KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL No. 402/2010

JUDGMENT DATED: 10-12-2010

PRESENT:

JUSTICE SHRI. K.R. UDAYABHANU              :PRESIDENT

K. Sudhakaran, Partner,

M/s Sankar Moorthy Chartered Accountants,

Keerthanam Swamy Oil Mill Road,                    : APPELLANT

Contonment North, Kollam-691 001.

          Vs.

Branch Manager,

Indian Bank, Kollam Branch,                              : RESPONDENT

Main Road, Kollam-691 001.

(By Adv. Sri.P. Krishnankutty Nair)

                                              JUDGMENT

JUSICE SHRI.K.R. UDAYABHANU : PRESIDENT

The appellant is the complainant in CC.169/08 in the file of CDRF, Kollam.  The complaint stands dismissed with compensatory cost of Rs.2500/- to be paid to the opposite party.

2. The case of the complainant is that he was operating a current account in the name of the firm M/s Sankar and Moorthy, Chartered Accountants, as a partner of the same.  While so, he issued a cheque on 1/8/07 for Rs.687/- to Corporation Bank, Kollam as payment of interest of loan taken by the partnership firm.  The cheque was dishonoured of the reason mentioned ie lack of adequate funds.  It is seen that the account has been closed unauthorisedly on 12/7/2007 by transferring the balance amount to an unknown account without his authorization.  The bank did the same without any intimation to him and hence violated the principles of natural justice.  It is alleged that the bank has colluded with others.  The action of the bank has caused any irreparable damage to his reputation and particularly in the Corporation bank to which he was an auditor.  Compensation and cost altogether amounting to Rs.4,78,696/- is claimed. 

3. The opposite parties/Indian Bank, has filed version stating that the current account was opened in April 2002 as authorized by the firm M/s Sankar and Moorthy, Gandhari Amman Kovil Junction, Trivandrum.  The Forum had authorized the complainant who was the partner of the firm to operate the account.  The complainant himself informed Secretary, ICAI, New Delhi that the Kollam Branch office of the firm was closed and he ceased to be partner of the firm.  Consequent on the retirement of the complainant the firm was reconstituted with effect from 20/12/2004 by accepting the retirement of the complainant and that the branch office was closed.  The ICAI vide their letter dated:9/5/2005 has noted the reconstitution of the firm and closure of the Kollam branch office.  The firm vide letter dated:30/6/2007 made a request to close the current account.  Hence the above account was closed and the same was intimated to the Trivandrum branch of the opposite party where the firm is maintaining their main account, vide letter dated:12/7/2007.  The impugned cheque was returned as the account was non existing.  The opposite party informed the same to Sankar and Moorthy, Trivandrum on 17/8/2007.  The rest of the allegations are denied.  It is pointed out that the complainant had approached the Banking Ombudsman who dismissed the complaint.  It is contended that the complaint is false and frivolous and compensatory cost was claimed.

4. The evidence adduced consisting of the testimony of PW1, DW1 and 2 and Exts.P1 to P10 and D1 to D7.

5. It is the case of the complainant/appellant who appeared in person that the action of the other partners of the firm in reconstituting the firm is illegal as the statement therein that the the complainant retired is false and it is pointed out that there is no evidence at all to show that he has retired from the firm.  There is no provision for reconstitution ousting a partner vide the Partnership Act.  It is his case that without intimation to him who was operating the account, the account ought not to have been closed. 

6. We find that Ext.D6 is a copy of the letter allegedly written by the complainant himself addressed to the Secretary, ICAI, New Delhi mentioning that the branch office of the firm, Sankar and Moorthy is closed with effect from 19/12/2004 and that the complainant has ceased to be a partner of M/s Sankar and Moorthy and that he will be practicing as CA in his individual name from 20/12/2004 in the same place with changed address.  It is in the letter head of M/s Sankar and Moorthy.  It is the contention of the appellant that the above letter is a fabricated one. The complainant who himself conducted the case in person did not suggest to DW2 another partner that the above letter is a fabricated one.  Hence the complainant has failed to establish that Ext.D6 is a fabricated letter.  All the same it is seen that the account was opened as per request vide Ext.D1 letter dated:8/4/2002 from M/s Sankar and Moorthy, Gandhari Amman Kovil Junction, Trivandrum.  It is stated therein that they have recently opened a branch office at Quilon with Mr.K.Sudhakaran (complainant) as their partner in charge and that they have authorized Mr.K.Sudhakaran to operate the said account.  The specimen signature of the complainant is also contained in the above letter.  Ext.D2 is the letter of M/s Sankar and Moorthy, Gandhari Amman Kovil Junction, Trivandrum, dated:30/6/2007 requesting that the current account in the name of the firm at Kollam branch with the opposite party be closed.  It is also requested that the operation of the account be stopped forthwith.  It is also mentioned therein that it is understood that Mr.K.Sudhakaran is continuing to operate in the current account in the name and style of Sankar and Moorthy at Kollam.  It is mentioned that Mr.Sudhakaran has voluntarily retired from the firm vide letter dated:18/12/2004 addressed to Secretary, ICAI, New Delhi.  It is also mentioned that the partnership was reconstituted deleting the name of the complainant from the partnership.  Ext.D3 is the letter dated:12/7/2007 from the opposite party bank to M/s Sankar and Moorthy Trivandrum mentioning that the above current account was closed is on 12/7/2007.

7. It is the case of the complainant that the firm has not been dissolved and that has is not retired and that as per the provisions of the Partnership Act there cannot be a reconstitution ousting the partner.  We find that what is relevant in the present proceedings is the evidence with respect to the alleged collusion on the part of the opposite party.  We find that there is no evidence in this regard as such.  The complainant was operating the account only as authorized by M/s Sankar and Moorthy.   The account was started as requested by M/s Sankar and Moorthy, the account was closed as requested by M/s Sankar and Moorthy.  Of course the opposite parties could have intimated the complainant as to the position before dishonouring the cheque.  There is evident lapse on the part of the opposite party in this regard.  We find that it cannot be held that it was deliberate.  All the same we find that the dismissal of the complaint by the Forum observing that the complainant has approached the forum with unclean hands cannot be sustained.  The correspondence produced by the opposite party would show that according to the other partners of M/s Sankar and Moorthy the complainant has retired from the firm addressing ICAI.  There is no such procedure contemplated in the Indian Partnership Act.  The version in Ext.D1 reconstituted partnership deed that the complainant voluntarily retired is not supported by any documents.  All the same collusion at the instance of the opposite party stands not established.  It has also to be noted that the complainant has not intimated the opposite party that he is still a partner of M/s Sankar and Moorthy and that he is entitled to operate the account.  In the circumstances the case of the complainant for compensation cannot be sustained.  All the same the direction to pay compensatory cost of Rs.2500/- is not at all called for in the circumstances.  The above part of the order of the Forum is set aside.

In the result the appeal is allowed in part as above.

Office will forward the LCR along with the copy of this order to the Forum.

JUSTICE K.R. UDAYABHANU:PRESIDENT

VL.