2) To be referred to the Reporters or not? Yes/No

3) Whether judgment should be reported in the Digest? Yes/No Argued by:- For the appellants : Sh. Harbans Sharma, Advocate For respondent No.1 : Sh. Sarju Puri, Advocate For respondent No.2 : None First Appeal No.223 of 2020 JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT This order will dispose of above mentioned two (2) appeals filed by the same appellants/OPs No.2 to 4 against the similar impugned order dated 29.01.2020 passed by District Consumer Disputes Redressal Forum (now Commission), Shaheed Bhagat Singh Nagar (in short, the District Commission), vide which, two complaints of the complainant were allowed against opposite parties (in short OPs). Similar questions of law and facts are involved in above appeals, as such we dispose of the above referred appeals together and the facts are taken from main First Appeal No.223 of 2020 titled as Deputy Registrar, Cooperative Societies, SBS Nagar & others Vs. Raghbir Singh & another. Vide impugned order dated 29.01.2020, the District Commission accepted complaint No.96 of 2019 of the complainant against the OPs and the following reliefs were granted:-

11. As a result of our above discussion and in view of the case law laid down by Honble Apex Court and Honble State Commission Punjab, Chandigarh, we allow the complaint of the complainant and directed OPs to refund the fixed deposit receipt to the value of Rs.11,86,200/- with interest @6% per annum from the date of maturity till its realization. The complainant is also held entitled Rs.5000/- as compensation and cost of litigation

2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission. First Appeal No.223 of 2020

3. Brief facts of consumer complaint No.96 of 2019, for disposal of the appeal, are that the complainant had opened an saving First Appeal No.223 of 2020 account bearing no.1124 with OP no.1-Society so many years ago and had deposited Rs.3,54,000/- on 20.10.2015 in the shape of FDR with the rate of interest 8.25%, vide receipt no.103 and the due date was 20.10.2016. He further deposited Rs.80,000/- in FDR on 30.04.2016 with rate of interest 7.50%, vide receipt no.365 and due date was 30.04.2017 and he got it further extended from 30.04.2017 to 30.04.2018 and 30.04.2018 to 30.04.2019. It is further averred on 18.07.2016 he deposited an amount of Rs.5,97,540/- with OP No.1 in the shape of FDR with interest @ 7.50% and the maturity date was 08.07.2017 and he further got extended it from 17.08.2017 to 17.08.2018 and further from 17.08.2018 to 17.08.2019 (with interest @ 6.50%). He also deposited Rs.1,00,000/- on 25.10.2016 with due date 25.10.2017, vide receipt No.459 and Rs.54,660/- on 08.01.2019 with maturity date 20.11.2019, vide receipt No.660 with rate of interest 6.50%. Due to unavoidable circumstances, the complainant wanted to withdraw his money from OP No.1 as he was not willing to continue with the above said FDRs and he contacted OP No.1 for crediting the FDRs with interest, in his account, but OP No.1 was not in a position to credit the above said amounts. He also approached the employees of OP No.1 i.e. President, Secretary and Cashier for withdrawal of the above said amounts, but they lingered on the matter on one pretext or the other. It is further averred that OPs are not interested to return the amount of FDRs, which is Rs.11,86,200/- with interest 6.50%. Due to this act and conduct of OPs, he suffered lot of problems and it also caused mental agony and harassment to him and also disturbed his First Appeal No.223 of 2020 family life. The complainant prayed for refund of fixed deposit receipt to the value of Rs.11,86,200/- with interest @ 6.50% per annum to him with future interest and other benefits i.e. cost, compensation and litigation expenses, which District Commission deems fit. Defence of the Opposite Parties

4. Upon notice, OPs no.2 and 3 filed joint written reply by raising preliminary objections that complaint is not maintainable. The complainant has suppressed and concealed the real facts from the District Commission, because the proceedings are going on under Section 55 of Punjab Co-operative Societies Act, 1961 before OP No.3 and the case of the complainant has not been decided till date. The complainant is barred by his act and conduct to file the present complaint. The complaint is bad for non-joinder of necessary parties. The complaint is hit by principle of multifariousness of issues and cause of action. On merits, it is averred that office of OP No.4 is not situated in the area of Nawanshahr, as the same is situated at Chandigarh. OPs No.1, 2 and 3 are having the office in the area of Nawanshahr. The record books of OP No.1 was shown to the concerned Inspector of OP No.1 posted in the office of OP No.2, who found that there is no mention of FDR No.554 in the record book of OP No.1. The complainant concealed this fact from the District Commission that OP No.1 had already approached OP No.3 to settle the dispute between OP No.1 and its employees, Members of Managing Committee and the complainant and the case is going on before the Court of OP No.3. The answering OPs controverted the First Appeal No.223 of 2020 other averments of the complainant and prayed for the dismissal of the complaint.

5. Upon notice, none appeared on behalf of OPs No.1 and 4, as such, they were proceeded exparte on 22.10.2019. However, later on OPs No.1 & 2 appeared and were allowed to join the proceedings from that stage i.e. arguments, vide order dated 05.12.2019.

6. The complainant also filed rejoinder to the reply of OPs No.2 & 3 and controverted their averments, as raised in the written reply and prayed for acceptance of the complaint. Evidence of the parties and finding of the District Commission

7. The complainant tendered in evidence his affidavit Ex.CW- 1/A alongwith copies of documents i.e. long term deposit receipts dated 20.10.2015, 30.04.2016, 18.07.2016, 25.10.2016 and 08.01.2019 Ex.C-1 to C-5, notice dated 07.09.2019 with postal receipt Ex.C-6 and copy of passport Ex.C-7.

8. To rebut the evidence of the complainant, OPs No.2 & 3 tendered in evidence joint affidavit of Bhupinder Singh, Deputy Registrar and Rohit Kumar, Assistant Registrar Ex.OP-A with copies of documents Ex.OP-2/1 (colly).

9. The District Commission, after going through the record of the case and hearing learned counsel on their behalf, allowed the complaint of the complainant, vide impugned order. Feeling aggrieved against the order, the above referred appeal has been filed by the appellants/OPs No.2-4 and the same appellants/OPs No.2-4 also filed First Appeal No.223 of 2020 separate First Appeal No.224 of 2019 against similar impugned order dated 29.01.2020, vide which, consumer complaint No.97 of 2019 was allowed against the OPs. First Appeal No.224 of 2020

10. Brief facts of consumer complaint No.97 of 2019 are that the complainant had got opened saving account number 1214 with OP No.1-Society and on 29.03.2018 deposited an amount of Rs.20,00,000/- for long term deposit receipt with rate of interest @6.50% per annum and the due date of the same was on 29.03.2019. Thereafter, the complainant wanted to withdraw the said amount, but OP No.1 failed to credit the same in his account. He also approached employees of OP No.1-Society i.e. President, Secretary and Cashier, but they lingered on the matter on one pretext or the other. Alleging deficiency in service on the part of OPs, the complainant filed the complaint and prayed for refund of said amount with future interest and cost, compensation and litigation expenses.

11. Upon notice, OPs no.2 and 3 filed written reply on the similar lines, as pleaded in written reply in consumer complaint No.96 of 2019 and prayed for dismissal of the complaint.

12. OPs No.1 and 4 failed to appear, as such, they were proceeded exparte on 22.10.2019. However, later on OPs No.1 & 2 appeared and were allowed to join the proceedings from that stage i.e. arguments, vide order dated 05.12.2019.

13. The parties led their evidence in support of their averments. First Appeal No.223 of 2020

14. The District Commission, after going through the record of the case and hearing learned counsel on their behalf, allowed the complaint of the complainant, vide impugned order. Feeling aggrieved against the impugned order, First Appeal No.224 of 2019 has been filed by the appellants/OPs No.2-4. Contentions of the parties

15. We have heard learned counsel for the appellants and respondent No.1, as none appeared on behalf of the respondent No.2 and have carefully gone through their written arguments submitted by the appellants and respondent No.1 and also record of the case.

16. Learned counsel for the appellants/OPs No.2-4 argued that the entire litigation against the appellants before the District Commission is vexatious and frivolous, as they have impleaded as OPs No.2-4 without any rhyme or reasons and they have been harassed without any cause in the complaint. The every amount deposited by the complainant with OP No.1 in shape of FDRs and the amount on maturity was to be released by OP No.1 only, as such OPs No.2 and 4 had been impleaded as party in the complaint before the District Commission by the complainant without any rhyme and reason. The appellants/OPs No.2-4 are not liable to return any amount to the complainant, as they had not received any amount from him. In para No.10 of the complaint, the complainant mentioned that legal notice dated 07.09.2019 was issued to OP No.1 for payment of Rs.11,86,200/- with interest @ 6.50%. The entire findings of the District Commission in the impugned order dated 09.01.2020 are only First Appeal No.223 of 2020 against OP No.1, but the District Commission in para No.8 of the order wrongly wrote that the complainant had deposited the amount of Rs.11,86,200 with OPs instead of OP No.1. The appellants have only supervisory powers over OP No.1-Society and the affairs of which were being run by elected committee. The complainant is not consumer of the appellants/OPs No.2-4, as they have not provided any service to the complainant. Learned counsel prayed for acceptance of the appeal and setting aside the order of the District Commission qua the appellants/OPs No.2-4.

17. Learned counsel for respondent No.1/complainant argued to the contrary that the District Commission has rightly held that the complainant had deposited a sum of Rs.11,86,200/- with the OPs in the shape of FDRs and this fact stands admitted by the OPs themselves. The District Commission has further rightly observed that OPs No.2 and 3 admitted in para No.7 of the reply that OP No.1 had already approached OP No.3 to settle the dispute, but the claim of the complainant was not settled. While relying upon the letter dated 07.05.2019 addressed to Assistant Registrar, Cooperative Societies, Nawanshahr, the District Commission has rightly held deficiency in service and unfair trade practice on the part of OPs and the District Commission has further rightly held that it is the bounden duty of the higher authorities to supervise the work of their subordinate employees and therefore, it was the duty of the Registrar or the Director of the Cooperative (Audit) to file criminal complaint against the delinquents for misappropriation and embezzlement of the funds. Failure to First Appeal No.223 of 2020 perform this duty amounts to deficiency in service and unfair trade practice on the part of OPs. In his written arguments, respondent No.1/complainant further averred that in Execution Application, OPs/JDs have already made part payment of Rs.50,000/- on one of the dates and have further handed over assets/articles valued at Rs.8,79,800/- during the execution with an undertaking to make the payment of the remaining amount as awarded by the District Commission. Respondent No.1/complainant prayed for dismissal of the appeal. Consideration of Contentions

18. We have given thoughtful consideration to the contentions raised by the parties and also perused the record of the case.

19. It is an admitted fact of the case that the appellants/JDs and respondent No.2/OP No.1 have already made part payment of Rs.50,000/- and also handed over the assets/articles valued at Rs.8,79,800/- during the execution of impugned order of the District Commission. Now, we have to decide this point whether the appellants/OPs No.2-4 are deficient in service or not? Perusal of record, reveals that the complainant deposited the amounts with OP No.1 and on maturity the same were to be released by OP No.1 only and there is no document on record, which shows that the complainant ever approached the appellants/OPs No.2-4 for redressal of his grievance. It is pertinent to mention that the appellants/OPs No.2-4 have specifically mentioned that OP No.1 had approached OP No.3 for settlement of the claim of the complainant and the proceedings are First Appeal No.223 of 2020 under process. Moreover, OPs No.2-4 are the supervisory authorities, as such they cannot be held liable deficient in service for the deficient act and conduct of their subordinate(s). The appellants/OPs No.2-4 are performing their statutory duties under Punjab Co-op Socities Act, 1961. The Honble Supreme Court in case titled as K.K. Kataria v. Asstt. Regional Passport Office 1998 (1) CCC-201, that passport is not a commodity , which can be purchased or sold for consideration, but it is only a nature of permission granted by the sovereign to its citizens to go outside the country. It was further held that the function of the Central Government, which is required to be performed under the Passport Act, could not be equated with the definition of service rendered to the consumer as defined in the Act. In view of above, we are of the view that the District Commission has wrongly allowed the complaint against the appellants/OPs No.2-4 which are performing their statutory duties under provisions of Punjab Co-op Socities Act, 1961, being Supervisory Authorities. Moreover, the appellants/OPs No.2-4 have not provided any services to the complainant and all the allegations are against respondent No.2/OP No.1 in the said complaint, as such, the authorities relied upon by the District Commission to hold OPs No.2-4 deficient in service are not applicable to the facts of the case and are also not sufficient for determining the liability of OPs No.2-4 under the C.P. Act. It is also pertinent to mention that the complainant has already received the amount of Rs.50,000/- and assets/articles valued at Rs.8,79,800/- during the execution of impugned order of the District Commission. In these First Appeal No.223 of 2020 circumstances, we are of the view that the function of the appellants/OPs No.2-4, which is required to be performed under the Punjab Co-op Societies Act, 1961, could not be equated with the definition of service rendered to the consumer as defined in the Act. As such, the complainant is not the consumer of the appellants/OPs No.2-4 and the impugned order of the District Commission is liable to be set aside qua the appellants/OPs No.2-4.

20. In view of our above referred authority and discussion, we allow both the appeals of the appellants and set aside the impugned orders qua appellants/OPs No.2-4. The appellants will make efforts to get reimbursed the remaining awarded amount to the complainant from OP No.1 in a positive manner, being Supervisory Authorities of OP No.1.

21. The appellants in First Appeal No.223 of 2020 had deposited a sum of Rs.25,000/- at the time of filing of the appeal. This amount, along with interest which has accrued thereon, if any, shall be remitted by the Registry to the appellants after the expiry of limitation period in accordance with law.

22. The appellants in First Appeal No.224 of 2020 had deposited a sum of Rs.25,000/- at the time of filing of the appeal with this Commission. This amount, along with interest which has accrued thereon, if any, shall be remitted by the Registry to the appellants after the expiry of limitation period in accordance with law. First Appeal No.223 of 2020

23. The above referred appeals could not be decided within stipulated period due to heavy pendency of court cases and pandemic of Covid-19. (JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (KIRAN SIBAL) MEMBER April 20, 2021. (MM)