IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday the 28th day of February, 2020
Filed on 31.01.2017
Present
1. Smt. Sholly.P.R ,LLB (President In charge)
2. Smt. C.K.Lekhamma.LLB(Member)
In
CC/No.31/2017
Between
Complainant:- Opposite parties:-
Smt. Valsaladevi.R 1. Vidobha Enterprises
Aged 73 yrs Thanky Jn. Cherthala
W/o Late Muraleedhara Sharma Repersented by its Partner.
Kandathil Parambu Narasimha Pai, Vayalapuram
Thirumalabhagom.P.O Thirumalabhagom.P.O, Thuravoor
Thuravoor-688540 Thuravoor South Village
2. Sri. Narasimha Pai
Aged about 75 years
Vayalapuram
Thirumalabhagom.P.O
Thuravoor South Village
3. Smt. Sandhya. N. Pai
Aged about 46 years
W/o Late Dileep Kumar
Vidobha Nivas
Thirumalabhagom.P.O,Thuravoor
4. Sri. Sandeep Krishna Bhat
Aged about 18 yrs
S/o Late Dileep Kumar
Vidobha Nivas,
Thirumalabhagom.P.O, Cherthala.
5. Jaideep Krishna Bhat(Minor)
S/o Late Dileep Kumar
Represented by his mother 3rd OP
-do-
6. Jayaprakash.N
S/o Narasimha Pai
Vayalapuram, Thirumalabhagom.P.O
Thuravoor, Cherthala.
O R D E R
SMT. SHOLLY.P.R (PRESIDENT IN CHARGE)
The facts of the complaint in brief is as follows:-
The 1st opposite party is a partnership firm registered under Indian Partnership Act. 1932 and represented by its partner 2nd opposite party. The partners of the said firm, Mr. Dileep Kumar and Smt. Sreemathy Bai were died and Opposite parties 1, 2 and 6 are the legal representatives of the Late Sreemathy bai and Opposite parties 3 to 5 are the legal representatives of the managing partner deceased Dileep kumar. The complainant is a depositor of the said firm. The firm is engaged in various financial services including accepting term deposits from the general public and has gained larger faith over the public. The complainant deposited a total amount of Rs. 1,14,000/-(Rupees One lakh fourteen thousand only) at the rate of 9% per annum with the said firm as per 3 different receipts. All the deposits were made for 12 months and it was further renewed. The complainant further alleged that she had deposited the amount on the assurance given by the opposite parties that deposits will be returned to her, whenever she demands and also told that if the deposits are not renewed further in time then also it will be renewed automatically. In the mean time the managing partner of the firm, Mr. Dileep kumar died on 31-1-2014 and after that news was spread that the business of the Opposite parties got collapsed. On hearing the same the complainant had contacted the opposite parties to know about the status of deposits in the firm. At that time 2nd and 3rd opposite parties who were present there assured the complainant that the deposited amounts are safe and it will be returned with interest whenever she demanded. Then on 23-09-2016 and 13-10-2016 the complainant contacted the opposite parties for closing the deposits, on these 2 occasions the opposite parties told that the deposits will be returned within short time. Thereafter on several occasions the complainant approached the opposite parties to return the above said amount together with agreed rate of interest; however they denied the assured service to the complainant by stating one or the other reason. In the above circumstances the complainant filed this complaint seeking to return an amount of Rs. 2,10,182(Rupees Two lakh ten thousand one hundred and eighty two only) with 12% interest and also allow a compensation of Rs. 15,000/-(Rupees Fifteen thousand only) for the mental agony caused to the complainant from the opposite parties due to the deficiency in service on the part of the opposite parties on denial of service offered by them.
Notice issued from this forum has been served to the opposite parties.
In response to the complaint the opposite parties 2 to 6 filed version denying the transaction with the complainant by stating that the entire business of the firm was controlled and managed by the deceased Dileep Kumar. They also averred in the version that this complaint is not maintainable because the OP firm is a partnership firm as admitted by the complainant and on the death of one of the partners, the firm dissolved ipso facto and there is no firm existing as alleged by the complainant.
2. The point for the consideration are:-
1. Whether the complaint is maintainable?
2. Whether there is any deficiency in service on the part of the opposite party?
3. Whether the complainant is entitled to get the relief sought for?
4. Relief and costs?
3. The Power of attorney holder of the complainant filed proof affidavit in lieu of chief examination and produced 4 documents got marked as Ext.A1 to A4.
According to the complainant she deposited with the opposite parties an amount of Rs.14,000/- as per receipt no.813 on 21-3-2005 and Rs.50,000/- as per receipt no.1137 on 18-12-2007 and Rs. 50,000/- as per receipt No.1138 on 18-12-2007. In order to prove the above the complainant produced fixed deposit receipts bearing no. 813 as Ext.A2 and receipt no. 1137 marked as Ext.A3 and receipt no.1138 marked as Ext.A4. The further allegation of the complainant is that the opposite parties failed to return the amount covered under the above receipts to the complainant after the maturity date and after made several request to the opposite parties.
Even though the opposite parties have filed version challenging the complaint they were not turned up for cross examining the complainant when he was mounted in the box. The unchallenged averments in the affidavit coupled with the Ext. A2 to 4 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 opposite party firm is died, as per the 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 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 Dileep kumar 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 the opposite parties are held liable for the claim of the complainant and the opposite parties are directed to return the deposited amount with assured interest of Rs. 2,10,182/-(Rupees Two lakh ten thousand one hundred and eighty two only) with interest @ 9% from the date of this complaint till realization. We further clarify that the liability of the OP 1,2 and 6 limited only to the extent of value of the properties inherited by them from deceased partner named. Smt. Sreemathy Bai and that of opposite parties 3 to 5 is limited only to the extent of value of the properties in herited by them from deceased partner 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 limitations.
In the result the complaint stands allowed. The opposite parties are directed to return the amount of Rs. 2,10,182/-(Rupees Two lakh ten thousand one hundred and eighty two only) with 9% interest per annum from the date of filing this complaint till realization and also directed to pay an amount of Rs. 10,000/-(Ten thousand only) to the complainant as compensation for mental agony and hardship sustained by her and Rs. 5000/-(Five thousand only) costs of the proceedings within 30 days of the receipt of a copy of this order, failing which the complainant is entitled to recover Rs. 2,20,182/- (Rupees Two lakh twenty thousand one hundred and eighty two only) (2,10,182 +10,000) with interest @ 12% per annum from the date of complaint till realization with costs of Rs. 5000/-(Five thousand only) 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 28 th day of February, 2020.
Sd/-Smt. Sholy.P.R (President In charge)
Sd/-Smt. C.K.Lekhamma (Member
Appendix:-Evidence of the complainant:-
Ext.A1 - Copy of Power of Attorney
Ext.A2 - FD Receipt No.813 dtd. 21.03.2005
Ext.A3 - FD Receipt No. 1137 dtd. 18.12.2007.
Ext.A4 - FD Receipt No.1138 dtd. 18.12.2007
Evidence of the opposite parties:-Nil
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
