PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        By this complaint the Complainant has prayed that the Opposite Party be directed to handover the possession of the shop premises in question to the Complainant.  It is also prayed that the Opposite Party be directed to pay an amount of Rs.10,00,000/- with interest @18% p.a. from the date of agreement for sale till realization by way of damages for mental agony and harassment caused to the Complainant and cost of Rs.10,000/- towards this complaint.

2)        According to the Complainant, he has filed this complaint against the Opposite Party for deficiency  in  service  under  the provisions of the Consumer Protection Act,1986 (hereinafter referred to as the Act).  It is alleged that the Complainant purchased the shop from the Opposite Party in the year 1978 as he came across the project which was being developed by the Opposite Party at Plot No.21 (part of Mandvi TPS No.1, Javed Manor, 1-3, Mirchi Street, Mumbai – 400 009).  It is submitted that the Complainant entered into a sale agreement with the Opposite Party for the shop premises in the said project on 05/01/1978.  The said sale agreement was executed between the Complainant and the Opposite Party on 05/01/1978.  The copy of which is marked as Exh.‘A’.  According to the Complainant, at the time of execution of the said agreement of sale dtd.05/01/1978, the Complainant had paid Rs.5,000/- to the Opposite Party in cash as per the clause no.3 of the said agreement.  It is submitted that the Complainant had also made all subsequent payments as mentioned in clause 3 of the said agreement amounting to Rs.46,000/- in cash towards the performance of the said agreement to the Opposite Party.  It is alleged that the Opposite Party has not performed and failed to perform their part of agreement.  It is submitted that the said agreement for sale was dully registered in the Sub-Registrar Office of Mumbai on 17/07/1981.  According to the Complainant, he approached to the Opposite Party for several times to comply with their part towards performance of the agreement for sale dtd.05/1/1978, however, the Opposite Party one or other pretext avoided to comply the same by saying that he will soon handover the possession of the shop premises in question.  According to the Complainant, the Opposite Party has been giving false and evasive reasons for non compliance on the part of the Opposite Party and harassing the Complainant. It is submitted that the Complainant for last 30 years has continuously visiting the office of the Opposite Party, however, no proper response is given by the Opposite Party.  According to the Complainant, the Opposite Party had asked the Complainant to pay Rs.1,00,000/- for handing over the possession expeditiously as the construction could not started due to financial crises of the firm.  It is submitted that the Complainant complied the said requisition of the Opposite Party so that he can get the shop premises immediately.  It is submitted that even after paying the amount the Opposite Party did not pay any heed to the request of the Complainant and did not give possession of the shop in question.  It is alleged that the Opposite Party failed and neglected to respond the request of the Complainant.  It is submitted that the action of the Opposite Party amounts to unfair trade practice and deficient service attracting the provisions of the Act.  The Complainant  has therefore, prayed the reliefs as mentioned in para 1 of this order. 

3)        The record of the case shows that the delay in filing the complaint was condoned by the order dtd.12/03/2013. 

4)       The Opposite Party filed written statement and contested the claim.  It is contended that the Complainant is not consumer of the Opposite Party, but he is consumer of the firm, the complaint is therefore, liable to be dismissed on this ground alone.  It is submitted that the complaint filed by the Complainant is misconceived, vexatious and malafied.  It is contended that the Opposite Party had not intentionally prevented the Complainant from gaining possession of the shop to be constructed on the plot referred in the complaint.  It is submitted that no construction has been carried out on the said plot and no such shop thus, exist as alleged by the Complainant.  The Complainant has suppressed the said important fact before this Forum.  According to the Opposite Party, he was the partner of M/s. Rubina Construction Corporation, a Partnership Firm dealing in the business of construction.  The said firm became non functional in 1978 or there about.  It is submitted that the Complainant has dragged the Opposite Party in this complaint unnecessarily. The alleged agreement was executed between the Complainant and M/s. Rubina Construction Corporation (the said Firm) it is therefore, submitted that the complaint be dismissed for non joinder of necessary parties.  According to the Opposite Party, the Complainant had fraudulently on the basis of declaration registered the document on dtd.13/07/1981, wherein a copy of agreement dtd.05/01/1978 was annexed.  It is contended that the Opposite Party was neither informed nor called upon while the same was being registered.  Thus, the conduct of the Complainant clearly shows that the Complainant has come out with malicious intentions.  It is contended that registration of one sided declaration signed on 13/07/1981 does not mean the agreement dtd.05/01/1978 was dully registered in view of the provisions of Sect.49 of the Registration Act, the Complainant cannot claim any right in the shop in question for want of registration of the document of immovable property.  It is submitted that the plot in question was leased to one Mr. Mohd. Gaus who was also the partner of the said firm.  He obtained the said plot on lease for the period of 50 years from 1973, however, as a result of dispute between the Lessor being Trustees of Sat Tad Kadim Mosque Trust and Lessee of the said plot a suit was filed by Mohd. Gaus, Galli being No.6193 of 1983 in the City Civil Court Bombay against the said firm and others.  It is contended that the said suit is still pending later on before the Bombay High Court and pursuant to the order of the City Civil Court the possession of the said plot was given to the Court Receiver so appointed on 04/04/1984 and continued to remain with him till filing of written statement.  It is submitted that hence, no construction was possible on the said plot. It is also submitted that the Lessor of the said plot instituted a suit bearing No.RAE and R No.126/417/1983 against the Lasee of Mohd. Gaus for cancellation of lease.  The said suit was dismissed by Small Causes Court for want of prosecution on 27/09/2000.  It is contended that due to the above facts as no construction on the said plot was possible.  Hence, all monies accepted from the prospective purchasers were dully returned alongwith interest.  The Complainant had also received the initial sum paid by him alongwith interest. It is contended that the allegations made by the Complainant regarding the payment of other amounts are absolutely false. The Opposite Party has parawise denied all allegations made in the complaint and contended that the complaint be dismissed with compensatory cost.

5)        The Complainant has filed his affidavit and submitted that whatever he has stated in the complaint is true and correct.  The Opposite Party has filed his affidavit. The Complainant has not filed written argument.  The Opposite Party has filed written argument.  We heard the oral arguments of Shri. Jaswant Singh, the Advocate for the Complainant and Shri. Mahesh Ayare, Ld.Advocate for the Opposite Party.  We have perused the documents filed by both sides.   

6)        While considering the claim made in the complaint, it appears that the Opposite Party has not disputed the unregistered document of agreement for sale dtd.05/01/1978 between M/s. Rubina Construction Corporation, a Partnership Firm Registered under the Indian Partnership Act, 1932 and the Complainant.  From the copy of the said documents, it appears that the said agreement was signed as a partner of M/s. Rubina Construction Corporation by Managing Partner Shri. Abdul Rahim Babalal Attar.  The Opposite Party has placed on record the copy of Partnership Deed in which the partnership firm Rubina Construction Corporation consist of 12 partners including Abdul Rahim Attar.  The Complainant has not filed the present complaint against the partnership firm as provided under Order XXX of the Code of Civil Procedure.  Order XXX Rule (1) of the Code of Civil Procedure is as under –

                “1.  Suing of partners in the name of firm – (1) any two or more persons claiming or being liable as partners and carrying on business in (India) may sue or be suedin the name of the firm (if any) of which search persons were partners at the time of accruing of cause of action and any party to a sue may in such case apply to the Court for a statement of names and addresses of the persons who were, at the time of accruing of cause of action, partners in such firm to be furnished and verified in such matter as the Court may direct”        

                The Complainant has not complied the aforesaid requirement of the code of Civil Procedure.  The Complainant ought to have filed the present complaint against any two or more persons claiming or being liable as partners and carrying on business.  On this count we hold that the complaint filed by the Complainant is bad-in-law and cannot be said maintainable.   Furthermore, from the notice reply given to the Advocate of the Complainant Mr. Piyush M. Shah, dtd.03/11/2011 by the Opposite Party, it appears that the Complainant was having knowledge that the partnership of M/s. Rubina Construction Corporation has ceased to exist for last 33 years.  In view of the said fact the Complainant was required to comply the service of summons as provided in Rule 3 of order XXX of the Code of Civil Procedure, which is as under –

                “Provided that, in the case of Partnership which has been dissolved to the knowledge of the plaintiff before execution of the suit, the summons shall be served upon every person within (India) whom it is sought to make liable.”   

            In this case the Complainant did not comply the said provision also at the time of filing of this complaint.  On this count also the complaint is bad-in-law and cannot be held maintainable. The Hon’ble Andhra Pradesh High Court in the case of Kota Sreevalli V/s. Chinni Seetharamaiah AIR 2005 AP 521 held that failure to implead the firm order XXX CPC mandates that whenever suits are filed by or against a firm, or Company, it shall be made a party.  In this case the Complainant has not complied   the order 30 Rule 1 of CPC.  From the title of the complaint it shows that the complaint is filed against Abdul B. Rahim Attar, (Partner)– M/s. Rubina Construction.

            The Complainant did not join M/s. Rubina Construction Firm as party to this complaint which is necessary party to this complaint.  As per Order 1 Rule 9 and 10(2) of the Code of Civil Procedure as a general rule suit cannot be dismissed on the ground of non joinder of necessary parties, but this rule does not apply in case of non joinder of necessary parties. In the present case as the document of agreement for sale dtd.05/01/1978 which is placed on record has been executed between M/s. Rubina Construction Corporation a Partnership registered under Partnership Act, and between the Complainant, the Complainant ought to have brought the present complaint against the firm. The Opposite Party has specifically contended in the written statement that the Complainant did not join M/s. Rubina Corporation i.e. firm as party to this complaint the complaint be dismissed for non joinder of necessary parties.  We find that the said contention raised by the Opposite Party is legal and proper in view of the above legal position and the complaint is liable to be dismissed on this count.

7)        The Complainant has come out with the case that initially he paid Rs.5,000/- being the earnest money towards the purchase price and thereafter, he made payment of Rs.46,000/- as mentioned in the agreement for sale. It is also the case of the Complainant that thereafter he paid Rs.1,00,000/- to the Opposite Party.  It is pertinent to note that the Complainant did not produce any receipts for the aforesaid payments.   The Opposite Party has admitted that the Complainant has paid initial amount of Rs.5,000/- and thereafter the same was returned to the Complainant with interest and the Complainant received Rs.9,000/- from the Opposite Party.  The Opposite Party has produced the copy of statement of the Complainant recorded by PSI, Paydhuni Police Station on 28/11/2011. In the said statement the Complainant has made rather contrary statement than the case alleged in the complaint.  The said statement is as under -

           ‘सदर ऍग्रीमेंट बनविण्‍याच्‍या 10 दिवस अगोदर मी ए.बी.अत्‍तार यांना 1 लाख रुपये रोखीने दिले व सदरचे पैसे हे 2 नंबरचे म्‍हणून दिले. मी फेब्रुवारी 1978 ते सप्‍टेंबर, 1978 या कालावधीत वेगवेगळया तारखेस असे मिळून एकूण 51,000/- ए.बी.अत्‍तार यांना दिले व त्‍याबाबत तो मला शॉप नं.4, जावेद मनोर देणार होता. परंतु त्‍यांनी आत्‍तापर्यंत बिल्‍डींग बनवली नाही व माझे घेतलेले पैसेही परत दिलेले नाहीत. मी ए.बी.अत्‍तार यास एकूण रु.1,51,000/- रोखीने दिलेले आहेत परंतु सदर पैसे दिल्‍याबाबतच्‍या पावत्‍या मला काही दिल्‍या नाहीत. सदर रकमांपैकी मला दि.30/08/2011 पर्यंत ए.बी.अत्‍ता यांनी मला थोडे थोडे करुन एकूण रु.9,000/- दिलेले आहेत व शिल्‍लक राहिलेले पैसे देण्‍यास टाळाटाळ करीत आहे. म्‍हणून मी सदर बाबत पायधूनी पोलिस ठाणे येथे तक्रारअर्ज दिलेला आहे. सदरची तक्रार ही दिवाणी स्‍वरुपाची असून त्‍याबाबत दिवाणी न्‍यायालयात दाद मागण्‍याची समज मला मिळाली आहे.’     

          In view of the aforesaid statement we find that the Complainant has not come with clean hands. Furthermore, the Complainant has produced the document dtd.05/01/1978 i.e. document of agreement for sale shown as registered document on 13/07/1981 which was not earlier registered when it was executed by the Complainant and M/s. Rubina Construction Corporation.  The Opposite Party has raised objection regarding registration of the said document as the said document was registered without the knowledge of M/s. Rubina Construction Corporation and behind back of the said firm.  The advocate for the Opposite Party Mr. Mahesh Ayare has pointed out the Government Notifications dtd.22/12/2011 and 28/05/2012 and pointed out in view of the provisions of Sec.23 to 25 of the Registration Act, the document placed on record by the Complainant is not legal and acceptable as provided under Sec.49 of the said Act and submitted that thus, the Complainant is not entitled for the reliefs claimed in this complaint in our view can be said legal and proper.  Besides this, the Opposite Party has produced on record that the Suit No.6193/83 filed by Mohd. Gaus against the partners of M/s. Rubina Construction Corporation.  The City Civil Court vide order dtd.26/10/83 appointed Court Receiver High Court Bombay and the said order was continued till 17/02/2009.  It is also brought on record that thereafter the plaint in the said suit was returned to Mohd. Gaus for presentation before the proper Court of jurisdiction vide order dtd.17/02/2009.  According to the Opposite Party, thereafter, the suit was filed before the Hon’ble Bombay High Court and the same was pending during the pendency of this complaint.  The Complainant has not brought on record the factual position regarding the said dispute before this Forum and pointed out that there is deficiency on the part of the Opposite Party which amounts to unfair trade practice.

                  In view of the aforesaid discussion we find that the claim made in this complaint cannot be entertained as per the legal provisions and the Complainant has not proved his claim against the Opposite Party on merits also.  The complaint is therefore, liable to be dismissed.  In the result the following order is passed –

O R D E R

                i.          No.179/2012 is dismissed with no order as to cost.

        ii.         Certified copies of this order be furnished to the parties.