JUDGEMENT

( Passed this on 06^th January, 2018)

Shri Shekhar P. Muley, President

01.    Both these complaints are being disposed of by a common judgment since the facts and Opposite Parties (OPs) are same in both the complaints.

02.    The facts which are common in both the complaints are that the O.P.-1 is a proprietary concern of which Manik Vaidhya was sole proprietor. After his death the O.P.-1  is represented by the Opposite Parties- 2 and 3, who are daughter and widow of Manik Vaidhya. They are owners of land bearing Kh. No. 71 of Mouza Thana, Tah. Umrer, Dist. Nagpur. A scheme of residential / commercial plots was carved out on the said land. The complainants purchased one plot each by paying entire consideration to the O.P.-1.          A possession letter was issued to them on 29/12/2003 and 31/10/2007 respectively. All that transactions were done by Manik Vaidhya. Besides paying sale consideration, each of the complainants have also paid Rs. 60,557/- towards registration, development and other charges. Though it was assured by Manik Vaidhya that sale deed would be executed it was not done. He later died in 2010 leaving behind the Opposite Parties- 2 and 3 as his Legal Representatives. The complainants then approached the Opposite Parties- 2 and 3 many times to get sale deed executed, but they avoided. Hence this complaint to direct the Opposite Parties to execute sale deed of the plots and to pay compensation of Rs. 5 lakh and cost Rs. 15,000/- to each of the complainants.

03.    The O.P.-1 is ex-parte since nobody appeared on its behalf despite service of notice.

04.    The O.P.- 2 and 3 filed reply and stated that the complaint is barred by limitation. There is no privity of contract with the Opposite Parties- 2 and 3 and no cause of action arose against them. It is denied that the O.P.-1, proprietary concern, is owned by them. It was run by late Manik Vaidhya as a sole proprietor and after his death no person can run his business. Admitting that the Opposite Paries- 2 and 3 are Legal Representatives of Manik Vaidhya and their names are mutated in 7/12 extract, it is stated the proprietary business cannot automatically be carried forward by them. They cannot be held liable for execution of sale deed. Delivery of possession of the plot and payment of entire consideration and other charges are all denied. Thus denying their liability and any connection with the transaction, it is submitted to dismiss the complaint.

05.    Heard both the sides. Perused documents and rejoinder. Upon considering the same we record our findings for the reasons given below.

FINDINGS  AND  REASONS

06.    The complaints are mainly contested on legal point of tenability and liability of the Opposite Parties- 2 and 3. Admittedly the O.P.-1 is a proprietary concern of late Manik Vaidhya. He was sole proprietor and the alleged transaction of the complainants was also with him alone. The counsel for the Opposite Parties argued that there was no written agreement of the alleged transaction and so no terms and conditions can be spelled out. One membership application, possession deed and agreement letter are filed by the complainants in support of their case. The counsel for the Opposite Parties has disputed and denied signatures of Manik Vaidhya thereon. Admittedly the signature on the agreement letter and on possession deed totally differ. It is not clear who signed the agreement letter. The possession letter mentions entire cost was received by Manik Vaidhya and nothing was due from the complainants. Thus the transaction was done with Manik Vaidhya by the complainants.

07.    After the death of Manik Vaidhya, names of the Opposite Parties- 2 and 3 were mutated in 7/12 extract as proprietors of the O.P.-1 concern. Therefore it is contended by the counsel for the complainants, after the death of Manik Vaidhya, the Opposite Parties- 2 and 3 being his Legal Representatives, are responsible to execute sale deed of the plots. Opposing this contention, the counsel for the Opposite Parties contended the M/K House was a sole proprietary concern of late Manik Vaidhya. It was being run by him alone. After his death liability cannot be fastened on the Opposite Parties -2 and 3, who are his daughter and wife left by him. Reliance is placed on a judgment in Kundlik Ganpat Mokal v/s Jaysheel Construction Co. III (2011) CPJ 404 (NC). In that case the deceased was sole proprietor of a construction company and there was no privity of contract between the complainant and the construction company. Therefore, it was held, after the death of sole proprietor of the company, liability to pay amount was not continued and could not be fastened on the members of his family. This ruling given in above judgment is squarely applicable to the present case.

08.    The complainants could not show the O.P.-1 is a partnership firm. The complainants have produced some payment receipts. The counsel for the Opposite Parties questioned all these receipts, contending that nothing could be ascertained from these receipts as to who received the amount and who passed the receipts. There is some substance in his contention because there are different signatures on the receipts. The complainants failed to show all the amount has been debited to their accounts, especially when payment is disputed. All payments, except a few,  were made by cheques.  While it cannot be disputed much that  the complainants did pay amount, the fact is that no payment was made to the Opposite Parties- 2 and 3. The complainants are relying on 7/12 extract which shows names of the Opposite Parties- 2 and 3 mutated as proprietor of the O.P.-1. In one complaint (RBT/CC/13/546) decided by this forum it was held that the Opposite Parties are liable to execute sale deed. But in that case the Opposite Parties did not deny their ownership of the M/K House nor did deny receipts and payment. Therefore that order will not be of much help to the complainant.

09.    It is further argued by the counsel for the Opposite Parties that the complaint is barred by limitation. It is submitted the alleged agreement was of the year 2008 and the complaint was filed in 2016, and is therefore time barred. We do not accept this submission as there is continuous cause of action for execution of sale deed if substantial amount has been paid.

10.    In the result, considering the fact that the Opposite Parties- 2 and 3 cannot be held liable for act of sole proprietor Manik Vaidhya, the complaints will have to be dismissed. However, we hasten to say that the complainants have efficacious remedy in civil court to get redress. Ld counsel for the complainants relying on the judgment in Yashwant Rama Jadhav v/s Shaukat Hussain Shaikh in F.A No. 1229 of 2017 decided on 10/11/2017 (NC) submitted even if two remedies, one before Civil Court and the other before the Consumer Forum are available, it is for the complainant to decide as to which remedy he wants to avail, since the remedy available under the Consumer Protection Act is an additional remedy. However, that judgment was given on different facts. The defence of the O.P. was that the complainant had already filed civil suit for cancellation of the agreement executed with the complainant and therefore, the consumer complaint on the basis of the said agreement was not maintainable. Such is not the case in present matter. Even otherwise, we are not dismissing the complaints on the ground that the complainants have other remedy available. With these remarks, we pass the following order.

ORDER

1. Both the complaints are dismissed.
2. Parties to bear their own cost.
3. Copy of the judgment/order shall be given to both the parties, free of cost.
4. Copy of judgment be kept with record of C.C.   No. 16/10