Judgment : Dt.24.10.2017
Shri S. K. Verma, President.
This is a complaint made by one Arun Prakash Paul, s/o Late Kaliprasanna Paul, resident of Flat No.1 of the building at 1/40B/1, Vidyasagar Upanibesh, P.S.- Netajinagar, Kolkata-700 047against M/s Kalpataru Developers, L/1/19, Vidyasagar Upanibesh P.S.- Netajinagar, Kolkata-700 047, OP No.1, Sri Dilip Kumar Dhar, s/o Late Hemaja Ranjan Dhar, residing at 1/23, Vidyasagar Colony, P.S.-Netajinagar, Kolkata-700 047, OP No.2, Sri Debatosh Bhadra, s/o Late Debendra Chandra Bhadra, L/1/19, Vidyasagar Upanibesh P.S.- Netajinagar, Kolkata-700 047, OP No.3, Smt. Tapashi Biswas, w/o Sri Jayatish Biswas, Rajpur, Dhamaitala Lane, Pradip Battala, Kolkata-700 151, OP No.4, Smt. Ashima Paul, w/o Sri Anjan Paul, 2/155, Sree Colony, Kolkata-700 047, OP No.5, Smt. Jyotshna Rani Malakar, OP No.6, Sri Pramir Malakar, OP No.7, Sri Bholanath Malakar, 1/40B/1, Vidyasagar Upanibesh, Kolkata-700 047, OP No.8, Smt. Shyamali Sarkar, Baishnabgha, Patuli Township S-Block 147, Kolkata – 700 094, OP No.9, Smt. Saraswati Roychowdhury, Jot-Shibrampur, Hazaripara, South 24-Parganas, Kolkata-700 141, OP No.10, and Smt. Aparna Sarkar, 124, Myna Sarani, Lichu Bagan Kanchrapara, Dist.-North 24 Parganas, Kolkata-743 145, OP No.11, praying for handing over possession letter by OP No.2 to 5 to the Complainant and direction to execute and register the deed of conveyance in respect of scheduled flat in favour of the Complainant and further direction for payment of compensation to the tune of Rs.20,000/- in favour of the Complainant and litigation cost of Rs.10,000/-.
Facts in brief are that OP is a partnership firm carrying on business in the name and style of Kalpataru Developers having its office at L/1/19, Vidyasagar Upanibesh P.S.- Netajinagar, Kolkata-700 047, OP No.2 to 5 are the partners, OP No.6 to 11 are the absolute owners of the land situated at 1/40B/1, Vidyasagar Colony on which 4 storied building was raised. OP No.6 to 11 entered into a development agreement with OP No.2 to 5 as partners for constructing a multi storied building. OP No.6 to 11 also made power of attorney in favour of OP No.2 to 5 as per the development agreement. OP No.1 to 5 were authorized to sell flats of their share. Accordingly, Complainant entered into an agreement for sale out of developer’s allocation for purchasing a flat at a consideration of Rs.8,60,000/-. Complainant paid the total amount after which OP No.2 to 5 handed over possession to the Complainant. OP No.2 to 5 fixed the date of registration of deed of conveyance on 4th October, 2016 and accordingly, Complainant instructed his lawyer for preparation of a draft deed. The deed of conveyance was prepared.
On 3rd October, OP No.3, 4 & 5 showed their interest for executing the deed in favour of the Complainant. But, it could not be executed. So, Complainant issued a notice to the OPs. But despite that the deed was not executed. So, Complainant filed this case.
OP No.3, 4 & 5 filed written version and has stated that OP No.2 is not discharging his legal duties and obligations of which he is contractually bound. OP No.2 was informed by a letter of OP No.3, 4 & 5 dt.14.10.2016 to join in execution of the deed of conveyance. But, he did not join. So, due to his conduct deed of conveyance could not be made.
OP No.2 has also filed written version and has stated that in collusion and conspiracy with other partners, the Complainant has manufactured a sale deed to deprive OP No.2. Money receipt filed is false. Such a big amount cannot be paid in cash. Further, allegation of this OP is that the consideration money was not paid in account of partnership firm. It is false that Complainant paid the consideration money in presence of all the partners. Payment should have been made by cheque in the account of partnership firm. He has not received a single rupee of the consideration amount. Further, he has stated that he cannot execute the deed of conveyance in favour of the Complainant without receiving his share. So, OP No.2 has prayed for dismissal of the complaint. Complainant filed affidavit-in-chief where he has reiterated the facts mentioned in the complaint petition. OP No.2 has filed questionnaire against this. OP No.3 to 5 also filed questionnaire. Complainant filed reply against the questionnaire of OP No.3 to 5. Complainant also filed reply of the questionnaire of OP No.2. Similarly, OP No.3 to 5 filed evidence wherein they have reiterated the facts which they have mentioned in the written version. Against this, Complainant has filed questionnaire. OP No.2 has filed reply of the questionnaire filed by Complainant OP No.3 to 5 have stated I n the reply that they are ready to execute the deed of conveyance as per order of this Forum.
OP No.6 to 11 did not contest the case by filing written version and so the case is heard ex-parte against them.
Decision with reasons
At the outset this Forum considers proper to mention here that vide order No.10 dt.4.7.2017 a petition was disposed observing that the said petition shall be heard with the complaint and necessary order shall be passed with the judgment and this Forum has authority to examine as to who is representing whom as per Legal Service authority Act. A copy of the order of District Legal Service Authority is filed, which reveals that Sri Dilip Kumar Dhar (OP No.2) who is one of the partners has been allowed to be represented partners (Developers).
We are constrained to observe that how a partner of a promoting firm can be allowed through Legal Service Authority. However, such determination has to be done by District Legal Service Authority in which we are not supposed to interfere.
But we make it clear that neither the President nor the Ld. Members of this Forum will be in a position to sign any register of work placed on behalf of OP No.2 who is a partner in a promoting firm.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of respective affidavit-in-chief, questionnaire and affidavit-in-reply it appears that due to the act and conduct of OP No.2, the deed of conveyance could not be made in favour of the Complainant.
It is the contention of OP No.2 that he did not receive any money and so he is not liable to make any deed of conveyance in favour of the Complainant. He has challenged the mode of payment of consideration amount. It is his contention that had the consideration amount been paid through cheque or in the account of the firm, he would have received his share. Since he did not receive his share, he is not liable to make conveyance deed in favour of the Complainant.
Perhaps OP No.2 is not aware about the law relating to partnership business. As per Indian Partnership Act, a partner is liable for the acts of other partners and the dispute which he has raised before this Forum, can only be decided by a Civil Suit by him against other partners. This Forum does not have jurisdiction to adjudicate the dispute raised by OP No.2.
OP No.3 to 5 have agreed to make conveyance deed in favour of the Complainant. Owners have not raised any objection in this regard. They are ready to make any act as per the development agreement and power of attorney which they entered with OP No.1 to 5 and made in favour of them.
Now coming on to prayer portion, it appears that Complainant has prayed for a direction upon OP No.2 to 5 to hand over the possession. We do not find any hindrance in making order of this prayer in favour of the Compainant.
Second prayer is a direction upon the OPs for making a conveyance deed in favour of the Complainant. Complainant has agreed that he is in possession of the flat and so he is entitled to deed of conveyance in respect of flat in his favour.
Complainant has also sought for compensation of Rs.20,000/- and litigation cost of Rs.10,000/-.
Taking into account all the facts and circumstances, it appers tht Complainant was compelled to come to this Forum due to conduct of OP No.2 and so OP No.2 has made himself liable for paying compensation of Rs.10,000/- and litigation cost of Rs.5,000/- to the Complainant.
Hence,
ordered
CC/94/2017 and the same is allowed on contest against OP No.1 to 5 and ex-parte against OP No.6 to 11. OPs No.1 to 5 are directed to issue possession letter to the Complainant within three months of this order. Further, all the OPs are directed to make conveyance deed in favour of the Complainant as per agreement for sale within the above mentioned period. OP No.2 is directed to pay Rs.15,000/- to the Complainant within the above mentioned period, in default the amount shall carry interest @ 10% p.a from the date of order till realization.
