D.o.F:10/2/2011
D.o.O:01/2/2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.NO.30/11
Dated this, the 01st day of February 2012
PRESENT:
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.BEENA.K.G : MEMBER
Narayana.E, S/o Choyi Maniyani,
Eniyarpu House, Po.Bela,Kumbla, Kasaragod. : Complainant
(Adv.P.V.Jayarajan,Kasaragod)
1.V.K.Sasi, S/o Krishnan Kutty,Vazhaparambil House, :
Amarakkunil,Azramamkolli, Pulpally,Wayanad Dt.673579
Managing Director ,M/s Chieftain Fin Aid Regd No.494/L1 II/FBD .
2. Saji.P.O, S/o Ouseph, Puthuvanakudiyil House, :
Thazhathoor PO,Cheeral Bathery, Wayanad Dt.673595
3.Binoy John, S/o Ulahannan, Opposite parties
Pariyappanal House, Mullankolly Po, 673579
Pulpally, Wayanad Dt.
4. Jayan Joseph, S/o Joseph, Vallikkattil House
Pulpally Po, Wayanad Dt. 673579
5. Baiju.K.K, S/o Kurian, Kathlimedoth House, :
Chettappalam Po,Pulpally, Wayanad Dt.673579
6. Bijulal C.G, S/o Gopalan, Geetharagam House, :
Amarakunnil Po ,Azramakolly, Pulpally,Wayanad Dt. 673579
7. Suresh P.G, S/o Gopalan,
Ponthanveettil House, Karanadikolly Po, 673579 : Opposite parties
Pulpally,Wayanad Dt.
(Adv.M.M.Nambiar,Kasaragod. Ops 1 to 7)
8. K.Raju, S/o Kumaran, Devasseriyil,
PO. Amarakunni, Pulpally,Wayanad Dt. 673579 :
(Adv.Mahin,Kasaragod)
9. Kunhiraman, S/o Late Raman,
Pakkam,Pallikkara PO, Panayal,Kasaragod.
(Manager, M/s Chieftain Fin Aid ,Vidyanagar,Kasaragod)
(Adv.M.Pramod Kumar,Kasaragod)
10.Subraya Bhat, Adijunaguli House, Patla PO,Kasaragod.
(General,Manager, M/s Chieftain Fin Aid ,Vidyanagar,Kasaragod)
11. Janakara.K, Soorambail House, Ednad PO,
Kumbla,Kasaragod Daily collection Agent,
M/s Chieftain Fin Aid ,Vidyanagar,Kasaragod)
ORDER
SRI.K.T.SIDHIQ : PRESIDENT
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 6/2/2010. 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 ` 32300/- towards the chitty and he has not received the chitty amount so far. Hence this complaint is filed for necessary relief.
2. For Opposite parties 1 to 7 one counsel filed vakalath but not filed any version . 8th &9th opposite parties filed separate versions denying all the allegations made against them in the complaint. The 8 th opposite party contended that he had retired from partnership in 2009 and he is not vested with any power or authority to administer the company and therefore he is unnecessary party to the proceedings and further contended that he is not rendered any service to the complainant and the complainant is not a consumer. Opposite party No.9 submits that only 10 months he was worked as a collection agent of opposite parties 1 to 8. Opposite party No.11 contended that he was also a collection agent of the chitty run by opposite parties No.1 to 10 and they are his employers.
3. complainant filed affidavit and Ext.A1pass book marked . On the side of opposite parties no oral evidence adduced .
4. After considering the facts of the case and on perusal of documents the following issues raised for consideration
1. Whether the 8th opposite party is an unnecessary party 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. Before answering the 1st issue that is whether the 8th opposite party is an unnecessary party 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 6/2/2010 at that time opposite parties1 to 8 were running the partnership firm jointly.
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 ` 32300/- 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.
12. On 20/12/2011 complainant filed a memo stating that they are not seeking any relief against opposite party NO.10. Hence OP.NO.10 is exonerated from the liability. Since opposite parties 9&11 are the employees of the firm they are also exonerated from the liability.
Therefore the complaint is allowed and opposite parties 1 to 8 are jointly and severally directed to pay ` 32300/-(Rupees thirty two thousand three hundred 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
Sd/ Sd/ Sd/
MEMBER MEMBER PRESIDENT
eva
/Forwarded by Order/
SENIOR SUPERINTENDENT
