IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Monday the 31st day of July, 2017.
Filed on 23/03/2016
Present
1. Smt. Elizabeth George, President
2. Smt. Jasmine.D. (Member) in
C.C.No.94/2016
between
Complainant:- Opposite Parties:-
Sri. Sundarkumar.K 1Vidoba Bankers,
S/o K.R.Krishnamallan Partnership Firm
Palakadavu, C.M.C-15, Cherthala. Register No.93/97
Theeku village, Cherthala PO KPV/72 Thanky Junction
Cherthala Taluk Kadakkarappally For
Narshima Pai,S/o Babu Pai
Vayalapuram Veetil,
(By Adv.. B.Benni Lal) Thirumalabhagom PO,
Thuravoor.
(By Adv. Jayan C.Das)
2 Sandhya N. Pai,
W/o Dileepkumar, Vidoba
Mandir, Thirumalabhagom PO.
Thuravoor.
3 Sandeep Krishna Bhat,
S/o Dileepkumar,
-do-
4 Jaideep Krishna Bhat(Minor)
S/o Dileep Kumar
Rept.by his mother 2nd OP
(By Adv. G.Sunilkumar)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The complainant is a depositor with the first opposite party firm. The deceased Dileepkumar was the Managing Partner of the firm. The Managing Partner deceased Dileepkumar approached the complainant and requested to deposit amount with them and he offered attractive rate of interest to the complainant and thereby induced the complainant to deposit some amounts with them . After the due date of deposit complainant renewed the fixed deposit as per the receipt issued by opposite party and complainant has to get Rs.8,99,000/- with interest. Thereafter the complainant had on several occasions approached the opposite parties to return the amount covered under aforesaid fixed receipts together with agreed rate of interest, however they denied the assured service to the complainant by stating one reason or the other. There is dereliction of service on the part of the opposite parties, and they are liable to compensate the same also. Alleging deficiency in service on the part of the opposite parties the complaint is filed for the following reliefs:-
- To direct the opposite parties to pay an amount of Rs.8,99,000/- together with 12% interest thereon from the date of complaint till realization of the same from the opposite parties and their assets by creating charge upon the property scheduled hereunder.
- To award the cost of the proceedings.
- The version of the 1st opposite parties is as follows:-
There is no consumer and service rendering party relationship between the opposite party. There is no legal sustainability of the complaint. On the death of one of the partner the firm is dissolved if so facto and there is no firm existing as alleged by the complainant.
3.Version of the 2nd opposite party is as follows:
The allegations that the deceased Dileepkumar approached the complainant etc. are put to strict proof. The complaint is unsustainable as per the provisions of law. There is no consumers and service vendor ship party relationship between the parties.
4. The complainant filed proof affidavit along with documents. The documents produced were marked as Exts. A1 series (12in Nos) to A4. No oral or documentary evidence adduced from the part of the opposite parties.
5. The points for consideration are:-
1)Whether there is any deficiency in service on the part of the opposite
parties?
2)If so the reliefs and costs?
6. According to the complainant, he deposited with the firm an amount of Rs.30,000/- on 14/3/2014, Rs.20,000/- on 28/3/14, Rs.66,000/- on 5/11/14, Rs.40,000/- on 18/7/13, Rs.31,000/- on 4/10/13, Rs.30,000/- on 18/4/14, Rs. 1,50,000/- on 27/4/17, Rs.90,000/- on21/11/13, Rs.72,000/- on 9/1/14, Rs.2,00,000/- on 24/5/14, Rs.1,00,000/- on 12/9/14 and Rs.70,000/- on 30/4/14. and the opposite parties failed to return the said amounts to the complainant after the maturity date. Complainant produced fixed deposit receipts which marked as Ext.A1 series. It has not been denied by the opposite parties that the amounts in question were not deposited by the complainant with the firm of which the first opposite party and the deceased Dileepkumar were the partners. The contention taken by the 2nd opposite party is that she is the legal heirs of deceased Dileepkumar and she never be held to be liable for deficiency of service, since there is no consumer/vendor relationship with the legal heirs of the deceased partner. In this case complainant has made deposit with a firm expecting financial returns on the same and hence he is entitled to get the amount from the opposite parties. As per Section 35 of the Indian Partnership Act, 1932, “Where under a contract between the partners the firm is not dissolved by the death of a partner, the estate of a deceased partner is not liable for any act of the firm done after his death”. In the instant case, the claim of the complainant is that the deceased Dileepkumar and first opposite party were the partners of the firm and the complainant deposited the amount at the instance, the deceased Dileepkumar. As per Section 35 of the Indian Partnership Act the asset of a deceased partner is not liable for any act of the firm done after his death only. Hence opposite parties are directed to return the deposited amount of Rs. 8,99,000/- with 9% interest from date of deposit till realization. We further clarify that the liability of the 2nd opposite party 2 to 4 is limited only to the extent of value of the properties inherited by them from deceased partner named Dileepkumar. The complainant is at liberty to proceed against such properties of the opposite parties for realization of the amount subject to the above limitation.
In the result, complaint is allowed. The opposite parties are directed to return the amount of Rs.8,99,000/- (Rupees Eight lakhs and Ninety nine thousand only) with 9% interest from the respective due dates of the fixed deposit of the complainant till realization. The order shall be complied within one month from the date of receipt of this order. In default complainant is allowed to realize an amount of Rs.8,99,000/- with interest as charge over the properties of the opposite parties including the properties attached in this case. Since the primary relief is allowed no order as to cost or compensation.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistance transcribed by him corrected by me and pronounced in open Forum on this the 31st day of July, 2017.
Sd/- Smt. Elizabeth George (President)
Sd/- Smt. Jasmine. D. (Member)
Appendix:-
Evidence of the complainant:-
Ext.A1 - Series of Fixed deposit receipts (12 Nos)
Ext.A2 - Copy of lawyer’s notice dtd 5/10/15
Ext.A3 - Postal receipt
Ext.A4 - AD card
Evidence of the opposite party
Nil
//True Copy//
By Order
Senior Superintendent.
To
Complainant/Opposite party/S.F
Typed by S/
Compared by:
