IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,

Dated this the 17^th day of May, 2012.

Present : Sri. Jacob Stephen (President)

Sri. N. Premkumar (Member)

Smt. K.P. Padmasree (Member)

C.C.No.3/12 (Filed on 02.01.2012)

Between:

1.  Mrs. Lilly Kutty George,

     Chittachil House,

             Mannaramala. P.O.,

             Pathanamthitta.

        2.  Mrs. Salma. C. George,

-do.   –do.

(By Adv. Manoj kumar)                                     ….    Complainants

And:

1.    Essen Bankers,

Thavalathil Buildings,

Pathanamthitta,

Rep. by its Managing Partners..

2.   M.K. Divakaran,

Managing Partner,

Essen Bankers,

Thavalathil Buildings,

Pathanamthitta.

3. M.K. Varadarajan,

     Partner & Authorised Officer,

     Essen Bankers,

     Thavalathil Buildings,

     Pathanamthitta, residing at:

     Manpallil House,

             Maloor Mallasseril.P.O.,

             Pramadom, Pathanamthitta.

(By Adv. K. Radhakrishnan)                      …..       Opposite parties.

O R D E R

Sri. Jacob Stephen (President):

                Complainant has filed this complaint against the opposite parties for getting a relief from the Forum.

                   2. The complainants’ case is that the 1^st complainant is the mother of the 2^nd complainant and the 1^st opposite party is a partnership firm dealing in the business of banking including receiving fixed deposit from the public.  The 2^nd opposite party is the Managing Partner of the 1^st opposite party and the 3^rd opposite party is a partner and the authorized officer of the 1^st opposite party.  While being so, on the canvassing of the 3^rd opposite party, the 1^st complainant made four fixed deposit and the 2^nd complainant deposited one fixed deposit with the 1^st opposite party.  The agreed rate of interest for the fixed deposits is 15% interest per annum, and the maturity period of said deposits varies from 60 months to 66 months. The opposite parties also issued receipts for the fixed deposits.  The total amount deposited by the complainants was ` 1,70,000 vide 5 deposits.  That on maturity of the fixed deposits complainants demanded the fixed deposit amounts with its agreed rate of interests.  But the opposite parties did not returned the amounts as per the fixed deposit receipts.  Thereafter, the complainants demanded the amount many times and the last demand was on 13.05.2011.  But they did not returned the amount.  The above said act of the opposite parties is a clear deficiency in service which caused financial loss and mental agony to the complainant and the opposite parties are liable to the complainant from the same.  Hence this complaint for the realization of a total amount of ` 3,34,499 with 18% interest from the date of filing of this complaint along with compensation of ` 2,5000 and cost of this proceedings.

                3. In this case 1^st and 2^nd opposite parties were exparte.

                4. 3^rd opposite party entered appearance and filed a version with the following contentions:-  The contention of the 3^rd opposite party is that though he is a partner in the firm as per the partnership deed he was only an employee of the 1^st opposite party and as per the partnership deed of the 1^st opposite party he is not entitled to get any profit of the firm or he is not liable to 3^rd parties for the liabilities of the 1^st opposite party.  So he is not liable to the complainant in any way.  He had also filed a case as O.S.No.11/2011 before the Sub Court, Pathanamthitta for the dissolution of the partnership and for declaring that he is not responsible for any liability of the 1^st opposite party, which is pending.  With the above contentions, 3^rd opposite party prays for the dismissal of the complaint against him as he had not committed any deficiency in service. 

                5. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?

                6. The evidence of this complaint consists of the oral testimony of PW1 and DW1 and Exts.A1 to A5 and Exts.B1 to B4.  After closure of evidence, both sides did not turned up for hearing and hence this Forum taken the matter as heard.

                7. The Point:-  The complainant’s allegation is that they have deposited a total amount of ` 1,70,000 with the opposite parties as fixed deposits by way of 5 fixed deposits at the rate of 15% interest per annum.  On maturity, opposite parties did not paid the principal amount or its interest in spite of the demand for the same by the complainants.  The above said act of the opposite party is a clear deficiency in service and the opposite parties are liable to pay the amount deposited by the complainants along with its interest, compensation and cost.    

                8. In order to prove the complainant’s case, the 1^st complainant filed a proof affidavit in lieu of her chief examination along with 5 fixed deposit receipts.  On the basis of the proof affidavit, the complainant was examined as PW1 and the fixed deposit receipts were marked as Exts.A1 to A5.  Ext.A1 is the fixed deposit receipt No.287 dated 01.07.2004 for ` 50,000 at the rate of 15% interest for 5 ½ years issued by the 1<sup>st</sup> opposite party in the name of the 1<sup>st</sup> complainant.  Ext.A2 is the fixed deposit receipt No.277 dated 29.06.2005 for ` 40,000 at the rate of 15% interest for 60 months issued by the 1^st opposite party in the name of the 1^st complainant. Ext.A3 is the fixed deposit receipt No.414 dated 06.02.2006 for ` 20,000 at the rate of 15% interest for 60 months issued by the 1<sup>st</sup> opposite party in the name of the 1<sup>st</sup> complainant.  Ext.A4 is the fixed deposit receipt No.487 dated 29.03.2007 for ` 25,000 at the rate of 15% interest for 60 months issued by the 1^st opposite party in the name of the 1^st complainant.  Ext.A5 is the fixed deposit receipt No.309 dated 18.08.2005 for ` 35,000 at the rate of 15% interest for 60 months issued by the 1^st opposite party in the name of the 2^nd complainant.

                9. On the other hand, the 3^rd opposite party’s contention is that he was only an employee of the 1^st opposite party and is not entitled to share the profit or loss of the 1^st opposite party though he is a partner in the firm and hence he is not liable for the liabilities of the 1^st opposite party.  He also contended that he had filed a Civil Suit before the Sub Court, Pathanamthitta as O.S.No.11/2011 for dissolving the partnership firm and exempting him from the liabilities of the 1^st opposite party. 

                10. In order to prove the contentions of the 3^rd opposite party, he filed a proof affidavit in lieu of his chief examination along with 4 documents.  On the basis of the proof affidavit, 3^rd opposite party was examined as DW1 and the documents produced were marked as Exts.B1 to B4.  Ext.B1 is the certified copy of the Plaint in O.S.No.11/2011 of Sub Court, Pathanamthitta filed by the 3^rd opposite party.  Ext.B2 is the copy of the partnership deed dated 07.08.2002 of the 1^st opposite party.  Ext.B3 is the reconstituted partnership deed dated 14.08.2002 of the 1^st opposite party.  Ext.B4 is another reconstituted partnership deed dated 05.01.2005 of the 1^st opposite party.

                11. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that complainants had deposited a total amount of ` 1,70,000 vide Exts.A1 to A5 fixed deposit receipts with the opposite parties. The complainant’s allegation is that opposite parties did not given the fixed deposit amounts or its agreed rate of interest on maturity.  Since opposite parties 1 and 2 are exparte and 3^rd opposite party has no case that the fixed deposit amounts and its interest is returned to the complainants and in the absence of any other evidence against the complainant’s allegations, the complainants case stands proved as unchallenged.  The non return of the fixed deposit amount by the opposite parties is a clear deficiency in service and the opposite parties are liable to return the same to the complainants.  Hence this complaint is allowable.  However, on a perusal of Exts.B1 to B4 it is seen that the 3^rd opposite party is only an employee of the 1^st opposite party and he is not liable to the liabilities of the 1^st opposite party, though he is a partner in the firm.  Further the complainant has not adduced any evidence against the 3^rd opposite party showing that the 3^rd opposite party is personally liable for the liabilities of the 1^st opposite party. Therefore, we find that 3^rd opposite party is not liable to the complainants. In the circumstances, this complaint is allowed against opposite parties 1 and 2 only. 

                12. In the result, this complaint is allowed, thereby the 1^st and 2^nd opposite parties are directed to return the whole amount and its agreed rate of interest due to the complainants as per Ext.A1 to A5 fixed deposit receipts along with a cost of ` 1,000 (Rupees One Thousand only) to the complainant within 15 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount with its agreed rate of interest till the realization of the whole amount.  Since interest for the fixed deposit is allowed, no orders for separate compensation.

                 Declared in the Open Forum on this the 17^th day of July 2012.

                                                                                       (Sd/-)

                                                                                Jacob Stephen,

                                                                                   (President)

Sri. N. Premkumar (Member)            :       (Sd/-)

Smt. K.P. Padmasree (Member) :       (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1:  Lillykutty George

Exhibits marked on the side of the complainant:

A1 :  Fixed deposit receipt No.287 dated 01.07.2004 for ` 50,000  

        issued by the 1^st opposite party in the name of the 1^st  

        complainant. 

A2 :  Fixed deposit receipt No.277 dated 29.06.2005 for ` 40,000  

        Issued by the 1^st opposite party in the name of the 1^st  

        complainant.

A3 :  Fixed deposit receipt No.414 dated 06.02.2006 for ` 20,000  

        issued by the 1^st opposite party in the name of the 1^st  

        complainant. 

A4 :  Fixed deposit receipt No.487 dated 29.03.2007 for ` 25,000  

        issued by the 1^st opposite party in the name of the 1^st  

        complainant. 

A5 :  Fixed deposit receipt No.309 dated 18.08.2005 for ` 35,000  

        issued by the 1^st opposite party in the name of the 2^nd  

        complainant.          

Witness examined on the side of the complainant:

DW1        :  M.K. Varadarajan

Exhibits marked on the side of the complainant:

B1 :  Certified copy of the Plaint in O.S.No.11/2011 of Sub Court,  

         Pathanamthitta filed by the 3^rd opposite party. 

B2 :   Copy of the partnership deed dated 07.08.2002 of the 1^st  

         opposite party. 

B3 :   Reconstituted partnership deed dated 14.08.2002 of the 1^st  

         opposite party. 

B4 :   Reconstituted partnership deed dated 05.01.2005 of the 1^st  

         opposite party.

                                                                                (By Order)

                                                                                    (Sd/-)

                                                                         Senior Superintendent.

Copy to:- (1) Mrs. Lilly Kutty George, Chittachil House,

                     Mannaramala. P.O., Pathanamthitta.

                       (2) Managing Partners, Essen Bankers, Thavalathil            

                     Buildings, Pathanamthitta.

(3)  M.K. Divakaran, Managing Partner, Essen Bankers,

         Thavalathil Buildings, Pathanamthitta.

        (4) M.K. Varadarajan, Manpallil House, Maloor        

              Mallasseril.P.O., Pramadom, Pathanamthitta.

        (5) The Stock File.