Kerala

Trissur

CC/07/650

N.A.Haseena - Complainant(s)

Versus

Ms.Cochin Bearing Centre Kaloor - Opp.Party(s)

A.D.Benny

03 Sep 2008

ORDER

CONSUMER DISPUTES REDRESSAL FORUM
AYYANTHOLE
THRISSUR-3
 
Complaint Case No. CC/07/650
( Date of Filing : 27 Jun 2007 )
 
1. N.A.Haseena
Naduvilaparambil(H)P.O.Pulloott
...........Complainant(s)
Versus
1. Ms.Cochin Bearing Centre Kaloor
Rep.by Managing Partner Punnilath Muhammed Salim.
2. P.M.Muhammed Salim
Mng.Partner,C.B.Centre,Punnilath (H) Edappilly North
Trissur
Kerala
3. A.A.Rahim
Partner,C.B.Centre,Andiyakath (H),P.O.Kaipamangalam
Trissur
Kerala
4. N.A.Abdul Rahim
Partner,C.B.Centre,Njarakkattil (H)P.O.Perinjanam
Trissur
Kerala
5. K.K.Aboobakkar
Partner,C.B.Centre,Karukapadath Vediyil(H)P.O.Thrikkakkara,Ekm.
Trissur
Kerala
6. p.m.muhammed
Partner,C.B.Centre,Elamakkara P.O.,Ekm.
Trissur
Kerala
7. P.M.Muhammed Sanil
Partner,C.B.Centre,Punnilath (H),Edappilly North.
Trissur
Kerala
8. P.M.Haris
Partner,C.B.Centre,Punnilath (H) Elamakkara P.O.,Ekm.
Trissur
Kerala
............Opp.Party(s)
 
BEFORE: 
 
PRESENT:A.D.Benny, Advocate for the Complainant 1
 M.Sathyanadhan, Advocate for the Opp. Party 1
 Adv.M.Sathyanadhan, Advocate for the Opp. Party 1
 Advocate M.Sathyanadhan, Advocate for the Opp. Party 1
Dated : 03 Sep 2008
Final Order / Judgement

Present:  1. Sri.P.K.Sasi, President.

                                         2. Smt. Sheena.V.V., Member.

                                         3. Sri.M.P.Chandrakumar, Member

 

                                     30th  day of  November 2017

 

CC.646/07, CC.647/07, CC.648/07, CC.649/07 & CC.650/07 filed on 27/6/07                         

 

                                                COMMON  O R D E R

 

By  Sri.P.K,.Sasi, President

                                                CC.646/07

Complainant    : K.B.Mariyumma, Kannamkulath House, P.O.North Pulloot, Kodungallur.

                          (By Adv.A.D.Benny, Thrissur)

 

Opposite Parties          :           1. M/s.Cochin Bearing Centre PB No.4206,    

                                                    Judges Avenue, P.O.Kaloor, Kochi, rep. by 

                                                    Managing  Partner, Muhammed Salim,

                                                   S/o.Punnilath Moideen Bava.

                                                2. P.M.Muhammed Saim, S/o.Punnilath

                                                    Moideen Bava, Managing Partner, Cochin

                                                    Bearing Centre, 35/2509 Bhagyatara Road,

                                                    Punnilath House, Near Abad Flat,

                                                    Karukapilly Junction, Edappilly North

                                                    Village, Kanayannur Taluk, Ernakulam.

                                                3. A.A.Rahim, S/o/Abdul Khadar, Partner,

                                                    Cochin Bearing Centre, Andiyakath House,

                                                    Kaipamangalam.P.O., Kodungallur Taluk,

                                                    Thrissur.

                                                4. N.A.Abdul Rahim, S/o.Njarakattil Abdul

                                                    Khadar, Partner, Cochin Bearing Centre,

                                                    Kaipamangalam Village, P.O.Perinjanam,

                                                    Thrissur.

                                                5. K.K.Aboobakker, S/o.Kochunni, Partner,

                                                    Cochin Bearing Centre, Karukapadath

                                                    Vediyil, Near  Cochin Public School,

                                                    P.O.Thrikkakara, Vazhakala Village,

                                                    Kanayannur Taluk, Ernakulam.

                                                6. P.M.Muhammed, S/o.P.K.Moideen Bava,

                                                    Partner,  Cochin Bearing Centre,

                                                    B.T.S.Avenue Road, Near Keerthi Nagar,

                                                    B.T.S.Road, Elamakkara.P.O., Edappilly

                                                    North Village, Kanayannur Taluk,

                                                   Ernakulam.

                                             7.  P.M.Muhammed Sanil, S/o.Punnilath

                                                   Muhammed Salim, Partner, Cochin Bearing

                                                   Centre, Bhagyatara Road, Punnilath House,

                                                   Near Abad Flat, Karukapilly Junction,

                                                   Edappilly North Village, Kanayannur Taluk,

                                                   Ernakulam.

                                               

                                                8.P.M.Harris, S/o.Punnilath  Muhammed,

                                                   Partner,  Cochin Bearing Centre,

                                                   B.T.S.Avenue Road, Near Keerthi Nagar,

                                                   B.T.S.Road, Elamakkara.P.O., Edappilly

                                                   North Village, Kanayannur Taluk,

                                                   Ernakulam.

                                                (By Adv.John Numpeli(Junior), Kochi for

                                                OP1, OP2 & OP7)

                                                (By Adv.M.Sathyanadhan, Thrissur for                                                                                 OP5, P6 & OP8)

                                                (OP3 & OP4 set exparte)

 

                                                                        ……..

 

            The case of the complainant is that she has deposited Rs.1,00,000/- with the 1st opposite party company on 26/2/2005.  The 2nd opposite party was the managing partner and  3rd to 8th opposite parties were the partners of the firm.  The opposite parties assured 15% interest  for the deposit.  Accordingly up to November 2005 they paid the interest for the deposit.  Thereafter neither any interest paid nor  the deposit amount returned.  When the opposite parties  defaulted to pay the interest, the complainant approached them and demanded the deposit amount.  Whereas the opposite parties prolonged the matter saying some or other reason  without returning the amount.  Hence the complainant demanded the amount with interest at last on 6/10//06.  But the opposite parties have not returned any amount to the complainant.  The opposite parties received the  deposit amount and paid the interest to the complainant within the jurisdiction of this Forum.    The act of the opposite parties, after collecting the deposit amount and without returning it amounts to deficiency in service as well as unfair trade practice on their part.  Hence this complaint is filed for getting relief.

                                                            C.C.647/07

Complainant   :   K.B.Mariyumma, Kannamkulath House, P.O.North Pulloot, Kodungallur.

                            (By Adv.A.D.Benny, Thrissur)

                                                    …..

            2.The case of the complainant is that he has deposited Rs.25,000/- with the 1st opposite party company on 2/9/2003.  The 2nd opposite party was the managing partner and  3rd to 8th opposite parties were the partners of the firm.  The opposite parties assured 15% interest  for the deposit.  Accordingly up to November 2005 they paid the interest for the deposit.  Thereafter neither any interest paid nor  the deposit amount returned.  When the opposite parties  defaulted to pay the interest, the complainant approached them and demanded the deposit amount.  Whereas the opposite parties prolonged the matter saying some or other reason  without returning the amount.  Hence the complainant demanded the amount with interest at last on 6/10/06.  But the opposite parties have not returned any amount to the complainant.  The opposite parties received the  deposit amount and paid the interest to the complainant within the jurisdiction of this Forum.    The act of the opposite parties, after collecting the deposit amount and without returning it amounts to deficiency in service as well as unfair trade practice on their part.  Hence this complaint is filed for getting relief.

                                                            CC.648/07

Complainant   :   K.B.Mariyumma, Kannamkulath House, P.O.North Pulloot, Kodungallur.

                            (By Adv.A.D.Benny, Thrissur)

                                                                …..

            3.The case of the complainant is that he has deposited Rs.50,000/- with the 1st opposite party company on 16/2/2001.  The 2nd opposite party was the managing partner and  3rd to 8th opposite parties were the partners of the firm.  The opposite parties assured 15% interest  for the deposit.  Accordingly up to November 2005 they paid the interest for the deposit.  Thereafter neither any interest paid nor  the deposit amount returned.  When the opposite parties  defaulted to pay the interest, the complainant approached them and demanded the deposit amount.  Whereas the opposite parties prolonged the matter saying some or other reason  without returning the amount.  Hence the complainant demanded the amount with interest at last on 6/10/06.  But the opposite parties have not returned any amount to the complainant.  The opposite parties received the  deposit amount and paid the interest to the complainant within the jurisdiction of this Forum.    The act of the opposite parties, after collecting the deposit amount and without returning it amounts to deficiency in service as well as unfair trade practice on their part.  Hence this complaint is filed for getting relief.

           

                                                     CC.649/07

 Complainant   :   K.B.Mariyumma, Kannamkulath House, P.O.North Pulloot, Kodungallur.

                            (By Adv.A.D.Benny, Thrissur)

                                                            …..

            4.The case of the complainant is that he has deposited Rs.50,000/- with the 1st opposite party company on 28/12/2001.  The 2nd opposite party was the managing partner and  3rd to 8th opposite parties were the partners of the firm.  The opposite parties assured 15% interest  for the deposit.  Accordingly up to November 2005 they paid the interest for the deposit.  Thereafter neither any interest paid nor  the deposit amount returned.  When the opposite parties  defaulted to pay the interest, the complainant approached them and demanded the deposit amount.  Whereas the opposite parties prolonged the matter saying some or other reason  without returning the amount.  Hence the complainant demanded the amount with interest at last on 6/10/06.  But the opposite parties have not returned any amount to the complainant.  The opposite parties received the  deposit amount and paid the interest to the complainant within the jurisdiction of this Forum.    The act of the opposite parties, after collecting the deposit amount and without returning it amounts to deficiency in service as well as unfair trade practice on their part.  Hence this complaint is filed for getting relief.

           

                                                CC.650/07

Complainant    :           Haseena.N.A., Naduvileparambil House, Pulloot.P.O., Kodungallur.

                                    (By Adv.A.D.Benny, Thrissur)

                                                ……..

            5.The case of the complainant is that he has deposited Rs.1,00,000/- with the 1st opposite party company on 1/1/2004.  The 2nd opposite party was the managing partner and  3rd to 8th opposite parties were the partners of the firm.  The opposite parties assured 15% interest  for the deposit.  Accordingly up to November 2005 they paid the interest for the deposit.  Thereafter neither any interest paid nor  the deposit amount returned.  When the opposite parties  defaulted to pay the interest, the complainant approached them and demanded the deposit amount.  Whereas the opposite parties prolonged the matter saying some or other reason  without returning the amount.  Hence the complainant demanded the amount with interest at last on 6/10/06.  But the opposite parties have not returned any amount to the complainant.  The opposite parties received the  deposit amount and paid the interest to the complainant within the jurisdiction of this Forum.    The act of the opposite parties, after collecting the deposit amount and without returning it amounts to deficiency in service as well as unfair trade practice on their part.  Hence this complaint is filed for getting relief.

            6.Being noticed on the complaint, all the opposite parties entered appearance through different counsels.  In all the opposite parties are same.  The 1st, 2nd and 7th opposite parties filed a common version, in which they have denied all the allegations raised in the complaint in detail.  According to them this complaint cannot be considered as a consumer complaint as contemplated under Section 2(0 ) of the Consumer Protection Act 1986.  There is no service availed by the complainant from the opposite parties.  They further contended that this Forum does not have territorial jurisdiction to entertain this complaint.  According to them the 1st opposite party is a firm having its registered office at Kaloor, Ernakulam and all other opposite parties are  only partners of the 1st opposite party firm.  Since the opposite parties worked for gain at Ernakulam, this Forum  do not have jurisdiction to entertain the above complaint.  Only the 3rd and 4th opposite parties having  their  residential address within the jurisdiction of this Forum.

 

            7.These opposite parties further submitted that the above  complaint is barred by limitation.  The complainant paid Rs.40,000/- to the 1st opposite party on 1/8/98.  There was no  term fixed for the alleged deposit.  Therefore the period of limitation starts from the date of deposit, that is from 1/8/98.  Since the complaint is filed  long  after the period of limitation, this complaint is barred by limitation.

 

            8.According to these opposite parties, the 1st opposite party is a registered firm and not a banking company.  The object of the firm is to carry on the trading of all kinds of bearings   including the imported items automobile spare part accessories, lubricants, oils and other consumables.  The firm was making good profit in business from 1993 onwards.  The Cochin Bearing centre was accepting deposits from the persons who are interested in business from 1993 onwards.  The 1st opposite party being the  managing partner was running the business successfully as per the decision of the partners.  The profit  from the firm was proportionately distributed to all the persons who were made investments and the deposits.   It was specifically informed to the depositors that the deposit received from them shall be subject to market risk.  Attracted by the profits of the firm, many persons including the complainants expressed their willingness to invest some capital towards business, so that they can get profit share.  These opposite parties denied the averment stated in the complaint that the 1st opposite party agreed   to pay interest at the rate of 12% per annum.  Accordingly profit shares were given to the complainant at the rate varying from 12% to 24% during various years till December 2005.  Thereafter, the profit share could not be given as they suffered huge losses in the business.  They further submitted that the opposite parities never requested the complainant to deposit any amount with Cochin  Bearing Centre and never agreed to return the said amount on demand.  The complainant invested the amount to the 1st opposite party firm subject to the marked risk and they are entitled for profit share only when the firm  capable to making profit.  Due to the illegal acts of  the complainants and other similarly  situated  persons the business  of the  firm was closed down and the complainants  relative one Mr.K.A.Muhammed Ibrahim was acting as a member of the  monetary committee  formed by the depositors along with others had forcefully taken  away the documents of the firm in an attempt to close down the business  and  malign  the opposite parties.  According to them the complainant is entitled for profit share, only when the business is running profit  and the complainant is duty bound to share the loss of the business also.

 

            9. They denied the averments stated in the 2nd para of the complaint.  The complainant never approached the opposite parties for return of the amount.  These opposite parties admitted that the profit share was  paid upto December 2005 to the complainants.  And thereafter they were unable to pay off  the profit share, that the business entered in huge loss.  The nonpayment of profit share was informed to the depositors including the complainant.  The complainant along with others also given a complaint to the Police.  But the same was in vain.  They also had taken high  handed action along with their relatives and certain other depositors, which resulted in the running of the goodwill of the firm.  They further submitted that they have never tried to  cheat any of the depositors including the complainants.

 

            10. These opposite parties further submitted that the complainants have not availed any service from the opposite parties as contemplated under the provisions of the Consumer Protection Act.  They also submitted that they have not committed any sort of deficiency in service or unfair trade practice towards the complainant.  All the opposite parties tried to sort out the matter by continuing to run the business of the firm which should have been picked up if the complainants along with other depositors were willing to wait till the finance of the firm recovered. instead of that the complainants along with others formed into a group   and together demanded back entire deposits and created all kinds of nuisance against the   continuance of the business.  They also raised false allegations and complaint before the Police.  They further submitted that there was no agreement to return the alleged deposit.  The agreement  was only to pay profit share.  Profit share from December 2005was not paid that the firm faced huge loss in business.  They also submitted that the complainants are bound to suffer the losses to the extent of their deposit.  The complainants are  not entitled to get the deposit amount returned.  They prayed for the dismissal of the complaint with cost.

 

            11. 5th, 6th and 8th opposite parties jointly filed another version in which they have also raised similar contentions raised by other opposite parties regarding the maintainability and the jurisdiction of this complaint.  These opposite parties contended that they have not collected any amount from the complainant and they also not paid any profit share or interest to the complainant.  If at all any transactions were made between the complainant and the 2nd opposite party without the consent and knowledge of these opposite parties, they are not liable to pay any single paise to the complainant based on such transaction.  They never offered any service to the complainant.  They categorically denied all the allegations stated in the complaint in detail.  According to these opposite parties a partnership deed was created by the 2nd opposite party and the entire transactions were directly conducted and controlled by the 2nd opposite party only.  These opposite parties were   sleeping partners only.  No decisions were taken by the partners to conduct any banking business by the firm.  Similarly no decision was taken either to accept deposits or to pay any interest on that deposit.  All the alleged deposits were accepted by the 2nd opposite party as per his own wish and will.  Therefore these opposite parties are not liable for that.  The 2nd opposite party has collected deposits from several persons not in the ordinary course of business of the firm.  For the illegal act committed by the 2nd opposite party, other partners cannot be held liable.  The 2nd opposite party misused the reputation of the firm to make benefits to himself.  For those illegal acts, these opposite parties cannot be held liable.  The 2nd opposite party has not published the account of the firm to  other partners.  No partners, except the 2nd opposite party, collected any amount as deposit from any persons.  They also not assured to anybody regarding interest for the deposits.

 

            12.The deposit admittedly collected by the 2nd opposite party has not shown in the accounts of the firm and except the 2nd opposite party, no other opposite parties had received any benefits of the deposits collected by the 2nd opposite party in the  name of the firm.  He collected the deposits only for his personal benefits.

 

            13. According to these opposite parties the 5th opposite party was occupied several reputed posts in several committees and social organizations.  Such a person never commits such illegal acts as alleged in the complaint.  These opposite parties are included in the complaint only with a malafide intention to make undue gain by raising threat against their reputation.  They further submitted that they have not committed any sort of deficiency in service or unfair trade practice towards the complainant or anyone else and prayed for the dismissal of the complaint with cost.   

           

            14.Then the case was tried jointly by allowing the application filed from the side of opposite parties.  Common evidence was adduced by both sides.  The points for consideration are that:

1) Whether the complaint is maintainable ?

2) Whether this Forum has got jurisdiction to entertain these complaints?

3) Whether any unfair trade practice  or deficiency in service happened on the part of opposite parties ?

4) If so what costs and reliefs ?

            15.From the side of complainants Smt.K.B.Mariyumma was examined as PW1 and filed proof affidavit in which she has affirmed and explained all the averments stated in the complaints in detail.  She has also produced 15 documents which are marked as Exts.P1 to P15.  Ext.P1 is cash receipt   No.060 for Rs.50,000/- dtd. 16/2/2001,  Ext.P2 is cash receipt No.115 for Rs.50,000/- dtd. 28/12/2001, Ext.P3 is cash receipt No.216 for Rs.25,000/- dtd. 2/9/03, Ext.P4 is  cash receipt No.363 for Rs.1,00,000/- dtd. 1/1/04, Ext.P5 is cash receipt No.422 for Rs.1,00,000/- dtd. 26/2/05,Exts.P6, P7, P8 and P9 are  copies of lawyer notice dtd.  10th October, Exts.P10, P11, P12, P13, P14 are  postal receipts  and Ext.P15 is  copy of lawyer notice dtd. 10th October. 

 

            16.From the side of opposite parties Sri.P.M.Mohammed Salim examined as RW1, Sri.Abdulla.V.I. examined as RW2, Sri.Faizal.M.M. examined as RW3, Sri.Mohammed.P.M. examined as RW4 and Sri.Abbas.L.K. is examined as RW5.  And they filed proof affidavits.  The documents produced from the side of opposite parties are marked as Exts.R1 to R23 series.  Ext.R1 is copy of power of attorney dtd. 23/10/06,  Ext.R2 is copy of partnership deed dtd. 1/7/97, Ext.R3 is copy of W.P.(C) No.22030/2006 before the Hon’ble High Court of Kerala,  Ext.R4 is copy of OS.380/06  filed before Sub Court, Irinjalakuda, , Ext,R5 is copy of OS.730/06 filed  before Kodungallur Munsiff Court,  Ext.R6 is copy of OS.481/06 filed before Irinjalakuda Sub Court,  Exts.R7&R8  are copy of lawyer notices  dtd. 1,8/06, Ext.R9 is copy of FIR  in CC.13/07  before JFCM I, Ernakulam, Ext.R10 is copy of charge sheet in CC.9/07 of JFCM I, Ernakulam, Ext.R11 is copy of judgement  in CC.348/07 of CDRF, Ernakulam, Ext.R12 is copy of judgement in CC.349/07 of CDRF, Ernakulam, Ext.R13 is copy of audit report for the year ending March 2000, Ext.R14 is copy of audit report  for the year ending March 2001, Ext.R15 is copy of audit report  for the year ending March 2002, Ext.R16 is copy of audit report for the year ending March 2003, Ext.R17 is copy of  audit report for the year ending March 2004, Ext.R18 is copy of audit report  for the year ending March 2005, Ext.R19 is copy of Minutes of deposit holders held on 19/3/2006, Ext.R20  is Attendance Register, Ext.R21 is copy of Order No.OR.47/02-03 dtd. 30/7/03 of Mattanchery Commercial Taxes Intelligence Officer, Ext.R22 is copy of deposition of Abbas, before Ernakulam 1st Addl. Sub Court and Ext.R23 series are copies of receipts of State Bank of Bikaner and Jaipur(6 Nos.).

 

            17.According to the complainants they have  made fixed deposits with the Cochin Bearing Centre  canvassed by the  opposite parties.  Upto November 2005, the opposite parties paid interest.  Thereafter neither any interest paid nor the amount returned.  Whereas  the opposite parties contended that  the complainants attracted by the profits of the firm expressed their willingness to invest some capital towards the business to get profit share.  Neither any fixed deposits made by the complainant nor any interest received from the opposite parties. The opposite parties contested the case in  two groups.  The  1st, 2nd and 7th opposite parties formed a group and the 5th, 6th and 8th opposite parties formed other group.  However they contested the matter separately, the contentions were  one and similar.  The main allegation raised by the opposite parties was against the 2nd opposite party who was the Managing Partner of the Cochin Bearing Centre.  The main contentions raised by the 1st, 2nd and 7th opposite parties are :

The complaint cannot be considered as a consumer complaint, since the complainants are made their investments in the capital of the business for getting profit share only.  There was no consumer service  provider relationship between the complainants and the opposite parties.  Another contention raised was that there is no territorial jurisdiction for this Forum to entertain this complaint.  The reason stated is that the partnership firm situated at Ernakulam and all the alleged transactions  were made at the office of the firm at Ernakulam.  No amount was collected from the complainants anywhere  else.   Similarly the profit share were also paid at Ernakulam.  Therefore this Forum has no  jurisdiction as alleged in the complaint.  Another contention raised by the opposite parties is that they have not committed any sort of deficiency in service or unfair trade practice towards the complainants.  They paid profit share to all the complainants in respect to their investments in the capital till December 2005.  Thereafter the profit share could not be given as they suffered  huge loss in the business.  From the side of complainants and the opposite parties,  detailed argument notes were submitted and we elaborately heard the learned counsels for both sides.

 

            18.Regarding the maintainability of the complaint, the case of the complainants is that the opposite parties accepted fixed deposits by assuring 12% interest.  Accordingly fixed deposit receipts were issued to the complainants signed by the Managing Partner.  In all the 5 cases, they produced original receipts given by the opposite parties.  All the receipts are shown as cash receipt.  We have gone though the documents produced from both sides and perused the  contents of affidavits filed.  Here the burden is upon the complainants to prove before the Forum that they have made fixed deposits with the opposite parties.  All the 5 deposit receipts are cash receipts.  Nowhere it is stated as a fixed deposit receipt.  The receipts are not duly stamped.  No maturity date is shown in any receipt.    Similarly there is no uniformity for the receipts in the nature of the receipts produced.  There is no uniformity for the contents of the receipts.  To consider it as a fixed deposit receipt, the receipts should be sufficiently stamped.  Even though the interest rate has shown as 15% in all the cash receipts,. the period and nature of deposit has not mentioned on the receipt.    Since there is a specific denial from the side of opposite parties, that the receipts given are not fixed deposit receipts but only cash receipts, issued while accepting investments towards capital of the firm, the burden is heavy upon the complainants to prove before the Forum with convincing evidences and prove that they have made fixed deposits with the opposite parties.  Considering the available records on file, we  do not find any reason to accept the claim of the complainant that they have made fixed deposits with the  opposite parties.  But the evidences  lead us to believe that the complainants are made business  investments with the 1st opposite party firm and they accepted profit shares from the opposite parties.   The account statement produced from the side of opposite parties  support the contentions  raised by them.  Considering all these points, we are of the opinion that the transactions alleged in the complaint are only business transactions made between the complainants and the opposite parties with an intention to make profits.  Therefore these complaints cannot be considered as consumer complaints.  Hence not maintainable.

 

            19.Another point to be considered is that whether this Forum has got territorial jurisdiction to entertain this complaint.  The complaints are filed stating that some of the opposite parties collected the alleged fixed deposit amounts from the residences of complainants  situated within the jurisdiction of this Forum and they paid interest to the complainants at their residences situated within the jurisdiction of this Forum.  Hence this Forum has got territorial jurisdiction to entertain this complaint.  Whereas the opposite parties categorically contended that all the alleged business transactions were happened only at the head office of the firm situated at Ernakulam.  Neither any amount collected from the  complainants nor any amount paid as interest to the complainants at their residences as alleged in the complaints.  Here the burden is upon the complainants to prove before the Forum that they have  made payments to the opposite parties at their residences and also received interest from the opposite parties at their residences.  Except the oral testimony of PW1, there is no other proof adduced from the side of complainants.  However a joint trial was allowed, the  responsibility to  prove  the cause of action remains with them.  At the same time the opposite parties and their witnesses strongly deposed before the Forum that they collected only business investments from the complainants and issued profit shares to them in respect to their investments, according to the profit  accrued in the business of the firm.  No amount was either collected from their residences or paid to them at their residences.  The entire transactions were made only at the registered office at Kaloor in Ernakulam.   The learned counsel for opposite parties vehemently argued that  however the  addresses of two opposite parties shown are their personal  residential addresses which come within the jurisdiction of this Forum,  they are acted only as per their official capacity as partners of the firm.  Hence the address of the firm  can only be considered. 

 

            20.Considering the points discussed hereinabove, we are of the opinion  that the complainants are miserably failed to substantially prove before the Forum that they have made fixed deposits with the opposite parties and the amount was collected by any of the opposite parties from their residences and interest were paid by the opposite parties at their residences respectively.  Therefore we are of the opinion that there is no territorial jurisdiction for this Forum to entertain these complaints.

 

            21.The other point to be considered is that whether any unfair trade practice or deficiency in service happened on the part of any of the opposite parties.  Since the 1st and 2nd points are answered against the complainants, this point is also answered accordingly.

 

            22.In the result we dismiss all the 5 complaints without cost.

 

            Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum this the 30th day  of November  2017.

 

            Sd/-                               Sd/-                                          Sd/-

M.P.Chandrakumar               Sheena.V.V.                                 P.K.Sasi,

Member                                 Member                                       President.

           

                                                Appendix

Complainant’s Exhibits

Ext.P1 cash receipt   No.060 for Rs.50,000/- 

Ext.P2 cash receipt No.115 for Rs.50,000/-

Ext.P3 cash receipt No.216 for Rs.25,000/-

Ext.P4 cash receipt No.363 for s.1,00,000/-

Ext.P5 cash receipt No.422 for Rs.1,00,000/-

Exts.P6, P7, P8 and P9 -  copies of lawyer notice dtd.  10th October

Exts.P10, P11, P12, P13, P14 -  postal receipts

Ext.P15 copy of lawyer notice dtd. 10th October

Complainants witness

PW1 – K.B.Mariyumma

Opposite Parties Exhibits

Ext.R1 copy f power of attorney

Ext.R2 copy of partnership deed

Ext.R3 copy of W.P.(C) No.22030/2006

Ext.R4 copy of OS.380/06 

Ext,R5 copy of OS.730/06

Ext.R6 copy of OS.481/06

Exts.R7&R8  copy of lawyer notices  dtd. 1,8/06

Ext.R9 copy of FIR  in CC.13/07 

Ext.R10 copy of charge sheet in CC.9/07

Ext.R11 copy of judgement  in CC.348/07 of CDRF, Ernakulam,

Ext.R12 copy of judgement in CC.349/07 of CDRF, Ernakulam,

Ext.R13 copy of audit report for the year ending March 2000,

Ext.R14 copy of audit report  for the year ending March 2001,

Ext.R15 copy of audit report  for the year ending March 2002,

Ext.R16 copy of audit report for the year ending March 2003,

Ext.R17 copy of  audit report for the year ending March 2004,

Ext.R18 copy of audit report  for the year ending March 2005,

Ext.R19 copy of Minutes of deposit holders held on 19/3/2006,

Ext.R20  Attendance Register,

Ext.R21 copy of Order No.OR.47/02-03 dtd. 30/7/03

Ext.R22 copy of deposition of Abbas,

Ext.R23 series copies of receipts of State Bank of Bikaner and Jaipur(6 Nos.).

Opposite Parties witnesses

RW1 - P.M.Mohammed Salim

RW2 - Abdulla.V.I

RW3 -  Faizal.M.M

RW4 - Mohammed.P.M.

RW5 - Abbas.L.K

 

 

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