VEMURI BHARATHI vs VIJAYA CREDIT CORPORATION

IN C.D. Nos. 51/93 and 84/93 the opposite parties are the same. But the complainant''s are different. Since the nature of the relief claimed is one and the same and the questions that have to be decided are also common, we consider that these two C.D.''s cart be disposed of by a common order.

THERE is one complainant in C.D. 51 of 1993 and seven complainant''s in C.D. 84 of 1993. Their case is that they have deposited certain amounts with the opposite party i.e. M/s. Vijaya Credit Corporation, the partnership firm of which opposite parties 2 to 10 are partners. But the opposite party i.e. Partnership firm, did not repay the amount to them on maturity of the deposit amount. In certain cases the initial deposits were renewed for further periods. The only contention is that even after maturity of those deposits the opposite parties inspite of demand did not repay the amount. Hence these complaints are filed for a direction to the opposite parties i.e. partnership firm as well as the 10 partners to pay the amount due to the complainants in both the complaints with interest at 24%. In CD 51/93, the complainant claimed for refund of Rs. 41,140/towards the amount due to him in respect of three deposits with interest at 24% p.a from 18.3.93 and also a sum of Rs.5,000/- towards costs and Rs. 75,000/- towards exemplary damages. The first complainant in C.D. 84/93 claimed a sum of Rs. 1,09,265/- with interest at 24% p.a. with effect from 10.3.93 and also the amounts of Rs. 5,000/- towards costs and Rs. 75,000/- towards exemplary damages. Similarly the second complainant claimed Rs. 30,731/- with 24% interest from 10.3.93 and also the aforesaid mentioned sums towards costs and exemplary damages. Similarly the third complainant claimed Rs. 20,836/- with interest at 18% p.a. from, 10.3.93 till the date of payment and also costs and exemplary damages. Fourth complainant claimed an amount of Rs. 31,949/- with interest at 18% p.a from 10.3.93 and also Rs. 5,000/- towards costs and Rs. 75,000/- towards exemplary damages. Fifth complainant claimed Rs. 13,891/- with interest at 18% p.a. from 10.3.93 and Rs. 5,000/- towards costs and Rs. 1,00,000/- as exemplary damages. Sixth complainant claimed Rs. 20,549/- with interest at 18% p.a. from 10.3.93 and costs of Rs. 5,000/- and exemplary damages of Rs. 75,000/-. Seventh complainant claimed Rs. 34,249/- with interest at 18% from 10.3.93 and also Rs. 5,000/- towards costs and Rs. 75,000/- towards exemplary damages. Opposite Parties 1, 2, 3, 7, 8 and 10 remained exparte.

Opposite Parties 4, 5 and 6 filed a common counter stating that they were never partners in M/s. Vijay Credit Corporation and the partnership deed was brought into existence with their names and with their forged signatures. The production of the original partnership deed proves that they were not partners in this Corporation. They also made allegations that there was a collusion between the partnership firm and the complain ant. Hence it is their submission that they are not liable for payment of any amount. The opposite party No. 9 filed a counter stating that the complainant is not a consumer and that there is no deficiency of service. It has no knowledge of depositing the amounts, and that the complainant did not inform the opposite party at the time when they deposited the amount and the deposit was made without the consent of the 9th opposite party. She further denied that the complainant has contacted her and she assured about the regular payment of the interest and also refund of the principal amount. She further denied that she never assured about the payment of the dues and that therefore, she is not liable. Thus it is seen that so far as 9th opposite party is concerned, the complainant did not inform her at any time about making the deposits and did not obtain her consent and that never assured repayment of the amount, and hence she is not liable to pay.

ON the basis of the aforesaid contentions the questions that arise for considera tion are, that whether the complainants are consumers within the provisions of the Consumer Protection Act and whether the opposite parties are liable to pay the amounts as claimed and whether the opposite parties 4, 5, 6 are partners of the firm or not. It is well settled that the failure to refund the amounts deposited with any financial institute on maturity will amount to deficiency of service. Therefore, there can be no doubt that the complainant are consumers, and are entitled to maintain this complaint.

EXCEPT opposite parties 4, 5, 6 the 9th Opposite Party did not deny that she is a partner. She merely took a plea that the deposits were not accepted with her consent and she did not give consent for repayment of the said amount with interest and also did not assure repayment, and that, therefore, she is not liable. But once she is a partner of the firm and that the Managing Partner did not file any counter and contest the case, the 9th opposite party being a partner also liable because if partnership firm is liable the partners are also liable to pay the amount. So far as the Managing Partner of the firm and other partners are concerned, except Opposite Parties 4, 5, & 6 others remained exparte and did not contest the matter, and are also liable including partnership firm. The learned Counsel for the opposite parties drew our attention to xerox copy of certificates produced before us, wherein certain partners including 4,5, & 6 withdrew from Partnership Firm some time in 1988. But the xerox copy shows that these entries were made on an application made by them some time in 1992. Thus it is evident that entries are made stating that these partners are not liable since they ceased to be partners from 1988, but it is to be seen that so far as the complainants are concerned they are third party creditors and if a partner wants to absolve himself or herself liabilities of the partnership firm, they have to follow the procedure of the publication of the same in the papers and also in the gazette, otherwise the retired partners cannot disown liability to pay third party creditor of the partnership firm. The Opposite Parties 4 to 6 except stating that some fraud was committed and their signatures were forged and their names were not existing in the partnership deed, did not call for original partnership deed from the Managing Partner or did not obtain the copy of the original partnership and produce the same before the Commission to show that they are not parties of the original partnership firm. Their plea that some fraud was committed and on account of the fraud their signatures were forged by the other partners and were shown as partners and hence they are not liable, as the details of fraud and who committed it were not mentioned. Moreover no particulars about fraud were also not mentioned. In the circumstances it is a matter for investigation by the Civil Court whether the signatures are forged or not. So far as this complaint is concerned, since the receipts produced clearly show that the amounts were deposited with the partnership firm, and that, therefore, there is deficiency in service and the opposite parties are liable to repay the amount.

CERTAIN complainants claimed 24% interest from the date of maturity, others claimed at 18%. But the majority of the complainants claimed only 18%. In these circumstances we consider that the awarding of rate of interest at 18% is reasonable in all cases. So far as the claim for exemplary damages are concerned, in most of the complaints it is Rs. 75,000/-, except in one complaint he claimed Rs. 1,00,000/-, we are not inclined to grant the same as we awarded interest on the amount to be refunded. We are satisfied that the complainants are not entitled for any damages by way of exemplary damages. In the circumstances of the case, we are satisfied that the complainants are entitled to costs of Rs. 500/- by each of the complainants. It is open to the opposite parties 4, 5 & 6 to seek remedy in a Civil Court if they are so advised disputing their liability, making other partners, parties to the suit. If it was found that they are not liable to pay they can recover the amount by way of contribution from other partners. In the result the opposite parties in CD 51/93 are jointly and severely were directed to pay the amount of Rs. 41,140/- with interest at 18% p.a from 18.3.93 with costs of Rs. 500/-. The rest of the claim was negatived. The first complainant in CD. 84/93 is entitled for payment of an amount of Rs. 1,09,265/- with interest at 18% from 10.3.93 till the date of payment and costs of Rs. 500/-, jointly and severely from the opposite parties. The rest of the claim is dismissed. Similarly second complainant is entitled to a sum of Rs. 30,731/- with interest at 18% from 10.3.93 till the date of payment and costs of Rs. 500/- jointly and severely from the opposite parties. The rest of the claim is dismissed. Third complainant is entitled to a sum of Rs. 20,836/- with interest at 18% from 10.3.93 till the date of payment and costs of Rs. 500/- jointly and severely from the opposite parties. The rest of the claim is dismissed. Fourth complainant is entitled for payment of Rs. 31,949/- with interest at 18% from 10.3.93 till the date of payment and costs of Rs. 500/-, jointly and severely from the opposite parties. The rest of the claim is dismissed. Fifth complainant is entitled to a sum of Rs. 13,891with interest at 18% from 10.3.93 till the date of payment and costs of Rs. 500/- from the opposite parties jointly and severely. The rest of the claim is dismissed. Sixth complainant is entitled for a sum of Rs. 20,549/- with interest at 18% from 10.3.93 till the date of payment and costs of Rs. 500/- from the opposite parties, jointly and severely. The rest of the claim is dismissed. Seventh complainant is entitled for payment of Rs. 34,249/- with interest at 18% from 10.3.93 till the date of payment and costs of Rs. 500/- jointly and severely from the opposite parties. The rest of the claim is dismissed. In the result the complainants are entitled to the extent mentioned above. Complaints allowed.