BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 08th September 2016
E.P NOS. 85, 86,87, 88/2014
(In C.C.NO.113, 111, 114,115/2005)
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
BETWEEN:
E.P.No.85/14 (CC.No.113/2005)
1. Ch. Venkappayya, aged 69 years,
S/o late GanapapthiBhat,
2. Smt. Seethalaxmi, aged 39 years, .............COMPLAINANTS
D/o Ch. Venkappayya;
Both are R/at Bithilu House,
Kodungai post,
VittlaPandnur Village, BantwalTq.
E.P.No.86/14 (CC.No.111/2005)
1. Ch. Venkappayya, aged 69 years,
S/o late GanapapthiBhat,
2. D. Ganapathi Bhat, aged 47 years, ….....COMPLAINANTS
S/o Ch. Venkappayya;
Both are R/at Bithilu House,
Kodungai post,
VittlaPandnur Village, BantwalTq.
E.P.No.87/14 (CC.No.114/2005)
1. Smt. Ch. Gowri, 65 years,
W/o Ch. Venkappayya,
R/at Bithilu House, …...COMPLAINANT
Kodungai Post,
VitlaPadnur Village, BantwalTq.
[By GPA holder-D.GanapathiBhat]
E.P.No.88/14 (CC.No.115/2005)
1. D. Ganapathi Bhat, aged 47 years,
S/o Ch. Venkappayya,
R/at Bithilu House, …...COMPLAINANT
Kodungai post,
VittlaPandnur Village, BantwalTq.
(Advocate for all Complainants: Sri: M.R.B)
VERSUS
1. M/s ShreeMookambika Finance (R)
A registeredPartnershipFirm, with
Registered office at Sri Manjunathakrkupa
Building, Main Road, Vittal – 574 243.
byits Partners no.2 to 7 below
2. K. GopalakrishnaBhat, adult,
S/o lateK.RamakrishnaBhat,
R/o Samethadka House,
Puttur.
3. K. NarayanaBhat, adult,
S/o late K. Rama Bhat,
Shivakripa, Neralakatte post,
BantwalTaluk.
4. Smt. Vijayalaxmi, adult,
W/o. K.N. NarimhaAdiga,
Kollur. ……ACCUSED
5. Smt. Anitha Shankar, adult,
W/o K. Sathyashankar,
Samethadka, Puttur.
6. Smt. VijayalaxmiNarayana, adult,
W/o K.S. Narayana,
Kondalakadu, Sampaje Post,
SulliaTaluk.
7. Smt. Vimala, adult,
W/o V.V. Narayana,
GowriKripa, Savanoor Post,
Savanoor Village, PutturTq.,
8. PadaruIshwaraBhat, adult,
S/o Ramakrishna Bhat,
Mailakochi House,
Ariadka Post, PutturTq.
All the complaints are connected and accused persons in all cases are one and the same. Therefore for the sake of convenience took up all the cases together and pass the order hereunder:
1. Date of admission of the Complaints
In E.P.No.85, 86, 87, 88/14
(inCC.No.113, 111, 114, 115/05) : 26.11.2014
2. Original order passed in all the
Complaints : 30.06.2005
3. The Offence complained of : Section 27 of the C.P. Act 1986
4. Opinion of the Bench :Found Guilty
5. Complainants represented by : Sri. M.R.B and Sri. D.R.K Advocates
6. Accused defensed by : Sri. N.B.P.R Advocate
COMMON JUDGMENT DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY:
The brief facts giving raise to this petition are as under:
1. The Order passed in original complaints by this Hon’ble Forum vide order dated 30.06.2005 not complied by the accused persons/opposite parties, since they did not complied with the aforesaid order passed by this forum, the complainants filed the above petition U/s 27 of the Consumer Protection Act in accordance with law.
2. Sworn statement recorded, cognizance taken U/s 27 of the Consumer Protection Act, summons issued to all the accused persons. All the accused appeared before this FORA, plea recorded and enlarged on bail. All the accused not pleaded guilty and claimed to be tried.
3. However the above Complaints filed by the Complainants before this District Forum under section 27 of the Consumer Protection Act. By keeping in view of the observation made in Writ Petition No.700/08 by the Honble High Court of Karnataka, we have proceeded to try the above complaints in accordance with law.
4. The Complainants in order to substantiate their case and to prove the guilty of the Accused personsexamined all the Complainants as CW1 and cross examined by the accused counsel. Certified copy of the Order passed in all original complaints on the file of this Fora marked.
5. After concluding the complainants evidence 313 statement recorded as it is and evidence of the defense also recorded and documents were marked (LISTED IN ANEXURE IN DETAIL)
6. Heard both sides,perused entire records. After hearing both sides the following points arise for our consideration are as follows:
- Whether the Complainants proved beyond reasonable doubt that the accused persons are not complied the Order passed in all original complaints stated above vide its Order dated 30.06.2005& thereby accused committed an offence U/s 27 of the Consumer Protection Act 1986?
- Whether all the Accused are guilty of the Offence under Consumer Protection Act & thereby punishable U/s 27 of Consumer Protection Act 1986?
- What Order?
7. On finding on the above points as under:
Point No (i) & (ii): In the Affirmative
Point No (iii) : As per the final Order:
REASONS
8. POINTS No.(i) to (iii):
As these points are interlinked to each other, to avoid the repetition of facts and evidence, we have taken up these points together for discussion.
9. It is a definite case of the Complainantsthat, vide order dated30.06.2005 passed by this FORA intentionally not complied by all the accused the complainants have obtained an order against the accused. Hence Complaints filed Under Section 27 of Consumer Protection Act.
10. We have persued the entire Oral as well as documentary evidence available on record, while considering the case on hand, our attention was drawn towards the ingredients of section 27 of Consumer Protection Act 1986. The Section is very clear that where a trades or person against whom a Complaint is made (or in Complaint) fails or omits to comply with any Order made by the District Forum, the State Commission or the National Commission as the case may be such trader or person shall be punishable. When that being the case, the point for consideration is that, whether the Complainants proved beyond doubt that accused not complied the Order passed in all original Complaints stated supra and thereby committed an offence or not?
11. In the instant case all the complainants deposited the amount with the Mookambika Finance (R) and not with Mokambika Finance Corporation (R). The counsel for the Accused argued that Shree Mookambika Finance (R) is merged with Mookambika Finance Corporation (R) and the Mookambika Finance Corporation (R) ordered to be wound up in accordance with the provisions of the companies act and Official Liquidator is directed to take position of the assets and produced order passed by the Hon ble High Court of Karnataka in company petition No.171/03 is produced. On perusal of the above said company petition we have noted that the above said petition is nothing to do with Shree Mookimbika Finance (R). Further there is no substantial evidence available on record to show that Shree Mookambika Finance (R) has merged withMookambika Finance corporation (R). Admittedly the above two firms are separate legalentities. DW1 deposed falsity before the FORA that all the partners of the two firms are same. Infact the partners of the two firms are not the same.If at all Shree Mookambika Finance (R) was merged with Mookambika Finance Corporation (R) then the above said defense should have been taken in the original complaints at the earliest point of time. No evidence is placed on record evidencing the assertion of merger. It is settle position of law that they cannot be any merger of two registered firms with different partners much less without due processes of law. It very significant to point out that incase of merger there will be change of its constitution and the change is to be notified as mandated U/s 63 & 72 of Indian Partnership Act. No individual or public notice as to the alleged merger. Mere defense for the sake of defense is not sufficient. The assertion taken for the first time in this petition has no substance.
12. Further under the Indian Partnership Act a retired partner cannot escape his/her liability against the third parties touching the acts of the firm partnership sec. 32(3) of Indian Partnership Act. It is not the case of the accused that they have complied the order and they have paid any money in terms of the order.
13. It is settled position that the liability of the partners is co extensive with that of the firm. The order under execution is against the firm/partners.The sec.18of Indian partnership Act the partner is agent of the firm. Further sec.25 of Indian partnership Act provide that the liability of the partners is joint and several. It is fact that Accused No.2 to 8 are the partners of Accused No. M/s ShreeMookambika Finance (R). The Assertion that Shree Mookambika Finance (R) has merged with Mookambika Finance Corporation (R) are not be concluded for the
14. On over all consideration of the evidence and documents on record we are of the considered opinion that all the accused intentional failed to comply the order passed in all complaints inspite of taking all these years.Under that circumstances, we hold that allthe accused are partners of the firm guilty of the offence punishable U/s 27(1) of the Consumer Protection Act 1986 in this case.
15. The powers of District Forum U/s 27 to awarded compensation is not ancillary to other sentences but it is the addition to do something to re assure the victim that he or she is not forgotten in the criminal Justice system. We therefore, recommend to excise the power of fine liberally so as to meet ends of Justice in a better way. The whole purpose of provision was to accommodate the interest of the victim in the criminal Justice system. sometimes the situation becomes such that no purpose will beserved by keeping a person behind the bar. Instead directing the accused pay compensation to the victim or affected party can ensure delivery of total Justice. Therefore grant of compensation is sometime in like of sending a person behind bars or in addition to a very light sentence of imprisonment. By keeping in view of the above we hold to pass both sentence and fine in this case to meet the ends of Justice.
16. For the reasons and discussions made above, we have proceeded to pass the following Order:
Order
The Shree Mokambika Finance ® represented by its all partners i.e 2 to 8 are convicted for the offence punishable Under Section 27 of Consumer Protection Act and all the accused are hereby sentenced to undergo imprisonment for a period of one year and also pay fine of Rs.10,000/ (Rupees Ten thousand only) in each case.
Further acting Under Section 357(1) of Criminal Procedure Code the entire fine amount of Rs.40,000/ (Rupees Thirty thousand only) on recovery shall be paid as compensation to the complainants. In default to pay the fine amount, all the accused further undergo simple imprisonment for one month.
Both sentences shall run consecutively.
Bail bond of the accused shall stand cancelled.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the filed to be consigned to record.
(Dictated to the stenographer typed by her, revised and pronounced in the open court on this the 08th day September 2016).
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT.LAVANYA M.RAI)
D.K. Dist. Consumer Forum, D.K. Dist. Consumer Forum,
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainants:
CW1 D.GanapathiBhat, G.P.A holder of all the complainants
Documents marked on behalf of the Complainant:
EX C1 Certified copy of the Orderdated 30.6.2005 in Complaint No.113/2005
EX C2 Copy of the General Power of Attorney dated 21.12.2012
Witnesses examined on behalf of the Accused:
RW2: K. Gopala Krishna Bhat.
Document produced on behalf of the Accused:
Document No.1: The copy of the Judgment dated
29.10.2015 passed by the Hon’ble
Civil Judge and J.M.F.C, at Sullia,
D.K. in C.C. No. 1406/200
Place: Mangalore PRESIDENT
Date:08.09.2016
