IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA

Monday the 31^st day of July, 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.133/2016

                                                              between

Complainant:-                                                   Opposite Parties:-

Smt. Manju Mohan                                    1.       M/s.Vidoba Bankers,

D/o M.Mohan                                                      K.P.V/72, Thanky Junction

Sree Ganesh                                                                   Kadakkarappally PO

Thirumalabhagom PO,                                         Cherthala Rept.by Managing

Thuravoor, Cherthala 688540                             Partner, Narasimha Pai

                                                                             S/o Babula Pai,

                                                                                  Vayalapuram Veedu

(By Adv.. N.Ratheesh)                                         Thirumalabhagom PO,

                                                                             Thuravoor,Cherthala 688540

                                                                       (By Adv.JayanC.Das)

2. Smt.Veena Mohan

    D/o M.Mohan

       -do-

                                                                   2.       Sandhya

                                                                             W/oDileepkumar,(Late)

                                                                                   VidobhaMandir,

                                                                                   Thirumalabhagom PO.

                                                                             Thuravoor, Cherthala 688540

                                                                   (By Adv. G.Sunilkumar)

O R D E R

SMT. ELIZABETH GEORGE (PRESIDENT)

          The case of the complainants are as follows:-

The complainants are the legal heirs of deceased M. Mohan @ Mohanan.   On 6/7/12 complainants father deposited an amount of Rs.2,00,000/- with the first opposite party  for a period of one year at the rate of 15% interest.  The said Monahan had savings bank account No.236 with the opposite party band and he had to get 2,05,000/- rupees on 4/4/14 from the savings bank account.  On 6/7/13 when Mr. Mohanan went to the bank he was asked to extent the period of deposit to the next one year.   Mr. Mohanan died on 3/3/2016. 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 Rs.2 lakh on 6/7/12 for a period of one years at the rate of 15% interest per annum to be expired on 6/7/2014.  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 for the following reliefs:-

1. To direct the opposite parties to pay an amount of Rs 2,00,000/- together with 12% interest thereon from the date of complaint till realization of the same from the opposite parties and their assets by creating charge upon the property scheduled hereunder.
2. To award the cost of the proceedings.
3. Making provisions for such other and further reliefs deemed fit.

3.Version of the 1^st opposite party is as follows.

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

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

The allegations that the deceased Dileepkumar approached the complainant etc. are 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. 

3.The complainant filed proof affidavit along with documents.  The documents produced were marked as Ext. A1 and A2.  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, their father deposited with the amount of Rs.2,00,000/- on 06/07/2012 .  In order to prove that she has produced fixed deposit receipts bearing No2664 dated 06/07/12 which marked as Ext.A2.   The allegation of the complainant is that on 06/07/12 he renewed the deposited amount of  Rs.2,00,000/- to the next one year.  But Ext.A2 shows that complainant deposited 2,00,000/- on 06/07/12 for a period of 12 months.  According to the complainant the opposite parties failed to return the matured amount 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 of which the first opposite party and the deceased Dileepkumar were the partners.  The contention taken by the 2^nd opposite party  is that she is the legal heir 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 she 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, 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 of Rs.2,00,000/- with 9%. interest from 06/07/12 till realization.  We further clarify that the liability of the 2^nd 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 party 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 of Rs…………/- (Rupees ………… only) with 9% interest from 06/07/2012 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 an amount of Rs…………../- with interest as charge over the properties of the opposite parties.  Since the primary relief is allowed no order as to cost or compensation.

            The order shall be complied within one month from the date of receipt of this order.

            Dictated to the Confidential Assistance transcribed by him corrected by me and pronounced in open Forum on this the 31^st  day of July, 2017.

                                                                   Smt. Elizabeth George (President)

                                                         Sri. Antony Xavier(Member)

                                                                   Smt. Jasmine. D.  (Member)          

Appendix:-

Evidence of the complainant:-

Ext.A1        -    Copy of Saving account pass book A/c No.236

Ext.A2- Copy of fixed deposit receipt No.2664 dtd 6/7/12

Evidence of the opposite parties:-  Nil

S/