IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA

Thursday the 28th   day of September, 2017.

Filed on 08/04/2016

Present

 1.Smt. Elizabeth George, President

 2. Sri. Antony Xavier(Member)

 3.    Smt. Jasmine.D. (Member)               

     in 

  C.C.No.128/2016

                                                              between

Complainant:-        Opposite Parties:-

Sri. Johnson.K.D                     1         M/s.Vidoba Bankers,

S/o Devassy           K.P.V/72, Thanky Junction

Karamoottil veedu Kadakkarappally PO

Aroor.P.O                     Cherthala Rept.by Managing 

Alappuzha                                Partner, Narasimha Pai

Pin 688 534                      S/o Babula Pai, 

                                                                                  Vayalapuram Veedu

                               Thirumalabhagom PO,

Thuravoor,Cherthala 688540 

 

2 Smt. Sandhya 

W/oDileepkumar(Late), Vidoba 

                                                                                   Mandir, Thirumalabhagom PO.

Thuravoor, Cherthala 688540

          

 

O R D E R 

SMT. ELIZABETH GEORGE (PRESIDENT)

 

The case of the complainant is as follows:-

The complainant is a depositor with the first opposite party firm. The deceased Dileepkumar was the Managing Partner of the firm.   The Managing Partner deceased Dileepkumar approached the complainant and requested to deposit amount with them and he offered attractive rate of interest to  the complainant and thereby induced the complainant to deposit  an amount Rs. 1,00,000/- on 22/1/11, Rs.67,000/- on 2/2/12, Rs.85,000/- on 3/12/12 , Rs. 1,00,000/- on 3/2/12 and Rs.80,000/- on 20/4/16 with 18%  deposited for a period of one year.  The complainant also remitted Rs.2500/- each in 19 times instalments in chitty No. 83 conducted by the opposite party.  There after again extended deposit which expired on 22/1/12 for a period of 3 years and the deposit which expired 2/2/13 for a period of  2 years and the deposit which expired on 3/12/13 and 20/4/14 for a period of one year.  The said Dileepkumar was died on 31/01/2014.  Thereafter the complainant had on several occasions approached the opposite parties to return the amount covered under aforesaid fixed receipts together with agreed rate of interest however, they denied the assured service to the complainant by stating one reason or the other.  There is dereliction of service on the part of the opposite parties, and they are liable to compensate the same also.   Alleging deficiency in service on the part of the opposite parties the complaint is filed. 

2. The version of the 1st opposite parties is as follows:-

There is no consumer and service rendering party relationship between the opposite parties. There is no legal sustainability of the complaint.  On the death of one of the partner the firm is dissolved if so facts and there is no firm existing as alleged by the complainant.

3.  The version of the 2nd opposite party is as follows:-

The allegation that the deceased Dileepkumar approached the complainant etc. is put to strict proof.  The complaint is unsustainable as per the provisions of law. There is no consumers and service vendor ship party relationship between the parties.

4.   Complainant filed proof affidavit and documents produced were marked as Ext.A1 to Ext.A7. No oral or documentary evidence adduced from the part of the opposite parties.

5.  The points for consideration are:-  

1)Whether there is any deficiency in service on the part of the opposite parties?

2)  If so the reliefs and costs?

6.  According to the complainant he deposited with the firm an amount of Rs.1,00,000/- on 22/1/11 Rs.67,000/- on 2/2/12, Rs.85,000/- on 3/12/12 , Rs. 1,00,000/- on 3/2/12 and Rs.80,000/- on 20/4/16 with 18%  for a period of one year   .  The further allegation of the complainant is that the opposite parties failed to return the said amounts to the complainant after the maturity date. It has not been denied by the opposite parties that the amounts in question were not deposited by the complainant with the firm the first opposite party and the deceased Dileepkumar were the partners.  The contention taken by the 2nd opposite party is that she is the legal heirs of deceased Dileepkumar and she never be held to be liable for deficiency of service, since there is no consumer/ vendor relationship with the legal heirs of the deceased partner.  In this case complainant has made deposit with a firm expecting financial returns on the same and hence he is entitled to get the amount from the opposite parties.  As per section 35 of the Indian Partnership Act, 1932  “Where under a contract between the partners the firm is not dissolved by the death of a partner,  the estate of a deceased partner is not liable for any act of the firm done after his death.” In the instant case, the claim of the complainant is that the deceased Dileepkumar and first opposite party were the partners of the firm and the complainant deposited the amount at the instance, of the deceased Dileepkumar.  As per Section 35 of the  Indian Partnership Act the asset of  a deceased partner  is not liable for any act of the firm done after his death only.  Hence opposite parties are directed to return the deposited amount by the complainant with 9% interest from the date of complaint till realization.   We further clarify that the liability of the 2nd opposite party is limited only to the extent of value of the properties inherited by her from deceased partner named Dileepkumar.  The complainant is at liberty to proceed against such properties of the opposite parties for realization of the amount subject to the above limitation.  

In the result, complaint is allowed.  The opposite parties are directed to return the amount deposited by the complainant is as follows:-  

1) Rs.1,00,000/- with 9% interest from 22/1/12 till realization.

2) Rs.67,000/- with 9% interest from 2/2/13 till realization.

3) Rs.85,000/- with 9% interest from 3/12/12 till realization.

4) Rs.1,00,000/- with 9% interest from 3/12/12 till realization

5) Rs.80,000/- with 9% interest from 20/4/14 till realization

6) Rs.95,000/- with 9% interest from 23/5/14 till realization.

 The order shall be complied within one month from the date of receipt of this order.  In default complainant is allowed to realize the amount with interest as charge over the properties of the opposite parties.  Since the primary relief is allowed no order as to cost and compensation.

 Pronounced in Open Forum on this the day of 28th day of September, 2017.

                                                                Sd/-Smt. Elizabeth George (President) 

  Sd/-Sri. Antony Xavier (Member)             Sd/- Smt. Jasmine. D.  (Member)     

    Appendix:-

Evidence of the complainant:- 

Ext.A1         - Fixed Deposited dtd.22/1/11.

Ext.A2         - Fixed Deposited dtd 02/2/12

Ext.A3 - Fixed Deposited dtd 03/12/12

Ext.A4         -         Fixed Deposited dtd 3/12/12

Ext.A5        -          Fixed deposited dtd 20/4/14

Ext.A6        -          Chitty Book

Ext.A7        -          Chitty Book    

Evidence of the opposite parties:-  Nil

 

//True Copy//

 

By Order

 

Senior Superintendent

To

     Complainant/Opposite party/S.F

Typed by:br/

Compared by: