KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO:185/2010
JUDGMENT DATED:30-10-2010
PRESENT
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
K.Sudhakaran.
Keerthanam, Swamy Oil Mill Road, : APPELLANT
Contonment North, Kollam-691 001.
Vs.
Mr.Gnana Sekhar,
Partner, M/s Sekhar & Yayanthi,
Chartered Accoutants, : RESPONDENT
TC.25/2706, Luke’s Lane, GPO,
Trivanrum-695 009.
(By Adv.Sri.G.S.Kalkura)
JUDGMENT
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
The appellant was the complainant and respondent was the opposite party in CC.44/09 on the file of CDRF, Kollam. The complaint therein was filed alleging deficiency of service on the part of the opposite party as an auditor of the partnership firm where the complainant is also a partner. It is also alleged that the audit report for the year 2004-2005 was filed by stating and furnishing false information and that the said audit report was a false report and thereby the complainant being the partner of the firm, M/s Sankar and Moorthy Chartered Accountants suffered loss and inconvenience. The opposite party entered appearance before the Forum below and filed written version denying the very status of the complainant as partner of the firm M/s Sankar and Moorthy. It was also contended that the CDRF, Kollam is not having any jurisdiction to entertain the complaint in CC.44/09 as no part of the cause of action has arisen within the territorial jurisdiction of CDRF, Kollam.
2. The opposite party filed I.A.479/09 requesting the Forum below to hear the issue regarding maintainability of the complaint as a preliminary issue. Thereby the Forum below heard the preliminary issue regarding the maintainability of the complaint in CC.44/09. After hearing both parties, the Forum below passed the impugned order dated:2nd March 2010 allowing the said I.A.479/09 by finding that the Forum below (CDRF, Kollam) is not having territorial jurisdiction to entertain the complaint in CC.44/09. Thereby the said complaint was returned to the complainant for filing the same before proper Forum. It is against the said order, the present appeal is preferred by the complainant therein.
3. We heard the appellant/complainant who appeared in person and the counsel for the respondent/opposite party. The appellant submitted his arguments based on the grounds in the Memorandum of the present appeal. He argued for the position that he came to know about the false audit report submitted by the opposite party only when the matter was taken up for hearing by the Additional Income Tax Commissioner,, Kollam and he came to know about the false report only on 23rd December 2008. It is further submitted that CDRF, Kollam is having the jurisdiction, because part of the cause of action has arisen within the territorial limits of CDRF, Kollam. According to the appellant/complainant the hearing conducted by the Additional Income Tax Commissioner,, Kollam on 23/12/2008 shall form part of the cause of action and that the complainant being a beneficiary of the said audit report has the authority to move the CDRF, Kollam by preferring the complaint in CC.44/09. On the other hand, the learned counsel for the respondent/opposite party support the impugned order passed by the Forum below. He challenged the very status of the appellant/complainant as partner of the Firm, M/s Sankar and Moorthy, Chartered Accountants. It is submitted that Civil Suit is pending regarding dissolution of the firm and that the said suit was filed by the appellant/complainant as plaintiff before the Munsiff’s Court, Kollam. He also subitted that the aforesaid partnership firm, M/s Sankar and Moorthy, Chartered Accounts and its partners are necessary parties to the present complaint; that the said firm is having its office in Thiruvananthapuram; that the respondent/opposite party is working as a chartered accountant in Thiruvananthapuram; that he was appointed as the auditor by the partnership firm at Thiruvananthapuram and he submitted the disputed audit report in the year 2005 before the said Forum at Thiruvananthapuram. It is further submitted that the respondent/opposite party had no occasion to go to the branch office of the firm, M/s Sankar and Moorthy, Chartered Accountants, at Kollam and no part of the cause of action has arisen within the territorial limits of CDRF, Kollam. Thus, the respondent requested for dismissal of the present appeal.
4. Admittedly the respondent/opposite party was appointed as the auditor of the firm, M/s Sankar and Moorthy, Chartered Accountants. Admittedly there are other 7 partners for the said firm during the relevant period when the audit report for the year 2004-2005 was filed. It is also an admitted fact that there is dispute between the partners of the said firm by name M/s M/s Sankar and Moorthy, Chartered Accountants regarding the status of the appellant/complainant as partner of the said firm. A Civil suit is also pending regarding dissolution of the said firm and that in the said civil suit it was contended that the appellant/complainant herein is not a partner of the said firm. The said suit for dissolution of partnership was filed by the appellant/complainant and the same was dismissed by the Munsiff’s Court, Kollam. A appeal preferred from the said judgment and decree is pending before the District Court, Kollam. It is submitted by the counsel for the respondent/opposite party that the said appeal has also been dismissed by the District Court, Kollam on 27/10/2010. But, no document is forthcoming to substantiate the said case regarding dismissal of the aforesaid appeal. Anyhow, it can very safely be concluded that there is dispute regarding the status of the appellant/complainant as partner of the said firm. So, it can also be concluded that the other partners of the firm M/s M/s Sankar and Moorthy, Chartered Accountants are necessary parties to the complaint in CC.44/09.
5. Admittedly the respondent/opposite party filed audit report for the year 2004-2005 during 2005 and the same was filed before the Firm, M/s Sankar and Moorthy, Chartered Accountants having the head office at Thiruvananthapuram. The complaint is filed alleging deficiency of service on the part of the respondent as an auditor of the said firm in filing the said audit report for the year 2004-2005. The complaint in CC.44/09 has been filed after the lapse of 5 years of filing the said report before the partnership firm, M/s M/s Sankar and Moorthy, Chartered Accountants. The definite case of the complainant is that he is still a partner of the said firm. It that be the position, it was the bounden duty of the complainant to go through the said audit report and to prefer a complaint against the opposite party then and there; at any rate he ought to have preferred the complaint during the year 2007. So, the complaint in CC.44/09 can be treated as one barred by limitation. The mere fact that the complainant was sleeping over his right cannot be taken as a ground to hold that the cause of action for the complaint has arisen during 2009. The complainant waited till 2008 to get information about the audit report through proceedings of the Additional Income Tax Commissioner, Kollam. Thus, the complaint in CC.44/09 can be treated as one barred by limitation. Though, the opposite party has not raised the said issue regarding question of limitation, this State Commission has the authority and jurisdiction to entertain the said issue regarding limitation. It has been held by the Hon’ble Supreme Court (2009 (3) CPR 784 (SC) and (2003) 9 SCC-50) that it is the duty of the Fora or the Commissions to consider the issue regarding limitation. So, on that ground also the complaint ought to have been dismissed.
6. The Forum below was of the view that no part of the cause of action has arisen within the territorial limits of CDRF, Kollam. Admittedly the disputed audit report was filed in the year 2005 before the Firm M/s Sankar and Moorthy, Chartered Accountants at Thiruvananthapuram. The opposite party is functioning in Thiruvananthapuram. There is no record to show that the opposite party has any residence or office within the territorial limits of CDRF, Kollam. The mere fact that the complainant is a resident of Kollam is not a ground to hold that he can prefer the complaint before the CDRF, Kollam. There is nothing on record to show that the respondent/opposite party, auditor went to the branch office of the firm at Kollam. It is for the complainant to substantiate his case that part of the cause of action has arisen within the territorial limits of the CDRF, Kollam or that the opposite party is residing or works for gain within the limits of CDRF, Kollam. But the appellant/complainant failed to substantiate his case that part of the cause of action has arisen within the territorial limits of CDRF, Kollam.
7. The appellant/complainant has got a definite case that he got information about the false audit report only during 2008 when he participated in the proceedings conducted by the Additional Income Tax Commissioner, Kollam. It is to be noted that the disputed audit report was filed as early as in the year 2005 and the same was filed at Thiruvananthapuram. A mere fact that the said audit report happened to be before the Additional Income Tax Commissioner, Kollam cannot be taken as a ground to hold that part of the cause of action regarding deficiency of service has arisen within the territorial limits of CDRF, Kollam. The complainant was negligent in getting copy of the audit report. If in fact he was interested in the affairs of the partnership firm and its business he should get a copy of the audit report or he should avail the opportunity to peruse the audit report. The failure on the part of the appellant/complainant to peruse the audit report which was filed in the year 2005 cannot be taken as a ground to extend the cause of action to the year 2008 or 2009 or to extend cause of action to the jurisdiction of CDRF, Kollam.
8. Another important aspect to be noted at this juncture is the fact that the complaint in CC.44/09 filed by the complainant has already been returned to him. The appellant/complainant himself submitted a written request before the CDRF, Kollam for returning the original complaint for its presentation before proper Forum. The lower court records forwarded to this State Commission would make it clear that the complainant himself requested the Forum below to return the original complaint in toto to the bearer of the letter Mr.Subhash whose signature has been attested by the appellant/complainant. This circumstance would also give an indication that the appellant/complainant was satisfied with the finding of the Forum below that no part of the cause of action has arisen within the territorial jurisdiction of the CDRF, Kollam. No prejudice will be caused to the appellant/complainant in preferring the said complaint before the proper Forum. Moreover, the disputes involved in this complaint would also give an indication that the complainant has also alleged collusion between the other partners and the respondent/opposite party. It is a settled position that the issue regarding fraud or collusion cannot be entertained by the agencies constituted under the Consumer Protection Act. In all respects, this is a fit case to be referred to the Civil Court for adjudication by a competent Civil Court. It is pertinent to note at this juncture that already civil suit is pending regarding the very existence of the partnership firm, M/s Sankar and Moorthy, Chartered Accountants. So, the issue involved in this case can also be considered by a competent Civil Court. Thus, the present appeal deserves dismissal. Hence we do so.
In the result the appeal is dismissed. The impugned order dated 2/3/2010 passed by CDRF, Kollam on I.A.479/09 in CC.44/09 is confirmed. The parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER
M.K.ABDULLA SONA: MEMBER
VL.
