NARENDER KUMAR vs BHIM RAJ GUPTA

THIS appeal has been filed by Shri Narender Kumar on opposite party, against the order of the District Forum No. 1 dated 14th November, 1991 by which the opposite parties were directed to pay an amount of Rs. 7,500.00 to the complainant alongwith interest @ 18% p.a. w.e.f. 21st Feb., 1988 till the date of payment alongwith Rs. 1,000.00 as costs.

BRIEFLY the facts are that Sh. Bhim Raj Gupta Complainant deposited an amount of Rs. 10,000/- with M/s. Jagmohan Lai Pawan Kumar (hereinafter referred to as the firm) on interest @ 18% p.a. payable quarterly, on 22.8.87. It is alleged that an amount of Rs. 2,500/- was paid by the firm on 8th August, 1988 and a receipt dated 8th August, 1988 was issued by it to the Complainant. Shri Narender Kumar, Jagmohan Lal, and Pawan Kumar opposite parties are the partners of the firm. Thus, an amount of Rs. 7,500/- alongwith interest was payable by them. Consequently, the Complainant prayed that the opposite parties be directed to pay an amount of Rs. 7,500/- with interest @ 18% p.a. to him.

The complaint was contested by the Complainant Sh. Narender Kumar, who inter-alia pleaded that the amount of Rs. 10,000/- was taken by the Firm without his knowledge. In the partnership deed dated 12th April, 1986 it was provided that the other partners would not be entitled to raise any loan without his knowledge.

IT is further pleaded that the partnership was dissolved vide dissolution deed w.e.f. 31st March, 1988 and all the assets and liabilities of the Firm were taken over by Jagmohan Lal and Pawan Kumar-partners. This fact was known to the Complainant when he entered into new agreement with the Firm on 8th August, 1988. Consequently, he was not entitled to recover any amount from him. It is next pleaded that the Complainant- entered into fresh agreement with Jagmohan Lal and Pawan Kumar after dissolution of the partnership and he agreed to accept Rs. 5,000/- only in settlement of his claim. Out of that amount Rs. 2,500/- was paid on 8th August, 1988 and the balance of Rs. 2,500/- was due from them. Consequently, Rs. 2,500/- was payable to the complainant by Jagmohan Lal and Pawan Kumar partners only.

THE learned District Forum passed a decree for the recovery of Rs. 7,500/-with interest as stated above. Shri Narender Kumar has come up in appeal against the said order to this Commission. The first contention of the learned Counsel for the Complainant is that according to the terms of the partnership deed Jagmohan Lai and Pawan Kumar were not entitled to raise any loan on behalf of the firm without the consent of the Complainant. The present loan was taken without his consent and therefore, he is not bound to pay the amount. We have dully considered the arguments but regret our inability to accept it. Section 19 of the Partnership Act relates to implied authority of the partners. It does not prohibit the partners to accept deposits in the firm. It has not been shown that the aforesaid term was brought to the notice of the Complainant. Therefore, we reject the submission of the learned Counsel.

THE next contention of the learned Counsel for the Complainant is that the Complainant retired from the partnership before 8th August, 1988 and after his retirement a fresh contract was entered into by the complainant with the firm. Consequently, he is not liable to pay the amount. We have duly considered the argument but do not find any substance therein as well. Section 32(3) of the Partnership Act, provides that inspite of retirement of a partner from the firm, he and the partners continue to be liable as partners to 3rd parties for any act done by any of them, which would have been an act of the firm if done before the retirement, until public notice was given of the retirement. In the present case no notice was given of the retirement by the Complainant. In the circumstances he continued to be liable to the acts of other partners of the firm even after his retirement. THE amount was deposited by Opp. Party No. 1 on 22nd August, 1987. During the period of about 7 months he must have come to know about the liability of the firm but he never served any notice on Opp. Party No. 1 that the other partners were not entitled to take deposit according to the terms of the partnership deed or that he would be retiring from the partnership. In this situation the liability of the Complainant regarding the new agreement continues. Consequently, we reject this submission of the learned Counsel also.

THE last contention of Mr. Jain the learned Counsel for the Complainant, is that a fresh contract came into force on 8th August, 1988 between Opp. Party No.1 and the firm. According to that contract, he was paid Rs. 2,500/- and he agreed to take another sum of Rs. 2,500.00 from the firm in full settlement of his cashier claim. In view of the new agreement between the parties Opp. Party No. 1 is not entitled to recover more than Rs. 2,500.00. We find substance in this contention. THE Complainant has attached the first receipt dated 8th August, 1988 with the complaint. It is stated therein that on that day an amount of Rs. 2,500.00 was to be paid by the firm. It appears that Opp. Party No.1 came to know that the financial condition of the firm became bad and therefore, he entered into a fresh agreement with the firm according to which he agreed to accept Rs. 5,000.00 from it. Out of that amount Rs. 2,500.00 was paid in cash by the firm and further amount of Rs. 2,500.00 was agreed to be paid by it to Opp. Party No. 1. In view of the provisions of Section 62 of the Contract Act, the complainant-Opp. Party No.1 is now entitled to recover Rs. 2,500.00 with interest. In the receipt dated 22nd August, 1987 the firm agreed to pay interest @ 18% p.a. In the receipt dated 8th August, 1988 the rate of interest has not been mentioned. However, it has been stated therein Opp. Party No.1 would be entitled to interest on the amount of Rs. 2,500.00. THErefore, he is entitled to recover interest @ 18% p.a. from the opposite parties on the amount of Rs. 2,500.00. For the a foresaid reasons we partly accept the appeal and direct the opposite parties, namely, the firm and their 3 partners to pay the complainant, the amount of Rs. 2,500.00 with interest @ 18% p.a. from 8th August, 1988 till the date of payment. They shall also pay costs of the District Forum to Opp. Party No. 1, which we assess at Rs. 500.00. They are directed to pay the said amount within a period of two months to the complainant-Opp. Party No.1 failing which an action would be taken against them under Section 27 of the Consumer Protection Act. In view of the partial success of the Complainant before us, we make no order as to costs regarding the appeal. Appeal partly allowed.