BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE

Dated this the 29^th April 2009

COMPLAINT NO.47/2009  

(Admitted on 13.2.2009)

PRESENT: 

             1. Smt. Asha Shetty, B.A. L.L.B., President                                                                                                                                                                                                                                                                                                                                   

2. Sri. K. Ramachandra, Member

BETWEEN:

Mr.Avitus  Paul Rego @ A.P.Rego,

So late Raphael Rego,

Aged About 60 years,

Permanent R.of Anto  Nivas,

Kulushekar, Mangalore,D.K.

Represented by his wife and

G.P.A. Holder.

Mrs.Philomina Rego @ Phyllis Rego,

W/o Avitus Rego, Aged about 58 years,

R/at “ Anto – Nivas”, Kulushekar,

Mangalore,D.K.                                   …….. COMPLAINANT

(Advocate for Complainants: Sri K.S.N.Rajesh)

          VERSUS

1. Ms Canara Investments &

    Finance Corporation,

    Swami Vivekanda Commercial

    Complex, Bhavanthi Street,

    Mangalore -575 001.

2. Mr.Vamana  Baliga,

    S/o Late Gopala Krishna Baliga,

    Managing Partner,

    M/s Canara Investments &

    Finance Corporation,

    R/at Flat No.7,

    D.No.3-2-41-C, 2^nd Floor,

    NIKKI Apartments,

    Near Lions Club,

    Brahmagiri,

    Udupi Taluk.               …. OPPOSITE PARTIES

(Advocate for Opposite Party No.1 : Exparte)

(Advocate for Opposite Party No.2: Sri.P.R.Bhandarkar)

ORDER DELIVERED BY SMT. ASHA SHETTY, PRESIDENT:

1.       The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.  

          The Opposite Party No.1 is a partnership firm having its office at Mangalore D.K. District carrying financial business and Opposite Party No.2 is a Managing Partner of the Opposite Party No.1 firm, in which Complainant claims to have deposited certain sum of money with the Opposite Parties under the Fixed Deposit Receipts, the details of which are given in the schedule here below:

          The Complainant submits that, on the maturity of the above said Fixed Deposit he has approached the Opposite Parties several times, but the Opposite Party postponed the payment on one or the other pretext and failed to pay the amount till this date.  Thereafter Complainant issued lawyers notice on 27.11.2008 to the Opposite Parties.  In spite of that, the Opposite Parties not paid the amount which amounts to deficiency in service.  Hence, the Complainant has filed the above complaint under Section 12 of the Consumers Protection Act, 1986 (herein after referred to as “The Act”) seeking direction from this Hon’ble Forum to the Opposite Parties to pay a sum of Rs.25,000/- with interest thereon at 10% p.a. from 26.4.1999 and Rs.25,000/- with interest thereon at 10% p.a. from 30.6.2000 till payment respectively and further Rs.20,000/- claimed as compensation and cost of the proceedings.

2.       Version notice served to the Opposite Parties by RPAD. Opposite Party No.1 is a firm returned as a door lock and Opposite Party No.2 appeared through their counsel filed version and submitted as follows:

          This Opposite Party denies that he is a partner of the alleged firm and submitted that remaining partners of the alleged partnership firm have not been impleaded in the above complaint and the complaint is barred by limitation and is not maintainable and prayed for dismissal of the complaint.

3.      The points that arise for our consideration in this case are as follows:

1. Whether the complaint is barred by law of limitation?

2. Whether the Complainant proves that the Opposite Parties have committed deficiency in service?

3. If so, whether the complainant is entitled for the reliefs claimed?

4. What order?

4.         In support of the complaint, Mrs.Philomina Rego @ Phyllis Rego - G.P.A. holder of the Complainant (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.   Ex C1 to C7 were marked for the Complainant as listed in the annexure.  One Sri K.Vamana Baliga, Opposite Party No.2 filed counter affidavit and answered the interrogatories served on him. 

          We have heard the arguments and perused the pleadings, documents and evidence placed on record by the respective parties and answer the points are as follows:   

R E A S O N S

5.     Points No.(i) to (iv):

As far as limitation is concerned, sub Section (2) of Section 24A of the Consumer Protection Act states that not withstanding anything contending Sub-Section (1), the complaint may be entertained after the specified period, if the Complainant satisfies the District Forum within such period.  Now it is a well-established proposition that when the person who received the fixed deposit has failed to repay the deposit on the date of maturity, it is a recurring cause of action for the depositor so long as the person who received the deposit has not denied his liability to repay the deposit.  The Opposite Parties have no case that they have denied the Complainants’ right to recover the deposit until they filed their version before this Forum.  The Complainants’ right is denied for the first time.  Therefore, we are of the view that, the Complainant has recurring cause of action until and unless it has been proved that the entire deposited amount has been paid to the Complainant by the Opposite Parties. Hence, the point No.(i) is held in favour of the Complainant.

The Ex.C1 and C2 are the original Fixed Deposit Receipts issued by the Canara Investments & Finance Corporation (Regd.) i.e. Opposite Party No.1 proved that the Complainant has deposited the amount of Rs.25,000/- each under the above Fixed Deposit Receipts as stated in the schedule of the Complaint herein above.  It is also evidenced that the amount under the above Fixed Deposit is already matured for repayment on the date mentioned therein.

It is significant to note that, in the present case the Opposite Party No.2 appeared through their counsel and filed version and contended that he is not the partner of the firm in one breath and in another breath in Para 3  and 4 of the version that the remaining partners of the alleged partnership firm are not impleaded.  If at all the Opposite Party No.2 is not a partner how he knows the remaining partners of the alleged partnership firm not were impleaded. That itself shows that the Opposite Party No.2 is one of the partner and rest of the partners are not made as a party to the proceedings.  However, it is a settled position of law that under the partnership firm all the partners of the firm are jointly and severally liable to pay of the debts of the firms. Since the firm made as a party to the proceedings it is not necessary that all the partners are brought on record.  Once the order is passed against the firm it is binding on all the partners who ever is on record or not.

The Ex.C1 and C2 i.e. Fixed Deposit Receipts issued by the Opposite Party No.1 clearly reveals that, the Complainant had deposited Rs.25,000/- each for the period of two years and the said amount deposited amount were matured.  The said receipts were issued by the Managing Partner of the above said firm.  Since the fixed deposit receipts were issued by the partner of the Opposite Party No.1 and the above said amount deposited by the Complainant with the Opposite Party No.1 under the Fixed Deposit Receipts, the Opposite Party No.1 and its all the partners are jointly and severally liable to refund the amount on the date of maturity or thereafter. And the Ex.C1 and C2 are the Original Fixed Deposit Receipts available before the Forum is sufficient to hold that the amount under the Fixed Deposits are matured for repayment on the date mentioned therein, which date has been already expired. That the entire amount deposited under the above said certificates not repaid by the Opposite Party No.1 and its partners till this date amounts to deficiency in service. 

As far as Opposite Party No.2 is concerned he has taken a defence that other partners who are not impleaded that means the Opposite Party No.2 is very well aware of the partners of the Opposite Party No.1 and the Opposite Party No.2 ought to have produced the partnership deed before the Fora in order to show that he is not a partner of the partner and he is not held responsible.  But in the instant case he has taken a simple defence that he is not a partner is not justifiable. 

Under the above circumstances, we hold that the Opposite Parties are jointly and severally hereby directed to pay to the Complainant a sum of Rs.25,000/-  with interest at the rate of 10% p.a. (contractual rate) under F.D.R No.001591 from the date of deposit i.e. 26.4.1999 till the date of maturity and Rs.25,000/- with interest at the rate of 10% p.a. (contractual rate) under F.D.R No.001761 from the date of deposit i.e. 30.6.2000 till the date of maturity and thereafter Opposite Parties are liable to pay interest @ 8% per annum from the date of maturity till the date of payment under the two Fixed Deposit Receipts respectively and Rs.1,000/- awarded as litigation expenses. Payment shall be made within 30 days from the date of this order.

6.       In the result, we pass the following:

O R D E R

 The complaint is allowed.  The Opposite Parties are jointly and severally hereby directed to pay to the Complainant a sum of Rs.25,000/-  with interest at the rate of 10% p.a. (contractual rate) under F.D.R No.001591 from the date of deposit i.e. 26.4.1999 till the date of maturity and Rs.25,000/- with interest at the rate of 10% p.a. (contractual rate) under F.D.R No.001761 from the date of deposit i.e. 30.6.2000 till the date of maturity and thereafter Opposite Parties are liable to pay interest @ 8% per annum from the date of maturity till the date of payment under the two Fixed Deposit Receipts respectively and Rs.1,000/- awarded as litigation expenses. Payment shall be made within 30 days from the date of this order.

The F.D.R. if any, deposited by the Complainant be returned fourth with by substituting the certified.

Copy of this order as per statutory requirements be forward to the parties free of costs and file shall be consigned to record room.

(Dictated to the stenographer, typed by him, revised and pronounced in the open court on this the 29^th day of April 2009).

     PRESIDENT                        MEMBER                              

(SMT. ASHA SHETTY)              (SRI. K.RAMACHNADRA)                  

APPENDIX

WITNESSESS EXAMINED FOR THE COMPLAINANT :

CW1- Mrs.Philomina Rego @ Phyllis Rego –

          G.P.A. holder of the Complainant.

DOCUMENTS PRODUCED BY THE COMPLAINANT:

Ex.C1: 26.4.1999: Fixed Deposit receipt No.001591 issued

                             by the Opposite Party.

Ex C2: 30.6.2000: Fixed Deposit receipt No.001761 issued

                             by the Opposite Party.

Ex C3: 27.11.2008: copy of Legal Notice issued to the

                           Opposite Parties.

Ex C4: 28.11.2008: Postal Acknowledgement duly signed

                            by the 2^nd Opposite Party.

Ex C5: 10.12.2008: Postal envelope contains the legal

                            notice sent to the 1^st Opposite Party

                            returned to the sender.

Ex.C6: Reply Notice issued to the Complainant by the

          2^nd Opposite Party.

Ex C7: Copy of General Power of Attorney.

WITNESSESS EXAMINED FOR THE OPPOSITE PARTIES:

RW-1: Sri K.Vamana Baliga, Opposite Party No.2

DOCUMENTS PRODUCED BY THE OPPOSITE PARTIES:

-Nil-

Dated:29.4.2009                                          PRESIDENT