BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.1476-2014

DATED ON THIS THE 11^th November 2016

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

    2) Smt. M.V.Bharathi                    

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                                          B.E., LLB.,    - MEMBER

Sri H.M.SHIVAKUMARA SWAMY,

President

1.     This complaint is filed for a direction to the opposite parties to pay a sum of pay `1,50,000/- with interest at 12% p.a, and also damages and litigation expenses.
2.     The brief facts alleged in the complaint are that the opposite party No.1 is the Firm carrying on business of accepting deposits of money from public and lending money to the public at its principal place of business in Mysuru. Opposite party No.2 to 12 are the partners of the said Firm.  At the instance of opposite party No.2, who is mainly managing the day to day affairs of the opposite party No.1, complainant has deposited a sum of Rs.1,50,000/- on different dates as detailed below:-

3.     Even after expiry of the period fixed in the F.D. receipts, the opposite parties not paid either interest or the principal amount in spite of repeated demands and legal notice.  Thereby there is deficiency in service on the part of opposite parties, as such the complainant has sought for an order against opposite parties. 
4.     Notices are served on all the opposite parties, opposite party Nos.1 to 3, 8 appeared inperson, not contested the claim.  Whereas opposite party Nos.4 to 7 and 9 to 12 appeared through advocates and filed version. 
5.     Opposite party Nos.4 to 7 and 9 to 12 filed the following version:- there is no liability on the part of these opposite parties.  The complainant is not a consumer.  The act done by opposite party Nos.2 and opposite party No.3 will not binds other opposite parties.  The complainant has no right to file this complaint and the civil courts are competent to deal with these cases.  Claim is barred by limitation, as such opposite party Nos.4 to 7 and 9 to 12 sought for dismissal of this complaint. 
6.     On this contention, this case is set down for evidence.      During evidence, on behalf of complainant, affidavit evidence of complainant is filed and produced the F.D. receipts and further evidence closed.  Opposite parties did not lead any evidence, thereby after hearing arguments of by advocate for complainant, this this matter is set down for judgement.
7.      The points arose for our consideration are:-

1. Whether the complaint is maintainable?
2. Whether the complainant establishes that there is deficiency in service on the part of opposite parties in not refunding the amount deposited by her/him with interest, thereby, the complainant is entitled for the reliefs claimed?
3.  What order?

8.    Our findings on the aforesaid points are as follows:

Point No.1 :- In the affirmative.

Point No.2:- Partly in the affirmative.

Point No.3 :- As per final order for the following

:: R E A S O N S ::

9.    Point No.1:- It is the contention of opposite parties that the complainant is not a “consumer” as defined under C.P.Act and the claim is barred by limitation.  It is not in dispute that the opposite parties accepted deposit made by the complainant with the assurance of refunding the deposits with interest which amounts to receiving of consideration and assuring to extend service to the complainant.  Thereby, there is relationship of “Consumer” and “Service Provider” between complainant and opposite parties.
10. The other point raised by the opposite parties is that the complaint is barred by limitation.  No doubt, the deposits made on 03.07.2006, 22.07.2009 and 23.01.2010 and maturity date is shown as 03.07.2013, 22.07.2013 and 23.01.2012.  Whereas this complaint is presented on 09.09.2014 well within the two years from the date of the maturity dates shown in the deposits.  Apart from that the opposite party has accepted the deposited which was not refunded with interest.  Thereby, the amount is with the opposite parties only till refunding of the amount, cause of action is recurring cause of action, thereby there is no limitation to file this complaint.  As such, this Forum finds that on the above two set grounds, the complaint is maintainable.  Hence, Point No.1 is answered in the affirmative.
11. Point No.2:- The complainant has prayed for a direction to the opposite parties to refund the fixed deposit of Rs.1,50,000/- with interest at 12% p.a. as per the terms of this deposit receipts, the rate of interest is shown as 12% p.a.  Thereby, till payment, the opposite party is liable to pay the F.D. with interest.
12. The contention of opposite party Nos.3 to 7, 9, 11 and 12 are to the effect that opposite party No.2 has lent without any security, the amount belongs to the firm.  Thereby, the opposite party No.2 is personally liable to answer the claim being the Managing Director.  But, for the act done by Managing Director, the other partners cannot be shift their liability since the partnership is a joint venture of the partners including the Managing Partner.  Thereby, the partners as well as Managing Partners are jointly and severally liable to answer the claim and there is deficiency in service on the part of opposite parties in not refunding the amount deposited by the complainant. Thereby, the opposite parties are liable to refund the amount with interest and also to pay a compensation and litigation expenses. Hence, Point No.2 is answered partly in the affirmative.
13. Point No.3:- In view of the findings recorded on point Nos.1 and 2, the opposite parties are to be directed to pay a sum of Rs.1,50,000/- with interest at 12% p.a. from the respective dates of deposits till payment, with compensation of Rs.5,000/- and litigation expenses of Rs.2,000/-.  Hence. Hence, the following

:: O R D E R ::

1. The complaint is partly allowed.
2. The opposite parties are jointly and severally hereby directed to pay a sum of Rs.1,50,000/- with interest at 12% p.a. from the respective date of deposits shown in the F.D.Rs (as per para 2 of order) within 60 days from the date of this order.
3.  The opposite parties are jointly and severally hereby directed to pay a sum of Rs.5,000/- towards compensation and Rs.2,000/- towards litigation expenses, within 60 days from the date of this order.
4. In default to comply, the opposite parties shall pay interest at 12% p.a. on the said total sum of `7,000/- from the date of this order until compliance is made.
5. In case of default to comply this order, the opposite parties shall undergo imprisonment and also liable for fine under section 27 of the C.P.Act, 1986.
6. Give the copies of this order to the parties, as per Rules.

 (Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 11^th November 2016)