IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday the 28th day of February, 2020
Filed on 01.12.2018
Present
1. Smt. Sholly.P.R ,LLB (President In charge)
2. Smt. C.K.Lekhamma.LLB(Member)
In
CC/No.307/2018
Between
Complainant:- Opposite parties:-
Sri. Rishikesh.L 1. M/s Vidobha Bankers
Abhiramam Vayalar, Cherthala
Kumaranalloor.P.O (Rep by its Partner Mr. Narasimha,
Kottayam Pai
2. Sri. Narasimha Pai
Aged about 75 years
Vayalapuram
Thirumalabhagom.P.O
Thuravoor South Village
Cherthala.
3. Smt. Sandhya. N. Pai
Aged about 46 years
W/o Late Dileep Kumar
Vidobha Nivas
Thirumalabhagom.P.O
4. Sri. Sandeep Krishna Bhat
Aged about 18 yrs
S/o Late Dileep Kumar
Vidobha Nivas,
Thirumalabhagom.P.O, Cherthala.
O R D E R
SMT. SHOLLY.P.R (PRESIDENT IN CHARGE)
This is a case based on a consumer complaint filed u/s 12 of the CP Act,1986.
The averments in the complaint in short are as follows:-
The 1st opposite party is a partnership firm registered under Indian Partnership Act. having its head office at Vayalar Jn, Cherthala and represented by the 2nd Opposite party. Opposite party 3 to 5 are the Legal Representatives of the Managing partner deceased Dileep Kumar of said Vidobha Nivas. Complainant is a depositor with the 1st Opposite party. 1st Opposite party was engaged in various financial services including accepting term deposits from the general public and has gained larger faith over the public. While so, the complainant has deposited an amount of Rs. 1,00,000/-(One lakh only), Rs.60,000/-(sixty thousand only) and Rs.30,000/-(Thirty thousand only) at an interest rate 18% per annum vide receipt Nos. 2611, 2612 and 2436 respectively on 17/09/2012 and 23/09/2013. All the deposits were made for 12 months and it was further renewed for another 12 months. The complainant had deposited the amount on the assurance given by the Opposite parties that the deposits will be returned to the complainant whenever he wants and also told that even if the deposits are not renewed further in time then also it will be renewed automatically. In the meantime the managing partner Mr. Dileep kumar died on 31.01.2014 and after that a news spread that the business of the Opposite parties got collapsed. On hearing the same the complainant had contacted the Opposite parties for closing the deposits on 1.4.2014. At that time the 2nd and 3rd opposite parties were present there and assured the complainant that the deposited amount with interest will be returned within a short time. There after the complainant contacted the opposite parties for closing the deposits on 23-10-2016, 22-01-2017 and further on several occasions, however the Opposite parties denied their earlier assurance of service by stating one reason or another. In the above circumstances the complainant filed this complaint seeks to pay a total amount of Rs. 3,93,787/- with interest and also pay compensation of Rs.15,000/- for the mental agony caused to him due to the deficiency in service on the part of the Opposite parties.
2. Notice issued from this Forum in this case has been served to the Opposite parties 2 and 3. Notice to the 1st Opposite party represented by 2nd opposite party returned unserved with endorsement abolished and notice of the 4th Opposite party retuned unclaimed. Even though the 2nd and 3rd Opposite party are represented at 1st day of hearing there after there was no representation and set exparte. Since the 1st Opposite party is represented by 2nd Opposite party who received the notice as his personal capacity the 1st Opposite party’s notice is deemed service. All the Opposite parties were called absent and set ex-parte.
3. The complainant filed proof affidavit in lieu of chief examination and got marked Ext.A1 to A3.
4. According to the complainant he deposited with the Opposite parties an amount of Rs. 1,00,000/-(One Lakh only) as per receipt no.2611 on 17-09-2012 and Rs. 60,000/-(Sixty Thousand only) as per receipt no.2612 on 17-09-2012 and Rs.30,000/-(Thirty thousand only) as per receipt no. 2436 on 23-09-2013. Inorder to prove the above the complainant produced fixed deposit receipt bearing No.2611 as Ext.A1 and Receipt No.2612 as Ext.A2 and receipt no. 2436 as Ext.A3. The further allegation of the complainant is that the Opposite parties failed to return the said amounts to the complainant after the maturity date and after made several request to the Opposite parties.
The unchallenged averments in the affidavit coupled with Ext.A1 to A3 documents would establish the case of the complainant and the Opposite parties are liable to return the amount deposited by the complainant to the Opposite parties with interest. Even though the Managing Partner of the 1st OP firm was died, as per Sec.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 this case the claim of the complainant is that the deceased Dileepkumar and 2nd Opposite party were the partners of the firm and the complainant deposited the amount at the instance of the deceased Dileep kumar. As per the above said provision the asset of the deceased partner is not liable for any act of the firm done after his death only. Hence Opposite parties are held liable for the claim of the complainant and the Opposite parties are directed to return the deposited amount with interest Rs.3,93,787/- with further interest of 9% from the date of this complaint. We further clarify that the liability of the Opposite parties 3 & 4 is limited only to the extent of value of the properties inherited by them from deceased partner named Dileep kumar. 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. 3,93,787/-(Rupees Three lakh ninety three thousand seven hundred and eighty seven only) with 9% interest per annum from the date of filing the complaint till realization, and also directed to pay an amount of Rs. 10,000/- to the complainant as compensation for his mental agony and hardships sustained by him and Rs. 5000/- costs of the proceedings within 30 days of the receipt of the copy of the order failing which the complainant is entitled to realize Rs. 4,03,787/-(Rupees Four lakh three thousand seven hundred and eighty seven only)(3,93,787+10,000) with interest @ 12% per annum from the date of the complaint till realization with costs of Rs.5000/- from the Opposite parties and its assets.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Forum on this the 28th day of February, 2020.
Sd/- Smt. Sholly.P.R (President in charge)
Sd/-Smt. C.K.Lekhamma (Member)
Appendix:-Evidence of the complainant:-
Ext.A1 - FD Receipt No.2611 dtd.17/09/2012
Ext.A2 - FD Receipt No.2612 dtd/ 17/09/2012
Ext.A3 - FD Receipt No.2436 dtd. 23/09/2013
Evidence of the opposite parties:-Nil
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
