IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Wednesday the 31st day of January, 2018.
Filed on 30/01/2017
Present
- Smt. Elizabeth George, President
- Sri. Antony Xavier (Member)
3. Smt. Jasmine.D. (Member) in
C.C.No.29/2017
between
Complainant:- Opposite Parties:-
Smt.Valsaladevi.R 1 Vidoba Bankers,
w/o Muraleedhara Sharma Valayar Cherthala
Kandathil Parambu Represented by its partner
Thirumala Bhagom.P.O, Narasimha Pai, Vayalapuram
Thuravoor, Thirumala Bhagom .P.O
Pin 688 540 Thuravoor South Village,
2. Narashimha Pai
Vayalapuram, Thirumala Bhagom P.O Thuravoor South Village
3. Sandhya N Pai
W/o Late Dileep kumar
Vitoba Nivas
Thirumala Bhagom .P.O. Thuravoor
4. Sandeep Krishna Bhat S/o Late Dileep Kumar
= do=
5. Jaideep Krishna Bhat (Minor)
S/o Late Dileep Kumar
Represented by his Mother 3rd Opposite
Party =do=
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The complainant is a depositor with the first opposite party firm. The deceased Dileepkumar was the Managing Partner of the firm. The Managing Partner deceased Dileepkumar approached the complainant and requested to deposit amount with them and he offered attractive rate of interest to the complainant and thereby induced the complainant to deposit Rs.38,605/- as per receipt No. 2026 on 11/07/2013 and Rs. 50,000/- as per receipt No. 2354 on 17/10/2013 and Rs.50,000/- as per receipt No.2355 on 17/10/2013 and Rs. 50,000/- as per receipt No.2356 on 17/10/2013 and Rs. 50,000/- as per receipt No. 2357 on 17/10/2013 for a period of one year at the rate of 18% per annum. The said Dileepkumar was died on 31/01/2014. Thereafter the complainant had on several occasions approached the opposite parties to return the amount covered under aforesaid fixed receipts together with agreed rate of interest however, they denied the assured service to the complainant by stating one reason or the other. There is dereliction of service on the part of the opposite parties, and they are liable to compensate the same also. Alleging deficiency in service on the part of the opposite parties the complaint is filed
- The version of the opposite parties 1 to 2 is as follows:-
There is no consumer and service rendering party relationship between the opposite party. There is no legal sustainability of the complaint. On the death of one of the partner the firm is dissolved if so fact and there is no firm existing as alleged by the complainant.
- The version of the opposite parties 3 to 5 is as follows:-
The allegation that the deceased Dileepkumar approached the complainant etc. are put to strict proof. The complaint is unsustainable as per the provisions of law. There is no consumers and service vendor ship party relationship between the parties.
4. Complainant’s Power of Attorney Holder was examined as PW1 and documents produced were marked as Ext.A1 to Ext.A6.
- The points for consideration are:-
- Whether there is any deficiency in service on the part of the opposite parties?
- If so the reliefs and costs?
- According to the complainant she deposited with the firm an amount of Rs.38,605/- as per receipt No. 2026 on 11/07/2013 and Rs. 50,000/- as per receipt No. 2354 on 17/10/2013 and Rs.50,000/- as per receipt No.2355 on 17/10/2013 and Rs. 50,000/- as per receipt No.2356 on 17/10/2013 and Rs. 50,000/- as per receipt No. 2357 on 17/10/2013. In order to prove that she produced fixed deposited receipt bearing no. 2026 as Ext.A1 and Receipt No.2354 as Ext.A2 and Receipt No.2355 as Ext.A3, Receipt No. 2356 as Ext.A4, Receipt No.2357 as Ext.A5, Ext.A6 is the Power of Attorney as The further allegation of the complainant is that the opposite parties failed to return the said amounts to the complainant after the maturity date. It has not been denied by the opposite parties that the amounts in question were not deposited by the complainant with the firm the first opposite party and the deceased Dileepkumar were the partners. The contention taken by the 3nd opposite party is that she is the legal heirs of deceased Dileepkumar and she never be held to be liable for deficiency of service, since there is no consumer/ vendor 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 section 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 a 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 2nd opposite party were the partners of the firm and the complainant deposited the amount at the instance, of the deceased Dileepkumar. As per Section 35 of the Indian Partnership Act the asset of a deceased partner is not liable for any act of the firm done after his death only. Hence opposite parties are directed to return the deposited amount of Rs.2,38,605/- with 9% interest from the date of complaint. We further clarify that the liability of the opposite parties 3 to 5 are limited only to the extent of value of the properties inherited by her from deceased partner named 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, complaint is allowed. The opposite parties are directed to return the amount of Rs. 2,38,605/-(Rupees Two lakh thirty eight thousand six hundred and five only) with 9% interest from the date of complaint till realization. The order shall be complied within one month from the date of receipt of this order. In default complainant is allowed to realize an amount of Rs. 2,38,605/-(Rupees Two lakh thirty eight thousand six hundred and five only ) with interest as charge over the properties of the opposite parties. subject to the limitation alone mentioned. Since the primary relief is allowed no order as to cost and compensation. The order shall be complied within one month from the date of the receipt of this order.
Pronounced in Open Forum on this the day of 31st day of January, 2018.
Sd/- Smt. Elizabeth George (President)
Sd/-Sri. Antony Xavier (Member) Sd/-Smt. Jasmine. D. (Member)
Appendix:-
Evidence of the complainant:-
PW1 - Harish .N. Mohan(Witness)
Ext.A1 - Fixed Depoiste Receipt dtd. 11/7/13
Ext.A2 - Fixed Depoiste Receipt dtd.17/10/13
Ext.A3 - Fixed Depoiste Receipt dtd.17/10/13
Ext.A4 - Fixed Depoiste Receipt dtd.17/10/13
Ext.A5 - Fixed Depoiste Receipt dtd.17/10/13
Ext.A6 - Power of Attorney.
Evidence of the opposite parties:- Nil
//True copy//
By Order
Senior Superintendent
To
Complainant/Opposite parties/SF
Typed by: Br/-
Comped . by:
