PRESENT:

1. Smt. Asha Shetty, B.A. L.L.B., President                                                                                                    2. Smt. Sulochana V. Rao, Member               

  3.Sri. K. Ramachandra, Member 

ORDER DELIVERED BY SMT. ASHA SHETTY, PRESIDENT.

1.       The brief facts of the complaint are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.  Complaint is admitted on 01.12.2007.

The Opposite Party No.1 herein is a Finance Company dealing in borrowing and lending various amounts from the public.  The Opposite Party No.2 to 6 are the partners of Opposite Party No.1. Accordingly, the Complainant deposited certain sum of money with the Opposite Parties, the details of which are furnished in the schedule here below:-

The Complainant submits that, in the end of August 2004 Complainant approached the Opposite Parties for seeking deposited amount with interest, all the Opposite Parties persuaded the Complainant that the same is once again re-deposited in the aforesaid finance for another 3 years and they would pay enhanced interest.  The Complainant was made to believe by the Opposite Parties once again.  Since there was some financial problem to the Complainant pressurized the Opposite Parties to repay the amount.  The Opposite Parties have repaid Rs.50,000/- only to the complainant and they are in due of Rs.2,50,000/- with up to date assured interest to the Complainant the Complainant once again approached the Opposite Parties but the Opposite Parties failed to pay the amounts and were postponing the payment for the one or the other pretext and thereafter the Complainant issued a lawyers notice 21.9.2007 to all the Opposite Parties but inspite of that the Opposite Parties failed to pay the amounts till this date and hence the above complaint  filed under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as “The Act”) seeking direction to the Opposite Parties to pay Rs.2,50,000/- along with interest thereon at 24% per annum from the date of deposit till the date of payment.

2.       Version notice served to the Opposite Parties.  Opposite Party No.1 is a financial firm, notice returned as closed. Notice to Opposite Party No.6 returned as refused and hence Opposite Party No.6 placed exparte. Opposite Party No.2 to 5 appeared through their counsel and filed version.

It is submitted that, the Opposite Party No.1 is not in existence since the year 2002. The Opposite Party No.6 who being Vijaya Bank employee was intending to float a finance company.  He had approached the Opposite Party No.2 to 5 who are all fisherman and villagers. Taking advantage of their weakness Opposite Party No.6 got prepared the partnership deed and obtained their signatures on the same.   That the Opposite Party No.2 to 5 were only the name lenders, all the activities of the said firm were being carried on by the Opposite Party No.6 and Opposite Party No.6 had changed his sir name and also his signature and contended that Opposite Party No.6 himself was the managing partner of the Opposite Party No.1 and Opposite Party No.2 to 5 nothing to do with the Opposite Party No.1 and submitted that this Hon’ble Forum has no jurisdiction to entertain this complaint which involves voluminous evidence to required the case.   And prayed for dismissal of the complaint.

3.       On perusing the pleadings of both the parties that the points arise for our consideration are as follows:

1. Whether the Complainant is a consumer and the complaint is maintainable?
2. Whether the complaint is barred by law of limitation?
3. If so, whether the Opposite Parties have committed deficiency in service.?
4. What order?

4.       In support of the complaint, the Complainant – Mr.Gangadhar Kundar (CW1), filed affidavit reiterating what has been stated in the complaint and got marked documents Ex.C1 to C7 and served the interrogatories. On behalf of the Opposite Parties One Sri Nagesh.H. Fisherman filed his affidavit and answered the interrogatories and Ex R1 produced by the Opposite Parties. 

We have heard and perused the pleadings of the parties and documents and evidence placed on record and answer the points are as follows:

R E A S O N S

5.    POINTS NO. (i) to (ii):

There is no dispute about the fact that, the deposits were made in the name of the Complainant with the Opposite Party No.1 as evidenced from the deposit certificates produced by the Complainants i.e. Ex C1 to C7.  Financial service is one of the services specifically mentioned in Clause (o) of Section 2(1) of the Act.  It is a settled law that when a company/firm transacting non-banking financial business accepts deposits from the public, the person who has deposited money with such company/firm, hires the service of that Company/firm, which has accepted the deposits.  We therefore have no hesitation to hold that service undertaken to be rendered by the Opposite Parties are a service within the meaning of the Act and the Complainant is a consumer and this Hon’ble Forum has jurisdiction to entertain the complaint.

As far as limitation is concerned, sub Section (2) of Section 24A of the Consumer Protection Act states that not withstanding anything contending Sub-Section (1), the complaint may be entertained after the specified period, if the Complainant satisfies the District Forum within such period.  Now it is a well-established proposition that when the person who received the fixed deposit has failed to repay the deposit on the date of maturity, it is a recurring cause of action for the depositor so long as the person who received the deposit has not denied his liability to repay the deposit.  The Opposite Parties have no case that they have denied the Complainants’ right to recover the deposit until they filed their version before this Forum.  The Complainants’ right is denied for the first time in the version.   Therefore, we are of the view that, the Complainant has recurring cause of action until and unless it has been proved that the entire deposited amount has been paid to the Complainant. Hence, the point No.(ii) is held in favour of the Complainant.

POINTS NO. (iii) to (iv):

In the present case, the Opposite Party No.2 to 5 vehemently contended that, the 1^st Opposite Party had 5 partners, one among them is Mr.Narayana and he has another name as Narayana T.G. and  all the activities of the said firm were being carried on by the aforementioned Narayana T.G (i.e. Opposite Party No.6) and he had obtained the signature of the Opposite Party No.2 to 5 on partnership deed and misused the funds of the Opposite Party No.1    and contended that they have not received any amount under the aforesaid Fixed Deposits.

It is for the first time, Opposite Party No.2 to 5 raising a contention that Opposite Party No.6 who is a Vijaya Bank employee was intending to float a finance money, he had approached the Opposite Party No.2 to 5 who are all fishernmen and villagers, taking advantage of their weakness Opposite Party No.6 got prepared the partnership deed and obtained the signatures on the same and misused the fund.  If at all by taking the signatures of the Opposite Party No.2 to 5 on the partnership deed and misused the fund, the right recourse is to file a criminal case against the Opposite Party No.6 at the earliest point of time.  The above contentions raised by the Opposite Party No.2 to 5 for the first time before this Hon’ble Forum appears to be perverse and not sustainable.  Since the Opposite Parties admitted that they have put their signatures on the partnership deed, now they cannot escape from their liability as far as Opposite Party No.1 is concerned. Opposite Party No.2 to 5 are equally responsible for all the transaction held by Opposite Party No.1.

As far as Opposite Party No.6 is concerned, we have perused the complaint, wherein one Sri.Narayana Bhat, Vijaya Bank made as a party to the proceedings.  Whereas in the partnership deed i.e Ex.R1 Sri.Narayana, S/o Sri.Gururaj made as one of the partner.  The Complainant failed to show that Opposite Party No.6 and the person in the partnership deed is one and the same.  In the absence we hold that the Complainant failed to prove the complaint agaisnt Opposite Party No.6 and 5^th partner is nothing to do with one another.

 Further, On careful scrutiny of the Fixed Deposit Receipts (i.e. Ex C1 to C3) the Complainant deposited the total amount of Rs.3,00,000/- in different dates with agreeable interest at 20% p.a. The Complainant in his complaint admitted that out of the above Fixed Deposit amount, Opposite Parties have repaid Rs.50,000/- only and rest of the amount i.e. Rs.2,50,000/- with uptodate assured interest are due from the Opposite Parties. The Opposite Parties not produced any documents to show that the amount under the F.D. paid to the Complainant.  In the absence of any cogent evidence/materials, it is reckoned to be not paid Rs.2,50,000/- Fixed Deposit Amount to the Complainant. The deposit certificates produced by the Complainant go to show that the deposits were matured for repayment on the date mentioned therein (i.e. Ex.C1 to C3).  On failure to pay the amount mentioned under F.D. till this date amount to deficiency in service.

In view of the aforesaid discussions, we hold that the Opposite Parties 2 to 5 are jointly and severally liable to pay Rs.2,50,000/- along with 9% p.a. from the date of deposit till the date of payment.   And Rs.750/- awarded as cost of the litigation expenses. Compliance shall be made within 30 days from the date of this order. 

6.       In the result, we pass the following:

                                      ORDER

The Complaint is allowed.  The Opposite Parties 2 to 5 are jointly and severally liable to pay Rs.2,50,000/- along with 9% p.a. from the date of deposit till the date of payment.  And Rs.750/- awarded as cost of the litigation expenses.  Compliance shall be made within 30 days from the date of this order.   

The F.D.R. if any, deposited by the Complainant be returned fourth with by substituting the certified.

Copy of this order as per statutory requirements be forward to the parties free of costs and file shall be consigned to record room.

(Dictated to the Stenographer typed by him, revised and pronounced in the open court on this the  30^th  day of June 2008)

PRESIDENT

(Smt. Asha Shetty)

         MEMBER                                                           MEMBER                

   (Smt.Sulochana V.Rao)                                   (Sri. K.Ramachandra)