
Abstract of special audit report. (19 sheets).
Account statement as on Dt.30.06.2017. (6 sheets)
Having gone through the Complaint, the documents and on hearing the counsels of the Complainant the case was admitted and notice was served on the Opposite Parties in response to which both of them appeared in person and filed their version jointly.
The rival contention of the Opposite Parties are denies to be the office bearer of the Co-operative Agriculture and Rural Development Bank Ltd., Bargarh, but have admitted the contention of the para 3 of the Complaint petition that the Apex Authority in the state of Odisha State Co-Operative Agricultural and Rural Development Bank Bhubaneswar (OSCARD) launched a thrift deposit scheme in the year 2002 and they have adopted the same next year i.e in 2003 for it’s members Cultivators, and also denies the allegation of the Complainants to have ever deposited any amount in savings Bank Account .
The Opposite Parties have submitted some provision of Law with regard to the OCS Act, rules and By-Laws of the Co-Operative agriculture and Rural development Bank Ltd Bargarh contending that the secretary is the Chief Executive of the Bank and he is the custodian of the records and properties of the Bank and during the incumbency of one Brahmananda Padhan as Secretary, there was a case of misappropriation in the Bank and the Complainants being aware of the same served Notices on the authorities of the same demanding the refund of their deposited amount of money during the incumbency of the then management in charge namely Mr.Lingaraj Nayak and that he is the person who can better explain as to why the refund of the same could not be made and as he has not been made a party in this case is not maintainable as bad for non-joinder of necessary Party, The Opposite Parties have also denied the date of cause of action with that of the Dt.12.11.2015 instead of Dt.11.03.2016 during the incumbency of Mr. Lingaraj Padhan while he was M.I.C. and as has claimed the case to be barred by limitation.
In furtherance to their pleas of denying the allegation on them, the Opposite Parties have submitted in their version that as per the Scheme of the said thrift deposit the Co-Operative Agriculture and rural development Bank Bhubaneswar is the Apex Body for all over the State of Odisha and also the final financing Authority as such have claimed that the case is bad for Non-joinder of necessary Party as the said Authority has not been made a party, And further have contended that the secretary is the person to be sued in case of any litigation but not the M.I.C. hence the case is also bad for mis-joinder of party, and have challenged the maintainability of the case against him.
Furthermore the Opposite Parties have admitted the case of misappropriation of the Bank’s money have been caused by one Brahmananda Padhan the then secretary and he has been made liable for the same along with the then M.I.C and the proceeding has been initiated against them vide proceeding No-13 of 2017 and the same is still under disposal in the file of the Assistant Auditor general of Co-operative Society of the Sambalpur Audit Circle, Bargarh and have prayed before the Forum for dismissal of the case in view of the above facts and circumstances of the case.
Perused the Complaint, the version of the Opposite Parties and the relating documents filed by the Complainants and after hearing the Advocate for the Complainant and the Opposite Parties in person, we feel some issues as follows are to be examined for proper adjudication of the case.
Whether there is deficiencies in rendering service towards the Complainant ?
Whether the case is bad for Non-joinder of necessary Party and mis-joinder of party ?
Whether the case is maintainable in the present Forum ?
Whether the Complainants are entitled for the claim sought for ?
Firstly while considering the issues with regard to the question as to whether there is deficiencies on the part of the Opposite Parties in rendering service towards the Complainant, in this regard having gone deep into the materials available in the record it is very much clear from the pleadings of the Complainant and the admission made in the version of the Opposite Parties that they have adopted the Thrift Scheme launched by their Apex body and have invited the cultivators to invest their money in the scheme with a lucrative offer, whereby the cultivators have Invested their hard earned money with them with a high hope but in the mean time it has been found that one of their office bearer has Mis-appropriated the funds deposited in the bank for which ,it reveals from the materials available in the record that the same has been reported to the Apex Body of the concerned Opposite Parties and also Special Auditor has been entrusted by their end to Audit the same and also it reveals from the record that the same is still pending in the said Office of the Auditor Sambalpur, and also the special audit report filed by the Complainant reflects the same to be true, also it reveals from the Letter Dt.04.11.2016 sent by the Complainants to the Registrar of the Co-Operative Society of Odisha that a criminal case has been initiated against the secretary of the Bargarh Branch and is in Jail custody and also reflects the Appointment of the Auditor at the instance of the report of the then A.R.C.S namely S.K.Jena. vide order No-2473 Dt.31.03.2016 which is still pending with him in furtherance it is also found from several correspondence made by the complainant to the Apex Body i.e. the OSCARD to look in to the matter and refund their money but to no effect. So out of close observation of all the materials available in the record it is clearly evident that the Authorities of the said bank is deficient in safe guarding the interest of the depositors consumer and their money and for non refunding of their hard earned money, As such in view of the above facts and circumstances it is clear enough to deduce that the present Opposite Parties are part of the act of deficiencies in rendering service to the Complainant, hence our view is in affirmative in part in favor of the Complainant.
Secondly with regard to the answering issue of the question of Non-Joinder of necessary Party and Mis-joinder of party, delving deep in to the materials available in the record, it has come to our Notice that it is an admitted fact as per the Pleadings of both the Parties coupled with a lot of correspondence made by both the parties to the effect that the Apex body i.e. the OSCARD is supposed to safe guard and supervise the monetary transactions of it’s branches and also equally responsible for the liability of the same, hence is a necessary party furthermore it is also an admitted facts by the Parties that one Bramhananda Pradhan was the secretary during the relevant time of Mis-appropriation who is a necessary party for the purpose of the case but has not been added, hence in our consensus view the case is bad for Non-joinder of necessary Parties.
In furtherance to the averments made by the Opposite Parties that the Opposite Party No.2(two) is a statutory body, and as per the provision of the concerned Odisha State Co-Operative Act the Secretary of the society is supposed to be sued on behalf of the concerned Society in case of any such event, in this context having being present in the Forum the present A.R.C.S, i.e. Opposite Party No.2(two) orally submitted strongly argued on the point on the contrary the learned Advocate for the Complainant submitted orally before the Forum that in the absence of any corporate Body in taking care of the management of the Society the A.R.C.S would be treated as the Management-in-Charge cum A.R.C.S and could be sued. But giving utmost regard to the submission of the parties we are of the view that the Opposite Party No.1(one) is the Secretary of the concerned Society and also has been made party and also has appeared before the Forum so in view of the prevailing situation the Opposite Party No.2(two) is not the proper party as such our view is also expressed in favor of the Opposite Party and hence the case is bad for Mis-joinder of the Party.
Thirdly while considering the case with regard to it’s maintainability, we feel it fit to take up the Issues No. 3(three) & 4(four) together, and in this context , while examining in more details of the case we came across a lot of documents and calculations, the voluminous report of the Auditor and the facts of it’s pendency in his file as per the admission of both the parties, and nature of the complicacies prevailing in the case which needs an elaborate examination of facts and materials of evidence, which is not possible in a summary trial to examine all the evidence and the authors of those documents as per the provision of Indian Evidence Act, in as much as due to our observation in details mentioned in our foregoing paragraphs and our views expressed to that effect, we are of the view that the case in hand is not maintainable in the present Forum, and in view of such circumstances the Issues No.4(four) is also answered accordingly against the Complainant. Hence the case is dismissed against the Opposite Parties, but at the same time we are of the view that the Complainant are at liberty to knock the door of the proper Forum of Law.
Accordingly the case is disposed off in the open forum to-day i.e.on Dt.11.05.2018.
Typed to my dictation
and corrected by me.
( Sri Krishna Prasad Mishra)
P r e s i d e n t.
I agree,
( Ajanta Subhadarsinee)
M e m b e r (W)
