Complainant through Adv : MR. N.S. POPAT
Opponent : MR. G.S. BAPAT
PER :- Hon’ble President, Shri. B. B. YOGI
Place :- Gondia
-: ORDER :-
( Passed on dated 04th Jan, 2019 )
1. The present consumer complaint is filed by four retired partners against the chartered accountant for providing deficient service seeking Rs,4,50,000/- compensation and cost with direction to supply records on the basis of which the audit of the period between 01/04/2014 to 30/09/2014 was conducted and if failed to provide the same to direct the institute of Chartered Accountants of India to take action against the Opposite Party -C.A.
2. We heard the arguments of both parties. At the admission stage the forum has to check whether the complainant’s are is “Consumer’s” and the opposite party is “Service provider” as defined under the Consumer Protection Act, 1986 and also to verify whether the consumer complaint filed before the forum is within Jurisdiction of the forum i.e. pecuniary as well as territorial and whether the complaint is within limitation as provided under section 24-A of the Consumer Protection Act, 1986.
3. The present complaint is filed on 27/09/2018 before this Forum and in Para 13, the complainant mentioned cause of action arise on (i) on 29/01/2016-date of knowledge about audit of relevant period (i.e. 01/04/2014 to 30.09.2014 as per prayer) conducted by Opposite party in their absence, (ii) on 04/02/2016 (iii) on 15/02/2016, when they issued letter to Opposite Party through their Advocate and self and lastly, (iv) on 20/09/2016, when they received the information from police authority about letter given by the existing partners to the IDBI Bank which disclose that he Opposite Party had committed grave mistake in his audit work.
4. On perusal of the complaint, it seems that the complainants had joined separate cause of action in one complaint, carrying – out audit work behind their back is separate cause of action and committing grave mistake in the audit work is separate cause of action. Therefore, one consumer complaint cannot be allowed to be filed on separate and distinct cause of action and being consumer complaint is filed on 27/09/2018 i.e. after two years of cause of action without any application for condonation of delay only on this ground itself the consumer complaint filed by the complainant’s deserves to be dismissed.
5. Further on ground of “Consumer”, it is admitted fact that the audit was done on 12/09/2015 (page 30 of complaint compilation) it is pertinent to note and admitted fact by the complainant’s that they had retired on 01/10/2014 (Doc No.2, page no.6 as per list of documents). Then the consideration is paid by new firm / partners, the present complainants ceases to be partners. Hence, it cannot be said that they have paid the Audit and legal fee (page 44 as per list of documents) As per definition of partner and partnership firm under section 4-Definition, read with section-32 -Retirement of a partner, of the Indian Partnership Act, 1932. On the date of service hired by the new partnership firm, the complainants ceases to be “consumer” & the opposite party is not “service provider” to the complainants on this ground also the complaint is liable to be dismissed.
6. The complaint filed by the Complainants is silent about the pecuniary jurisdiction though a passing reference is made in Para no.1 of the complaint, but in whole of the complaint, no explanation is made to the satisfaction of this forum. But the complainants admit in Para no. 9 that value of suit is in Crores of Rupees (“The auditor had not given any explanation about the said difference in figures. He said difference is in Crores of Rupees”.) Thus on the point of jurisdiction it is mentioned that the audit report is for period beginning from 01/04/2014 to 30/09/2014 and the balance sheet shows total turnover of the Assessee Rs. 12,83,26,554.52/-(Rupees Twelve Crore Eighty-Three Lakhs Twenty-Six Thousand Five Fifty-Four and Fifty -Two paise only). Thus in view of the larger bench of Hon’ble National Consumer Disputes Redressel Commission – in case of Ambrish Kumar Shukla & ors. Vs. Ferrous Infrastructure Private Limited, CC/97/2016 & allied matter decided on 07/10/2016 wherein, it is held that the total value of the goods and services was to be taken into consideration for determining the pecuniary jurisdiction of a particular consumer forum. Hence this forum having Jurisdiction up to Rs. 20 Lakhs only, the consumer complaint is liable to be filed at appropriate forum/court.
7. Other points argued at length by the Ld. Adv N.S. Popat for complainants and Ld. Adv. Girish S. Bapat for the Opposite Party, which are otherwise to be decided on merits after completion of pleading and evidence of both parties and hearing finally. Thus the defence of the Opposite Party about, multiple cause of action / multiple suits / criminal complaint / application / consumer complaint / complaint under Maharashtra co-operative Act is nothing but forum shopping are not considered at this stage of admission. Similarly the defence of non-joinder of parties, complicated question of facts and laws & others grounds are kept open.
8. Since, this forum already decided as above, that the consumer complaint is barred by limitation and being complainants are not “consumer’s” and there is no consumer dispute, the present complaint is rejected at admission stage on these grounds with no costs. Hence we pass following order.
ORDER
1. Consumer Complaint no. 112/2018 is rejected being “Barred by Limitation” and being complainants are “Not Consumer’s”
2. No order to costs.
3. Free Copy of the order is to be supplied to the parties as per rule.
4. Additional copies be returned to the complainant’s.
5. This order be treated as final order and complaint is disposed off accordingly.
