7.Mr. Desai, learned counsel appearing for the appellant pointed out that the appellant Society is consisting of middle class people and they are now being made to suffer for the actions/misdeeds of respondent No.2. Mr. Navare, learned counsel appearing for respondent No.2 on the other hand, submitted that the members of the present Managing Committee were also along with respondent No.2 in all these transactions which took place from time to time.
8.Having noted these facts, however, we are of the view that as far as the present case is concerned, respondent No.1 had made the payment when respondent No.2 was incharge of the Society and the present Managing Committee was not in the picture. That being so, the responsibility to refund the amount primarily lies on the respondent No.2 and in the event of his failure, on the appellant Society. In the circumstances, we modify the order passed by the National Commission as well as the State Commission and hold respondent No.2 primarily responsible for paying the amount of Rs.4,02,382/-. We allow this appeal to that extent.
9.We had asked Mr. Navare on the last date of hearing to seek instructions from respondent No.2 whether he would be agreeable to make the payment. He has informed that he does not have any such instructions. In the circumstances, we direct the respondent No.2 to make the payment of Rs.4,02,382/- in eight weeks' time, failing which it would be open to respondent No.1 to take further action by moving the State Commission under Section 27 of the Consumer Protection Act, 1986 against respondent No.2 Kapuskar. In the event respondent No.2 makes the payment in the course of those proceedings, well and good. However, in the event of his failing to make payment, the consequences will follow. In the event respondent No.2 deposits the entire amount, half of the amount therefrom will be paid to respondent No.1 and the remaining half would be permitted to be withdrawn by the appellant. The 50% amount which is presently lying in the State Commission will continue to remain there until then. However, in the event of respondent No.2 being sent to imprisonment on his failing to make payment, this 50% amount which is deposited in the State Commission will be permitted to be withdrawn by respondent No.1.
10.We are informed that there are many other proceedings which are pending between the appellant Society and respondent No.2, and many cases are filed by the depositors against respondent No.2. We, therefore, make it clear that this order will be confined to the facts of this case.
11.Appeal is disposed of as above. No order as to costs.
New Delhi; November 12, 2013.