Per Shri S.R. Khanzode – Hon’ble Presiding Judicial Member:
This appeal takes an exception to an order dated 3rd November, 2009 passed in Consumer Complaint No.19/2006, Mr.Kishor Shriram Sathe V/s. Mr.Vivek Gajanan Joshi, by Pune District Consumer Disputes Redressal Forum, Pune (‘the Forum’ in short).
It was a consumer complaint filed for refund of consideration paid along with interest and compensation for mental agony and inconvenience caused to the Complainant as well as to his family member, physical discomfort, loss of benefit of rebate under Income Tax Act, interest paid, litigation expenses, stamp duty registration fees etc. The Forum accepted the contentions of the Respondent/original Complainant and awarded the claim of refund of consideration along with interest @ 12% per annum and rejected the rest of the claim for compensation. Feeling aggrieved thereby Appellant/original Opponent (hereinafter referred to as the ‘Opponent’) preferred this appeal. Respondent/original Complainant is hereinafter referred to as the ‘Complainant’.
According to Complainant, Opponent is a promoter developer carrying on the business on the address mentioned in the complaint. On 15.03.1988 Opponent offered to sell a residential Flat bearing No.7, 2nd Floor, in Building named as Bhagirathi Apartment situated at Survey No.272, Plot No.13, Shridhar Nagar, Chinchwad, Taluka - Haveli, District Pune. Thus an agreement dated 07.04.1988 was executed and registered. The consideration was agreed at `1,68,500/- and the possession of the flat was agreed to be given on or before 31.10.1988. Complainant had made part payment of `1,40,000/- from time to time. It is further alleged by the Complainant that possession of the flat could not be delivered as agreed since the Opponent failed to construct the building. Thereafter, Complainant on various occasions persistently made demand orally as well as in writing either to give possession or refund the consideration paid. The Opponent only gave false assurance to refund the amount paid as part consideration i.e. `1,40,000/- along with interest. On 24.01.1992 and 10.03.1992 Opponent only assured the Complainant to the effect that he would see that the Complainant would not suffer. However, those assurances were not kept. Thereafter it is further alleged (in the complaint) by the Complainant that,
“That the complainant therefore recently sent letter dated 01/02/2005 to the opposite party demanding refund of said `1,40,000/- along with interest and compensation. The opposite party received said letter on 4/2/2005 and showed his willingness before Mr.Mehendall, the member of All India Consumer Panchayat Pune – 30 to refund the entire amount at the interest 15% per annum and compensation within 15 days. However this time also the promise of opposite party proved to be false one.
That thus the opposite party has willfully failed and neglected to refund the amount of part consideration rs,.1,40,000/- received from the complainant or to give possession of said flat till date.”
Thus, alleging deficiency in service on the part of Opponent, following reliefs are claimed in the consumer complaint:
“
(a) To refund to the complainant `1,40,000/- along with the interest @ 18% from the date of payment till its realization.
(b) To pay `2,00,000/- to the complainant towards the compensation for mental agony, inconvenience to the complainant and his family members, physical discomfort, loss of benefit of rebate under Income Tax Act, interest paid, litigation expenses, stamp duty, registration fees etc.
(c) Any other order in the interest of justice be kindly passed.”
Opponent opposed the consumer complaint specifically raising contention that the agreement was with ‘Sayli Builders’, which is a registered partnership firm. The property belonging to one of its Partners, namely, Eknath Daguji Nikam, was given for development to said partnership firm as per agreement dated 25.02.1987. In all seven residential flats and three shops were to be constructed. Complainant was in need of a flat and therefore, contacted M/s.Sayli Builders and agreed to purchase Flat No.7 for consideration of `1,68,500/- from said firm and entered into an agreement dated 07.04.1988. Sayli Builders asked the Complainant to take possession of the flat on payment of balance consideration. The Complainant avoided to take possession. In the meantime thereafter dispute arose between the Sayli Builders and the original land owners of the property and the original land owners cancelled the development agreement dated 25.09.1989 and also revoked power of attorney in favour of the Sayli Builders. Thereafter, those land owners also forcibly took possession of flat no.7. These developments were brought to the notice of the Complainant by the Opponent and it was also suggested to the Complainant to take possession through Civil Court. It is alleged that the consumer complaint is barred by limitation and furthermore the consumer complaint ought to have been filed against Sayli Builders and since said Sayli Builders is not joined as a party, the complaint is not tenable.
After hearing both the parties the Forum initially settled the dispute by an order dated 23.10.2008. The same was challenged by the Opponent in First Appeal no.1558/2008. Allowing the said appeal, matter was remanded back and it was also observed while disposing the appeal that Sayli Builders ought to have been made a party. The matter was remanded in view of those observations. It appears that thereafter Complainant did not take any steps to add Sayli Builders as a party. The matter was recontested on the basis of original pleadings, i.e. complaint and the written version. The matter stood disposed of by an impugned order, supra.
The Agreement in question dated 7th April, 1988, the copy of which is on record, is not in dispute. It can be seen that said agreement is entered with Sayli Builders, the registered partnership firm and not with the opponent. Though Opponent was shown as the partner acting on behalf of said firm the complaint as drafted and to which the reference is made earlier, the Complainant did not allege that the agreement was with the partnership firm, but, described the Opponent as the builder and developer and stated that it is the Opponent who offered him a plot thereafter and an agreement dated 07.04.1988 was entered into. It shows that Complainant, since from the beginning did not want to bring a registered partnership firm M/s.Sayli Builders into picture as a defending party. In fact once the agreement is with the partnership firm, the service deficiency, if any, could be alleged only against the said firm and not against any individual. Had it been a fact that all the partners of M/s.Sayli Builders were joined as parties, the things could have been looked with difference but, it is not the case before us. Considering the provisions of Indian Partnership Act, interse relationship between the partners of a firm is governed by the partnership agreement. Therefore, to file a consumer complaint in the personal name of the Opponent and that to describe him as a builder and developer who agreed to sell the flat, is per se not only contrary to the agreement dated 07.04.1988, but also against the provisions of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’ for brevity) and no consumer complaint for want of hiring of any service of the Opponent in his individual capacity would lie against the Opponent.
The Forum heavily relied upon the decision of Apex Court in the matter of Purushottam Umedbhai and Company V/s. Manilal and Sons, reported in 1961 AIR (SC) 325. It has only explained the scope of Order XXX of Code of Civil Procedure, 1908 and further explained that after incorporation of said Order in the scheme of Code of Civil Procedure, an enabling provision is made which permits the partners constituting firm to sue or be sued in the name of the firm. Provisions of Order XXX of Code of Civil Procedure 1908 are not made applicable to the consumer dispute under the Act as per Regulation No.26(1) of the Consumer Protection Regulation 2005 and it is mandate of law that, in all proceedings before the Consumer Forum, endeavour shall be made by the parties and their counsels to avoid the use of provisions of Code of Civil Procedure, except the one provided for.
To decide the inter se relationship as a consumer and service provider between the parties to consumer dispute one has to refer to a definition of “person” per section 2(1)(m) of the Act. It includes a firm registered or not. The phrase “deficiency” (Section 2(1)(g) of the Act) is defined as under:
“deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.” (underlining provided).
Thus, it is clear that a registered partnership is recognized as a person vis-à-vis jurisdic person as a service provider and therefore, if the deficiency in service is to be alleged against the said registered firm the consumer complaint ought to have been filed against the said firm. It may be that the partners of said firm could be joined along with the firm, but, it is certainly not contemplated that a consumer complaint could be filed only against a person like an opponent against whom the action is brought in his personal capacity and certainly it is further not contemplated that only one partner of a partnership firm could face consumer complaint in the absence of the firm and other partners. Therefore, present consumer complaint suffers a vital defect and it cannot be proceeded against the Opponent.
From the statement made by the Complainant himself it could be seen that Complainant was well aware (as reflected from the correspondence since the year 1992 and from the averments made in the complaint) that no construction of the building was coming up and hence, it was not possible to get possession of the flat and demanded refund of the amount, i.e. consideration paid. In paragraph 9 of the complaint, supra, the Complainant alleged that by his letter dated 01.02.2005 which was received by Opponent on 04.02.2005, the opponent showed his willingness before Mr.Mahendall, the member of All India Consumer Panchayat, Pune, to refund entire amount with interest @15% per annum and compensation within 15 days. The complaint is also filed for refund of consideration only, thus, it is a money claim and at that point of time the Complainant already treated the original agreement to sell a flat or purchase a flat rescinded. Therefore, for said money claim no consumer complaint would lie.
A reference has been made to a letter dated 06.02.2005 addressed to the Complainant by one Shri S.E. Nikam (presumably land owner and one of the partners of Sayli Builders). The Forum referring to this letter in paragraph 13 of the impugned order made certain observations to the effect that “it was only on this letter date 06.02.2005 Complainant learnt that the Agreement in question was terminated – by one Shri Nikam who was probably partner of the opponent firm …………. The complainant had learnt that the said agreement was rescinded by letter dated 06.02.2005 only. The period of limitation would began to run from that day”
Such observation is a departure from the factual position and is a misstatement of fact. The letter dated 06.02.2005 written by Mr. S.E. Nikam, supra, acknowledged the communication received from the Complainant dated 04.02.2002 and further informed the Complainant to explain to said S.E. Nikam as to under which authority he was claiming flat no.7 from Bhagirathi Apartment and further requested the Complainant to forward to him the necessary documents showing his interest or a claim in the said flat. Mr. S.E. Nikam also informed Complainant by said communication that there was no agreement between him and the Complainant at any time and there is no transaction of receiving money had taken place in between them. Thus, it is not the letter whereby any contract was rescinded by said Shri S.E. Nikam either on his behalf or on behalf of M/s.Sayli Builders.
As earlier recounted, Complainant was well aware from the correspondence from the year 1992 itself that the agreement to handover possession of the flat would not be materialized because no construction was at all coming up (as per case presented by the Complainant himself). He further restricted his reliefs to claim refund of the consideration paid i.e. `1,40,000/-. Therefore, the cause of action to file the consumer complaint arose in the year 1992 itself and thus, the consumer complaint filed on 17.01.2006 is barred by limitation in view of the Provisions of Section 24-A of the Act.
For the reasons stated above, we hold accordingly and pass the following order:
O R D E R
(i) Appeal is allowed.
(ii) Impugned order dated 03.11.2009 is set aside and in the result Consumer Complaint No.19/2006 stands dismissed.
(iii) In the given circumstances, no order as to costs.
