West Bengal

Dakshin Dinajpur

CC/10/14

Binoy Mardi - Complainant(s)

Versus

Shri Chunilal Mahato - Opp.Party(s)

Ld.Adv

31 Mar 2011

ORDER

District Consumer Disputes Redressal Forum

Dakshin Dinajpur, W. Bengal

(Old Sub-Jail Municipal Market Complex, 2^nd Floor, Balurghat Dakshin Dinajpur Pin - 733101)

Telefax: (03522)-270013

Present

Sri B. Niyogi - President

Sri S. K. Ghosh - Member

Miss. Swapna Saha - Member

Consumer Complaint No. 14/2010

Shri Binoy Mardi,

S/o Lt. Bhadu Mardi

Vill. Dakshin Chakalam, P.O.: Amrail,

P.S. Balurghat,

Dist Dakshin Dinajpur. ………………Complainant

V-E-R-S-U-S

1. Chunilal Mahato, (Director),

S/o Lt. Birsa Mahato

of Sobra Shyampur Samabay Krishi Unnayan Samity Ltd.

Vill.: Alipur (Sobra), Po: Amrail

Ps: Balurghat, Dist: Dakshin Dinajpur.

2. Sri Fanindra Nath Mahato (Director),

S/o Lt. Lalu Mahato,

of Sobra Shyampur (S.K.U.S. Ltd.)

Vill.: Alipur (Sobra), Po: Amrail Ps: Balurghat,

Dist: Dakshin Dinajpur.

3. Sri Kishan Mahato (Manager),

S/o Haren Mahato

of Sobra Shyampur (S.K.U.S. Ltd.)

Vill.: Alipur (Sobra), Po: Amrail Ps: Balurghat,

Dist: Dakshin Dinajpur.

4. Assistant Registrar of Co-operative Societies, Dakshin Dinajpur,

At Balurghat, PO & PS: Balurghat,

5. The Chairman,

Dakshin Dinajpur Dist. Central Co-operative Bank

Balurghat, PO & PS: Balurghat,

Dist. Dakshin Dinajpur.

6. The Manager,

Dakshin Dinajpur Dist. Central Co-operative Bank

Balurghat, PO & PS: Balurghat,

Dist. Dakshin Dinajpur.

7. Sarkar Tudu

S/o Lt. Somai Tudu

Vill.: Amrail, Po : Amrail, Ps: Balurghat,

Dist Dakshin Dinajpur.

8. Ananta Kumar Mahata

S/o Lt. Magu Mahata

Vill.: Sobra, Po : Amrail, Ps: Balurghat,

Dist Dakshin Dinajpur.

9. Basanta Kr. Mahata

S/o Lt. Ganesh Mahata

Vill.: Jabaripur, Po : Chingishpur, Ps: Balurghat,

Dist Dakshin Dinajpur .…………Opposite Parties

For complainant ……………… - Sri Debarata Karmakar, Ld. Adv.

For OPs 1 to 4 and 6 & 7………… - Sri B. Kr. Roy Ld. Adv.

For OP 5 ………… - Sri Sudip Chatterjee, Ld. G.P.

For OP 8 ………… - NONE

For OP 9 ………… - In person.

Date of Filing : 16.04.2010

Date of Disposal : 31.03.2011

Judgment & Order dt. 31.03..2011

Instant CC case bases upon a complaint u/s 12 C.P. Act, brought by the complainant Sri Binoy Mardi on 16.04.2010 against the Manager and other officials of the Sobra Shyampur Samabay Krishi Unnayan Samity Ltd. and against other persons related to the said society alleging deficiency in service.

The complainant’s case as made out in the said complaint which suffered amendment, is that he invested Rs.24,000/- and a further amount of Rs.25,000/- under Cash Certificates issued from Sobra Shyampur Samabay Krishi Unnayan Samity Ltd. The said certificates got matured on 7.6.04 and on 8.8.06. After the cash certificates got matured the complainant approached to the office of the Samity for obtaining withdrawal of the maturity value payable under the certificates but he was persuaded by the Manager and others to return back. The complainant thereafter repeatedly approached to the OPs 1-4 who went on killing time saying that the matter would be settled soon. Ultimately during the first part of September, 2009 it was reported by such OPs 1-4 that the said Co-operative society had gone wound up and that the fund of the society now remains in custody of the Dakshin Dinajpur Dist. Central Co-operative Bank. The complainant then submitted an application before the said Dist. Central Co-operative Bank on 11.9.09. On the same day he by an application prayed before the A.R.C.S., Dakshin Dinajpur –the OP 5 herein, for taking necessary steps over the matter.

Having failed to get any response the complainant served a Lawyer’s notice dt. 21.12.09 upon the OPs 1-4 demanding payment of the maturity value within 30 days. Notices were served upon the OPs 5-7 too. OPs 2-4 replied to the said notice. OP 4 in his reply stated inter alia that the Board of Directors of the society had gone dissolved and that he acted as the Manager of the society only temporarily till 10.2.2002 and so he was not responsible or liable over the matter. It has been the case of the complainant that the OP 4 gave such reply only to avoid his liability.

In the backdrop of such circumstances the complainant brought the complaint seeking disbursement of the invested amounts, interest thereon, and compensation.

OPs 8 & 9 by presenting their separate written versions on 8.3.2001 admitted the case of the complainant. But such proceeding has been contested on behalf of OPs 1-4, 5, and 6 & 7.

Besides taking various usual defences OPs 1-4 in their written versions 8.9.2010 assailed the maintainability alleging that in view of providing of a remedy for determination of the dispute involved in the instant case under the provisions of the West Bengal Co-operative Societies Act, such complaint is untenable before this Forum under the CP Act. It has been their case that the OP 4 performed the works of the Manager only temporarily for a period of two months from 1.10.02 to 9.12.02 and he was not the Manager at the time of deposit of the amounts by the complainant nor at the time at which the invested amounts got matured. The other OPs were attached to the society for short periods and were not connected with the transactions with the deposit made by the complainant. These OPs were simply members of the Board of Directors and such Board got dissolved on 10.12.2002.

It has also been their case that from the audit reports it could be detected that erstwhile Manager and Cashier – Nripendra Nath Barman & Debendera Nath Mahato had misapprehended the fund of the society over which GR Case No. 595/01 u/s 406, 420 IPC remains pending for disposal.

OPs 6 & 7 - the Chairman and the Manager of the Dakshin Dinajpur Dist. Central Cooperative Bank in their written version dt. 23.9.10 and the additional written version dt. 10.2.2011 assailed the maintainability of the proceeding on ground similar to that taken by OPs 1-4 and mentioned about the pendency of GR Case No.595/01 over the allegation of misappropriation of the fund of the society by erstwhile Cashier and Manager of the society and stated that some amount of money of the said society still lies with the said bank. It has further been the case of such OPs 6 & 7 that they are not aware about the making of deposits by the complainant with the society and that none of the investors of the society is entitled to get entire of the proceeds of their invested amounts since the amount standing in the credit of the society may have to be distributed amongst the investors prorata under the supervision of the Assistant Registrar of Cooperative Societies so that none of the investors of the society be deprieved.

It has been the case of OP 5 –the Assistant Registrar of Cooperative Societies, Dakshin Dinajpur that the Sobra SKUS Samity Ltd. is a cooperative society registered under the West Bengal Cooperative Societies Act, 1983 and that under the provisions of the said Act such society is run under the management of a body elected by the members of the society. The said society started mobilizing the public deposits from 07.07.1990. As per the G.O. No. 495 dt. 9.2.1995 the society was to deposit 70% of total deposits to its affiliated bank namely Dakshin Dinajpur Dist. Central Cooperative Bank Ltd. as statutory liquidity and could utilize the remnant 30% as loan to the depositors for productive pawning purpose with proper security. From an audit report it could be detected that huge amount of money have been siphoned from the said society and over it the-then ARCS under his Memo No: 814 dt. 22.7.02 requested the Secretary to lodge FIR before the police authority against three employees of the society.

We have already stated that OPs 8 & 9 in their written versions virtually admitted claim of the complainant and controverted nothing.

Now upon the pleadings of the sides following points come up for determination :-

POINTS

1. Is the proceeding maintainable?

2. Was there deficiency in service on the part of OPs?

3. Should the reliefs sought for in the complaint, be granted?

Decision with reasons

The averments made in the complaint were verified by the complainant himself. The complainant in support of his case did not adduce any oral evidence but filed in this case on 16.4.10 and on 29.3.11 a good number of documents some which have been brought on record as exhibited documents. Such exhibited documents include original cash certificates purported to have been issued from the Sobra Sampur S.K.U.S. Ltd. as Exts. 1 & 2, copy of the complainant’s written application dt. 11.9.09 made before the OP 5 – ARCS, Dakshin Dinajpur as Ext. 3, complainant’s written application dt. 11.9.09 made before the Dist. Central Co-operative Bank, Dakshin Dinajpur as Ext. 4.

The averments made in the written versions of the contesting OPs were also supported by verification by concerned person.

No other evidence was adduced in the case though opportunity was given from the end of the Forum.

Let us now enter into the determination on the points formulated above.

Point No.1:

In course of hearing Ld. Counsel for OPs 1 –4, 6-7 and the Ld. Counsel for OP 5 assailed the maintainability of the proceeding on two fold grounds namely :-

1. That such proceeding before this Forum is barred in view of provisions of Sec. 95 of the W.B. Cooperative Societies Act, 1983;

2. The Cooperative Society with whom the complainant claim to have invested the amounts and from whom the Cash Certificate Exts. 1 & 2 purport to have been issued, has not been impleaded as a party to the proceeding.

Further contention advanced by the Ld. Counsel for the OPs 6 & 7 was that as it virtually goes undisputed that a large amount of fund of the society had gone misappropriated by some persons over which PS case remains pending and as there have been a good number of creditors of the society, it is desirable that the complainant should refer the dispute to the Registrar u/s 95 of the W.B. Cooperative Societies Act, 1983 for redressal so as to enable the creditors to have their dues satisfied prorata.

Ld. Counsel for the complainant in his attempt to refute the above contentions of his opponents, urged as under.

1. That Ext. 3 goes to show that the complainant earlier approached to the ARCS, Dakshin Dinajpur by submitting an application for redressal but it went unheeded and so this proceeding brought by the complainant before this Forum for obtaining the relief, cannot be said to be barred;

2. That as the cooperative society with whom the deposits were made is not in existence in view of dissolution of the Board of Directors the society has not been brought on record but the ARCS has been impleaded as OP 5 along with a number of erstwhile directors of the society and the Chairman and Manager of the Dist. Central Co-operative Bank Ltd., Dakshin Dinajpur with whom the funds of the said Co-operative society now remain.

We have gone through the materials on record in the case and have carefully taken into consideration the said submissions advanced on behalf of the sides.

Here the case of OP 5 – ARCS, Dakshin Dinajpur that the Sobra SKUS Ltd. with whom the complainant claims to have deposited some amounts, has been a society registered under the W.B. Cooperative Societies Act, 1983, does not appear to have been controverted by the complainant or by any of the other OPs. Now barring portions not material in the context of our present consideration, provisions of Sec.95 of the said Act of 1983 which has its heading “Disputes to be referred to Registrar” runs as under : -

“ ** Sec. 95. Disputes to be referred to Registrar :

(1) Any dispute concerning the business of a co-operative society capable of being the subject of civil litigation or any dispute relating to the affairs of a co-operative society *** shall be referred in the prescribed manner to the Registrar, if the parties thereto are among the following –

1. a co-operative society or its board or an officer (past or present), agent, employee or liquidator or a co-operative society; or

2. a member or a past member or a person claiming through a member or a past member or on behalf of a deceased member of a co-operative society or a financing bank of a co-operative society; or

3. a surety of a member or past member or deceased member of a co-operative society, whether surety is or is not a member of the co-operative society; or

4. any other co-operative society or any person including any financing bank having transaction with a co-operative society or any liquidator of a co-operative society***”.

Clause (20) of Sec.2 of the said Act, defines the expression ‘dispute’ and such definition goes as below :-

“ ** Clause (20)- ‘dispute’ means any matter capable of being the subject of civil litigation and includes a claim in respect of any sum payable to or by a Co-operative Society**”.

Here in the complaint the complainant prayed for inter alia certain amount of money alleging that the said amount is payable by the cooperative society. So the dispute in the present case is virtually one contemplated in the said Clause (20) of Sec.2 of the Cooperative Societies Act, 1983.

One of the parties to the dispute is the complainant who claims to have transacted with the cooperative society by depositing some amounts of money. The OPs, beside ARCS - Dakshin Dinajpur & Dist. Central Cooperative Bank, are either of the categories of officers (past or present) or members (past or present) of the cooperative society and the dispute is one relating to the affairs of the cooperative society. So the dispute is one substantially contemplated in Sec. 95 of the said Cooperative Societies Act, 1983.

It could, of course, be argued that despite the dispute’s having been one contemplated in Sec. 95 of the said Act of 1983, the provision of the said Sec. 95 should not be regarded to have created a bar to this proceeding under the CP Act, since Sec. 3 of the CP Act specifically enjoins that the provision of CP Act shall be, in addition to, and not in derogation of the provisions of any other law.

But we find that in the case reported in 2000 WBLR (CPSC) 49 (Subrata Roy v. Tapan Kr. Bhattacharjee) Hon’ble State Commission, W.B. having had made advertence to a Special Bench decision of the Hon’ble Calcutta High Court reported in AIR 1990 Cal. 380 (Anjan Choudhury v. Anandaneer Co-operative Registered Housing Society & Ors.) and having had observed that the W.B. Cooperative Societies Act, 1983 is a special statue whereas the CP Act, is a general law and that in such situation the provision of Co-operative Societies Act, 1983 would have overriding effect over the provisions of the CP Act, held that the Consumer Forum did not have jurisdiction to take cognizance of dispute referable u/s 95 of the Co-operative Societies Act, 1983.

In a recent decision rendered by the Hon’ble Apex Court in the case of General Manager, Telecom v. M. Krishanan & Anr. reported in 2009 CTJ 1062 (SC) (CP) it was observed that the special law overrides the general law and that when there is special remedy provided in Sec. 7B of the Indian Telegraph Act, regarding dispute in respect of telephone bills, then remedy under the CP Act, is by implication barred.

Having kept in view the aforesaid decision of our Hon’ble State Commission and the observation of the Hon’ble Apex Court we accept the contention advanced on behalf of the contesting OPs that this proceeding under the CP Act is barred in view of provisions of Sec. 95 of the WB Co-operative Societies Act, 1983.

The contention advanced by the Ld. Counsel for the complainant that the ARCS or the Registrar of Co-operative Societies was approached by the complainant earlier is no avail to the complainant as neither it has been averred in the complaint nor there is any evidence on record to indicate that the concerned dispute was referred to the Registrar in the prescribed manner as per provision of Sub sec(1) of the said Sec.95 of the 1983 Act.

Here the co-operative society with whom the complainant claimed to have made the deposits, has not been impleaded as a party though some of the erstwhile Directors, Secretary and Manager of the society have been impleaded as OPs. May be the Board of Directors of the society had already been dissolved but a co-operative society remains in existence till its registration is cancelled u/s 61 of the Co-operative Societies Act, 1983. However, even without entering into the question as to whether the concerned co-operative society has substantially been represented in this proceeding in view of impleading of the Dakshin Dinajpur Dist. Central Co-operative Bank with whom the fund of the society now lies and of the ARCS, Dakshin Dinajpur in the category of the OPs, we think, as we have already found that such proceeding is untenable in view of Sec 95 of the 1983 Act, it would not be improper to decide the Point No.1 in the negative holding that such proceeding before this Forum under the CP Act is untenable.

That apart, even if it be regarded for the sake of argument, that such proceeding is not barred in view of Sec.95 of the Act of 1983, here we find hardly any material to thwart aside the case of OPs 6 & 7 that the amount now standing in the credit of the society is not sufficient to satisfy the creditors fully and that the said amount would have to be distributed amongst the creditors or investors of the society prorata under the supervision of the Registrar of the Co-operative Societies. From such view of the matter too, it is desirable that the dispute involved in the complaint should be referred to the Registrar in terms of Sec. 95 of the WB Co-operative Societies Act, 1983.

From a consideration of the materials on record and the circumstances, we thus decide the Point No.1 holding that the complaint is untenable before this Forum under the CP Act.

Point No.2:

As we have determined the Point No.1 holding that the proceeding is untenable before this Forum and as such determination is sufficient for disposal of this case, we refrain ourselves from entering into the determination on this Point No.2.

Point No.3:

As the Point No.1 has been answered in the negative, complainant cannot be said to be entitled to any of the reliefs sought for by him in this proceeding.

In the result, the complaint is to be rejected in view of its being untenable.

It appears from the case record that even though this case was filed as far back as on 16.4.10, the POC suffered amendment and parties were added on prayer made on behalf of the complainant. Service of notice upon the parties including the added OPs was completed on 22.1.11. Instant proceeding is thus getting disposed of well within three months from the completion of service of notice upon the OPs.

Under such circumstances, it is.

O R D E R E D

That the complaint u/s 12 CP Act brought by the complainant Sri Binoy Mardi on 16.4.2010 stands rejected.

There will, however, be no order as to costs.

The complainant may, however, refer the dispute involved in the complaint to the Registrar of Co-operative Societies u/s 95, WB Co-operative Societies Act, 1983, seeking condonation of the delay in referring of the matter stating the causes.

Let plain copies of this order be supplied to the parties free of cost forthwith.

Dictated & corrected

President

(B. Niyogi)

President

We concur

(Swapna Saha)

Member

(S.K. Ghosh)

Member