D.o.F:17/03/2011
D.o.O:30/9/2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.NO.67/11
Dated this, the 30th day of September 2011
PRESENT:
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.BEENA.K.G : MEMBER
Rameshan. K.K, S/o Kumaran,
R/at Parakatte House, Near Air Camp,
R.D.Nagar PO , Kasaragod. : Complainant
(Adv.George John Plamoottil,Kasaragod)
1.M/s Chieftain Fin Aid,, P.M.Complex, Ist floor,
Vidyanagar,Represented by Managing Partner,
V.K.Sasi, S/o Krishnan Kutty,Vazhaparambil House, :
Amarakkuni,Azramamkolli, Pulpally,Wayanad Dt.
2. Saji.P.O, S/o Ouseph, Circulation Manager,
M/s Chieftain Fin Aid R/at Puthuvanakudiyil House, :
Thazhathoor PO,Cheeral Bathery, Wayanad Dt.
3.Binoy John, S/o Ulahannan, : Opposite parties
Officer Administrator, M/s Chieftain Fin Aid,
R/at Pariyappanal House, Mullankolly Po, :
Pulpally, Wayanad Dt.
4. Jayan Joseph, S/o Joseph, Finance Manager,
M/s Chieftain Fin Aid, R/at Vallikkattil House
Pulpally Po, Wayanad Dt.
5. Baiju.K.K, S/o Joseph,Circulation Manager,
M/s Chieftain Fin Aid,R/at Kallelimoloth House, :
Chettappalam Po,Pulpally, Wayanad Dt.
6. Nijulal G.G, S/o Gopalan, Business Manager,
M/s Chieftain Fin Aid, R/at Geethalayam House, :
Amarakkuni Po ,Azramamkolli, Pulpally,Wayanad Dt.
7. Suresh P.G, S/o Gopalan,
Marketing Manager, M/s Chieftain Fin Aid,
R/at Ponthen Veettil House, Kalanadikolly Po, : Opposite parties
Pulpally,Wayanad Dt.
(Adv.M.M.Nambiar,Kasaragod)
8. K.Raju, S/o Kumaran, Marketing Manager,
M/s Chieftain Fin Aid ,Pulpally,Wayanad Dt. :
(Adv.B.K.Mahin,Kasaragod)
ORDER
SRI.K.T.SIDHIQ : PRESIDENT
The facts of the case in brief are as follows:-
That at the instigation of opposite parties the complainant joined a chitty conducted by the opposite parties for a sala of `1, 00,000/- commenced on 13/10/2009 for 19 months. He was regular in making the payment of subscription amount. But later he came to know that the office of the opposite parties was closed and they were absconded .The complainant paid a total amount of ` 51950/- towards the chitty and he has not received the chitty amount so far. Hence this complaint is filed for necessary relief.
2. For Opposite parties 1 to 7 one counsel filed vakalath but not filed any version . 8th opposite party filed version denying all the allegations made against him in the complaint. The 8 th opposite party contended that he had retired from partnership in 2009 and he is not vested with any power or authority to administer the company and therefore he is unnecessary party to the proceedings and further contended that he is not rendered any service to the complainant and the complainant is not a consumer. Hence the complaint is liable to be dismissed.
3. Here the evidence consists of the evidence of PW1, the complainant and Exts.A1 & A2 documents . On the side of opposite parties no oral evidence adduced .
4. After considering the facts of the case and on perusal of documents the following issues raised for consideration
1. Whether the 8th opposite party is an unnecessary party in the proceedings?
2. Whether there is any deficiency in service on the part of opposite parties?
3. If so, what is the order as to costs and compensation?
5. Before answering the 1st issue that is whether the 8th opposite party is an unnecessary party to this complaint the Forum has to see what is the liability of an incoming partner and outgoing partner towards third parties.
6. As per Sec.31(2) of the Indian Partnership Act of 1932 says “ subject to the provisions of Sec.30 a person who is introduced as a partner into a firm does not there become liable for any act of the firm done before he became a partner.”
7. Here the complainant joined the chitty on 13/10/2009 at that time opposite parties1 to 8 were running the partnership firm jointly.
8. Now the point to be decided is the liability of an outgoing partner or retired partner.
As per Sec.32 ( c )(2) of Indian Partnership Act 1932 (2) A retiring partner may be discharged from any liability to any third party for acts of the firm done before his retirement by an agreement made by him with such third party and the partners of the reconstituted firm, and such agreement may be implied by a course of dealing between such third party and the reconstituted firm after he had knowledge of the retirement.
(3) Notwithstanding the retirement of a partner from a firm, he and the partners continue to be liable as partners to third parties for any act done by any of them which would have been an act of the firm if done before the retirement, until public notice is given of the retirement:
9. Here plain reading of the above section reveals that the burden is on the outgoing partners to settle the liability of third parties unless and until he made an agreement with third parties and public notice is given about the retirement.
10. In this case the opposite parties have no case that they made any agreement with third parties or they have given public notice of the retirement. That means the opposite parties are not complied the above provisions of the Indian Partnership Act and therefore their liability to compensate the complainant is still continuing. They are not unnecessary parties to the proceedings and the 1st issue is answered accordingly.
11. Here the complainant had paid ` 51950/- towards the chitty and non payment of that amount by the opposite parties to the complainant itself forms deficiency in service on the side of the opposite parties. Hence the opposite parties are liable to compensate the complainant.
Therefore the complaint is allowed and opposite parties are jointly and severally directed to pay ` 51950/-(Rupees fifty one thousand nine hundred and fifty only) with interest @9% per annum from the date of complaint till payment and they further directed to pay a cost of ` 2000/- to the complainant. Time for compliance is 30 days from the date of receipt of copy of the order.
Exts:
A1- copy of chitty passbook
A2-copy of deed of Partnership
PW1- Rameshan. K.K - complainant
MEMBER MEMBER PRESIDENT
eva
