KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. APPEAL No. 380/2003 JUDGMENT DATED: 19-12-2009 PRESENT: SMT. VALSALA SARANGADHARAN : MEMBER SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER APPELLANTS 1. A. Rahim, Palakulam Veliyil House, Asramam Ward, Alappuzha. 2. T.V. Reji, Ananda Bhavan, Asramam Ward, Alappuzha. 3. K.A. Saira Banu, Kapali House, Arangathu Cross Road, Pulleppady, Ernakulam-18. 4. M. Ayyappan Nair, South Warriam, Thondankulangara, Alappuzha. (Rep. by Adv. S. Parameswara Kurup) Vs RESPONDENTS 1. A. Stanely, Arackal House, Thumpoly P.O., Alappuzha – 8. 2. Mary Stanely, Arackal House, Thumpoly P.O., Alappuzha – 8. 3. The United Trading Finance, Sreekumar Buildings,C.C.S.B Road, Alappuzha. 4. K. Ramesan, Madathil House, Thondankulangara, Alappuzha. 5. M. Nazir, Nislin Gardens, Civil Station Ward, Alappuzha. 6. R. Sanker, Nishantham, West Thondankulangara, Alappuzha. (R1 & R2 rep. by Adv. Sri. T.R. Omana Kuttan) JUDGMENT SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER The above appeal is preferred from the order dated 29the October 2002 passed by CDRF, Alappuzha in OP No. A. 481/99. The complaint therein was filed by the respondents 1 and 2 herein as complainants against the respondents 3 to 6 and the appellants 1 to 4 as opposite parties 1 to 8 respectively alleging deficiency in service on the part of the opposite parties in not refunding the fixed deposit amounts covered by P1 and P2 fixed deposits receipts dated 26-06-1997 and 20-08-1997 respectively. The opposite parties 5 to 8 therein entered appearance before the Forum below and filed joint written version denying and disputing the case of the complainants. They contended that they retired from the first opposite party partnership firm by a deed of retirement with effect from 04-07-1998 and during the period when they were partners of the first opposite party firm there was no practice of accepting deposits from outsiders; that the accounts maintained by the first opposite party firm from the constitution of the firm till the retirement of the opposite parties 5 to 8 were submitted to the sales tax authorities and there was no such transaction related to acceptance of fixed deposits from strangers. They further contended that the fixed deposit receipts produced from the side of the complainants are forged and concocted documents and those receipts were created in collusion with the opposite parties 2 to 4; that by the date of retirement all the assets and liabilities of the first opposite party firm were taken over by the opposite parties 2 to 4 being the continuing partners of the first opposite party firm. It is specifically contended that the issues involved in the complaint are complicated issues of fact and law and so the issues can be decided only by a Civil Court of competent jurisdiction and that the consumer Forum is not having the jurisdiction to entertain those complicated issues. Thus, the opposite parties 5 to 8 prayed for relegating the parties to a Civil Court and also for dismissal of the complaint in OP No. A. 481/99. 2. The opposite parties 1 to 4 were served with notices and they filed joint version contending that the Forum has no jurisdiction as the complainant is not a consumer under the Consumer Protection Act and that the complainant has to approach the civil court; that they are not liable to pay interest or compensation; that there was no deficiency in service on their part. Thus, they prayed for dismissal of the complaint with compensatory cost. 3. The opposite parties 5 to 8 raised the preliminary point regarding the maintainability of the complaint in OP No. A. 481/99 and thereby the Forum below passed the preliminary order dated 2nd June 2000 and thereby it has been held that the complaint in OP No. A 481/99 is maintainable and there is no complicated issues involved in the case. 4. Before the Forum below the 1st complainant was examined as PW1 and P1 to P4 documents were marked on their side. From the side of opposite parties 5 to 8, RWs 1 and 2 were examined and B1 to B9 and B11documents were marked. The opposite parties 1 to 4 filed Ext B10 copy of judgment in O.S 164/98. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 29-10-2002 directing the opposite parties 1 to 8 to pay Rs. 2,30,000/- with 12% interest from the date of complaint with cost of Rs. 500/-. Aggrieved by the said order, the present appeal is filed by the opposite parties 5 to 8 in the said OP No. A. 481/99. 5. When this appeal was taken up for final hearing, there was no representation for respondents 1 to 6. We heard the learned Counsel for the appellants (opposite parties 5 to 8). He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on the oral testimony of RW2 the Sales Tax Inspecting Assistant Commissioner and B5 Profit and Loss Account maintained by the first opposite party firm. He has also relied on B1 partnership deed and B2 and B3 deed of retirement and deed of agreement entered into between the opposite parties 2 to 8 and B4 document issued by Registrar of Firms. During the course of argument, the learned Counsel for the appellants has also submitted that the very same Forum below passed orders in OP No. A. 132/01 and OP No. A. 133/01 and by virtue of the aforesaid orders dated 29-10-2002 the Forum below took the view that the issues involved in the case are to be adjudicated by a Civil Court as complicated question of law and facts are involved in the case. Thereby those complaints in OP No. A.132/01 and OP No. A. 133/01 were dismissed by the Forum below. It is also submitted that the opposite parties in those complaints are the same opposite parties in the present OP No. A. 481/99. He vehemently challenged the genuineness and correctness of P1 and P2 fixed deposit receipts and argued for the position that those receipts are forged and concocted documents. Thus, the appellants herein requested for setting aside the impugned order passed by the Forum below. 6. The points that arise for consideration are:- 1) Whether the Forum below was having the jurisdiction to entertain the issues involved in OP No. A. 481/99? 2) Whether the Forum below can be justified in making the appellants/opposite parties 5 to 8 liable to pay the fixed deposit amounts covered by P1 and P2 fixed deposit receipts? 3) Is there any sustainable ground to interfere with the impugned order dated 29-10-2002 passed by CDRF, Alappuzha in OP No. A. 481/99? 7. Points 1 to 3:- For the sake of convenience, we will refer the parties to this appeal according to their rank and status before the Forum below in OP No. A. 481/99. 8. The case of the complainants is that they deposited a total of Rs. 2,30,000/- with the first opposite party United Trading Finance and the deposit of the said amounts is evidenced by P1 fixed deposit receipt dated 26-06-1997 and P2 fixed deposit receipt dated 20-08-1997. P1 is for Rs. 1,00,000/- and P2 is for Rs. 90,000/-. A perusal of P1 and P2 fixed deposit receipts would show that those receipts were issued by the first opposite party United Trading Finance, Alappuzha and those receipts are signed for the first opposite party firm. Admittedly, the opposite parties 2 to 8 were the partners of the first opposite party firm. The aforesaid partnership firm was constituted by B1 partnership deed dated 01-04-1990. As per Clause 13(f) of B1 partnership deed the Managing Partners are empowered to make, accept, endorse or otherwise negotiate promisory notes, cheques, bills of exchange, drafts, bills of lading, bought notes, dock warrants, delivery orders, bills of entry, shipping bill and other custom papers, government securities, security deposits, vouchers, discharges, releases or other acquaintances, to appoint or discharge the members of the staff or other employees of the partnership business. It is also made clear that the above powers mentioned under sub Clause (a) to (f) shall at all times be exercised by the Managing Partners only jointly. So, receiving of fixed deposits and issuing fixed deposit receipts can be made by the Managing Partners of the first opposite party firm. As per B1 partnership deed the partner K. Ramesan and partner M. Nazir namely; opposite parties 2 and 3 are the managing partners of the firm. So, the fixed deposit receipts are to be signed by opposite parties 2 and 3 jointly. But P1 and P2 fixed deposit receipts are not signed by both the managing partners. There is also no evidence forthcoming from the side of the complainants that P1 and P2 fixed deposits receipts are signed by anyone of the managing partners of the first opposite party firm. The 1st complainant as PW1 was not in a position to say about the person who signed P1 and P2 fixed deposits receipts. Thus, it can be seen that P1 and P2 fixed deposits receipts were issued not in accordance with the provisions contained in B1 partnership deed. But, the Forum below has not considered this aspect. 9. The definite case of the opposite parties 5 to 8 was that P1 and P2 fixed deposit receipts are forged and concocted documents and those documents were created in collusion with opposite parties 2 to 4. It is also contended that P1 and P2 fixed deposit receipts are not supported by consideration. It is pertinent to note that the opposite parties 5 to 8 in their joint written version categorically contended that there was no practice of receiving fixed deposits from strangers during the period in which they were partners of the first opposite party firm. Ext.B2 deed of retirement was entered into between the opposite parties 2 to 4 on one part and the opposite parties 5 to 8 on the other part. As per B2 retirement deed the assets and liabilities of the first opposite party firm were taken over by opposite parties 2 to 4 and that the opposite parties 5 to 8 were permitted to retire from the partnership firm. The execution of B2 deed of retirement dated 04-071998 is not disputed by any of the parties. It is also to be noted that the B2 retirement deed came into effect on 04-07-1998. B3 is the deed of agreement entered into between opposite parties 2 to 8 in their capacity as the partners of the first opposite party firm and thereby the opposite parties 5 to 8 retired from the partnership firm M/s United Trading Finance and that the opposite parties 2 to 4 have been continuing as partners of the first opposite party firm. B7 to B9 newspaper cuttings would show that opposite parties 5 to 8 had given notice regarding their retirement from the first opposite party firm and the said notices were published in local Malayalam daily. Ext.B4 is copy of the register of firms issued by Registrar of Firms with respect to the partnership firm by name United Trading Finance. B4 document would show that the first opposite party firm was registered with the Registrar of Firms on 18-04-1991 with opposite parties 2 to 8 as its partners and opposite parties 5 to 8 retired from the first opposite party partnership firm with effect from 04-07-1998 vide notice 2/98. B4 document would also show that the opposite parties 5 to 8 ceased to be the partners of first opposite party firm with effect from 04-07-1998. Thus, the retirement of opposite parties 5 to 8 has been entered in the register of firms maintained by the Registrar of Firms. It is also to be noted that as per B2 deed of retirement the opposite parties 2 to 4 took over the assets and liabilities of the first opposite party firm with effect from 04-07-1998 and thereby the opposite parties 5 to 8 had no liability with respect to the first opposite party firm. 10. P1 and P2 fixed deposits receipts were issued prior to the retirement of opposite parties 5 to 8. Thus, as far as the complainants are concerned, the opposite parties 5 to 8 are also the partners of the first opposite party firm along with opposite parties 2 to 4 and they can very well proceed against all the partners of the first opposite party firm who were partners on the date of acceptance of the fixed deposits and on the date of issuance of fixed deposit receipts. 11. The opposite parties 5 to 8 vehemently contended that P1 and P2 fixed deposit receipts are forged and concocted documents and those receipts are not supported by consideration and that no amount was deposited by the complainants by virtue of P1 and P2 fixed deposit receipts. It is also contended that there was no practice of accepting fixed deposits from strangers till the retirement of opposite parties 5 to 8 from the first opposite party partnership firm. The opposite parties 5 to 8 took steps for production of copies of the B5 series of Profit and Loss Accounts of the first opposite party firm. Thus, B5 (series) Profit and Loss Accounts for the period from 31-03-1994 to 31-03-1997 were produced from the office of the Inspecting Assistant Commissioner, Department of Commercial Taxes., Alappuzha. B6 is attested copy of the letter issued from the first opposite party firm to the Intelligence Officer, Commercial Taxes, Alappuzha stating that the first opposite party firm stopped the business from 31-03-1997 and thereby requesting to remove the name of the first opposite party from the office registers of the Commercial Taxes, Alappuzha. RW2 Inspecting Assistant Commissioner, Sales Tax was examined and Ext.B5 series and B6 documents were marked and proved through RW2. The evidence of RW2, the Inspecting Assistant Commissioner, Sales Tax would show that the first opposite party firm was registered for sales tax purposes with the office of the Inspecting Assistant Commissioner, Commercial Taxes, Alappuzha. RW2 has deposed about the submission of Profit and loss accounts by the first opposite party firm for the years from 31-03-1994 to 31-03-1997. RW2 has also deposed that B5 series of Profit and Loss Accounts are produced from the Sales Tax Return file maintained in the name of the first opposite party firm. She further deposed that as per the returns and the Profit and Loss Accounts submitted by the first opposite party firm, no business regarding acceptance of fixed deposits from 3rd parties was conducted by the first opposite party firm. RW2 categorically deposed that as per the records maintained at her office there is nothing indicative of acceptance of fixed deposits from 3rd parties. She further deposed that the first opposite party firm was doing the business of lending of money on pledging gold ornaments. She has also deposed that license was also issued to the first opposite party firm for doing money lending business. Thus, the evidence of RW2 would strengthen the case of the opposite parties 5 to 8 that the first opposite party firm was not doing any business of accepting fixed deposits from strangers. But, the Forum below neglected to consider the evidentiary value of B5 series of documents produced by RW2. There is also no mention in the impugned order passed by the Forum below about the testimony of RW2. There is no reason or ground to doubt the testimony of RW2 and genuineness and correctness of B5 series of Profit and Loss Accounts. The evidence of RW2 and B5 series of documents would support the case of opposite parties 5 to 8 that no amounts were received by the first opposite party firm by way of fixed deposits from the complaints. It would inturn strengthen the case of the opposite parties 5 to 8 that P1 and P2 documents are concocted documents. Thus, the impugned order passed by the Forum below ignoring the evidence adduced from the side of the opposite parties 5 to 8 is liable to be quashed. 12. It is a well settled position that the issues like fraud, coersion etc. cannot be entertained or considered by the Forum constituted under C.P. Act, but those issues have to be referred to the decision of a competent civil or criminal court. The available evidence on record would justify the stand taken by the opposite parties 5 to 8 that the Forum below is not having the jurisdiction to entertain the complicated issues of fact and law and the matter is to be referred to a civil court. The Forum below passed the preliminary order dated 02-06-2000 without considering the relevant aspects of the case. The finding of the Forum below that there is no complicated issues involved in the case cannot be accepted as such. The available evidence on record would show that complicated issues of fact and law are involved in the present case. The evidence on record would show that there is genuine issue regarding the genuineness and correctness of P1 and P2 fixed deposit receipts. The contention of the opposite parties 5 to 8 that P1 and P2 fixed deposit receipts are forged and concocted documents has not been properly considered by the Forum below. The materials on record would give an indication that the dispute regarding the genuineness and correctness of the P1 and P2 documents cannot be considered by the agencies constituted under the Consumer Protection Act, 1986. It would also indicate that the Forum below lacks the jurisdiction to entertain the issue regarding the genuineness and correctness of documents, in the light of the contention that the said documents are forged and concocted documents. The opposite parties 5 to 8 have also taken the contention that P1 and P2 fixed deposit receipts are created in collusion with the opposite parties 2 to 4. The Forum below has also failed to consider the issue as to whether P1 and P2 documents are supported by consideration. The opposite parties 5 to 8 have vehemently contended that P1 and P2 fixed deposit receipts are not supported by consideration. The question as to whether the first opposite party partnership firm received the amounts covered by P1 and P2 documents is also to be considered. It is to be noted that the accounts of the first opposite party partnership firm are in the custody and possession of opposite parties 2 to 4. They are the continuing partners of first opposite party firm by the execution of B2 deed of retirement and B3 deed of agreement dated 04-07-1998. 13. The learned Counsel for the appellants (opposite parties 5 to 8) produced copies of the orders passed by CDRF, Alappuzha in OP. No. A. 132/01 and OP No. A. 133/01. Those complaints were filed by one Mrs. Shiny George and Sri. George Stanley and those two complaints in OP No. A. 132/01 and OP No. A. 133/01 were filed against the very same opposite parties 1 to 8 alleging deficiency in service on the part of the opposite parties 1 to 8 in not paying the amounts covered by fixed deposits receipts. In those complaints also the opposite parties 5 to 8 herein raised the very same contentions regarding maintainability of those complaints and that by the order dated 29th October 2002 the very same Forum below relegated the parties to civil court and thereby those complaints were dismissed as not maintainable before the CDRF, Alappuzha. But in the present case, the Forum below took a different view. The aforesaid orders dated 29-10-2002 passed by CDRF, Alappuzha in OP No. A. 132/01 and OP No. A. 133/01 would justify the prayer of the opposite parties 5 to 8 herein that the Forum below is not having the jurisdiction to entertain the disputes involved in the complaint in OP No. A. 481/99. Thus, in all respects the impugned order passed by the Forum below is liable to be set aside. Hence we do so. This is a fit case to be remitted back to the Forum below for fresh consideration and disposal of the same. The Forum below is also directed to consider the matter afresh by giving both the parties further opportunity to adduce further evidence if any. These points are answered accordingly. In the result, the appeal is allowed. The impugned order dated 29-10-2002 passed by CDRF, Alappuzha in OP No. A. 481/99 is set aside and the matter remanded to the Forum below for fresh consideration and disposal of the same. The parties will be at liberty to adduce further evidence in support of their respective pleadings. The parties are also directed to suffer their respective costs throughout. M.V. VISWANATHAN : JUDICIAL MEMBER VALSALA SARANGADHARAN: MEMBER | 
