IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday the 31st day of August, 2017.
Filed on 08/04/2016
Present
1.Smt. Elizabeth George, President
2.Sri. Antony Xavier (Member)
3. Smt. Jasmine.D. (Member)
in
C.C.No.126/2016
between
Complainant:- Opposite Parties:-
Sri.Prathapan 1 M/s.Vidoba Bankers,
S/o Sekharan K.P.V/72, Thanky
Arathy Kadakkarappally PO
Thirumalabhagom PO, Cherthala Rept.by Managing
Kuthyachodu, Cherthala 688540 Partner, Narasimha Pai
S/o Babula Pai,
Vayalapuram Veedu
Thirumalabhagom PO,
Thuravoor,Cherthala - 688540
2 Sandhya
W/o Dileepkumar, Vidoba Mandir,
Thirumalabhagom PO.
Thuravoor, Cherthala - 688540
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 Rs.4,00,000/- on 23/4/2013 as per deposit number 2453 for a period of one year at the rate of 18% interest per annum to be expired on 23/04/2014. The said Dileepkumar was died on 31/1/2014. There after 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 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.
2. The version of the 1st opposite party is as follows:-
There is no consumer and service rendering party relationship between the opposite parties. 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 document produced was marked as Ext. A1. 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.4,00,000/- on 23/04/2013. In order to prove that he has produced fixed deposit receipt bearing No.2453, dated 23/04/2013 which marked as Ext.A1. The further allegation of the complainant is that the opposite parties failed to return the said amounts to the complainant after the maturity date. It has not been denied by the opposite parties that the amounts in question were not deposited by the complainant with the firm of the 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 was the partners, of the 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 act of the firm done after his death only. Hence opposite parties are directed to return the deposited amount of Rs. 4,00,000/- with 9% interest from 23/04/2013 till realization. We further clarify that the liability of the 2nd opposite party is limited only to the extent of value of the properties inherited by her 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, the complaint is allowed. The opposite parties are directed to return the amount of Rs.4,00,000/- (Rupees Sixty thousand only) with 9% interest form 23/04/2013 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.4,00,000/- with interest as charge over the properties of the opposite parties . Since the primary relief is allowed no order as to cost and compensation. The order shall be complied within one month from the date of receipt of this order.
Pronounced in open Forum on this the 31st day of August, 2017.
Sd/-Smt. Elizabeth George (President)
Sd/-Sri. Antony Xavier (Member) sd/-Smt. Jasmine. D. (Member)
Appendix:-
Evidence of the complainant:-
Ext.A1 - Fixed deposit receipt bearing No.2453 dtd.23/04/2013 for Rs.
4,00,000/-
Evidence of the opposite parties:- Nil
//True copy//
By Order
Senior Superintendent
To
Complainant/Opposite parties/SF
Typed by: Br/-
Comped . by:
