Date of Filing : 14 January, 2021.
Date of Judgement : 30 June, 2023.
Mr. Dhiraj Kumar Dey, Hon’ble Member.
This complaint is filed by the complainant, Mr. Akkas Ali Sekh, under Section 35 of the Consumer Protection Act, 2019, herein after called the said Act, against (1) M/s. TRUST CON, (2) Mr. Rabindra Nath Das and (3) Mr. Amitava Sarkar, herein after called the Opposite Parties or O. Ps./Respondents, alleging deficiency in service occurred from the part of the O. Ps.
The facts, as stated in the complaint and emerged from the documents attached with it, are that the Complainant entered into an Agreement for Sale on 03/08/2017 with the O. Ps. intending to purchase a flat being the entire first floor of the building to be constructed by the O. Ps. admeasuring more or less 700 sq. ft. including 20% ‘service area’ for a consideration of Rs.30,50,000/-. During execution of this agreement complainant paid Rs.2,00,000/- and it was stated in this agreement that the developers/O. Ps., would hand over possession of the flat to the complainant within 18 months from the date of execution of this agreement. It was also stated in this agreement, as stated by the complainant, that in case of failure to hand over possession the O. Ps. were liable to repay the received amount with 10% interest accrued thereon. But the complainant alleges that in spite of handing over possession a copy of notarised ‘Dissolution of Partnership’ dated 31/10/2018 was handed over to him. Complainant states that thereafter whenever he requested the O. Ps. to hand over possession of his flat and execute and register the flat in his favour the O. Ps. did not pay any attention to his requests. A Supplementary Agreement was executed between the O. Ps. and the complainant on 10/02/2020 stating that the building would be completed within 3 months and the flat would be handed over thereafter. But that could not happen. Complainant sent two legal notices through his advocate and received legal notices from the O. Ps. But handing over possession and execution of Deed of Conveyance could not happen for which the aggrieved complainant filed this complaint petition before this Commission praying to direct the O. Ps.: (i) to enforce the Agreement for Sale by directing the O. Ps., especially O. P. – 2 & 3, for strict compliance of the agreement, (ii) to produce entire records before this Commission for conscionable justice, (iii) not to sell the subject flat to any third party during pendency of the case and such other order(s) as this Commission deem fit and proper.
Complainant submitted copies of (i) Development Agreement between land owners & the O. Ps. dated 12/11/2013, along with General Power of Attorney, (ii) Agreement for Sale dated 03/08/2017, (iii) Supplementary Agreement dated August, 2015 between the then land owners and the O. Ps. (iv) Dissolution of Partnership dated 31/10/2018, (v) Supplementary agreement dated 10/02/2020 between the complainant and the O. Ps. and (vi) legal notices sent by the complainant and also by the O. Ps. on various dates, etc.
Notices were served, after admission, to the O. Ps. and the services were found satisfactory. O. P. – 1 & 2 entered their appearance through their Ld. Advocate and filed written version/written objection along with counter claim. O. P. – 3 did not appear nor did file any written version for which ex parte proceeding were followed against O. P. – 3. Later the complainant filed his Affidavit-In-Chief and the O. P. – 1 & 2 filed questionnaires. Complainant then filed his replies and the O. P. – 1 & 2 filed their evidence. Complainant then filed questionnaire and O. P. – 1 & 2 filed their replies. Ultimately argument was heard. Written arguments (BNA) were filed by both the complainant and the O. P. - 1 & 2 during argument, We have now come to the position to deliver the Final Order in this case. We have to decide whether the O. Ps. are deficient in rendering proper service to the complainant for which he is entitled to get relief as prayed for. Original copies of the agreements are taken into consideration for reaching the conclusive order.
DECISION WITH REASONS
Before going through this complaint case, let us reiterate the matter where the same complainant had filed a case bearing No. CC/335/2020 which was dismissed by this Commission as it was not maintainable under the Act. In this complaint complainant prayed to direct O. P. – 2 & 3 to supply PAN Card, AAHAAR Card and Voter Card so that registration of the flat could be completed and also prayed restraining order against O. P. – 2 & 3 from selling the flat. However, liberty was given to the complainant to file the case which would be maintainable under the Act. Taking use of this liberty complainant filed this instant complaint petition praying as stated herein above.
Now, let us consider the two Agreements for Sale executed between the complainant and the O. Ps. first, taking into account the statement of the complaint petition. A peculiar pattern of setting paragraphs has been noted by us in the complaint petition wherein the paragraphs are written as: Para – 13, 14, 17, 14, 18, 19, 24, 25, 26, 27 & 28 and the complainant failed to note such irregularity in writing the sequence of paragraphs. However, we have noted that these two agreements have neither been Notarised nor Registered, but signed by the complainant and the O. P. – 2 & 3 in each page. These agreements was executed by the complainant as the ‘Purchaser’ and the O. P. – 2 & 3, being the partners of M/s. TRUST CON, the O. P. – 1 herein above, as the ‘Developer’. In the first agreement, dated 03/08/2017, the O. Ps. agreed to sell and the complainant agreed to purchase the entire first floor flat admeasuring about 700 sq. ft. for a consideration of Rs.30,50,000/- lying and situated at the premises at 37/B/3, Jheel Road, P. S. – formally Kasba presently Garfa, Kolkata – 700 031, which was agreed to be handed over to the complainant within 18 months from the date of the execution of the agreement. However, in the second agreement, to be precise, the ‘Supplementary Agreement’, dated 10/02/2020, the proclamation are nearly the same as that of the first agreement dated 03/08/2017 except the citation that “the purchaser has already paid to the Developer a total sum of Rs.22,90,000/- as on date” whereas in the first agreement it was stated that the purchaser paid Rs.2,00,000/-. In this supplementary agreement it is stated as: “AND WHEREAS all the parties have jointly agreed to extend the period of execution of the said agreement for sale dated 3rd day of August 2017 to a further period of three months on the same terms and conditions as mentioned in the said agreement for sale dated 03/08/2017” whereas in the first agreement it was stated as 18 months from the date of the first agreement, i.e. within February 2019.
We now consider the two Development Agreements executed between the land owners and the Developers/the O. Ps. as stated herein above. The first agreement, dated 12/11/2013, executed between 8 land owners and the O. Ps. to develop the premises at 37/B/3, Jheel Road, P. S. – formally Kasba presently Garfa, Kolkata – 700 031. But after the death of a land owner a ‘Supplementary Agreement’ was executed in August 2015 between the then 7 land owners and the O. Ps. wherein the terms and conditions remained the same. Complainant filed a copy of the Registered ‘General Power of Attorney’ dated 19/08/2015 given by the 7 land owners in favour of the O. P. – 2 & 3 empowering them to develop the said premises on behalf of their partnership company/the O. P. – 1.
We now take the copy of ‘Dissolution of Partnership’ executed between O. P. – 2 & 3 on 31/10/2018. This agreement has not been registered but notarised. From this copy we find that the Partnership Firm, M/s. TRUST CON, the O. P. – 1 as stated herein above, shall be deemed to have been dissolved w. e. f. October 2018 and henceforth all the rights, liabilities and responsibilities of the firm shall lie on the One Part, i. e. O. P. – 2, namely Mr. Rabindra Nath Das. It is assured in this agreement that the Other Part, i. e. Mr. Amitava Sarkar, the O. P. – 3 herein above, shall have no future liabilities except signing all necessary papers and rendering no objection.
Now, we can summarize the above situation as: (a) Development agreement was executed on 12/11/2013, (b) Supplementary Agreement (Development) was executed in August 2015, due to death of one of the land owners, (c) General Power of Attorney dated 19/08/2015, (d) Agreement for Sale dated 03/08/2017 for selling/purchasing the subject flat, (e) Supplementary Agreement for Sale dated 10/02/2020 and (f) Dissolution of Partnership dated 31/10/2018 and then the legal notices exchanged between the complainant and the O. Ps.
Now, let us take a look on payment of consideration. In the Supplementary Agreement for Sale it is stated that the Purchaser, here the Complainant, has already paid Rs. 22,90,000/- whereas in Para-17 (which should be Para 15) of the complaint petition amount of payment is stated as Rs.23,20,000/- and in the legal notice dated 24/08/2020 the complainant’s advocate stated that his client has paid a total sum of Rs.22,35,000/-. Complainant did not file any document regarding the extra payment though his advocate stated that his client/complainant has paid Rs.35,000/- extra vide cheque no. 448108 on 27/01/2020, name of the bank is not given therein, here also no proof is given. However as the Supplementary Agreement was executed in February, 2020 so total payment can be taken as Rs.22,90,000/- as no document has been provided in support of extra payment and the contesting O. Ps. has reiterated the payment of Rs.22,90,000/- in their written objection, Affidavit-In-Chief and BNA.
Now, let us consider the Written Objection/Written Version filed by the O. P. – 1 & 2. In this version they categorically denied all the allegations made in the complaint petition. They stated that due to some unavoidable circumstances construction of the building was hindered and the complainant was well conversant with the situation for which the Supplementary agreement was executed on 10/02/2020 between the purchaser/complainant and the O. Ps/Developer. Due to the lock down further delay occurred. After that they verbally requested the complainant to take possession of his flat after paying balance consideration. But the complainant did not turn up and ultimately filed the instant complaint. In this version they said that when the agreement for sale was executed there was no Sanctioned Plan of the building and the area of the subject flat was taken to be 700 sq. ft. But when the Plan of the building was sanctioned vide no. 2018100117, dated 12/10/2018, and the building was constructed accordingly, the area of the subject flat became 829 sq. ft. including super built up area thereby an extra area of 129 sq. ft. to be considered for which an extra Rs.6,45,000/- has to be paid by the complainant. So, according to the O. P. – 1 & 2, complainant had to pay Rs.7,60,000/- plus Rs.6,45,000/- totalling Rs.14,05,000/-. Complainant stated in page-7 in para-14 (which should be para-16) that he has made various expenses in order to make the flat ready for habitation and annexed some Tax Invoice/Bills/Approval Memos etc. in support of his claim. On scrutiny it is found that these Invoices/Bills were raised between 20/01/2020 to 06/02/2020. The supplementary agreement was executed on 10/02/2020 and there was no mention about these expenses. So, why the complainant had made these expenses without consent of the O. Ps. is not clear. This matter has not been discussed during communications between the advocates of both sides. Moreover, there is no mention about the extra area of 129 sq. ft. of the flat in these communications, and suddenly in the written objection filed by the O. P. – 1 & 2 this has been put forward as a counter claim. Although the complainant stated in his Affidavit-In-Chief that he had engaged a registered LBS who found that the super built up area of the flat is 804.60 sq. ft. though, according interrogatories given thereafter, such measurement was done when the subject flat was under lock and key. Complainant stated in this AIC that he is agreed to pay extra amount of consideration according to the rate fixed in the agreement for sale dated 03/08/2017. The contesting O. Ps., however, filed a document annexed with their replies which was prepared by one Mr. Partha Pratim Roy, a registered LBS, wherein the super built up area is written as 831.561 sft. But they did not annex the Sanctioned Plan of the building. In the Affidavit-In-Chief filed by the D. W. – 1 repetition of the statements has been made as stated in their written objection/written version. In brief, we can say that increase in flat has been occurred though actual area has not been determined by any independent licensed surveyor. If that be true, then complainant would have to pay extra consideration for this extra area at the rate, according to our decision, should be the rate as that was fixed at the time of execution of the agreement for sale dated 03/08/2017.
Now we take up the matter of Dissolution of Partnership agreement. A copy of the notarised agreement of dissolution of partnership has been annexed by the complainant wherefrom we find that the ONE PART alone, i. e. the O. P. – 2, would have full rights, liberty and authority to collect all the assets and would be responsible for debts and liabilities of the O. P. – 1 firm w. e. f. October 2018. It is also assured that the departing partner, the OTHER PART, i. e. the O. P. – 3, would sign all necessary papers and render his no objection. We find that the O. P. – 1 company was entered into a development agreement of 8 joint owners of the subject land on 12/11/2013 which was subsequently replaced, due to the death of one owner, by a supplementary development agreement on August 2015. In these two agreements O. P. – 2 & 3 have signed as co-partners of O. P. – 1 company. Moreover, the General Power of Attorney, executed on 19/08/2018, was vested upon both the partners. We have also noted that the Agreement for Sale was also executed by the Purchaser and the Developer Company, represented by its partners, i.e. the O. P. – 2 & 3. So, whenever M/s. TRUST CON is impleaded as a party, all the partners are represented. Not only that, since M/s. TRUST CON is not a legal entity under the general law, it is the individual partner who are responsible in their individual capacity and that is settled position of law under the Indian Partnership Act, 1932 and, therefore, even though the partnership firm is dissolved, therefore, their individual liability and obligation do not cease to exists. Considering the Order passed by the Hon’ble State Consumer Disputes Redressal Commission, Maharastra, in their First Appeal No. A/12/812, in Mr. Arvind Rajpal Yadav -Vs- Mr. Charudatta Vasantrao Tulkarpurkar & Others, delivered on 25/07/2012, and also taking shelter under the order of the National Commission in FA 71 of 2014 coupled with FA 249 of 2014, Bhavesh S. Sheth & Anr vs Ravi Foundation & 2 Ors., delivered on 21/01/2022, we held that all the O. Ps. are liable to execute and register the sale deed in respect of the subject flat in favour of the purchaser/complainant. So O. P. – 3, though he has left his all rights of the O. P. – 1 company, cannot evade his responsibility in executing the Deed of Conveyance in respect of the subject flat.
So, considering all these aspects we held that the O. Ps. have not complied with the assurances agreed to be done by them as promised through the agreements for sale which constitute deficiency in rendering service to the purchaser/complainant/consumer as defined under the Act, hence they are liable to compensate and the purchaser/complainant is entitled to get relief. O. Ps. jointly must execute and register the Deed of conveyance of the scheduled flat in favour of the complainant within 2 months after realisation of balance consideration, its area should be determined mutually and rate to be governed by the agreement dated 13/08/2017 and the cost of registration will be borne by the complainant. No need to produce original documents before this Commission. The O. Ps. are also bound to pay Rs.8,000/- to the complainant as litigation cost.
Hence,
it is
ORDERED
That the Complaint Case No. CC/28/2021 is allowed on contest against Opposite Party Nos. 1 & 2 and exparte against O.P. No. 3.
The Opposite Parties are directed to jointly execute the Deed of Conveyance in respect of the subject flat in accordance with the Agreement for Sale dated 03/08/2017 and Suplemtary Sale Agreement dated 10/02/2020 in favour of the complainant after realisation of the balance consideration subject to the mutually agreed measurement of the area of the flat and register the same in complainant’s cost within 60 days from the date of this order failing which 9% p. a simple interest will be imposed on the payment already made by the complainant from this date until execution. The O. Ps. are also directed to pay jointly and severally Rs.8,000/- to the Complainant within the aforesaid period as litigation cost.
