Gurmeet Singh vs Rakesh Kumar Sharma

THIS is an appeal against the judgment and order dated 22.9.2000 passed by District Consumer Forum-I, Bareilly in Complaint Case No. 818/1993.

BRIEFLY stated the facts of the case are that the complainant Sri Rakesh Kumar Sharma deposited an amount of Rs. 5,000/- on 31.10.1987 with the opposite party No. 01, M/s. Jeet Finance, Bareilly. The said opposite party is engaged in the business of Finance and Banking. The other opposite parties are partners of the said firm and, therefore, liable for the acts and liabilities of the said firm. The deposit was made vide Receipt No. 478. Again on 4.1.1988 the complainant further deposited an amount of Rs. 5,000/- vide Receipt No. 501 with the opposite party No. 1. Both these deposits were made for interest at the rate of 18% per annum and the amount in question was liable to be refunded back along with the interest at the rate of 18% per annum. The complainant time and again approached the opposite parties for refund of the amount with interest but the opposite parties postponed the matter of payment on one pretext or the other. There is, therefore, a clear deficiency on the part of the opposite party. A legal notice was also sent to the opposite party on 1.6.1993 but some of the opposite parties returned the notice and some of them acknowledged the liability to the extent of their respective share only. In accordance with the law every partner is jointly and severally responsible for meeting the liability. The cause of action for filing the complaint arose on 6.7.1993 when the reply of the notice was received by the complainant at Bareilly. The complainant, therefore, filed a claim before the District Consumer Forum praying that the amount of Rs. 10,000/- deposited by the complainant along with interest at the rate of 18% per annum be allowed to him. An amount of Rs. 2,000/- as cost and damages were also claimed. The complainant has also filed an affidavit in support of his complaint along with copies of the F.D.Rs. as detailed in the beginning of this judgment. In the written version before the District Consumer Forum, the opposite party Sri Gurmeet Singh stated that he is the partner of the firm M/s. Jeet Financier. The said firm has been closed and the amount deposited by the complainant should be recovered from the property of M/s. Jeet Financier. It was also stated that all the partners of the firm should be made parties in the case. The accounts of the firm are in possession of Smt. Gurdeep Kaur wife of Sri Amarjeet Singh and the liabilities of the depositors can be liquidated only by appointment of a Receiver. A joint written statement of opposite party Nos. 3, 4 and 5 was also filed before the District Forum in which the amount deposited in terms of the two F.D.Rs. has been admitted. The partners in the firm were Sri Gurmeet Singh, Sri Hardeo Singh, Sri Gurubaksha Singh and Smt. Gurdeep Kaur. The firm was closed in the year 1990 and since then no effective working or transactions have taken place. It was also contended that the complaint is bad for non joinder of the partners Smt. Gurdeep Kaur, Smt. Amrit Kaur and Smt. Usha Arora who are also partners of the said firm and are equally liable to make the payment. The opposite parties are only liable to the extent of their shares and rest of the amount should be recovered from Smt. Gurdeep Kaur, Smt. Amrit Kaur and Smt. Usha Arora.

The District Consumer Forum after hearing the two parties decreed the claim and directed the opposite parties to pay to the complainant the amount of two F.D.Rs. along with interest at the rate of 18% per annum from the date of maturity till the date of payment.

AGGRIEVED of this order, the appellant Sri Gurmeet Singh, Sri Gurubaksha Singh and Sri Hardeo Singh have come in this appeal. Notice was issued to the respondent in the month of December, 2000. The notice has not come back unserved, hence the service on the respondent is presumed sufficient. The appeal, therefore, proceeded ex parte.

WE have heard the learned Counsel for the appellant. The learned Counsel for the appellant has argued that the F.D.Rs. matured in the years 1988 and 1989. The complaint case should have been filed within three years upto 4.1.1992 whereas the complaint case has been filed on 20.9.1993. Since the complaint has not been filed within three years of the date of maturity, therefore, the complaint was barred by time. WE find that this plea has not been taken in the written statement filed before the District Forum, although this aspect of the matter has been dealt with by the Forum and the District Forum has held that the registered legal notice was given to the parties on 1.6.1993 and the opposite parties agreed to pay the sum of the FDR to the extent of their liability and, therefore, the appeal filed was not time barred. The learned Counsel has argued that date of maturity should be the determining factor for limitation and not the date of registered legal notice. In support of this the learned Counsel has placed reliance on the judgment and order of this Commission reported in 2000 (1) CPR Page 296 in which it has been held by this Commission that once a period of limitation starts, it cannot be enlarged by long correspondence between the parties. Correspondence between the parties shall not extend the period of limitation which has already started to run from the date of accrual of cause of action. He has also placed reliance in support of his plea on the judgment and order passed by National Commission reported in III (1996) CPJ 142 (NC). A close scrutiny of the evidence on record will show that the circumstances in these cases were different than those obtaining here. In this case, in our opinion the cause of action will continue as the complainant has not been able to get back the amount deposited by him along with interest, therefore, the limitation will continue till such time the payment is not made. It is a well known fact that the non-banking finance companies have been receiving the deposits all over the country and when on maturity the depositors approach the companies for refund of the deposited amount along with interest, a lot of time is taken and delaying tactics are adopted which take at times a number of years. In the instant case the complainant has not been able to get back his money, therefore, the cause of action as stated above will continue till such time the payment along with interest is made. The learned Counsel has further argued that the judgment and order of the District Consumer Forum is not sustainable in view of the fact that on a number of hearings only Single Member passed the order. In support of this, he has filed copies of the order sheets (Page Nos. 12 to 23). We have perused these order sheets and also the judgment and order of the Forum. We do not find that the judgment and order of the District Forum which is based on merit and sound reasoning and is in way effected by the entries made in the order sheets. On a number of days the order sheets have definitely been signed by the single Member but that does not mean that hearing was not done by atleast two Members. A perusal of the order sheets goes to show that whenever the coram of the Forum was incomplete the hearing was postponed. This is clear from the orders dated 19.6.1995, 3.8.1995, 20.9.1995, 17.11.1995, 8.2.1996, 21.5.1996, 23.9.1996, 4.9.1997, 26.9.1997, 6.10.1997, 7.3.1998, 28.5.1998, 26.6.1999, 19.8.1999, 4.11.1999, 19.1.2000, 15.3.2000 and 29.5.2000. On these dates since coram of the Forum was not complete adjournments were given, therefore, this is natural that one Member has signed the order sheet. On 31.10.1994, 17.4.1999, 12.9.2000 and 22.9.2000 specific orders were passed by the Forum and these have been signed by the two Members, therefore, the plea of the learned Counsel that the single Member passed the orders on different dates cannot be accepted. The order sheets are only indication of the action taken in regard to hearing and even if atleast two Members have not signed will not affect the merits or demerits of the complaint. In this particular case the opposite parties have admitted the fact that the complainant had deposited the money and deposits were accepted by the Jeet Financier, opposite party No. 1. The only plea raised was that being the partners they were only liable to pay to the depositors that much amount which is proportionate to their shares in the partnership firm. This plea also cannot be accepted under the partnership law. The responsibility of the partners is equal and partners are severally and jointly liable to clear the liabilities. The District Consumer Forum has, therefore, came to the right conclusion and we do not find any reason for interfering in the judgment and order passed by the learned Forum. The appeal is, therefore, liable to be dismissed and the judgment and order passed by District Forum are confirmed. ORDER The appeal is dismissed. The judgment and order of the learned District Forum are confirmed. Let compliance of the judgment and order of the District Forum be made within a period of one month. Let copy of this order be made available to the parties as per rules. Appeal dismissed.