The case of the complainant in a nutshell is that on 01.02.2019 he entered into an agreement with the opposite party to purchase a flat measuring about 750 sq. ft. on the third floor of the proposed new building at premises no.24A, Jagannath Datta Lane, P.S. Narkeldanga, Kolkata-700 009. The opposite party has acquired the said premises from the landowners Srimati Chandra Chatterjee and others to develop or re-modify the same under a joint venture Agreement dated 17.12.2015 with a further right to transfer or sale the developer’s allocation to any third party. The complainant paid the total consideration of Rs.40,00,000/- (Rupees forty lakh) only in cash for the said flat which was received by Rajendra Prasad Shaw proprietor of M/s Mahi Developer. It is the further case of the complainant that in spite of payment of the entire consideration amount the opposite party sold the flat in question to someone else. The opposite party has cheated the complainant and is liable for deficiency in service.
The complainant sent a legal notice dated 08.02.2022 through his advocate with a demand to return the consideration amount to the tune of Rs.40,00,000/- (Rupees forty lakh) only with 2 percent interest. The opposite party vide reply dated 28.03.2022 agreed to return the advance amount in two instalments of Rs.25,00,000/- (Rupees twenty five lakh) only and Rs.15,00,000/- (Rupees fifteen lakh) only. Thereafter the opposite party issued a cheque for payment of first instalment of Rs.25,00,000/- (Rupees twenty five lakh) only bearing cheque no.021855 dated 28.03.2022 drawn on Central Bank of India, College Street Branch. The complainant deposited the said cheque in his account for encashment but the said cheque was dishonoured by the bank with the reason ‘funds insufficient’ and the bank returned the cheque vide memo dated 30.03.2022. It is alleged by the complainant that the opposite party has committed breach of trust and adopted unfair trade practice and liable for deficiency in service. The complainant has filed the case on the prayer for direction upon the opposite party company and his proprietor to refund Rs.40,00,000/- (Rupees forty lakh) only along with statutory interest of at least 9 %; Rs.5,00,000/- (Rupees five lakh) only as compensation and litigation cost.
It appears from the record that notice has been duly served upon the opposite party M/s Mahi Developer but in spite of service of notice none appears in the case to contest the same.
Points for determination
- Is the case maintainable in law and its present form ?
- Is the complainant is entitled to any relief and / or reliefs as claimed for?
Decision with reason
The complainant has filed affidavit in chief and submitted original booking agreement dated 01.02.2019 executed between the complainant and M/s Mahi Developer, a proprietorship firm represented by its proprietor Rajendra Prasad Shaw which is marked as (Ext.1), the original money receipt showing payment of Rs.40,00,000/- (Rupees forty lakh) only in cash by the complainant to Rajendra Prashad Shaw marked (Ext.2), photo copy of joint venture agreement dated 17.12.2015 between land owners and M/s Mahi Developer marked (Ext.3), photo copy of advocates letter dated 08.02.2022 marked (Ext.4), bankers’ original cheque dated 28.03.2022 marked (Ext.5) and intimation letter of Union Bank of India, Kankurgachi Branch marked (Ext.5(a).
Point no.1
This point is taken up first for consideration and discussion.
On perusal of the complaint application we find that the name of the opposite party is M/s Mahi Developer and it has been represented through its proprietor Rajendra Prasad Shaw.
A case under the Act can be filed against a ‘person’.
The ‘person has been defined under section 2(31) of the Consumer Protection Act, 2019 as follows:-
Section 2(31) :-
“(31) “person” includes-
- an individual;
- a firm whether registered or not;
- a Hindu undivided family;
- a co-operative society;
- an association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not;
- any corporation, company or a body of individuals whether incorporated or not;
- any artificial juridical person, not falling within any of the preceding sub-clauses;”
M/s Mahi Developer being a proprietorship firm cannot be by any stretch of imagination be held as a artificial juristic person.
The sole proprietorship refers to the simplest business firm under which one can operate a business. The sole proprietorship is not a legal entity and therefore, it is not different from an individual running that business, i.e. the ‘proprietor’. It simply refers to a person who owns the business and is personally responsible for its debts.
In Arm Group Enter Prises Ltd. –Vs- Waldorf Restaurant & Ors. the Hon’ble Apex Court held that ‘Waldorf Restaurant’ is merely a trade name. It is not a legal person and was no existence independent of the proprietor. It was also held that ‘Waldorf Restaurant’ being merely a trade name it has got no legal entity. The legal entity or the legal persons are the ‘proprietor’. In the instant case we find it has not been filed against the name of the proprietor but M/s Mahi Developer.
It is needless to reiterate that M/s Mahi Developer has no legal entity and as such no case can be filed against it.
Therefore, the case is not maintainable in law and in its present form.
Point no.1 is decided against the complainant.
Point no.2 is taken up for consideration and discussion.
In view of the answer of point no.1 we are of the opinion that no discussion warrants against point no.2.
Thus point no.2 is stands disposed of.
Having considered the discussion above, we are of the opinion that the case fails.
Fees paid correct.
Hence, it is
O R D E R E D
that the complaint case be and the same is dismissed ex-parte without cost.
Dictated by me
…...................
President
