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2005 (2) CPR 417
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM
T.M. Hassan Pillai, President and A. Radha, Member
M/s. Ananda Bank—Appellant
versus
Hajju Mohammed S. & Ors. —Respondents
A. Nos. 162/2002, 163/2002, 164/2002 and 155/02
Decided on 26-7-2004
Counsel for the parties :
For the Appellants :Sri. S. Reghukumar, Advocate.
For the Respondents: None.
IMPORTANT POINT
The order of the D.F. suffers from the vice of non-application of mind. It is not sustainable in law. It is modified in terms of the judgment of State Commission.
Headnote:(i)Consumer Protection Act, 1986 Section 15 — Appeal against order of D.F. holding 7th OP liable as partner of O.P.1 Bank — Complaint neither alleging O.P. 7 as partner of OP1 nor material on record indicating any connection of OP7 in the complained loan transaction with OP1 — (Partnership Act, 1932 — S. 28 — Partner by estoppel or holding out — Same position as about O.P.4.(Paras 10 to 12)
Held: Needless to point out that in Ex.P2 partnership deed produced by the complainant 7th opposite party is not shown as a partner and he has not signed in that deed. He is unnecessarily made a party and no relief can be granted against him. He is unnecessarily dragged to a litigation and cost is to be awarded to him for unnecessarily troubling and harassing him.(Para 12)
(ii)Partnership Act, 1932 — S. 4 — Definition of partnership — Complaint against OP1 alleging a partnership firm and other OP’s having connection with it as partners or helpers -- No evidence at all that OP1 is a Partnership firm — Order of DF holding it liable as firm and others as partners — Whether sustainable in law ? (No) (Paras 13 to 34) (Evidence Act, 1872 — Sections 33 and 14(1)(d).
(iii)Consumer Protection Act, 1986 — Section 2(1)(g) — Deficiency in service — Compensation — Provincial insolvency Act, 1925 — Effect — Loan given to OP1 a proprietorship concern of OP2 — Unable to pay on demand — Whether a deficiency in service ? (Yes) (Para 37) — Compensation of Rs. 5,000/- given for mental agony
(Para 37) — Interest on loan — Insolvency petition pending — 6% interest —
Rs. 2000/- cost subject to decision of insolvency court — Non-application of mind by Majority of DF commented upon — Appeal allowed accordingly.
Held: In the result the appeal 163/02, 164/02 are allowed with costs. Appellant in A.163/2002 and Appellant
in A.164/02 are not liable for refund of the deposit made by the complainant or for any other reliefs prayed for in the complaint. A.155/02 is dismissed with
costs of respondents 5 to 14. We direct the appellant/complainant to pay each of the respondent (respondents 5 to 14)
cost of Rs. 500/-, Order passed by the Consumer Disputes Redressal Forum, Thiruvananthapuram is modified making 2nd opposite party liable for the
return of the amount of Rs. 80,000/-
deposited with the first opposite party by the complainant with interest at 6%
per annum from the month of February
1997 till payment or till deposit of that amount in the forum below and 2nd opposite party is also to pay a compensation of Rs.5,000/- and a cost of Rs.2,000/- subject to the decisions of insolvency court in O.P. No.2/1999. A. 162/2002 is disposed of accordingly. We quantify
the cost payable by the complainant to
appellant in A.163/2002 and appellant
in A. 164/2002 at Rs. 500/- each.(Para 45)
Result : Appeal partly allowed. Order
accordingly.
T.M. Hassan Pillai, President — All these appeals are directed against an order which we are constrained to
describe as an absurd order passed by the Consumer Disputes Redressal Forum, Thiruvananthapuram in O.P.No.102/99. We are called upon to decide the sustainability of that order passed in appeals filed by opposite parties 1 & 2 in the OP(A.162/2002), 3rd opposite party in the O.P.(A.163/2002) and the 4th opposite party in the O.P.(A.164/2002).
2. Complainant filed A.155/2002 and grievance voiced by him is that though the impleading application moved by him to implead opposite parties 3 to 14 has been allowed by the lower forum they are not arrayed as opposite parties in the complaint. It is contended that the lower forum should have also held that opposite parties 8 to 14 are also liable for the amount found to be due by the forum below to the complainant and should have also allowed that amount to be realised from the opposite parties 8 to14. The other ground of grievance urged is that the lower forum was not justified in absolving opposite parties Nos.5, 6 & 7 from the liability of repaying the amount deposited by the complainant and other reliefs prayed for by him, Reliefs are sought in the appeal against the opposite parties 5 to 14 on the basis of the alleged fact that they are also partners of the partnership firm M/s. Ananda Bank Ayiroor, Varkala of which the second opposite party is alleged to be the Managing Partner. It is contended also on behalf of the appellant/complainant that since minors (the fact that respondents 6.3.9.10 and 14 in A.155/2002 were minors at the time of execution of Ex P2 is not in dispute) failed to exercise the right of election to discontinue their connection with the partnership after attaining majority within the specified period (six months) by giving public notice they became partners and partnership deed is valid and not void as against the minor partners.
3. The case pleaded by the complainant in the complaint was that amount of Rs. 80,000/- which was his pensionary benefits deposited by him in the savings bank/fixed deposit of treasury was withdrawn by him on 19.5.1994 on the request made by the partners of the first opposite party bank (the allegation made in the complaint is that opposite parties 2 to 6 the partners of the firm) and deposited on the very same date of withdrawal with the first opposite party firm. He was given interest till the month of February, 97. His brother approached him for giving him money which he(brother of complainant) needed in connection with the marriage of his (brother’s) daughter and he (complainant) promised to give money by withdrawing the amount deposited by him with the first opposite party. On giving notice for withdrawal of that amount the opposite parties (in the complaint one Sitajasuga-than is arrayed as 7th opposite party) agreed to return the deposit on 3.3.97. Opposite parties 4 to 6 approached him on behalf of the bank and requested him for giving the bank further time for six months to make arrangement for the return of the deposit. His further case is that he had given the amount promised to be given to his brother by closing his other deposits and he lost interest and bank charges on account of closing and withdrawing of the other deposits. Opposite parties 4 to 6 promised to compensate the complainant for loss of interest and bank charges on account of closing and withdrawing of the other deposits. The amount deposited and the amount promised to be given as loss of interest and bank charges were not given even after the expiry of six weeks. He suffered mental agony and there was deficiency in service on the part of the opposite parties the OP.
4. In the seperate written state-ments(versions) filed by opposite parties 2 to 7 identical contentions have been raised by them and they disputed the fact that the first opposite party bank is a partnership firm and they are partners of that firm. Their contention is that 1st opposite par
