BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.1588-2016

DATED ON THIS THE 22^nd December 2017

      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 `44,750/- with interest at 12% p.a on principle amount of Rs.25,000/- from March 2010 till payment and also for payment of compensation and costs.
2.     The brief facts alleged in the complaint are that the opposite party No.1 is the Firm carrying on business of accepting deposits from public and lending money to the public at its principal place of business in Mysuru. Opposite party No.2 to 10 are the partners of the said Firm.  The complainant has deposited a sum of Rs.25,000/- dated 16.10.2008 in F.D. receipt No.544. Opposite party No.1 has paid interest at 12% p.a. on the said deposits up to Feb.2010.  But, thereafter, entire principle amount nor interest was paid.  Opposite party No.2 has assured the complainant to pay the amount in future.  But, there is no response.  Hence, this complaint is filed.  
3.     After registering the complaint, notice was issued to the opposite parties, opposite party No.1 to 4, 6, 7, 9 and 10 absent, placed exparte.  Whereas opposite party Nos.5 and 8 are represented through their advocate and filed the following version:-    complaint is not maintainable,  and it is barred by limitation.  Opposite party No.1 is the firm and others are the partners is admitted by these ops.  Opposite party No.2 has collected money from complainant without the knowledge of other partners.  Thereby, these ops are not liable to pay amount claimed.  The other allegations made are not admitted.  The opposite party No.2 is colluded with complainant and issued the F.D. receipt.  Opposite party No.2 has violated the terms and conditions of the partnership deed.  Opposite party firm was closed on 09.06.2010 and thereby opposite party Nos.5 and 8 sought for dismissal of this complaint.
4.     On this contention, this case is set down for evidence.     During evidence, on behalf of complainant, affidavit evidence was filed, further evidence closed.  Opposite party Nos.5 and 8 not filed affidavit.  After hearing arguments, this matter is set down for orders.
5.      The points arose for our consideration are:-

1. Whether the claim is barred by limitation?
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?

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

Point No.1 :- In the negative.

Point No.2:- Partly in the affirmative.

Point No.2 :- As per final order for the following

:: R E A S O N S ::

7.    Point No.1:- Of course, as per the F.D. receipt produced by the complainant, dated 16.10.2008 and date of maturity is 16.10.2010 for Rs.25,000/-.  If the date of maturity is taken into consideration, the claim is barred by limitation since the complaint was filed on 01.12.2016 not well within the two years from the date of maturity.  But, here is a case where the opposite parties have collected deposit from the complainant and failed to refund the same with interest as on the date of maturity, till opposite parties withhold the amount of the complainant, the cause is continuing one to sue the opposite parties.  Thereby, the contention of opposite party that the complaint is barred by limitation cannot be accepted.  On the other hand, the cause of action is continuing one.  Thereby, the complaint filed in 2016 is well within the time, as such point No.1 is answered in the negative.
8.    Point No.2:-The complainant asserts that he has deposited Rs.25,000/- on 16.10.2008 with opposite party No.1 corporation.  In spite of date of maturity is 2010, the amount of Rs.25,000/- was not repaid.  On the other hand, it is stated in para 5 of the complaint that opposite party No.1 is firm paid to the complainant monthly interest at 12% p.a. on the above deposits till the end of February 2010.  The contention of opposite party Nos.5 and 8 is to the effect that opposite party No.2 being the managing partner was managing the entire affairs of the opposite party No.1 firm.  Thereby, in collusion with complainant he has issued the F.D. receipt produced by the complainant.  Thereby, there cannot be any liability on the part of other ops including opposite party Nos.5 and 8.  But, such contention of opposite party Nos.5 and 8 cannot be taken into consideration since opposite party No.1 is the firm as admitted opposite party Nos.2 to 10 are partners and it is admitted that opposite party No.2 was managing the affairs of opposite party No.1 firm.  If such being the case, it is the duty of the each partner to see that the partnership firm is properly conducting its business or not and opposite party Nos.5 and 8 cannot claim that opposite party No.2 has mismanaged the business of opposite party No.1 firm.  In the circumstances, there is no force in the contention raised by opposite party Nos.5 and 8 relating to their liability.  As such, this Forum finds that the opposite parties committed deficiency in service in not refunding the amount with interest.  Thereby, opposite party Nos.1 to 10 are jointly and severally liable to answer the claim in question.    Hence, point No.2 is answered partly in the affirmative.
9. Point No.3:- In view of the findings recorded on point Nos.1 and 2, opposite parties are liable to answer the claim in question and liable to refund the deposit made by the complainant with interest at 12% p.a. from March 2010 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.25,000/- with interest at 12% p.a. from March 2010 till payment.
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 30 days from the date of this order, failing which, the opposite parties shall pay interest at 12% p.a. on the said total sum of `7,000/- from the date of this complaint i.e. 01.12.2016 till payment.
4. 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.
5. 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 22^nd December 2017)