Karnataka

Bangalore 4th Additional

CC/312/2019

Sri.V.Chandrashekar, - Complainant(s)

Versus

M/s Trans City Developers, A Partnership Firm, - Opp.Party(s)

19 Feb 2019

ORDER

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ORDER

 

Under section 12(3) of consumer protection Act. 1986.

 

SRI.H.Y.VASANTHKUMAR, PRESIDENT 

 

            The Complainant has alleged the deficiency in service and unfair trade practice against the OP.1 to 8 and has sought for direction against them to refund the advance booking amount paid by him with interest and total compensation of Rs.3,50,000/- and the charge of schedule (i) to (xvi) immovable properties of Bengaluru Urban District.

 

          2. The case of the Complainant in brief is that, OP.1/developer represented by OP.2/partner vide Partnership deed/Doc.no.2 and its Registration Certificate/Doc.no.3 after taking the advance amount by virtue of the sale agreement/Doc.no.1 of 2015 by showing the layout plan/Doc.no.4 assured to allot the site in ‘GCC Samruddhi’ layout within 12 months by carrying the developmental activities, but failed to form the layout itself and went on postponing the developmental activities on one or the other pretext of not getting approval from the concerned authorities and later failed either to refund the amount or to allot the site, despite the repeated demands made by him even through legal notice/Doc.no.5 dtd.27.04.18. Hence, the police complaint/Doc.no.10 to Police Commissioner Office was lodged by furnishing the details of 7 schedule properties alleging the fraud committed by OP.1 against 400 to 500 people. The legal notices dtd.27.04.18 were served on OP.1 to 5 and one Nandagopal and it was replied/Doc.no.9 by OP.5 on 11.06.18 denying the liability contending that, her son Nandagopal died on 21.01.18 and she is no way connected with business transactions of Dr.Nandagopal or OP.1.

 

          3. The counsel for the Complainant relying on para no.11 of Partnership deed, Sec.2(11) of CPC R/w Order 22 Rule 1, and Order 22 Rule 5, contended that, OP.3 to 7 are the LRs of deceased partner who died on 21.01.18. He has further contended that, liability of the said OP.3 to 7 being LRs as defined under Maine’s Hindu Law at para 334, 342, 344, 345, 357, 368 is to the extent of estate of the partnership firm they got, as observed in AIR 1966 SC 1300.

 

          4. The advocate for the Complainant further contends that, O.S.No.5734/2018 filed by OP.3/wife and OP.4/minor son of Nandagopal against OP.1 & 2 and another O.S.No.6539/2018 filed by OP.1 & 2 against OP.3, 4, 6, 7 and other 5 persons, disclose that, both the parties sought permanent injunction against each other from interfering to their right in connection with the right of the deceased partner Nandagopal. In both the suit and the counter suit, the mandatory injunction is also sought for rendition of accounts of OP.1/firm and the OP.1 & 2 has estimated it as about Rs.31 crores. In the suit of the OP.1 & 2, 11 items of immovable are shown.

 

          5. The advocate for the Complainant has relied on order of appeal no.315/2014 dtd.17.07.15 of Kerala State Consumer Commission, wherein the assets and liabilities of the firm were vested with OP.5 to 9 and hence, it was held that, though the LRs are not liable personally, becomes liable only to the value of the properties inherited as the firm is already re-constructed and liabilities are already incurred. In the order of appeal no.812/2012 dtd.25.07.12 of Maharastra State Consumer Commission, after the death of the partner Jayant Patel in August 2003 by virtue of irrevocable GPA of February 2001 made in favour of Avinash Shriram Bachuvar, the firm Aishwarya Developers namely OP.1 therein, taken the properties and partners also taken the respective shares, thereby the sale agreement of 2008 by all the land owners/OPs have to be treated as promoters under law and their liability do not seize to exist on the death of Jayant Patel. In third referred judgment in appeal no.239/2017 dtd.26.03.18 of Chandigarh State Consumer Commission, it is held that, investors have to be treated as consumers having continuous cause of action who can seek the remedy in addition to any other reliefs under this act which is a special Legislative Qua the consumer.

 

          6. Careful verification of the pleadings, arguments and placed materials, makes it clear that, the Complainant entered in to sale agreement/Doc.no.1 with OP.1/firm vide Doc.no.2 & 3 and OP.1 is represented by OP.2 as Managing Partner by putting his signatures in all pages of the sale agreement as empowered under clause 11 of partnership deed. As observed in the third referred judgment of Chandigarh State Consumer Commission, the Complainant being aggrieved by the act of OP.1 & 2, gets every right to proceed against them before the consumer forum.

 

          7. The further contention of the Complainant against OP.3 to 7 has to be verified on the basis of clause no.23 of partnership deed, because of the death of Nandagopal on 21.01.18, which reads as here under:

 

          23. Death Of Any Party: Death of any party shall not dissolve this firm. The surviving parties shall continue and carryon the business along with heir or nominee of the deceased party unless such an heir/nominee of the deceased party not joining the firm, such heir or nominee shall be settled in accordance with a balance sheet prepared as on the date of death.

 

          8. The case and the counter case against OP.1 & 2 on one side and OP.3 & 4 on the other side pending about the affairs of OP.1 clearly show that, accounts are not settled and the settlement becomes difficult because of their prayers against each other in the form of mandatory injection and thereby the OP.3 to 7 were not informed about the details of balance sheet of the OP.1/firm and their consent not sought till now towards the compliance above mentioned clause no.23. Thereby, the referred decisions of Kerala and Maharastra State Consumer Commissions cannot be made applicable to this case and it cannot be held/presumed that, OP.3 to 7 have already assumed the position as LRs of deceased Nandagopal and that they have taken the properties that can be fallen to the share of deceased Nandagopal as contemplated under clause no.23. Thereby the said OP.3 to 7 cannot be treated as LRs of Nandagopal who had already taken the share of the deceased Nandagopal as contended with reference to Sec.2(11) of CPC R/w Order 22 Rule 1 and 5 and unless it is established that, the properties of Nandagopal acquired from the business of OP.1/firm were taken them.

           

9. The right of the OP.3 to 7 became the subject matter of the case and the counter case and it cannot be determined in the consumer forum in the proceedings of this complaint. Determining of rights of OP.3 to 7 are outside the scope of this consumer dispute and forum.

 

10. Similarly, OP.8/wife of OP.2 who is still alive cannot be considered as LR of OP.2. Hence, OP.3 to 8 do not become proper and necessary parties to consider the consumer dispute of this complaint.

 

11. In the result, though the Complainant can proceed against OP.1 & 2 only and not against OP.3 to 8 under the CP act, this forum lacks pecuniary jurisdiction because of the value of not less than Rs.31 crores for the schedule (i) to (xvi) properties for the reasons supported by the decision of our Hon’ble National Commission in R.P.No.3496/2017 dtd.09.02.18, wherein it is clearly held that, in determining pecuniary jurisdiction of the consumer forum, the total value of the goods or services provided should be taken in to account.

 

12. The comprehensive reliefs as in the case of civil jurisdiction cannot be agitated under the CP Act and thereby, this complaint wrongly filed against OP.3 to 8 becomes liable to be rejected. Accordingly, the following order is passed:

 

                       ORDER

 

The complaint against OP.3 to 8 is rejected.

 

2. Though the Complainant is entitled to proceed against OP.1 & 2 for want of pecuniary jurisdiction has to file the same before the competent authority as it is beyond the jurisdiction of this consumer forum.

 

3. The Complainant is at liberty to withdraw the complaint, so as to file before the competent court of law.

 

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 19^th February 2019).

 

 

 

 

 

(ROOPA.N.R)    MEMBER

(VASANTHKUMAR.H.Y)  PRESIDENT