KUNDAN KUMAR KUMAI JUDICIAL MEMBER

             This is a case filed under the provision of Section 12 of the Consumer Protection Act 1986.

Brief facts of the complainant case are that, the complainant by virtue of the Partnership Deed, executed on 01/10/2007, had been carrying on a Partnership business of wholesale of fertilizers, seeds, pesticides, nursery, green house and poll house compost construction, production of vermin compost and town compost, production of various seeds, under the name and style of ‘M/S Green Care’ at Sebakpally, PS. Raiganj, Dist- Uttar Dinajpur.

In the name of M/S Green Care, all its partners had availed a Cash Credit Loan from the opposite parties, vide account no. 0335253112847 for an amount of Rs. 75,00,000/-( Seventy-five lakhs) only, by securing the above loan by the immoveable property of commercial shop situated at Mouza- 151 Mohan Bati, Plot No. 59,64 and 65, Dag No. RS1085, LR3053, Khatian No. RS 846, LR 5038, Vide Deed no. 1-6415, Area-76sq ft. Ps- Raiganj Dist- Uttar Dianjpur, owned by M/S Green Care.

That vide Deed of Retirement, dated 31/03/2014, the complainant and Smt. Sefali Biswas dissolved the above-mentioned partnership and for the sake of convenience, authorized the other partners jointly and severely as their attorney with authority or power to take legal action and to do all other acts and things necessary to recover the debts and liabilities, due to the firm, in respect of the transaction or business done up to that date. After such retirement, the continuing partner Smt. Jayati Karmakar (Biswas), issued a letter, dated 23/02/2017, to the opposite party no. 2, intimating that the complainant had retired from their firm, legally releasing all his rights and liabilities towards the firm, along with the copy of Deed of Retirement, copy of renewed Trade Licenses etc.

The complainant was thus taken by surprise, when he made an application to the State Bank of India, Kornojhora Branch, Raiganj, for issuance of a loan, but the said bank informed their inability, due to low Cibil Score.  Thereafter, the complainant came to know that because of default in repayment of the dues made by the continuing partners of the firm, from which he had already retired. The Ops had classified their account as NPA, with effect from 30/06/2018. That is inspite, of serving notice the Ops had issued notice under section 13(b) read with Section 13(13) of the Sarfaesi Act 2002, dated 25/09/2019, and a Possession Notice dated 14/02/2019, in the name of the complainant along with the other partners. The complainant informed verbally through phone and by making numerous visits, clarified that being a retired partner, he was no longer liable to any debt or default made by the Partnership firm and requested for no dues certificate and striking of his name from the loan account in their record. But as the opposite parties, neglected the complainants request and this unsympathetic attitude caused the complainant harassment, mental torture and agony and both personal and professional loss. Following which the opposite parties were deficient in rendering of services as laid down in sections 2(1) (g) (o) of the Consumer Protection Act.  The complainant was compelled to file this case. Hence this case

The opposite parties entered appearance, by filing a combined written version wherein, they have challenged the complainant’s case, by stating that the case was bad for non-joinder of parties as the Partnership Firm was an essential party. It has been further stated that the complainant being a partner all the Partnership Firm was not a consumer within the meaning of section 2(7) of the CP Act, 2019. It was further stated that the Partnership Firm had availed a Commercial Loan for trading purpose and therefore, such transaction or any action arising out of it could not be a subject of the CP Act. Furthermore, it has been stated that the case had been filed under Section 12 of the CP Act, 1986, where as the same had been defunct after the operation of the CP Act, 2019. Moreover, the pecuniary jurisdiction of the Commission has not been satisfied and therefore, the case needs to be dismissed on this ground, itself.  It has also been stated that the liability was created during the complainants tenure as a partner and as per the Indian Partnership Act, the liability would continue even after he is relieved from the said Firm. Lastly it had been stated that the Ops had been merely carrying on their duties to recover public money, which had been given as loan to the Partnership Firm.

In support of his case the complainant has examined himself on oath and a furnished settle documents which have been marked as Annexures 1- V. None have been examined on behalf of the Ops. Even though they have cross examined the complainant by submitting questionnaires.

Decision with reason

 The opposite parties have challenged this case, filed by the complainant under Section 12 of the CP Act 1986, whereas the case should had been filed, by the complainant under Section 35 of the Consumer Protection Act 2019 and for this reason this Commission could not have entertained as the pecuniary jurisdiction was not satisfied, as the prayer was for Rs. 26,50,000/- (Twenty-six lakh Fifty-thousand) only. In this respect can be stated that the Consumer Protection Act is beneficial legislation and mere mistake in the mentioning of the proper Act would not defeat the case. As regards their question of lacking pecuniary jurisdiction is concerned, at this final stage, it would be unjust and improper to transfer the case to the Commission having proper jurisdiction.

As regards, the question of commercial transaction is concerned, the prayer is made for individual deficit of service. Hence when the commercial angle is raised the case would be instantly dismissed. With regard to the non-joinder of the Partnership Firm is concerned, there appears no reason to add as a party as it is merely required to testify and in the instant case, much of the fact is admitted.

 It is not disputed that the complainant is a partner of the Partnership Firm, M/S Green Care. It is only disputed that there was no public notice, as per the provision of Section 32(3) of the Indian Partnership Act 1932, on the retirement of the complainant from the Partnership Firm, M/S Green Care. It is a fact that as per provisions of the Section 32(3) of the Indian Partnership Act 1932, the complainant was also liable to issue a public notice, if the other continuing partners failed to do so. But the other continuing partners issued notice to the Opposite parties by sending a letter dated 22/03/2017 along with the Deed of Retirement, and other documents mention therein, therefore as far complainant was concerned the compliance under Section 32(3) of the Indian Partnership Act 1932, appears to have been satisfied and for which reason, the complainant was not liable for any of the acts done when he was a partner. For this reason, the proceedings for declaration of NPA and recovery of the NPA, done by issuing a notice dated 25/09/2018, to the complainant cannot be acceptable in law, as it was done much after the issuance of the notice dated 22/03/2017.  Moreover, the complainant should also be absolved from the consequences of the NPA, and should be freed and no dues certificate be issued as per the existing banking legislation and no further dues are pending.

 As a result, the instant case succeeds.

It, is therefore,

ORDERED

That the instant case be and the same is allowed on contest but without costs, in view of the facts and circumstances of the case.

The OP is directed to issue a no dues certificate provided it is permissible within the existing banking laws.

The Ops are also directed to pay a sum of Rs. 50,000/- (Fifty-thousand) only for mental pain and agony and Rs. 5,000/- (Five thousand) only as legal expenses.

The above compliance shall be done within two months on the date of this order, failing which interest @ of 9% would be attracted till the date of final payment.

Copy of this judgment be handed over to the parties free of cost.