Per Hon’ble Mr.Justice S.B.Mhase, President
Heard Mr.S.A.Masal-Advocate for the appellant and Mr.G.J.Sawant-Advocate for the respondent.
This appeal is directed as against the order passed by the District Consumer Disputes Redressal Forum, Kolhapur in consumer complaint no.11/328 decided on 12/12/2011. Complaint filed by the complainant has been dismissed by the District Consumer Disputes Redressal Forum and, therefore, original complainant has preferred this appeal.
Factual matrix is as follows:-
Appellant is a complainant while respondents are the original opponents. Complainant was Managing Director of Ichalkaranji Co-op. Bank Ltd. and he has resigned from the said post on 16/04/2008. It appears that thereafter respondent on.2/original opponent no.2 has been appointed as a Manager. Opponent no.3 is General Manager, Deposit Insurance Credit Guarantee and the opponent no.1 is a Liquidator of Ichalkaranji Co-op. Bank Ltd. While complainant was Managing Director, he has deposited various amounts with the Ichalkaranji Co-op. Bank Ltd. now in liquidation. Those amounts were deposited from 24/04/2007 to 01/02/2008 from time to time. Total amount which has been deposited is `11,52,000/-. Those fixed deposit receipts are on record. Each of the fixed deposit receipt is having different rate of interest viz. some deposit receipts are having rate of interest 8% p.a., while some receipts are having rate of interest of 11% p.a. and some other deposits are having rate of interest @ 11.50% p.a. After depositing these receipts on 16/04/2008 i.e. after two months of the last deposit, complainant has raised a loan as against all the deposits amounting to `10 lakhs. It is very interesting to note that on 16/04/2008 complainant gave resignation and also has raised a loan of `10 lakhs. That shows his clear intention that while leaving the bank he was interested in getting all his amounts and, therefore, on the same day the loan was raised. What is interesting to note is that on that day there was no meeting of Managing Committee so as to sanction the loan as against the said fixed deposits. So unilaterally he being himself Managing Director has sanctioned the loan and has taken a loan. As per the rules of the loan put advanced for fixed deposit, permissible limit was 75% and in exceptional circumstances 90% loan was permissible. However, case of exception is required to be considered by the Managing Committee and not by the Managing Director.
Apart from that there is nothing on record by way of an application to demonstrate that what was the exceptional circumstance for the complainant to raise the loan beyond 75% which was permissible under the rules. All this shows that while leaving the Bank, he was interested in getting back his money and, therefore, he has taken the amount which is more than the permissible limit and, that too unilaterally. After vacating the office thereof he gave an application to the Bank that the loan amount be adjusted as against fixed deposits he has made and interest accrued as against fixed deposits. Unfortunately, for him in the meanwhile liquidator was appointed. Since the deposits are not under dispute, loan has been taken is also not in dispute. The only dispute is how to adjust the amount. Complainant desires that his total fixed deposits along with interest be taken into consideration by adjusting the loan amount. As against that society insists that the pro rata value of the fixed deposits will be considered along with other creditors of the society as per the procedure of liquidation and the amount could be adjusted. Application was made to the Registrar of Co-operative societies seeking permission under section 107 of the Co-operative Societies Act for filing a complaint or initiating legal proceedings as against liquidator. In that letter itself Co-operative societies Registrar has made clear that liquidator is supposed to distribute the amounts to the creditors as per priority and priority list has been stated in the said order. It has been made clear that his claim is admitted one. It is not necessary to file a complaint but only in what manner payment is to be given is the matter for consideration. It is well established principle of law that whenever bank is under liquidation, liquidator is supposed to liquidate the assets of the said corporate body and, thereafter, he has to distribute those assets on pro rata basis so that every creditor should get due share from the assets of the society. If this is not done and if some of the creditors like the complainant herein are preferred and they are paid without following the procedure of liquidation, other creditors’ interest will be prejudiciously affected and that will be contrary to the spirit of law. Complainant, thus, as appears, is interested in carrying out illegal process of liquidating his assets. This is not permissible under the law. In fact for such a complaint there is no permission granted of the Co-operative societies Registrar. Under section 107 of the Maharashtra Co-operative Societies Act, 1960 permission is very specific. In the present complaint such provision has been overlooked by the complainant. What we find that very approach of the complainant is fraudulent in prosecuting the matter. Co-operative Societies Act cannot be by-passed to the detriment and to the prejudice of all other creditors like the complainant. Therefore on careful reading of the letter dated 05/10/2011, we are of the opinion that the Registrar has not granted permission to file legal proceeding as against liquidator in any court of law and much more so before the Consumer Fora. In view of this complaint is not tenable and it has been rightly dismissed by the District Consumer Disputes Redressal Forum. Appeal is also without any merits. It is hereby rejected.
Pronounced on 18th June, 2012.
