Punjab

Moga

CC/17/4

Balbir Singh - Complainant(s)

Versus

Grewal Brar Finance Co. - Opp.Party(s)

Nirmal Singh Malhi

17 May 2017

ORDER

THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

 

                                                                                      CC No. 4 of 2017

                                                                                      Instituted on: 10.01.2017

                                                                                      Decided on: 17.05.2017

 

Balbir Singh aged about 54 years s/o Battan Chand, resident of House no.1795, Gali no.1C, Guru Ram Dass Nagar, Moga, District Moga.

                                                                                ……… Complainant

 

Versus

1.       Grewal Brar Finance Co. (Regd.) Motor  & General Financers, Chowk Zira Road, 1^st Floor, opposite C.N.I. Church Moga, District Moga, through its partner/authorized signatory.

 

2.       Atamjit Singh son of Joginder Singh, resident of Ekta Nagar, Purana Ghal Road Moga, District Moga, Partner/Authorized Signatory of Grewal Brar Finance Co. (Regd.) Motor  & General Financers, Chowk Zira Road, 1^st Floor, opposite C.N.I. Church Moga, District Moga.

 

                                                                           ……….. Opposite Parties

 

 

Complaint U/s 12 of the Consumer Protection Act, 1986.

 

 

Quorum:    Sh. Ajit Aggarwal,  President

                   Smt. Bhupinder Kaur, Member

 

Present:       Sh. Nirmal Singh Malhi, Advocate Cl. for complainant.

                   Opposite party no.1 ex-parte.

                   Ms. Divya Rani, Advocate Cl. for opposite party no.2.

 

 

ORDER :

(Per Ajit Aggarwal,  President)

 

1.                Complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the "Act") against Grewal Brar Finance Co. (Regd.) Motor  & General Financers, Chowk Zira Road, 1^st Floor, opposite C.N.I. Church Moga, District Moga, through its partner/authorized signatory and others (hereinafter referred to as the opposite parties) directing them to release the amount of Rs.2,59,789/- alongwith interest @ 12 % per annum till today alongwith future interest till its realization. Further they are directed to pay Rs.50,000/- on account of mental tension, mentally and physical harassment and deficiency in service and Rs.25,000/- on account of loss to the complainant or any other relief which this Forum deem fit and proper be granted.

2.                Briefly stated the facts of the case are that the complainant was worked hard for himself and his family and in order to save his future and for the betterment of his future, the complainant opened an account bearing no.3 with opposite party M/s Grewal Brar Finance Co. (Regd.) Motor & General Financers, Chowk Zira Road, 1^st Floor, opposite C.N.I Church Moga, District Moga on 27.11.2012 and he also deposited Rs.10,000/- on the same day i.e. 27.11.2012. At the time of opening of account Atamjit Singh Managing Director/Partner/official of M/s Grewal Brar Finance Co. issued passbook bearing account no.3 dated 27.11.2012 to the complainant on his name. Thereafter, the complainant deposited the amount with the firm of opposite party through different transactions and he also used to withdraw the amount as per his need and till 30.03.2016 there was Rs.2,59,789/- lying in the account of complainant.  Unfortunately, the complainant was in need of money and in the second week of October, 2016, when he went to said Atamjit Singh Partner of the opposite party firm and demanded his amount alongwith interest from him. The said Atamjit Singh assured the complainant that he will make the total payment of the complainant alongwith interest @ 12 % per annum after 15 days. Thereafter, in the first week of November, 2016, the complainant again went to the office of opposite party and demanded his money and requested them that he is in urgent need of money due to some unavoidable reasons, but the opposite parties flatly refused to return any amount to the complainant. Inspite of repeated requests and representations, opposite parties did not return any amount to the complainant. Due to the acts of opposite parties, the complainant has suffered mental tension, harassment and financial loss. Hence this complaint.

3.                Notice issued for the service of opposite party no.1 duly served. But despite that none had appeared on behalf of opposite party no.1. As such, opposite party no. 1 was proceeded against ex-parte.

4.                On the other hand, opposite party no.2 appeared through counsel and filed written reply taking certain preliminary objections that the instant complaint is not maintainable under the law; that the complainant has no locus standi to file the present complaint against answering opposite party; that Sukhmandar Singh s/o Mohinder Singh was the Managing Director of this Firm and he had been dealing with the affairs of the firm. The complainant had alleged dealing with Sukhmandar Singh not with answering opposite party. The answering opposite party is not responsible in the instant complaint; that this Forum has got no jurisdiction to hear, try and decide the present complaint, as elaborate evidence is required to decided the present controversy in dispute; that the said firm has been dissolved on 6.5.2016 and the liabilities of the firm has been separately affixed by the above partners and the claim and liabilities cropping up in the instant complaint pertains to Sukhmandar Singh at the time of dissolution of partnership. Rights and liabilities with regarding the individuals had been distributed and the alleged complaint pertains to Sukhmander Singh; that the complaint is bad for non joinder of necessary parties. On merits, it is submitted that complainant intentionally left the other partners and he filed the present complaint in the absence of other partners of the firm only to extent of due money from the opposite party. The complainant knows very well that opposite party has left the firm on dated 6.5.2016 and writing regarding the same has been duly written between the partners. The complainant as well some other persons were also present when the said writing was executed between the partners. Moreover, after 6.5.2016, opposite party has got no concern with the affairs of the said firm. It has been further submitted that Sukhmandar Singh partner of the firm was responsible to have dealings with the complainant after the dissolution of the firm as agreed upon between the partners. The firm was dissolved on 6.5.2016 and after that all the partners were to deal with the customers of the firm individually as agreed upon. All other allegations made in the complaint have been denied and a prayer for dismissal of the complaint with heavy costs has been made.

5.                In order to prove the case, the complainant tendered in evidence his duly sworn affidavit Ex.C-1 and copies of documents Ex. C-2 & Ex.C-3 and closed the evidence. 

6.                On the other hand, Sh. Atamjit Singh/ opposite party no.2 tendered in evidence his affidavit Ex.OP-2/1 alongwith copies of documents Ex.OP-2/2 to Ex.OP-2/7 and affidavit of Sh.Surinder Singh s/o Sh. Lekh Raj as Ex.OP-2/8 and closed the evidence.

7.                We have heard the learned counsel for the complainant and have very carefully gone through record placed on file.

8.                The case of the complainant is that in order to save his future and for the betterment of his future, he opened an account bearing no.3 with opposite parties and he also deposited Rs.10,000/- with them on 27.11.2012 and in this regard a passbook bearing account no.3 dated 27.11.2012 was also issued. The complainant started to deposit amount in the said account on different dates and also used to withdraw amount on different dates.  Till 30.03.2016, there was Rs.2,59,789/- lying in the account of the complainant. Unfortunately, the complainant was in need of money, so in second week of October, 2016, he went to opposite parties and demanded his amount alongwith interest from them, but the opposite parties failed to return any amount to the complainant, inspite of repeated requests and representations. The evidence adduced in evidence his duly sworn affidavit Ex. C-1 the copy of passbook Ex.C-2, from which it is proved that the complainant there was Rs.2,59,789/- lying deposited in the account of the complainant.

9.                In reply, ld. counsel for opposite party no.2 submitted that Sukhmandar Singh s/o Mohinder Singh was the Managing Director of the Firm and had been dealing with the affairs of the firm. The complainant had alleged dealing with Sukhmandar Singh not with opposite party no.2 and it is not responsible in the instant complaint. She further argued that the complainant intentionally left the other partners and he filed the present complaint in the absence of other partners of the firm only to extract due money from opposite party no.2. The complainant knows very well that he has left the firm on dated 6.5.2016 and writing regarding the same has been duly written between the partners. The complainant and other persons were also present when the said writing was executed between the partners. Moreover, after 6.5.2016, he has no concern with the affairs of the said firm and Sukhmandar Singh partner of the firm was responsible for the dealings with the complainant after the dissolution of the firm as agreed upon between the partners. The firm was dissolved on 6.5.2016 and after that the liabilities of the firm has been separately affixed by the above partners and the claim and liabilities cropping up in the instant complaint pertains to Sukhmandar Singh at the time of dissolution of partnership.

10.              We have thoroughly gone through the evidence, documents and arguments lead by ld. counsel for both the parties. It is admitted case of the parties that that in order to save some money for the betterment of his future, complainant opened an account with opposite parties and deposited Rs.10,000/- with them on 27.11.2012 and in this regard a passbook was also issued. The complainant started to deposit amount in the said account on different dates and he also used to withdraw amount on different dates.  Unfortunately, the complainant was in need of money, so he approached to opposite parties and demanded his amount alongwith interest from them, but the opposite parties failed to return any amount to the complainant, inspite of repeated requests and representations. On it, the version of opposite parties is that Sukhmandar Singh s/o Mohinder Singh was the Managing Director of the Firm and had been dealing with the affairs of the firm. The complainant had alleged dealing with Sukhmandar Singh not with opposite party no.2 and it is not responsible in the instant complaint. The firm was dissolved on 6.5.2016 and after that the liabilities of the firm has been separately affixed by the above partners and the claim and liabilities cropping up in the instant complaint pertains to Sukhmandar Singh at the time of dissolution of partnership. After dissolution of the firm, opposite party no.2 has no concern with the affairs of the said firm. Said Sukhmandar Singh partner of the firm was responsible for the dealings with the complainant. The complainant intentionally left the other partners and he filed the present complaint in the absence of other partners of the firm only to extract due money from opposite party no.2.

11.              Now, it is admitted case that opposite party no.1 firm is dealing in finance business and opposite party no.2 was its partner. It is further admitted that the complainant is dealing with opposite party firm and deposited his amount with the firm and this amount is still due towards the firm. On it, the plea of the opposite party no.2 is that said firm was dissolved on 6.5.2016 and he retired from the firm and all the liabilities of the firm were distributed among the partners of the firm and the debt of the complainant falls in the share of Sukhmandar Singh partner and Sukhmandar Singh is liable for the amount of the complainant. As per Partnership Act, each and every partner is jointly and severally liable for the act of the firm and for dues of the firm, which was done in the period, when he was partner of the firm. Even party can claim and recover the entire amount due towards the firm from a single partner. As per section 25 of the Indian Partnership Acts of the firm "every partner is liable, jointly with all the other partners and also severally, for all acts of the firm done while he is a partner. The plea of opposite party no.2 is that he retired from the firm and he is not liable for the act of the firm as per section 32 (2) of Indian Partnership Act "A retiring partner may be discharged from any liability to any third party for acts of the firm done before his retirement by an agreement made by him with such third party and the partners of the reconstituted firm, as such agreement may be implied by a course of dealing between such third party and the reconstituted firm after he had knowledge of the retirement. But in the present case there is no such agreement between the complainant and opposite party no.2 and other partners of the firm to this effect. As per section 45 of Indian Partnership Act Liability for acts of partners after dissolution "Notwithstanding the dissolution of a firm, the partners continue to be liable as such to third parties for any act done by any of them which would have been an act of the firm if done before the dissolution, until public notice is given of the dissolution. As per the version of opposite party no.2 the firm was dissolved on 6.5.2016, whereas the amount due towards the complainant is prior to 06.05.2016 and opposite party no.2 is liable for this amount being partner of the firm. Dissolution of the firm or settlement regarding the liability of the firm among the partners has no adverse effect on the rights of complainant and the partners cannot escape from the liability of the firm. The complainant has each and every right to claim this amount from the firm and its partners, jointly and severally and dissolution of the firm or settlement among the partners has no adverse effect on the rights of the complainant.

12.              In view of the aforesaid facts and circumstances, the complaint in hand stands allowed and opposite parties are directed to pay the amount of Rs.2,59,789/- as per the entry reflected in the pass book Ex. C-2 alongwith interest @ 9% per annum from 30.03.2016 till its payment to the complainant. Opposite parties shall also pay Rs.5000/-(Five thousand only) as compensation for mental tension and harassment as well as litigation expenses compositely assessed to the complainant. Compliance of this order be made within one month of the receipt of the copy of the order, failing which, complainant shall be entitled to initiate proceedings under Section 25 and 27 of the Consumer Protection Act. Copies of order be supplied to parties free of cost as per rules. File be consigned to record room.

Announced in Open Forum

Dated : 17.05.2017

                                                  (Bhupinder Kaur)                               (Ajit Aggarwal)

                                                        Member                                            President