IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA

Saturday 30th day of December 2017.

Filed on  31-08-2017

Present

1.  Smt. Elizabeth George, President

2.  Sri. Antony Xavier (Member)

3.  Smt. Jasmine.D. (Member)              

       in 

  C.C.No.236/2017

                                                 between

Complainant:-                                 Opposite Parties:

 

Sasikala M .Shenayi            1.    M/s.Vidoba Bankers, KP V/72

   W/o K.Muraleedhara Shenoy,   Thanky Junction,  Kadakkarappally P.O.

   Krishna Gardens                   Cherthala,Rept.by Managing

   L.G.Pai Road,T.D.West Gate, Partner, Narasimha Pai

   Mattancherry, Kochi-2                                        S/o Babula Pai (late)

   (By Adv. N. Ratheesh)                                       Vayalapuram veedu,

          Thirumalabhagom PO,

            Thuravoor,Cherthala – 688540 

               

2 Smt. Sandhya 

W/o Late Dileepkumar,  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 approached the complainant and requested to deposit amount with them and he offered attractive rate of interest to the complainants  and thereby induced the complainant to deposit Rs.3,00,000/- at 18%interest on 07/2011,Rs.2,50,0000/-at 18% interest on 22/09/2011and 3,00,000 at 12%interest on 20/04/2013 for the period of 3 years.  The said Dileepkumar was died on 31/1/2014. There after 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 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.  Notice issued against opposite parties 1&2 served but they did not turn up.  Hence they were set ex-parte.

         3. The complainant filed proof affidavit along with documents.  The document produced was marked as Ext. A1to A3.  No oral or documentary evidence adduced from the part of the opposite parties.  

         4.  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?

5.  According to the complainant, they deposited with the firm an amount of Rs.3,00,000/- on 20-07-2011 as per receipt No.2885, Rs.2,50,000/-on 22-09-2011 as per receipt No.2809 and Rs.3,00,000/-as per receipt No.2547 on 20/04/2013. In order to prove that he has produced fixed deposit No.639/050/11 Dated: 20-07-11, Fixed deposit No.658/078/11 Dated  22-09-11 and Fixed  deposit No.973-059-13 

Dated. 20-04-13 which marked as Ext.A1 to A4.  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 of which the first opposite party and the deceased Dileepkumar were the partners.  The affidavit filed by the complaint not challenged by the opposite parties.  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 was the partners, of the  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 act of the firm done after his death only. In this case Ext.A1 to A3 show that the complainant has got interest till January 2014.   Hence opposite parties are directed to return amount of Rs. 8,50,000/-with 9% interest from February 2014 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 them 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, the complaint is allowed.  The opposite parties are directed to return the amount of Rs.8,50,000/- with 9% interest from February 2014 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 above mentioned amount charge over the properties of the opposite parties.  Since the preliminary relief is allowed no order as to cost and compensation.  The order shall be complied within one month from the date of receipt of this order.

Pronounced in open Forum on this the 30th day of December 2017.

Sd/- Smt. Elizabeth George (President) 

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

 

Appendix:-

Evidence of the complainant:-

 

Ext.A1        -  Fixed Deposit receipt No.2464

Ext.A2        -  Fixed Deposit receipt No.2465  

Ext.A3        -  Fixed Deposit receipt No.2466

 

Evidence of the opposite parties:-  Nil

 

 

 

//True copy//

By Order

 

 

 

Senior Superintendent

To

Complainant/Opposite parties/S.F

 

Typed by: Br/-

Comped . by: