The case of complainant is that the complainant deposited an amount of Rs.1,00,000/- at the request of respondents for a period of one year from 26/5/2000 to 25/5/2001 vide receipt No.420 dated 26/5/2000. Even after maturity on 25/5/2001 the respondents have not returned the deposited amount . So the complainant caused to send lawyer notice and respondents returned the notice stating that there is no post of Managing Director existing in the respondents establishment. Non payment of deposited amount with 24% interest is deficiency in service and this complaint is filed.

            2. The counter of respondents 1 to 6,8,12 and 13 is as follows:

It is incorrect to say that Rs.1,00,000/- deposited with the respondents finance on the request of respondents. There is no amount received from the complainant by these respondents or any partners of respondents finance. Exhibit P1 receipt is concocted. The receipt is not signed by any authorized signatories of respondents finance. There is no post of Managing Director in the respondents finance. These respondents did not issue any documents to complainant and did not authorize anybody to do the same. These respondents did not know whether there was any money transaction between the complainant and the respondents. If any amount is borrowing for the finance the documents also to be signed by all the partners. All these conditions are stated in the partnership deed. From 1996 onwards the 11^th respondent and Vinodan were conducted all the business of respondents finance. While so on 29/1/2003 the 11^th respondent was seen missing and the family members of him and the partners of the respondents finance put a petition to the Mathilakom Police Station and also filed application before the Hon’ble High Court of Kerala After his disappearance some people approached the finance alleging amount due from the finance. On enquiry by these respondents and other partners it was found that 11^th respondent had received money from persons by creating forged documents.   A crime No.290/03 is pending against this person under Section 405 and 406 of Indian Penal Code. 11^th respondent along with the complainant and others created forged documents and Exhibit P1 receipt is also forged. After realizing the fact that 11^th respondent has cheated all others he was removed from the post of Managing Partner and appointed 4^th respondent as Managing Partner. All these matters are published in Mathrubhumi newspaper on 11/8/2003.

 

             3.There is no right to any company or persons accepting fixed deposit amount and issue fixed deposit receipt without prior sanction of Reserve Bank of India after 1998. If there is any such document given by  anybody the firm or other partners are not liable and not enforceable against them. There is no borrowings and there is no need of it. There is no lawyer notice issued against these respondents by complainant. The complainant has no cause of action against these respondents. There is no deficiency in service on the part of these respondents and complainant is not entitled to get back any amount on the basis of Exhibit P1 document. Hence dismiss this complaint. Others set exparte.

1) Is there any deficiency in service of the part of respondents?

2) If so reliefs and costs ?

 

           71.The evidence consists of Exhibits P1and P2 in OP.457/03, Exhibit P1 in OP.458/03, Exhibits P1 and P2 in OP.459/03, Exhibits P1 and P2 in OP.557/03, ExhibitsP1 and P2 in OP.724/03, Exhibit P1 in OP.725/03, Exhibits P1 and P2 in OP.891/03, Exhibit P1 in OP.986/03, Exhibit P1 in OP.987/03, Exhibit P1 in OP.1087/03, Exhibit P1 in OP.1092/03, Exhibit P1 in OP.26/04, Exhibit P1 in OP.178/04, Exhibit P1 in OP.179/04, Exhibits P1, P2 and P3 in OP.360/04, Exhibits P1, P2, P3, P4 and P5 in OP.361/04, Exhibits P1, P2, P3, P4 and P5 in OP.362/04, Exhibits P1, P2, P3, P4 and P5 in OP.363/04, Exhibit P1 in OP.745/04, Exhibits P1 and P2 in OP.746/04, Exhibits P1, P2 and P3 in OP.747/04, Exhibits P1, P2 and P3 in OP.750/04, Exhibits P1 and P2 in OP.751/04, Exhibits P1, P2 and P3 in OP.752/04, Exhibits P1, P2 and P3 in OP.753/04, Exhibits P1, P2 and P3 in OP.819/04, Exhibits P1, P2 and P3 in OP.820/04, Exhibits P1, P2, P3 and P4 in OP.1397/04, Exhibits P1, P2 and P3 in OP.1418/04, Exhibits P1, P2 and P3 in OP.1419/04, Exhibits P1, P2, P3 and P4 in OP.1420/04, Exhibit P1 and deposition of PW1 in OP.438/05, Exhibits P1, P2 and deposition of PW1 in OP.439/05, Exhibit P1 in OP.834/05.     

            72.All the cases are filed against same respondents for realization of amount deposited by way of fixed deposit receipt. OP.457/03 is the first case and other cases are filed after that. In this case joint trial petition was filed by opposite parties and is allowed. In all the cases fixed deposit receipts are produced and taken in evidence. According to the complainants they have deposited money in respondents finance with the bonafide intention of getting deposited amount with agreed rate of interest. But after maturity of fixed deposit receipt nothing is returned to the complainants. In some cases interest was paid to the complainants. The non payment of deposited amount with interest is deficiency in service and these complainants are filed.

            73.In all the cases same counsel is appeared for respondents and averments in the counter are same. Some respondents remain exparte. The respondents taken the contention that the contesting respondents never accepted any amount from the petitioners. The fixed deposit receipt produced by the complainants are concocted documents and there is no signature in the fixed deposit by authorized persons of respondents finance. They also stated that the one of the opposite parties Sri.K.K.Jinarajdas have committed money transactions with the complainants and these respondents are not liable. The said Managing Partner Jinarajdas was missing and criminal has been filed against that person and pending before the Judicial First Class Magistrate court Kodungallur.

            74.According to the contesting respondents the Managing Partner Jinarajdas committed all the mischief leading to the filing of these complaints. This person was missing for so many years and according to the contesting respondents he is liable to return the amount if any to the complainants. All the fixed deposit receipts are forged documents and these respondents are not answerable to the complainants.

            75.In all the complaints fixed deposit receipts are produced and marked. We have perused the fixed deposit receipts and all are signed by Jinarajdas, the Managing Partner. The fixed deposit receipts show that those documents were issued by Akshaya Finance, the respondents institution.

            76.In the counter the contesting respondents challenged the designation stated in the fixed deposit receipt as Managing Director. According to them since Akshaya finance is a partnership firm there is no post of Managing Director. As per Partnership Act post should be as Managing Partner. They further stated they did not authorize any body in the firm to put signature in these documents. So far as the complainants are concerned, they are unaware about the post of Managing Director or partner. According to them they deposited the amount and after acceptance of amount these receipts were issued to them. If there was any dispute among the partners it is none of their duty to enquire about it. The fixed deposit receipts show that those receipts were issued by Akshaya finance and put signature by Jinarajdas for and on behalf of Akshaya fianance.

            77.According to the respondents all the fixed deposit receipts are concocted and it was a mischief committed by the Managing Partner, Jinarajdas. Since fixed deposit receipts bears the signature of Managing Partner it can be taken that he had signed for and on behalf of other partners. The Partnership Act itself is very clear on the position.

            78.Another contention raised by the respondents is that from 1998 onwards without the prior sanction of Reserve Bank of India no finance company has authority to accept fixed deposit amount and to issue fixed deposit receipts. So according to the respondents if any fixed deposit receipts are issued the firm is not liable to reimburse. As per the request of complainant in OP.457/03,   the minutes books, cash books and general ledgers of Akshaya finance are produced and the ledgers show that interest was paid to some fixed deposit receipt holders. The cash books would show that fixed deposit receipts received from some persons. So the contention of respondents that no money is received as fixed deposit is incorrect and unsustained. 

 

            79.The minutes book from 2/02 to 11/04 which is marked as Exhibit X15 shows that in the meeting conducted by the partners on 13/1/2003 Jinarajdas was present. After that on the next meeting conducted on 30/1/2003 there was discussion regarding missing of Managing Partner. Till date in every meeting he was present and his presence is noted.    Some of the disputed fixed deposit receipts are before 13/1/2003 the meeting in which Jinarajdas participated lastly. Some fixed deposit receipts are in the year 1997. It is unbelievable that till disappearance of Managing Partner the other partners were not aware of the fixed deposit and fixed deposit receipt holders. There are entry of interest paid to some of the complainants in general ledgers and cash books kept by the respondents. The name of some of the complainants are not seen anywhere in the registers kept by the respondents. Since the respondents are the custodian of these registers the genuineness of these books could not be taken as such without doubt. 

            80.The respondents contested that they are not liable for any of the mischief committed by the Managing Partner. They stated in counter that criminal case was filed against him and crime 290/03 was registered against Jinarajdas under Section 405 and 406 of Indian Penal Code. But no documents are produced to establish this contentions of the respondents.

            81.In the counter contesting respondents taken another view that the firm did not borrow money from any persons and the firm was not in a position to borrowing money for conducting the business. But the registers produced by the respondents would show that money was borrowed from different persons. Exhibit X15 contains details of money borrowed from some persons by the firm. So this contention of the respondents also will not lie. 

            82.In some cases the respondents raised a contention of misjoinder of necessary parties. Since Akshaya finance is a partnership firm any one partner only can be made a respondent and making of all the partners as respondents not at all necessary.

            83.OP.438/05 and 439/05 are filed by same complainant against the firm. In this cases complainant was examined as PW1. In both the cases he deposed that he has entrusted the amount with the partner Vinod. He also deposed that after 4 days, receipt was issued.   In Exhibit P1 receipts there is entry of payment of interest.   The complainant deposed that it was endorsed by clerk of first respondent firm. There is no cross examination done by the respondent counsel in OP.439/05. During cross examination in OP438/05 the PW1 stated that the amount was deposited in the finance. So the contentions of respondents that they are totally unaware of the fixed deposit transactions are utter false and all the respondents are liable to return the amount. 

            84.In the counter the respondents seriously taken the view that all the fixed deposit receipts are concocted and the finance has no business of accepting fixed deposit and issue fixed deposit receipts. But they failed to prove that the fixed deposit receipts are concocted. From the records it can be considered that contesting respondents are trying to put the entire burden on the shoulder of missing Managing Partner.

            85.The respondents challenged the validity of fixed deposit receipts and challenged the transactions. The OP.820/04 is filed by the wife of Jinarajdas and the respondents in their counter stated that by collusion this complaint is filed. But no evidence brought to show that there was collusion. The respondents did not even adduce oral evidence. They submitted no oral evidence and copies of pages of documents are produced. The attested copy of closing balance and minutes were produced only upon the application of complainant in OP.457/03. As per Exhibit P1 in OP.820/04 Rs.3,00,000/- was deposited. Since there is no evidence in contrary all the respondents are liable to return the amount.

            86.OP.819/04 is filed by the daughter of Jinarajdas and the respondents taken the same contention raised in OP.820/04. It can be seen from the minutes book that the respondents finance borrowed money from the complainant in this case. So there were transactions between respondents finance and complainant. Without proving the averments the respondents simply put forward the allegations. So all the respondents are jointly and severally liable to return the amount deposited by the complainant.

 

            86.In the result all the complaints are allowed and the respondents are directed to return the amount deposited as per Fixed Deposit Receipts along with interest at the rate of 9% per annum from the date of deposit till realization with cost Rs.500/- (Rupees Five hundred only) each to all the complainants within one month from the date of receipt of copy of this order. Respondents can reduce the interest if any paid.

          

            Dictated to the Confdl. Asst., transcribed by her, corrected by me and pronounced in the open Forum this the 30^th day of October 2009.