SRI.K. VIJAYAKUMARAN, PRESIDENT.

Complaint for realization of compensation costs etc.

The averments in the complaint can be briefly summarized  as follows:

          The complainant as the  Partner of M/s Sankar and Moorthy, Chartered Accountant has availed a loan on 27.12.2006 for the meeting the financial exigencies of the partnership firm   from the Corporation Bank, Pallimukku Beranch.  On intimation from the Corporation Bank regarding the interest, the complainant  as a partner of Sankar and Moorthy, Chartered Accountant issued a cheque from the firm’s current account with Indian Bank, Kollam Branch.   After giving  credit to the remittance of interest the Corporation Bank given the complainant  the printout  of the loan statement dated 9.8.2007.   The  bank has also issued  a  Loan Balance Conformation Certificate on 9.4.2007.  On 21.10.2008 the Partnership firm requested the opp.party bank  to issue  a Print out  of the Loan Account statement  as on 20.10.2008 and the bank furnished a  Printout  from 19.4.2007 to 29.9.2008. In that print out  the address of the borrower was  changed unauthorisedly to K. Sudhakaran, Chartered Accountant, Swamy Oil Mill Road, Kollam.   The complainant requested the bank to correct the address of the borrower but the opp.party did not correct the same.   Due to the unauthorized  and arbitrary act of the opp.party, the complainant sustained heavy damage to his reputation, prospects of getting RBI empanelment for  Bank Branch Audit in addition to mental agony and loss of time.  Hence the complaint.

The opp.party filed version  contending, interalia, that the complaint is not maintainable either in law or on facts. The complainant is not a consumer.   The opp.party has not committed any act or omission which has resulted in loss of reputation of the complainant.    It is admitted that  on 27.12.2006  the complainant has availed a gold loan of Rs. 12,000/-  under loan account No.39/2006 in his personal capacity and not for the partnership firm.  It is admitted that in the print out of loan statement  dated 9.8.2007 and 9.4.2007 the address of the borrower is shown  as that in the loan application which was based on the certificate given by the Manager of the Indian Bank, Kollam on 3.7.07.  On 25.7.2007  M/s. Sankar and Moorthy, Chartered Accountants, Thiruvananthapuram has informed the opp.party along  with  a letter from the Institute of Chartered Accountants of India dt. 9.5.2005 giving the names of existing partners of the firm  as per the records kept by the Institute of Chartered Accountants of India, which shows that the complainant K. Sudhakaran has left the firm M/s. Sankar and Moorthy as a partner  w.e.f. 19.12.2004.  The institute of Chartered Accountants of India has informed this opp.party also  as per letter dated  27.7.2007 that the complainant  has ceased to be partner of the firm with effect from 19.12.2004.  Based on these information  this opp.party has changed the borrowers address in the print out of the loan account statement .  There is  no unauthorized or arbitrary act on the part of the opp.party and no  damages to the reputation of the complainant is caused.  Hence the opp.party prays to dismiss the complaint.

Points that would arise for consideration are:

1.     Whether there is deficiency in service  on the part of the opp.party

2.     Reliefs and costs

For the complainant  PW.1 is examined.   Ext. P1 to P9 are marked.

For the opp.party DW.1 is examined.   Ext. D1 to D3 are marked.

POINTS:

The contention of the complainant is that the opp.party has unauthorisedly changed the borrowers address in the loan availed by him for the firm M/s. Sankar and Moorthy, which was availed by him to meet the expenses in connection with domestic expenses of the firm.  It is the further case that due to the act of the opp.party his reputation was damaged and he  suffered mental agony.

          Ext. D1 is the application cum document  Jewel loan on the security of the gold  loan executed by the complainant in favour of the opp.party.  A perusal of the Ext. D1 would  show that the loan was availed by K. Sudhakaran, Partner, M/s. Sankar and Moorthy, Chartered Accountant and not M/s. Sankar and Moorthy Chartered Accountant represented by its partner K,. Sudhakaran.  The learned counsel of the opp.party would argue that  if the loan amount had been availed for the purpose of the firm naturally the applicant would have been the firm represented by its partner and  there is force in the contention that the loan was availed by the complainant K. Sudhakaran for himself and not for  the firm.  It is also pertinent to point out that  the loan was availed pledging  Gold ornaments and it is not forthcoming as to whose gold ornaments were pledged.  It is quite improbable that the reputed firm  like Sankar and Moorthy would pledge gold ornaments to raise the loan for meeting the expenses in connection with its day today affairs

          Ext. D2 is a letter issued by the Institute of Chartered Accountants of India dated 9.5.2005 and Ext. D3 is a letter issued by the Institute of Chartered Accountants of India to the opp.party dated 25.7.2007 both these documents were marked without objection.   Ext. D2 shows that the firm M/s. Sankar and Moorthy was reconstituted with effect from 20.12.2004 and the complainant is not a partner of the reconstituted firm.    In Ext. D3 the Institute of Charterned Accountants of India has clarified  that the complainant K. Sudhakaran has ceased to be a partner of the firm M/s. Sankar and Moorthy, Thiruvananthapuram with effect from 19.12.2004.  Both Ext. D2 and D3 shows that on the date of availing the loan from the opp.party bank the complainant was not a partner  of the Firm. The complainant has not produced any material to show that  subsequent to the reconstitution  on 20.12.2004, the firm was again reconstituted including the name of the complainant also.  He has also no case that the reconstitution of the Form excluding his name with effect from 20.12.2004 has been setaside or stayed by any competant  authority.   When that be the position one is at a loss to understand  as to how the complainant can claim that the loan availed by him is for the firm.   It is argued by the complainant that he has not resigned and the reconstitution is improper .  But that is not a matter which fall for the consideration of this Forum but it is to be dealt  with elsewhere.

          Ext. D2 and 3  clearly shows that the complainant as on the date of availing loan that is 27.12.2006 is not a partner of the firm M/s. Sankar and Moorthy and PW.1 failed to produce any document to establish that  he  continued to be the partner on the date of availing the loan.   When the opp.party was informed of these aspects  by the Institute of Chartered Accountants of India which is the competent authority  in this regard they  corrected the name of the borrower  which is quite natural.   The complainant has not adduced any  evidence to show as to how he lost reputation because of this change or as to how he sustained loss of money.  In fact that the complainant has admitted that he is still doing the audit work of the SBT, Thenmala Branch.  So the contention that the complainant sustained loss of reputation is unsustainable.   The complainant has  also not shown what deficiency in service  is committed by the opp.party.   The opp.party has not denied any facility or any other benefit to the complainant other than effecting change in the name of borrower  According to the complainant the partnership Firm as per Ext. P5 instructed the opp.party to correct the unauthorized change made in the address but the opp.party failed to do so.  But the complainant failed to establish his authority to represent the Firm and issue Ext.P5 after  19.12.2004.  In fact the unauthorized act is that of the complainant who has used the name of the  Firm after he  ceased to be a partner of the Firm.  The complainant in our view  has failed to establish any deficiency in service or unfair trade practice on the part of the opp.party.   On the other hand on a perusal of the entire  records we are of the considered view that this complaint is  a frivoulous one  actuated by malafides.  Point found accordingly.

          In the result the complaint fails and the same is hereby dismissed  with costs Rs.1500/- to the opp.party

 Dated this the    8^th     day of September, 2010.

List of witnesses for the complainant:

PW.1. – K. Sudhakaran

List of documents for the complainant:

P1. – Letter from Opp.party dt. 26.7.07

P2. – Bank Account Statement

P3. – Loan account certificate

P4. – Loan account statement from 1.4.07 to 29.9.08

P5. – Letter to the opp.party dt. 11.10.2008

P6. – Letter issued by opp.party dt. 16.1.2009

P7. – Certified copy of Principal Munsiff’s Judgement dt. 26.5.2007

P8. – Certificate

P9. – Letter  to the Manager, Corporation Bank dt. 25.7.2007

List of witnesses for the opp.party

DW.1. -  Balaraj

List of documents for the opp.party

D1. – Loan application

D2. – Letter from Institute of Chartered Accounants dt. 9.5.05

D3. – Letter from Institute of Chartered Accountants dt. 27.7.07