T SHAHUL HAMEED vs ULLAL HARI VAMAN NAYAK

-THIS appeal by opposite party Nos. 3 and 4 is directed against the order dated 26. 5. 2003 of Karnataka State Consumer Disputes Redressal Commission, Bangalore whereby they along with respondent Nos. 2 and 3 were directed to pay amount of Rs. 7,67,078. 28 along with interest up to 31. 10. 2001 and future interest at the agreed rate of 26% p. a. till date of payment to respondent No. 1/complainant.

FACTS giving rise to this appeal lie in a narrow compass. Appellants and respondent Nos. 2/opposite party No. 2 were the partners of respondent No. 3/opposite party No. 1 firm which has been carrying business as Builders and Developers. Appellants and respondent No. 2 approached respondent No. 1 and sought for fixed depsoit assuring high interest on the deposit. Respondent No. 1 issued on 29. 11. 1995 cheque bearing No. 737609 drawn on Corporation Bank in favour of respondent No. 3 of a sum of Rs. 3,00,000 which was encashed by the firm. Appellants and respondent No. 3 undertook to pay the said deposit in three yearly instalments of Rs. 1 lakh each along with interest @ 26% p. a. Towards partial payment of interest, the respondent No. 3-firm gave tax deduction at source certificates for the year 1997 for Rs. 6,537, 1998 for Rs. 7,340, 1999 for Rs. 9,057 and 2000 for Rs. 12,994. On 11. 7. 1996, the respondent No. 1 received a sum of Rs. 1,00,000 towards first instalment. On balance amount not being paid despite repeated requests and service of legal notice, the respondent No. 1 filed complaint. Though, the appellants and respondent Nos. 2 and 3 were served with notices in the complaint sufficiently but they did not appear and contest the complaint. Considering the affidavit filed by way of evidence of one of the partners of respondent No. 1 and the documents, Exs. C-1 to C-11, the complaint was allowed by the State Commission in the manner noticed above. Main thrust of argument advanced by Mr. N. R. Shanker for the appellants is that (i) appellants were not served with the notices in the complaint; (ii) appellant No. 1 was not a partner of respondent No. 3-firm on the date of filing of complaint and passing of the order under appeal his having been retired as partner on 31. 3. 1999; (iii) respondent No. 3-firm was constituted for the purpose of building and developing and was not a financial institution and there was no documentary proof in regard to respondent No. 1 having deposited Rs. 3,00,000 and appellants having agreed to pay interest; and (iv) complaint under the Consumer Protection Act was not maintainable as there is no allegation made therein of deficiency in service on the part of appellants and respondent Nos. 2 and 3. We propose to examine these submissions in seriatim.

Along with response to the appeal, the respondent No. 1 has filed attested copies of the front portions of the envelope through which the notices in the complaint were sent by post to the appellants by the State Commission. Those would show that the notice sent to the appellant No. 1 was received back with the postal remark ''not claimed'' while notice sent to appellant No. 2 was received with the postal remark ''refused''. The State Commission had treated these endorsemens as sufficient service of notices on the appellants. We are not inclined to take a view different from that taken by the State Commission in the matter. Thus, plea of non-service of notices taken on behalf of the appellants is repelled being without any merit.

IN support of appellant No. 1 having been retired from respondent No. 3-firm w. e. f. 31. 3. 1999, Mr. Shanker, Advocate has drawn our attention to the copy of Retirement Deed at pages 37 to 39. On the other hand, Mr. S. N. Bhat for respondent No. 1 has pointed out that the stamp paper on which Retirement Deed is typed was purchased on 21. 8. 1999 as is evident from the endorsement of the stamp vendor at page 38 and the plea of appellant No. 1 having retired as partner w. e. f. 31. 3. 1999 is untrue. Relying on the copy of sale deed at pages 47 to 57, the submission advanced by Mr. Bhat is that appellant No. 1 as partner of respondent No. 3 had even sold certain properties on 22. 6. 2000. Particularly considering this sale deed the case of appellant No. 1 having retired as partner of respondent No. 3-firm w. e. f. 31. 3. 1999 thus cannot be accepted. That apart, on 29. 11. 1995 when amount of Rs. 3,00,000 was deposited by means of a cheque with respondent No. 3-firm, the appellant No. 1 was admittedly a partner of the firm. It is this date of deposit which is to be seen for fixing liabiity of repayment of the loan amount with interest by appellant No. 1. From whatever angle the case is seen, the appellant No. 1 cannot escape liability to refund the loan amount along with interest. Submission at (iii) above is stated to be rejected. State Commission has returned finding of respondent No. 1 having paid money by way of deposit considering the unrebutted affidavit of one of the partners of respondent No. 1-firm and the documents, Exs. C-1 to C-11. In Para No. 4 of the complaint, it is alleged that the appellants and respondent No. 2 had sought for the fixed deposit from respondent No. 1 promising to refund the deposited amount in yearly instalments of Rs. 1 lakh each along with interest @ 26% p. a. Failure to refund part of the deposited amount and interest by the appellants and respondent Nos. 2 and 3 amounts to deficiency in service and the complaint under Consumer Protection Act, 1986 was, therefore, maintainable by respondent No. 1.

COMING to the last limb of submission referred to above, it is true that in the complaint it is not alleged in so many words that there was deficiency in service on the part of the appellants but this lacuna is not vital as the facts disclosed in complaint do make out a case of deficiency in service on the part of the appellants and respondent Nos. 2 and 3 arising out of non-refund of the balance deposited amount along with interest at the agreed rate thereon. For the foregoing discussion, the appeal is dismissed being without any merit with cost of Rs. 7,500 to respondent No. 1. Appeal dismissed.