IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA

                     Friday the 10^th day of December, 2021

                               Filed on 04.02.2019

Present

1. Sri.S.Santhosh Kumar  BSc.,LL.B  (President )
2. Smt. Sholy.P.R, B.A, LLB (Member)

                                                                       In

                                                 CC/No.36/2019

                                                                   Between

Complainant:-                                                                     Opposite parties:-

Smt. VidyaThulasidas                                            1.         M/sVidobha Bankers

W/o Thulasidas                                                                    K.P.V/72,Thanky Junction

263 A, Puthenveedu                                                            Kadakkarappally.P.O. 

CMC13 Ward,                                                                       CherthalaCherthala,    Rep by

Cherthal North Part,                                                              Managing Partner

Alappuzha, Kerala-688524                                                 Sri. NarasimhaPai, S/o BabulaPai

(Adv. Abhilash.C.Soman)                                                   Vayalapuramveedu

                                                                                                Thirumalabhagom.P.O, Thuravoor

                                                                                                 Cherthala- 688540

                                                                                    2.         M/s. Sandhya.

                                                                                                W/o Late Dileep Kumar

                                                                                                VidobhaMandir

                                                                                                Thirumalabhagom.P.O,Thuravoor

                                                                                                Cherthala-688540

                                                                                    3.         Sri. Sandeep Krishna Bhat

                                                                                                S/o Late Dileep Kumar

                                                                                                  = do=       =do=

                                                                                    4.         Jaideep Krishna Bhat(Minor)

                                                                                                S/o Late Dileep Kumar

                                                                                                Represented by his mother 2^nd  OP

                                                                                                 (Adv. G. Sunil Kumar for Ops)

.

O R D E R

SMT. SHOLLY.P.R(MEMBER)

          Complaint filed under Sec.12 of the Consumer Protection Act,1986.

          1. Averments of complaint in brief is as follows:-

          The complainant is an account holder and depositor in the 1^st opposite party firm.  The deceased Dileepkumar was the managing partner of the said firm.  The said firm is represented by its managing partner, Mr.NarasimhaPai.  The opposite parties 2 to 4 are the Legal Representatives of the Managing partner, the Late Dileepkumar.  Said deceased Dileepkumar approached the complainant and requested to deposit the amount with the opposite party firm and offered attractive rate of interest to the complainant.  Believing the words and representations of the opposite parties with regards to better security and high rate of interest the complainant deposited Rs.2 lakhs for a period of 1 year @ 18% interest as per recirpt No.389/024/08 on 17.5.2008 ad Rs.1 lakhs as per receipt No.390/025/08.

          Thereafter the managing partner deceased Dileepkumar requested to renew the fixed deposit after due date of receipt, 16.5.2009, and the complainant had admitted the said request since the opposite parties had given the annual interest to the complainant without making any delay.  Accordingly they had given interest to the complainant till 2014.  Apart from that the complainant had deposited Rs.1 lakhs @18% interest as per receipt No.675/095/11 on 8-11-2011 availed by selling her gold ornaments.  For this deposit also the opposite party had given interest till 2014.

          The said Dileepkumar was died on 30-1-2014.  Thereafter on demanding to return the deposit amount the opposite parties have agreed to pay the interest time to time and pay the entire deposited amount before 2016.  As per the above agreed condition the opposite parties had given the interest for the year 2015, but they have failed to return the deposited amount before 2016.  Thereafter the complainant had on several occasions approached the opposite parties to return of the amount deposited.  Later, the opposite parties had made several requests for more time for arranging the amount, however during the 2^nd week of December 2018 the opposite parties move away from their all previous assurances and refused to pay the deposited amount by saying they had already been settled the entire amount.  Hence the complainant was compelled to file the complaint alleging deficiency in service on the part of opposite parties.

2.      The averments in version briefly stated are as follows:-

          2^nd opposite party is not a partner of 1^st opposite party firm or any firms.  The opposite parties are legal heirs of the deceased Dileepkumar, but they have no business with any of the firms or day to day administration, hence they are not responsible regarding the transactions of the complainant.  This complaint is unsustainable as per the provisions of the law because the relief sought for by the complainant is realization of money within the relationship of creditor and debtor and as such by resorting to a suit for recovery of money before the civil court, there can be redressal for the grievances of the complainant.  The complainant approached this Forum to escape from the liability to pay the court fee for a suit for recovery of money.  There is no consumer and service rendering party relationship between the parties.  There is no legal sustainability for the complainant.  There is no whisper about the alleged liability against the 2^nd opposite party and cause of action against her.  The calculations of the amount is nothing but the result of mere surmises and there was no justification from the part of the complainant.  The 4^th opposite party is a minor and as such no liability can be cast upon him merely by making him a party to this proceedings as per Partnership Act and legal heirs have no service rendering status as they cannot said to be burdened by the pre-existing liability as parties stepping into the shoes of the deceased service rendering party.  Hence no deficiency in service can be alleged against the legal heirs because they don’t have any direct knowledge regarding the transactions or business, thus the complaint may be dismissed with cost.

3.      On the basis of above pleadings the points arise for consideration are:-

1. Whether there is any deficiency in service on the part of opposite parties?
2. If yes, whether the legal heirs of the deceased managing partner are liable to the transaction of the complainant?
3. Reliefs and cost?
4.  
5.  

PW1, the complainant filed affidavit in tune with the complaint and got marked Ext.A1 to A3.According to the complainant she deposited with the opposite party firm an amount of Rs.2 lakhs as per receipt No.389/024/08 on 17.5.2008 and Rs.1 lakh as per receipt No.390/025/08 on 17.5.2008 and Rs.1 lakh as per receipt No.675/095/11 on 8-11-2011.Exts.A1 to A3 shows the evidence of the said deposits to the opposite parties firm in the name of the complainant.The further allegation of the PW1 is that opposite parties failed to return the said amountsto the complainant which she requested to return even after its due date and extended maturity period.It has not been denied by the opposite parties that the amounts in question were not deposited by the complainant with the 1^st opposite party firm and the deceased Dileepkumar were the partners.The contention taken by the opposite parties 2 to 4 is that they are the legal heirs of deceased Dileepkumar and they never be held to be liable for deficiency of service since there was no consumer service provider 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 S.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 the 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 1^st opposite party were the partners of the firm and the complainant deposited the amount at the instance of the deceased Dileepkumar.As per S.35 of the Indian Partnership Act the asset of a deceased partner is not liable for any act of the partner done after his death only.Hence opposite parties are liable to return the deposit amount of the complainant deposited before the death of the deceased managing partner, Dileepkumar.It is further clarify that the liability of the legal heirs is limited only to the extent of value of the properties inherited by them from deceased partner, 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 stands allowed in part in the following terms:-

1. Opposite parties are directed to return the amount of Rs.3 lakhs along with interest @ 15% per annum from 17.5.14 to 1-2-19 and Rs.1 lakh along with interest @15% per annum from 8-11-14 to 1-2-19.

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

Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 10^th day of December, 2021.

Sd/-Smt. P.R Sholy (Member) :

Sd/-Sri.S.Santhosh Kumar (President)

Appendix:-Evidence of the complainant:-

PW1          -        VidyaThulasidas(Complainant)

Ext.A1       -        Fixed Deposit Receipt dtd.17/5/2008                   

Ext.A2       -        Fixed Deposit Receipt dtd.17/5/2008

Ext.A3       -        Fixed Deposit Receipt dtd.8/11/2014

Evidence of the opposite parties:- Nil

// True Copy //

To

            Complainant/Oppo.party/S.F.

                                                                                                               By Order

                                                                                                       Assistant Registrar

Typed by:- Sa/-

Compared by:-