D.o.F:2/12/2010
D.o.O:26/8/2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.NO.270/10
Dated this, the 26th day of August 2011
PRESENT:
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.BEENA.K.G : MEMBER
S.Raja Kumar,, S/o Subramanyan,
Asian Furniture, Santhosh Nagar,
Alampady Po, Kasaragod. : Complainant
(Adv.George John Plamoottil,Kasaragod)
1.M/s Chieftain Fin Aid,, P.M.Complex, Ist floor,
Vidyanagar,Represented by Managing Partner,
V.K.Sasi, S/o Krishnan Kutty,Vazhaparambil House, :
Amarakkuni,Azramamkolli, Pulpally,Wayanad Dt.
2. Saji.P.O, S/o Ouseph, Circulation Manager,
M/s Chieftain Fin Aid R/at Puthuvanakudiyil House, :
Thazhathoor PO,Cheeral Bathery, Wayanad Dt.
3.Binoy John, S/o Ulahannan, Opposite parties
Officer Administrator, M/s Chieftain Fin Aid,
R/at Pariyappanal House, Mullankolly Po, :
Pulpally, Wayanad Dt.
4. Jayan Joseph, S/o Joseph, Finance Manager,
M/s Chieftain Fin Aid, R/at Vallikkattil House
Pulpally Po, Wayanad Dt.
5. Baiju.K.K, S/o Joseph,Circulation Manager,
M/s Chieftain Fin Aid,R/at Kallelimoloth House, :
Chettappalam Po,Pulpally, Wayanad Dt.
6. Nijulal G.G, S/o Gopalan, Business Manager,
M/s Chieftain Fin Aid, R/at Geethalayam House, :
Amarakkuni Po ,Azramamkolli, Pulpally,Wayanad Dt.
7. Suresh P.G, S/o Gopalan,
Marketing Manager, M/s Chieftain Fin Aid,
R/at Ponthen Veettil House, Kalanadikolly Po, : Opposite parties
Pulpally,Wayanad Dt.
(Adv.M.M.Nambiar,Kasaragod)
8. K.Raju, S/o Kumaran, Marketing Manager,
M/s Chieftain Fin Aid ,Pulpally,Wayanad Dt. :
(Adv.B.K.Mahin,Kasaragod)
ORDER
SMT.P.RAMADEVI : MEMBER
The facts of the case in brief are as follows:-
That at the instigation of opposite parties the complainant joined a chitty conducted by the opposite parties for a sala of `1, 00,000/- commenced on 12/10/2009 for 19 months. He was regular in making the payment of subscription amount. But later he came to know that the office of the opposite parties was closed and they were absconded .The complainant paid a total amount of ` 42350/- towards the chitty and he has not received the chitty amount so far. Hence this complaint is filed for necessary relief.
2. Opposite parties 1 to 7 have filed joint version and 8th opposite party filed separate version. In the version the opposite parties denied all the allegations made against them in the complaint. The opposite parties submits that as per the partnership deed entered into between the opposite parties on 15/1/2007, it was decided to carry out a chitty fund(kuri) at Vidyanagar, Kasaragod by the name and style M/s Chieftain Fin Aid. Thereafter a new partnership deed dtd 27/3/2010 was executed between the opposite parties and one Bahuleyan and his wife Bindu Bahuleyan and the newly constituted firm running the chitty till 30/3/2010 without any complaint from anybody. Thereafter the firm was transferred to the above said Bahuleyan and Bindu Bahuleyan and old partners decided to retire from the firm as per the partnership deed (retirement) executed between the retiring partners and the newly admitted partners dtd.30/3/2010. Thereafter all the movable and immovable properties of the firm vested with Bahuleyan and Bindu Bahuleyan by virtue of partnership deed and Bhahuleyan is elevated as the Managing Partner of the firm and Bindu Bahuleyan is the working partner. The opposite parties further submits that now Bahuleyan and Bindu Bahuleyan are responsible for the conduct of the business of the firm and therefore opposite parties are unnecessary parties to the proceedings and further submits that they are not rendered any services to the complainant and the complainant is not a consumer. Hence according to opposite parties the complaint is liable to be dismissed.
3. Here the evidence consists of the evidence of PW1, the complainant and Exts.A1 & A2 documents . On the side of opposite parties no oral evidence adduced but Exts.B1&B2 already marked in CC.253/10.
4. After considering the facts of the case and on perusal of documents the following issues raised for consideration
1. Whether the opposite parties are unnecessary parties in the proceedings?
2. Whether there is any deficiency in service on the part of opposite parties?
3. If so, what is the order as to costs and compensation?
5. Here the case of the opposite parties is that the original partnership firm was changed and two new partners were entered in to the firm namely Bahuleyan and Bindu Bahuleyan. To prove that aspect opposite parties produced Ext.B1& B2 documents in CC 253/10. The reconstituted firm is again changed and another partnership deed was executed among the partners i.e. Ext.B2. As per Ext.B2 the opposite parties 2 to 8 and Managing Partner V.K.Sasi were retired from the Firm. After the retirement of opposite parties 2 to 8 and Managing partner V.K.Sasi, Bahuleyan Managing partner and Bindu Bahuleyan is the working partner of the firm. According to opposite parties the subsequently inducted partners are doing business of the firm and they are liable for the acts of the firm and the opposite parties are unnecessary parties to the proceedings.
Before answering the 1st issue that is whether the opposite parties are unnecessary parties to this complaint the Forum has to see what is the liability of an incoming partner and outgoing partner towards third parties.
6. As per Sec.31(2) of the Indian Partnership Act of 1932 says “ subject to the provisions of Sec.30 a person who is introduced as a partner into a firm does not there become liable for any act of the firm done before he became a partner.”
7. Here the complainant joined the chitty on 12/10/2009 and the alleged partnership deed (deed of admission of new partners) was executed on 27/3/2010. That means the chitty amount collected by the opposite parties were prior to the admission of Bahuleyan and Bindu Bahuleyan. Hence the newly admitted partners i.e. Bahuleyan and Bindu Bahuleyan are not liable to compensate the complainant.
8. Now the point to be decided is the liability of an outgoing partner or retired partner.
As per Sec.32 ( c )(2) of Indian Partnership Act 1932 (2) A retiring partner may be discharged from any liability to any third party for acts of the firm done before his retirement by an agreement made by him with such third party and the partners of the reconstituted firm, and such agreement may be implied by a course of dealing between such third party and the reconstituted firm after he had knowledge of the retirement.
(3) Notwithstanding the retirement of a partner from a firm, he and the partners continue to be liable as partners to third parties for any act done by any of them which would have been an act of the firm if done before the retirement, until public notice is given of the retirement:
9. Here plain reading of the above section reveals that the burden is on the outgoing partners to settle the liability of third parties unless and until he made an agreement with third parties and public notice is given about the retirement.
10. In this case the opposite parties have no case that they made any agreement with third parties or they have given public notice of the retirement. That means the opposite parties are not complied the above provisions of the Indian Partnership Act and therefore their liability to compensate the complainant is still continuing. They are not unnecessary parties to the proceedings and the 1st issue is answered accordingly.
11. Here the complainant had paid ` 42350/- towards the chitty and non payment of that amount by the opposite parties to the complainant itself forms deficiency in service on the side of the opposite parties. Hence the opposite parties are liable to compensate the complainant.
Therefore the complaint is allowed and opposite parties are jointly and severally directed to pay ` 42350/-(Rupees forty two thousand three hundred and fifty only) with interest @9% per annum from the date of complaint till payment and they further directed to pay a cost of `3000/- to the complainant. Time for compliance is 30 days from the date of receipt of copy of the order.
Exts:
A1- chitty passbook
A2-copy of deed of Partnership
PW1- S.Rajakumar - complainant
MEMBER MEMBER PRESIDENT
eva
