ORDER

          This dispute relates to 2004, we are in 2018.

1.       Heard Mr. Anand Patwardhan, learned counsel for the revisionist firm; also heard Mr. K. V. Girish Chowdary, learned counsel for the stated new partners of the revisionist firm; and also heard Ms. Ranjan Doshi, learned counsel for the respondents – complainants. 

Perused the material on record.

2.       The brief facts, shorn of unnecessary detail, are that the complainants, Mr. Hasmukh Gala, Mr. Harakchand Gala, Mrs. Geetaben K. Patel, Smt. Leenaben M. Patel and Mrs. Jyoti V. Kulkarni, booked galas (shops) bearing nos. 18, 17, 14, 15 and 19 respectively and paid Rs.1,50,000/-, Rs.1,50,000/-, Rs.2,40,000/-, Rs.2,40,000 and Rs.1,50,000/- respectively to the revisionist firm, by way of part consideration.  The price of gala nos. 18, 17 and 19 was Rs. 2,00,000/- each, the price of gala nos. 14 and 15 was Rs.2,90,000/- each.  All the purchasers – complainants were supposed to pay the remaining amounts of Rs.50,000/- each to the revisionist firm at the time of delivery of possession of the galas.  In spite of substantial payments, the revisionist firm failed to deliver the possession of the galas.  The purchasers - complainants filed complaints bearing nos. 301 to 305 of 2004 before the District Forum, Kolhapur.  The complaints were allowed by the District Forum vide its Order dated 05.07.2005, and the appeals were dismissed by the State Commission vide its Order dated 10.04.2008.

3.       This revision has been filed by the revisionist firm under Section 21(b) of the Act 1986, against the impugned Order dated 10.04.2008 of the State Commission.

4.       Mr. Anand Patwardhan, learned counsel for the revisionist firm has filed an application dated 03.03.2015 stating that:

“1.     The applicant is petitioner 2 herein named, who have filed above said Revision Petition, who are builders/developers, along with the Petitioner 1, Kolhapur Sports Association and the same is pending disposal.

2.         The Applicant / Petitioner 2, states that during the pendency of the said Revision Petition, the Petitioner 2, viz. M/s Karan Associates, a Partnership Firm, has undergone complete change as all the old partners have retired as per the Deeds of Partnership dated 01.01.2013 and 19.01.2013 and in place of the old partners, new partners have come who have taken over all the assets and liabilities and are looking after the affairs of the said firm.  A copy of the Partnership Deed dated 01/01/2013 and 19/01/2013 is being relied upon, a self attested copy of which is annexed hereto as “Annexure 1 Colly”.

3.         The Applicants state that as per the said new partnership deed, the old partners, i.e. 1) Mr. Murlidhar Pandurang Jadhav, 2) Sou. Surekha Murlidhar Jadhav and 3) Sou. Deepika Deepak Jadhav, have all retired from the said firm and in their place, new partners who are now looking after all the affairs of the said firm, whose details are as under:

                                                1)         Mr. Sameer Kantilal Shah

                                                            Residing at Ambai Defence Colony,

                                                            Samratnagar, Kolhapur

                                                2).        Mr. Suresh Devappa Tanage

                                                            Residing at Kumbhoj,

                                                            Taluka Hatkanganle,

                                                            District – Kolhapur

                                                3).        Mr. Rajendra Vijayrao Chavan

                                                            Residing at Torana Palace,

                                                            Pratibhanagar, Kolhapur

4.         The Applicants/Petitioners since all the old partners, including those who had signed the Petition and the Vakalatnama have retired from the Partnership firm, it is now necessary to put the names of the new partners on record so as to enable them to be noticed as any order passed will affect the new partners.

5.         In the circumstances it is most humbly prayed that notices be issued to the new partners of the Petitioner 2 firm, who are now responsible for day to day affairs of the Petitioner 2 firm whose names and addresses are given hereinabove and oblige.”

(underlining supplied by us)

The application is self-evidently to evade / shift / extinguish liability.

5.       The stated new partners, (i) Mr. Sameer Kantilal Shah, (ii) Mr. Suresh Devappa Tanage and (iii) Mr. Rajendra Vijayrao Chavan, of the revisionist firm have filed a written submission dated 23.03.2017, through Mr Swetab Kumar, Advocate as ‘Advocate for the Petitioner No. 2’ (i.e. as advocate for the revisionist firm), stating that:

“1.        That the above captioned matter is pending before this Hon’ble Commission wherein pleadings in the Petitioner and Respondent’s are complete and fixed for final arguments.

2.         That the captioned matter was listed on 03.08.2016 which was fixed for final arguments before this Hon’ble Commission.  After the conclusion of the arguments of both the sides, the Hon’ble Commission directed all the parties to file its written submission.  In pursuance thereof, the petitioner No. 2 is submitting the same as under.

3.         That the petitioner No. 1 have filed an application for impleadment of New Partners and three Partners have retired from the Petitioner firm and three New Partners have joined in it wherein this Hon’ble Commission has allowed the said application.

4.         That during the pendency of the present petition before this Hon’ble Commission, the petitioners entered in an Agreement between the previous Partners and the new partners through “Partnership Retirement & Regular Partnership Deed” between Shri Murlidhar Panduang Jadhav (Retiring Partner) and Shri Samir Keshavlal Shah, Shri Suresh Devappa Tanage and Rajendra Vijayrao Chavan and the relevant terms and conditions of this partnership deed is reiterated herein as under:

                        Quote

5.         The retiring partner herein assures the Partnership and the Continuing Partners that there are no any debts or any other dues in the name of partnership.  If, in future, there appears such dues (which related to the period before the execution of this partnership deed) the Retiring partner shall be responsible and no Continuing Partner shall be responsible and no Continuing Partners or this new partnership firm will be held responsible.  In case, such dues/debts are paid/fully by this partnership firm the same shall be reimbursed by the Retiring partner immediately.

And the copy of Partnership Retirement & Regular Partnership Deed annexed herewith as Annexure P/1.

5.         That the previous partners/retiring partner of the firm and continuing partners have mutually agreed and assured to the New Partners and existing partners that there are no any dues pending in the name of the Partnership Firm as per the execution of the Partnership deed dated 15.01.2013.

6.         That the Respondent had made a booking prior to the dispute in property with the previous/retiring Partner and the new Partners have no role in the said booking, therefore, the New Partners are not liable for any dues of the Respondent.

7.         That the new Partners were not a party before Ld. District Forum as well as Ld. State Commission.  Further, the order was also against the previous Partners of the Firm and the Old (Retiring) Partners have approach this Hon’ble Commission.

8.         That during the execution of the Lower Forum order, it is humbly submitted that the same is not binding upon the new partners of the firm and therefore the new partners are not liable for any liability pending by the previous partners or the firm prior to the Partnership, Retirement & Regular Partnership Deed dated 19.01.2014.

9.         Therefore, the New partners of the Petitioner No. 2 has no role as such which is evident from the Partnership, Retirement & Regular Partnership Deed dated 19.01.2014 (para 5 of the said deed).  Para 5 has been quoted above clearly says that the retiring partners assured the new partners that there is no due pending with the firm and therefore, the new partners are nowhere responsible for the said act by the old partners and therefore it is prayed before this Hon’ble Commission that the new Partners ought to be discharged from the said case.

(underlining supplied by us)

The written submission is also self – evidently to evade / shift / extinguish liability.

6.       During arguments today, on 15.11.2018, Mr. Anand Patwardhan, learned counsel for the revisionist firm, reiterated its contentions as quoted in para 4 above.  And Mr. K. V. Girish Chowdary, learned counsel for the stated new partners of the revisionist firm, reiterated their contentions as quoted in para 5 above.

7.       We have perused the daily orders of 08.09.2008, 17.12.2008, 14.05.2009, 25.08.2009, 09.11.2009, 16.09.2013, 27.11.2013, 06.02.2014, 04.03.2014, 22.04.2014, 25.07.2014, 01.12.2014, 15.01.2015, 05.02.2015, 11.03.2015, 17.04.2015, 21.05.2015, 04.08.2015, 16.09.2015, 30.11.2015, 21.01.2016, 23.02.2016, 13.04.2016, 02.06.2016, 03.08.2016, 10.11.2016, 23.03.2017, 09.05.2017, 10.07.2017, 09.10.2017, 09.01.2018, 05.04.2018, 28.06.2018, 21.08.2018 and 27.09.2018, when this case was taken up earlier.

8.       We note that the revision was filed in 2008 against concurrent findings of the two fora below. 

We also note that the daily order dated 09.11.2009 recorded that “Pleadings are complete and service is also complete”. 

We further note that the said partnership deed/s between the stated previous partners and the stated new partners are said to be dated 01.01.2013 and 19.01.2013 in the application dated 03.03.2015 filed by the learned counsel for the revisionist firm, and is said to be dated 15.01.2013 at one place and dated 19.01.2013 at another place in the written submission dated 23.03.2017 filed for the stated new partners of the revisionist firm by an advocate for the revisionist firm.

Unattested photocopies of partnership deeds (two nos.) in Marathi dated 01.01.2013 and 19.01.2013 are annexed with the application dated 03.03.2015, and an unattested translated typed copy of a partnership deed (one no.) in English dated 19.01.2013 is annexed with the written submission dated 23.03.2017.   

We furthermore note that the application to attempt to evade / shift / extinguish liability was filed on 03.03.2015, more than one year after the said partition deed/s, and the written submission to attempt to evade / shift / extinguish liability was filed on 23.03.2017, more than four years after the said partition deed/s (and more than two years after the application of 03.03.2015).

After the said dates 01/15/19.01.2013 of the said partnership deed/s, the case was taken up on 27.11.2013, 06.02.2014, 04.03.2014, 22.04.2014, 25.07.2014, 01.12.2014, 15.01.2015 and 05.02.2015, and no mention of the said partnership deed/s was made by the learned counsel for the revisionist firm.  The said partnership deed/s came into the case only on filing of the application dated 03.03.2015, and find mention for the first time in the daily order of 11.03.2015.

We furthermore still note that after the service and pleadings were complete on 09.11.2009, on the next date, 16.09.2013, the daily order recorded that “It is stated that Mr. Dinesh Doshi, arguing counsel for the respondent is not well and has not come today. Further, it has been stated by both the parties that they shall explore the possibility of settlement. List on 27.11.2013 for settlement, if any”.

Between 16.09.2013 to 15.01.2015, the daily orders of 16.09.2013, 27.11.2013, 06.02.2014, 04.03.2014, 22.04.2014, 25.07.2014, 01.12.2014 and 15.01.2015, speak of “settlement” i.e. they talk of “settlement” subsequent to the dates 01/15/19.01.2013 of the said partnership deed/s.

No mention is made of any partnership deed/s in the afore daily orders.

On 15.01.2015 the daily order recorded that “Counsel for petitioners seeks further time for settlement. List the matter on 05.02.2015, in the category of ‘Direction’. Meanwhile, one of the partners of the petitioner should appear in person on the next date of hearing”.

On 05.02.2015 the daily order recorded that “It is stated by learned counsel for both parties that there has been change in the business of proprietorship concern of the petitioners as such petitioners want to file appropriate application in this regard. Application, if any be filed within four weeks, with copy to opposite parties. List on 11.03.2015 in the category of ‘Directions’ ”.

On 11.03.2015 the daily order recorded that “Petitioners have filed an application praying that three partners have retired from the petitioner firm and three new partners have joined in it.  Copy of the same supplied to counsel for respondents.  Reply if any, be filed within four weeks.  Meanwhile, parties are directed to appear in person on the next date of hearing.  List on 17.04.2015, in the category of “Direction” ”.

On 21.05.2015 the daily order recorded that “Petitioners have filed above application for impleadment of new partners of the petitioner firm.  This application shall be considered only after all the new partners of the petitioner firm appear in person.  Let all the partners of petitioner firm, as well as representative of respondents, appear in person for settlement, if any.  List on 04.08.2015, in the category of “Direction”.  Dasti to both parties”. 

On 04.08.2015 the daily order recorded that “Petitioners have already filed application for impleadment of new partners of the petitioner firm.  On the last date of hearing, it was observed that this application shall be considered only after all the new partners of the petitioner firm appear in person.  There is no appearance on behalf of the new partners of the petitioner firm. Let all the partners of the petitioner firm as well as representative of the respondent appear in person for settlement, if any, on the next date of hearing.  List on 16.09.2015, in the category of ‘Direction’. Dasti to both the parties”. 

On 16.09.2015 the daily order recorded that “In response to the previous order dated 04.08.2015, ‘dasti’ notice has not been collected by the learned counsel for the petitioners for the service of new partners.  Let ‘dasti’ notice be issued again. The learned counsel for the petitioners undertook to get the service effected for hearing on the next date.  In the meantime, both the parties shall explore the possibility of a mutual settlement. List the matter on 30.11.2015 in the category of ‘directions’ ”.

On 30.11.2015 the daily order recorded that  “As per office report, new partners of the petitioners have been served however, they are absent.  Further it is stated that Mr. Anand Patwardhan, arguing counsel for petitioner has not come from Mumbai.  Date is sought.  List on for settlement in the category of directions on 21.01.2016”. 

On 21.01.2016 the daily order recorded that “List for settlement in the category of directions on 23-02-2016.” 

On 13.04.2016 the daily order recorded that “The learned counsel for both the parties stated that there had been no settlement between the parties in this case.  List the matter for final hearing on 02.06.2016”. 

On 02.06.2016 the daily order recorded that “Mr. Swetab Kumar, Advocate stated that he had entered appearance for the new partners of petitioner no. 2.  Since the learned counsel for petitioner no. 1 is not present, list the matter for final hearing on 03.08.2016”. 

On 03.08.2016 the daily order recorded that “Learned counsel for both the parties have been asked to file their written submissions with copies to each other within a period of four weeks.  List the matter for final hearing on 10.11.2016”. 

On 10.11.2016 the daily order recorded that “Mr. Anand Patwardhan, Advocate  for the petitioners stated that Mr. Swetab Kumar, Advocate, who represents the new partners of the petitioner Association could not come today due to some personal difficulty regarding his travel arrangements.  Both the parties may file their written submissions in terms of the previous order within a further period of four weeks. List the matter for final hearing on 23.03.2017”. 

The written submission on behalf of the stated new partners finds mention for the first time on 23.03.2017: “- - - The learned counsel for the new partners, Mr. Swetab Kumar has filed his written submissions before the bench today, a copy of which has been given to the learned counsel for the old partners as well as the respondents.  Mr. Swetab Kumar, Advocate has attached copy of the “partnership retirement and regular partnership deed” along with written submissions.  The learned counsel stated that new partners had not taken over the liabilities of the old partners.  The learned counsel for the petitioner/old partners and the learned counsel for the new partners may seek instructions from their respective clients, as to who among them is to contest the present revision petition, or whether jointly or otherwise.  A time of six weeks is granted for this purpose.- - - ” 

On 09.10.2017 the daily order recorded that “In continuation of the previous order dated 23.03.2017, today Mr. K. V. Girish Chowdary, Advocate appeared for the petitioner no. 2 and stated that he had been engaged recently by the petitioner no. 2 (the earlier counsel was Mr. Swetab Kumar, Advocate). He stated that he shall be filing his vakalatnama within a period of two weeks in place of Mr. Swetab Kumar, who was the counsel of new partner of petitioner no. 2 firm as stated in the order dated 23.03.2017.  The learned counsel stated that on their behalf, some written submissions have already been filed, a copy of which have been received by the learned counsel for the respondents. - - -” 

On 05.04.2018 the daily order recorded that “- - - List for final hearing of the Revision Petition as well as for disposal of the pending Applications on 28^th June 2018.- - -” 

On 27.09.2018 the daily order recorded that “Learned counsel for petitioner no. 1 wants to file translated copies of documents.  He may file the same before the Registry today.  List the matter on 15-11-2018 for final hearing.  It is made clear that this revision petition is very old.  The absence of any counsel or party will not be a ground for further adjournment.  The matter will be decided by hearing the counsel or party present and on the basis of record available on the file”.

The stated new partners did not put in personal appearance on any date (inspite of a specific direction that: “Petitioners have filed above application for impleadment of new partners of the petitioner firm.  This application shall be considered only after all the new partners of the petitioner firm appear in person”, and a specific observation that: On the last date of hearing, it was observed that this application shall be considered only after all the new partners of the petitioner firm appear in person.  There is no appearance on behalf of the new partners of the petitioner firm.”).

Nor did they file any copy of any partnership deed/s between 21.05.2015 and 23.03.2017 i.e., on 04.08.2015, 16.09.2015, 30.11.2015, 21.01.2016, 23.02.2016, 13.04.2016, 02.06.2016, 03.08.2016 and 10.11.2016, on any of the dates the case was taken up.

9.       Apropos the Order dated 05.07.2005 of the District Forum, as upheld and affirmed by the State Commission vide its Order dated 10.04.2008, we may note that the general principle is that the liability of the firm and its partners is individual, joint and several. 

10.     Today, on 15.11.2018, neither learned counsel for the revisionist firm, nor learned counsel for the stated new partners, was agreeable to argue on the merit of the revision, the one was insistent that the liability had shifted / extinguished, and the other was insistent that the liability had not shifted / is extinguished.

Notwithstanding the principal and first requirement to argue on the merit in the revision, none was prepared to do so.

11.     On perusal of the record we note that the District Forum had appraised the case, and through a reasoned Order dated 05.07.2005 allowed the complaint:

“- - - 1) As explained above, Opp. Parties are held responsible for implementing an following orders jointly and personally.

2) As per Agreement to Sale, dated 15.06.2001, executed between the complainants and O.P., the O.P. has to hand over physical possession of said shop premises (Galas) to complainants by remaining bound and obeying the terms and conditions, mentioned in agreement as mentioned in following Table.

And as mentioned in agreement regarding if not handing over possession of said shop premises (Galas) to complainants, in particular mentioned period the O.P. has to pay Rs.100/- per day since 16.09.2001 till actual handing over physical possession of said premises to complainants from O.P.

2)         And the complainants have to pay balance amounts to O.P. at the time of handing over actual possession as mentioned in agreement.

3)         The O.P. has to pay Rs.500/- for Advocates fees, Rs.500/- for Expenses of complaint application and Rs.20,000/- for mental crisis / agony to every complainant.

4)         If for any reason, the O.P. is not in position of handing over physical possession of said disputed shop premises (Galas), to all complainants then O.P. has to return amounts taken from the complainants with interest @18% per annum till actual realization of all amounts.  And if not it possible then as per say of O.P. (in Para No. 8) the O.P. has to pay amounts to complainants by counting / measuring areas for purchasing properties in the same locality with rate Rs. 1600/- per Sq. ft. and also pay all the relief amounts to complainants as mentioned above to complainants.

5)         O.P. has to implement on said above orders within period of one month since getting true copy of Order.

6)         Both Parties have to collect order copies free of costs - - -”

12.     We further note that, in appeal, the State Commission had heard both sides, appraised the case again, and through a reasoned Order dated 10.04.2008 dismissed the appeal:

“- - -

8.         With the assistance of both the Counsels of contesting parties, we perused the relevant record.  Initial Agreement for sale was in respect of shops admeasuring 310 sq. ft. and 200 sq. ft.  O.Ps executed registered Agreement of Sale only in case of 3 shops and failed to execute registered Agreement in case of remaining two shops.  Agreement was executed on 15/6/2001.  It is an admitted fact that substantial amount was paid by the complainants.  In spite of payment of substantial amount, O.P.s failed to deliver possession of the shops to the complainants.  There was no valid reason to refuse to deliver possession of the shops to the complainants.  There was no valid reason to refuse to deliver possession of the shops to the complainants.  It is transpired from the record that O.P.s have sold the shops booked by the complainants to third parties and all of them are put in actual possession of the shops.

9.         During the course of arguments, Mrs. Anita Marathe – Advocate for the appellants made a fresh proposal and same is conveyed to the other side.  By way of fresh proposal, the O.P.s offered shop of 450 sq. ft as against shop of 200 sq. ft. and shop of 650 sq. ft. as against shop of 310 sq. fit without charging additional price.  This proposal is not acceptable to the original complainants.  One of the complainants is present before us.  He pointed out from the record that there is no frontage for the shops offered.  Moreover, there is no commercial activity on the road facing shops, which are offered today.

10.       It is seen from the record that O.P.s sent notices to the complainants in June 2004 and demanded extra additional amount ranging from Rs.72,000/- to Rs.90,000/- for providing extra amenities and for extra area.  This demand notice is proved to be a falsehood.  This demand notice was sent with an oblique motive.  In fact all the shops, which were booked by the complainants were sold in June, 2001 itself.

11.       After having scanned the evidence on record and after having considered the facts and circumstances of the case, order under challenge does not at all suffer from any illegality.  Appeals filed by the original O.P.s are devoid of any force.  In the result, we pass following order:-

                  ORDER

                                    1.         Appeal Nos. 1447 to 1451/2005 stands dismissed. - - -”

13.    We find the impugned Order of the State Commission to be well-appraised and well-reasoned. After hearing both sides, and after re-appraising the evidence, the State Commission concurred with the District Forum. Within the meaning and scope of section 21 (b), we find no grave error in appreciating the evidence by the two fora below, as may cause to require re-appreciation of the evidence in revision. On the face of it, we find no jurisdictional error, or a legal principle ignored, or miscarriage of justice.

14.     We find no reason evident to interfere with the concurrent findings of the District Forum and the State Commission.

15.     We, thus, find that, on the one hand, these five revision petitions are misconceived and devoid of merit, and, on the other hand, none, neither the revisionist firm, nor the stated new partners of the revisionist firm, was prepared to argue on the merit in the revisions, they only wanted to argue their respective / rival contentions with regard to evasion / shifting / extinguishment of liability.

16.     The mechanisms adopted in revision, spread over ten years, speak for themselves.  The case has a bad air, not viewed favourably.

17.     In the light of the above discussion, these five revision petitions are dismissed, with cost of Rs. 1 lakh each on (i) the revisionist firm and (ii) the stated new partners of the revisionist firm, to be deposited with the Consumer Legal Aid Account of the District Forum within four weeks.

18.     The District Forum is requested to proceed with execution of its Order dated 05.07.2005 as per the law. Needless to add that the District Forum shall keep in view the general principle recorded in para 9 above, and inter alia also adjudicate, on merit, on facts and law, on the respective / rival contentions apropos liability, in the normal wont of execution proceedings.

19.     The Registry is requested to send a copy of this Order to the District Forum within seven days.