IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President<br /> <br /> <br /> 2. G.V.Balasubramanya<br /> B.E., LL.M - Member<br /> <br /> CC 181/06 DATED 28-11-2006<br /> <br /> Complainant Smt. Jyothi Jayasen KumarW/o Late Jayasen Kumar,D.No.2678, Hallada Keri, Mahaveera Nagar, Mysore.<br /> (By B.K., Advocate)<br /> Vs. <br /> Opposite Party M/s Nimishamba Finance Corporation, Rep. by it’s Managing partner, Sri.Nemichandra, S/o late Bommarasaiah, Mahaveera Road, Saligrama, K.R.Nagar Taluk, Mysore District.<br /> (By S.Shivanna, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 26-06-2006<br /> Date of appearance of O.P. : 18-07-2006<br /> Date of order : 28-11-2006<br /> Duration of Proceeding : 4 MONTHS<br /> <br /> <br /> <br /> <br /> <br /> MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> Sri.G.V.Balasubramanya,<br /> Member,<br /> <br /> 1. The opposite party is a financial corporation run as a registered partnership firm and represented herein by its Managing Partner. The complainant says that in the months of February and March, 2000 she deposited a total amount of Rs.2,00,000 with the opposite party. The deposits carried interest at 2.5% p.m. <br /> <br /> 2. It is the case of the complainant that the opposite party stopped paying interest on the deposits from the month of January, 2005. Legal notice sent to the opposite party did not fetch any reply. Hence, she has filed this complaint. She has prayed that the opposite party be directed to repay the principal sum of Rs.2,00,000/- along with agreed rate of interest from January, 2005. She, also, wants compensation of Rs.50,000/- and cost of Rs.2000/-.<br /> <br /> 3. The opposite party has filed his defence. He says that he is unconnected with the management of the opposite party and that he is only a manager on a monthly salary of Rs.1200/-. It is further contended that the complainant herself was a partner of the firm and the financial corporation commenced operations in her premises only. It is, also, alleged that the entire assets of the firm was taken away by her illegally without rendering accounts and the financial corporation closed in the year 2004.<br /> <br /> 4. The opposite party says that the deposit made by the complainant was in reality her capital towards the financial corporation out of which she has received back Rs.1,79,750/- on various dates in the year 2001. There are, also, other allegations in the version relating to the complainant’s husband that he has received Rs.30,000/- from the financial corporation and that he has mismanaged the affairs of the firm, etc.<br /> <br /> 5. The opposite party has, also, contended that the partnership firm is not yet dissolved and as such this dispute has to be resolved in a civil court. Further, it is averred that the accounts of the firm are not yet audited and the complainant being a partner can not treat her contribution as debt.<br /> <br /> 6. From the above contentions the following points arise for our consideration:<br /> <br /> I. Whether the complaint is maintainable? <br /> II. Whether the complainant proves that the opposite party has rendered deficient service by not repaying her deposits?<br /> III. What relief or order?<br /> <br /> 7. Our findings are as under:<br /> <br /> Point No.I: In the affirmative<br /> <br /> Point No.II: Partly in the affirmative<br /> <br /> Point No.III: As per final order<br /> <br /> <br /> REASONS<br /> <br /> 8. Point No.I :- The opposite party has raised certain objections about the maintainability of the complaint. They are (a) that he is only an employee as such the complainant has to sue the firm, (b) that the complainant herself being a partner, and that the deposits about which this complaint has been brought is in fact her capital in the firm, since the accounts of the firm are not yet audited and as such the matter has to be relegated to a civil court for comprehensive disposal. <br /> <br /> 9. There is no dispute that Nimishamba Finance Corporation is a registered partnership firm. It is a legal entity which can sue and be sued under the name of the firm. Hence, any order we pass will be against the firm and not against any individual. Such order against the partnership firm will bind all the partners including the managing partner. The letter dated 27.05.2005 produced by the Opposite party which is his resignation clearly indicates that he was himself the Managing Director. Further, the complainant has produced a copy of the letter written by the opposite party to her on 8.7.2006 wherein he has admitted that he is the managing partner of the firm. We have already disposed of an application by the opposite party to implead other partners as opposite parties holding such application as untenable. The opposite party has admitted that the partnership firm is not yet dissolved. He has produced a copy of the partnership deed. The person who has sworn to the affidavits in this complaint as opposite party is the first named partner in the deed. Of course, the deed bears the name of the complainant as well. <br /> <br /> 10. Coming to the allegation that the complainant herself is a partner and the deposits made by her was in reality her capital, we would like to make clear that any understanding inter se between the partners would not concern us so long as the firm has accepted the money in the form of deposits and issued receipts with a promise to return it with interest. Allegations of mismanagement, settlement of accounts, etc., are not material for deciding whether the opposite party has committed deficiency in service or not. <br /> <br /> 11. It is not out of place to quote here that this Forum had passed an order in C.D 284/04 against the same opposite party wherein similar contentions had been taken by him. The complainant has filed a copy of that complaint along with a certified copy of the order of this Forum. Holding the act of not refunding the deposit to the complainant as deficiency in service, that complaint was allowed by this Forum. In view of these facts, we conclude that the complaint is maintainable even without all the partners being made as parties and answer the point in the affirmative.<br /> <br /> 12. Point II:- The complainant has produced 4 original deposit receipts issued by the opposite party. One deposit of Rs.50,000/- has been made on 10.02.2000 and the other three deposits of Rs.50,000/- each have been made on 03.03.2000. The scheme though titled as “º¸°þÈÐå ƒÀи° ÙÓÀÐ±Ò ¦ÙÖÓ¡¹Ù” does not reveal the repayment date. But the rate of interest is mentioned as 2.5% p.m. The receipts have been signed by the managing partner who is the opposite party herein. As against this, the opposite party has produced debit vouchers dated 15.3.2001, 15.9.2001and 30.9.2002. All the vouchers have been signed by the complainant. The first debit voucher is for Rs.1,00,000/- and bears the words “Ret F.D amount Bond No.20 & 21”. The bond numbers are nothing but deposit receipt numbers. The second voucher is for Rs.40,000/- and does not contain any details. The third voucher is for Rs.39,750/-. It is mentioned on the voucher that the amount is towards refund of F.D of Rs.35,000/- and interest of Rs.4750/-. None of these vouchers have been disputed by the complainant. Though the second voucher for Rs.40,000/- does not reveal the details as to whether it is towards repayment of deposit or towards interest on the deposit, looking at the copy of the ledger extract of the interest paid to the complainant we can draw an inference that it was towards repayment of deposit. Hence, it must be deemed that the complainant has received repayment of Rs.1,75,000/- out of the deposit of Rs.2,00,000/-. <br /> <br /> 13. Though the opposite party has not explained as to how the original deposit receipts are still with the complainant, looking at the deposit receipts it is clear that they are not meant to be returned at the time of repayment as the receipts do not have the due date mentioned on them nor any provision for discharging them at the time of refund. Further, the refunds have been made through debit vouchers which have not been disputed by the complainant and bear her signature. Hence, all that complainant has to get is Rs.25,000/- towards the principal and interest thereon. To that extent, there is deficiency in service and we hold the point partly in the affirmative.<br /> <br /> 14. Before we conclude, we would like to observe that from the documents produced by both the parties it is clear that the business undertaken by the partners is a case of grapes turning sour too soon. The letter dated 8.7.2006 written by the opposite party to the complainant on which the complainant has heavily relied upon to show that the opposite party is the managing partner of the firm, contains many things about the conduct of the complainant. It is clear that the firm was functioning in the complainant’s premises and that it stopped functioning more than two years back. The opposite party has made a serious allegation that the complainant has mischievously given the address of the firm as the address of the opposite party so that the notices sent from the Forum are returned with an endorsement “refused”. It is obvious that the complainant has not approached this Forum with clean hands. She has not only received back a major part of her deposit but has, also received some interest. As she has suppressed these facts with an intention to mislead the Forum, we feel she is not entitled to the unpaid interest on the balance amount of the principal. With these observations we proceed to pass the following order.<br /> <br /> ORDER<br /> <br /> A. Complaint is partly allowed.<br /> B. The opposite party firm is directed to pay the complainant Rs.25,000/- within 2 months from the date of this order failing which the said amount will carry interest at 10% p.a thereafter until the date of payment.<br /> C. No costs.<br /> D. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 28th November 2006)<br /> <br /> <br /> <br /> (G.V.Balasubramanya) (D.Krishnappa) <br /> Member President <br /> <br />