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2005 (2) CPR 378
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM
T.M. Hassan Pillai, President and
Smt. A. Radha, Member
M/s. Indian Ananda (Fund) Bank & Anr.—Appellants
versus
T.A. Radhakrishnan Ushus & Ors. —Respondents
A. Nos. 612/2002, 613/2002 and 614/2002
Decided on 1-11-2004
Counsel for the parties :
For the Appellants :Sri S. Reghukumar, Advocate.
For the Respondents: Sri. Koshy P. Thomas for R3 to R9.
IMPORTANT POINT
A joint complaint for distinct and separate courses of action is not maintainable under C.P. Act, 1986.
Headnote:Consumer Protection Act, 1986 — Sections 2(1)(b), 2(1)(c) and 15 — Joint complaint about non-payment of interest by Bank on separate deposits made by Mother and son — Cause of action
for each complaint is distinct and
separate — District Forum entertained such complaint — Whether correct ? (No) — Whether, otherwise, there is any merit in complaints ? (No) — Appeal allowed — Case law referred — (Partnership
Act, 1932 Section 30 — Income Tax Act, 1961 — S. 26A — Provincial Insolvency Act, 1925).
Held: The first question that is to be answered by us is as to whether a joint complaint is entertainable by the forum below. The only provision in the Consumer Protection Act, 1986 enabling one or more consumers representing numerous consumers to file a representative complaint where there are numerous consumers having the same interest is S. 2 (1) (b) (iv) of the Consumer Protection Act,1986. There is no allegation in the complaint that the joint complaint is filed by the complainants on the ground that they are having the same interest nor the complaint is filed by them representing numerous consumers who are also having the same interest along
with them. From the allegation made in the complaint it is not clear as to when the deposit (date of deposit) was made by each complainant. From Ex.Pl produced by the complainants it may not be possible to hold that deposit was made by
each complainant on the same day. It can be seen from Ex.Pl that deposit was
made by 1st complainant on 17.7.96
and from Ex.Pl it is not discernible as
to when(date) the deposit was made
by the second complainant. It is clear from the allegation made in the
complaint itself that 1st complainant was not given interest from the month of
6/97 and second complainant was not given interest from the month of 5/97. So it is clear that the cause of action
for each complaint for claiming interest fell due arose not on the same date but on different dates. Apart from the assertion made in the complaint that for
the return of the deposit made with interest accrued due demand was made both orally and in writing it is not disclosed in the complaint nor is it discrenible from the evidence available that both the complainants demanded return of deposit made by each of
them orally and in writing jointly. It is not discernible from the allegations made in the complaint whether both of
them jointly issued notice demanding the refund of the amount deposited
by each of them with interest or separate notice demanding deposit with interest was issued by each of them. It is not also clear from the averments made in the complaint as to when demand
was made in writing (date of making demand in writing and when the demand was made orally i.e., date of making
demand orally by each complainant. We have to point out also here that nowhere in the complaint it is asserted that
the complainants are having same interest and we may point out also that even if such an allegation is made i.e., the complainants are having same interest a joint complaint or representative complainant cannot be filed by them on the ground that there is no case for them that there are numerous consumers having the same interest and they have filed the complaint representing numerous consumers. No provision in the Consumer Protection Act or rules framed thereunder has been brought to our notice by the agent appearing for the complainants enabling the complainants to file a joint complaint and on that ground we have
to hold that complaint is not maintainable.(Para 8)
In our considered view the lower forum should not have entertained such a complaint. It is true that no such contention that the complaint is not enter-tainable by the forum is urged in the written version filed by the opposite parties/appellants herein.(Para 13)
Held finally: The conclusion emerges from the above discussion held by us is that the complainants dismally failed to establish that opposite parties 2 to 11 are or were the partners of 1st opposite
party and there existed at any time any partnership firm under the name and style Indian Ananda Bankers. The first opposite party is only a proprietary concern of second opposite party and as
the second opposite party received the deposits from the complainants he alone can be made liable for the return of the deposits. In view of the fact of filing of
an insolvancy petition by the second opposite party to adjudge him as an insolvant we cannot pass any order directing him to pay to the complainants the deposits made by them. Further
joint complaint is not entertainable by the forum below and therefore the course open to us is to dismiss the complaint. In the result the appeals are allowed
setting aside the impugned order passed by the forum below. We also dismiss the complaint in view of the fact that such a joint complaint is not entertainable. Taking into consideration the facts and circumstances of the case we direct the parties to bear and suffer their costs throughout.(Para 29)
Result : Appeal allowed.
T.M. Hussan Pillai, President — The controversy that is to be resolved by us in these appeals preferred by the opposite parties(opposite parties 1 & 2 preferred Appeal No.612/2002, opposite parties 7,8 & 9 preferred Appeal No.613/2002 and Opposite parties 4,5,6,10 & 11 preferred Appeal No.614/2002 and the appeals are preferred against the order passed in O.P.251/99 by the Consumer Disputes Redressal Forum, Thiru-vananthapuram) is to whether a joint complaint filed by the complainants who are respondents Nos. l & 2 in all these three appeals is maintainable and if maintainable the further question that is to be answered is whether the forum below was justified in passing the impugned order making all the opposite parties liable for the reliefs granted by the forum below.
2. The reliefs granted by the forum below are opposite parties 1 to 12 are directed to pay to the first complainant Rs. 1,50,000/- with interest at 14.5% from 6/97 till date of realisation and to pay to the second complainant Rs. 42,751/- with interest at 14.5%, from 5/97 till date of realisation. They are further directed to pay Rs,7,500/- to the 1st complainant as compensation, Rs. 1,000/- as costs; Rs. 2,500/- to the 2nd complainant as compensation and Rs. 1,000/- as costs. The amounts ordered to be paid to the first and second complainants are directed to be paid within two months from the date of passing of the order under challenge.
3. All the three appeals have been heard together and we are disposing of them by a common judgment.
4. The joint complaint has been filed by the complainants (1st complainant is a retired govt. servant and second complainant is the mother of the first complainant) alleging that each of them deposited Rs. 50,000/- and Rs. 42,251/- respectively with the first opposite party bank and interest at the agreed rate was paid to the first complainant till the month of 5/97 and second complainant was paid interest till the month of 4/97. Thereafter the bank was evading payment of interest and it is alleged that despite the demand made both orally and also in writing for return of deposit made together with interest entitled to each complainant demand remained unheeded.
5. The first and second opposite parties filed a joint version contending that the second opposite party is the proprietor of the first opposite party bank and it is a the proprietor concern of him. It is admitted in the version that the deposits were received.
6. In the joint version filed by other opposite parties they disputed the fact that they have connection with the 1st opposite party bank and also contended that no deposit was received by anyone of them and they have absolutely no connection with the transaction alleged in the complaint.
7. Complainants produced Ex P1 to P13 in support of their case and first complainant filed affidavit on behalf of the second complainant also asserting the case pleaded in the complaint. On the side of the opposite parties the second opposite party filed affidavit and also gave evidence before the lower forum as DW1. Opposite parties 1 & 2 produced Ex D1 to D5 to prove their case that 1st opposite party is the proprietary concern of second opposite party. 10th opposite party produced Ex D6, the relevant page of
S.S.L. Certificate showing his date of
birth and he also filed affidavit. Affidavit is filed by the 11th opposite party and Ex.D7 the relevant page of S.S.L. Certificate is also produced by him to prove
his date of birth. Along with affidavit
filed by the 5th opposite party he produced Ex.D8 showing the date of his birth
(Ex.D8 is the relevant page of S.S.L.
Certificate). Along with the affidavit
filed by the 4th opposite party to prove
the date of birth of him Ex.D8, the relevant page of S.S.L Certificate is produced. 6th opposite party filed affidavit and also produced Ex. D10 the relevant page of S.S.L. Certificate to prove his date of birth.
8. The first question that is to be answered by us is as to whether a joint
