Chaitanya S/O Haribhau Nasare vs Mayuri Milind Kabra
2022 Latest Caselaw 3586 Bom

                                                                 31.wp.798.2021.Judg.odt
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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      NAGPUR BENCH : NAGPUR

                CRIMINAL WRIT PETITION NO.798 OF 2021

       Chaitanya s/o Haribhau Nasare,
       Aged about 53 Years, Occ.: Service,
       The Liquidator of Bhaichand Hirachand
       Raisoni Multi-State Co-operative Credit
       Society Ltd., Having its Head Office at
       E-2/3/4 Raymond Chowfuli, MIDC,
       Ajantha Road, Jalgaon - 425003.                           ..... PETITIONER

                                   // VERSUS //

      Sou. Mayuri Milind Kabra,
      R/o Kabra Health Care, Cobra
      Complex Buldhana Road, Malkapur,
      Tq. Malkapur, Dist. Buldhana.                            .... RESPONDENT

---------------------------------------------------------------------------------------
       Mr. S. P. Deshpande, Advocate for petitioner.
       Mr. S. S. Deshpande, Advocate for respondent.
---------------------------------------------------------------------------------------


                              CORAM :            AVINASH G. GHAROTE, J.

                              DATED      :       04/04/2022


ORAL JUDGMENT :


1]            Heard Mr. S. P. Deshpande, Advocate for the petitioner and

Mr. S. S. Deshpande, Advocate for the respondent.

2] Rule. Rule made returnable forthwith. Heard finally by the

consent of the learned counsel appearing for the parties.

3] The petition challenges the order dated 28.05.2019

(page 64 E) passed by the learned District Consumer Dispute Redressal

31.wp.798.2021.Judg.odt

Forum, Buldhana in Execution Case No.40 of 2017 and the summons

issued on 30.08.2021 (page 69).

4] Mr. S. P. Deshpande, learned counsel for the petitioner

submits, that the addition of the liquidator as a party to the proceedings

under Section 27 of the Consumer Protection Act (hereinafter referred as

"the C.P. Act"), was not permissible, so also the issuance of summons

dated 30.08.2021 to the liquidator was also not permissible, considering

that the original order of the Consumer Forum dated 23.01.2017 (page

52) in Consumer Complaint No.96 of 2016, itself absolved the liquidator

which was indicated from point No.1 and para 4, where the same was

discussed holding that proceedings cannot be continued against the

liquidator. It is further submitted that when the Society was not a party

to the proceedings under Section 12 of the C.P. Act, it was not

permissible for the Consumer Forum to pass the judgment dated

23.01.2017. The further contention is that even presuming otherwise,

the judgment of the learned Consumer Forum being against the Society,

the proceedings under Section 27 of the C.P. Act, could not have been

instituted against the liquidator. Reliance for the same is placed upon

the order of the learned Division Bench in Writ Petition No.1611 of 2021

dated 14.03.2022 passed at the Principal Seat in Subhash Anandrao

Chougule vs. Union of India and Ors.

31.wp.798.2021.Judg.odt

5] Mr. S. S. Deshpnade, learned counsel for the respondent,

vehemently opposes the petition and contends, that the petition itself is

not maintainable, for which, reliance is placed upon P. K. Anna Patil

Janta Sahakari Bank Ltd., Nandurbar and another Vs. State of

Maharashtra and others, 2019 (1) Mh L.J. 240 (para 10). He further

submits, that there is an alternate remedy available to the petitioner, on

which ground also, the petition ought not to be entertained.

6] It is not in dispute that the Bhaichand Hirachand Raisoni

Multi-State Co-operative Credit Society Ltd., Jalgaon, was put into

liquidation by order dated 27.10.2015 and a liquidator was appointed to

liquidate the affairs of the said Society. The proceedings under Section

12 of the C. P. Act, perusal thereof, were not filed against the Society, but

against the liquidator. The liquidator appeared in this proceeding and

opposed the complaint, contending that it was not maintainable against

the liquidator, who under the statute was duty bound, to frame the

priorities and make payment for the same after liquidating the assets of

the Society. The Society also was not made party independently,

considering which position, learned Consumer Forum by order dated

23.01.2017 itself found that the proceedings could not be continued

against the liquidator, and therefore, it had no jurisdiction to continue

the same. However, in spite of the fact, that the said Society, was not

31.wp.798.2021.Judg.odt

made an independent party, it surprisingly without directing the same to

be done, proceeded to pass an order against the Society holding it

responsible for payment of Rs.46,330/- with interest at 8 % per annum

as well as Rs.3,000/- for harassment and mental agony and Rs.2,000/-

as costs. Surprisingly, this order of the learned Consumer Forum was put

to execution by filing proceedings under Section 27 of the C.P. Act,

against the liquidator (page 60), to whom the learned Consumer Forum

issued summons on 30.08.2021, asking him to show cause, in pursuance

to which, the liquidator was required to appear and obtain bail. What is

material to note are two things (i) the Society, was not made an

independent party to the proceedings under Section 12 of the C.P. Act

and (ii) the liquidator was absolved holding that the proceedings against

him were not maintainable, in light of which, the learned Consumer

Forum had no reason whatsoever to go ahead and pass the order dated

23.01.2017 holding the Society responsible, when the Society, was not a

party to the proceedings in its independent capacity. Even in

proceedings under Section 27 of the C.P. Act, since the Consumer Forum

had already opined that the proceedings against the liquidator would not

be maintainable, the proceedings under Section 27 of the C.P. Act, ought

not to have been initiated against him for the reason that the liquidator

is a public servant statutorily appointed under Section 89 (1) of the

Multi-State Co-operative Societies Act, 2002, for the purpose of winding

31.wp.798.2021.Judg.odt

up the affairs of the Society by liquidating its assets and distributing the

same amongst the creditors on the basis of the priorities, as per the

provisions of the Act and Rules made thereunder. It is thus apparent,

that the actions of the liquidator cannot be made subject of a scrutiny

under the Consumer Protection Act nor can the liquidator be made a

party to the proceedings under Section 27 of the C.P. Act (Amended

Section 72 of the Consumer Protection Act, 2019), so as to make him

liable for punishment for non-compliance of the order of the learned

Consumer Forum. That being the position, the proceedings under

Section 27 of the C.P. Act, against the liquidator, were per se not

maintainable in law, in spite of which, in the instant matter, liquidator

has been made a party and has been required to secure bail. P. K. Anna

Patil Janta Sahakari Bank Ltd., Nandurbar (supra) relied upon by the

learned counsel for the respondent merely holds, that proceedings under

Section 27 the C.P. Act, were not barred by Section 107 of the

Co-operative Societies Act, and has no applicability, as in the said

judgment, the liability of the liquidator, for a penalty under Section 27 of

the C.P Act, was not a question, which fell for consideration. In Subhash

Anandrao Chougule (supra), the learned Division Bench of this Court

has categorically held, that there is no question of any parties suing the

liquidator on a consumer complaint to gain priority or precedence over

other claimants or to get award any damages as this would be a fresh

31.wp.798.2021.Judg.odt

claim arising after an order of liquidation and by the same logic,

proceedings under Section 27 of the C.P. Act, would also not be

maintainable against the liquidator, who is a public servant appointed

for the purpose of winding up the business of the Society by liquidating

its assets, which appointment is directly attributable to the powers under

Section 89 of the Multi-State Co-operatives Societies Act, 2002,

considering which, the writ petition is allowed.

7] The proceedings under Section 27 of the C.P. Act pending

before the learned District Consumer Forum, Buldhana, against the

petitioner and so also all subsequent action therein as against the

petitioner are hereby quashed and set aside.

8] The amount of Rs.10,000/- (Rupees Ten Thousand)

deposited in this Court by the petitioner be refunded back to the

petitioner.

Rule is made absolute. No costs.

                                                          (AVINASH G. GHAROTE, J)

Digitally signed byANANT R
SARKATE
Signing Date:05.04.2022    Sarkate.
15:21