BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 26^TH DAY OF JULY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This  complaint has been  filed  under section 35 of C.P.Act, 2019 (herein after  referred as “ACT”) for the following reliefs.

1. Direct the Opposite parties no.1 to 7 to refund the advance amount of Rs.2,27,500/- received by them under sale agreement dt.01.08.2014 along with interest at 24% p.a. from the date of receipt of the same to till its realization to the complainant.
2. Direct the Opposite parties no.1 to 8 to pay compensation of Rs.2,00,000/- for harassment and mental agony suffered, inconvenience caused to the complainant due to deficiency in service, practicing unfair trade practice, for having done the material violation and the escalation of prize.
3. Direct the Opposite parties no.1 to 8 pay a sum of Rs.50,000/- towards cost of litigation.
4. In case of non-payment of full the amount as ordered by this Hon’ble Forum to the complainant  create first charge on the immovable properties mentioned in the complaint, which are belonged to the Opposite party no.1 and then permit the complainant to recover the same from the schedule properties by auctioning it; and
5. Grant such other relief or reliefs as deems fit to grant under the circumstances of the case in the interest of justice and equity.

2.The case of the complainant in brief is as under:

V .Nandagopal and S.Ravi , OP-2 constituted OP-1 registered firm by virtue of the partnership deed dt.12.09.2007. The complainant paid Rs.10,000/- plus Rs.1,79,000/- to OP-1 firm to purchase site bearing no.718 measuring 1200 sq.ft. out of sale consideration of Rs.5,40,000/- and the sale agreement came to be executed on 01.08.2015.

It is further case of the complainant that OP-1 instead of forming the layout started purchasing immovable properties in their individual names and in the name of the wife, children, patents and inlaws.

V.Nandagopal died on 21.01.2018 leaving behind OP-3 to 5, his wife, minor son and mother respectively. OP-2 to 6 being class-I heirs of late V.Nanda Gopal received 50% of share of the deceased.

The complainant also contends that OP-5 filed O.S.3058/2018 on the file of City Civil Court, Bengaluru against OP-3 & 4 in respect of property of OP-1. OP-3 & 4 have filed OS.39/2018 on the file of Sr.civil Judge,Sidlagatta, against OP-1 & 2 and obtained exparte order of temporary injunction. They have also filed OS.5734/2018 against OP-1&2. OS.6539/2018 was filed against OP-3 to 5, 7 & 8 for rendition of account of OP-1.

In the month of July 2021,  K.Krishna Prasad, Manager of OP-1 called upon  the complainant to make payment of Rs.38,500/- towards other expenses, registration charges and khata changes. Accordingly, the complainant has paid Rs.19,500/- to OP-1. But, OPs fail to execute registered sale deed and also fail to refund Rs.2,27,500/-. This act of the OPs amount to deficiency of service.   

3. In response to the  notice, OP-1,3&4 only     appeared and other OPs failed to appear before this Commission and they have placed exparte.

4. Despite sufficient opportunity granted, OP-1 fails to file version. OP-3 & 4 have filed version and have admitted that V.Nandagopal  husband of OP-3 was a partner, but they denied V.Nandagopal purchased the property either in his name or in the name of OP-3 & 4 by utilizing the income of OP-1. They admit the civil suit referred  by complainant and there was Memorandum of Understanding dt.31.05.2019 between OP-2 and OP-3 & 4. OP-2 took the responsibilities to clear dues of the creditors. OP-3 & 4 neither receiptants of  any amount from the complainant nor liable to pay amount. They admitted that the settlement through lokadhalath compromise in respect of the suits and requests to dismiss the complaint.

5. The complainant files his affidavit evidence and relies on 07 documents. OP-3 to 4 fail to file  affidavit evidence.

6.          Heard the arguments of advocate for OP-3 &4 only. No arguments on behalf of the complainant and OP-1. We  perused records.

7.  The following points arise for our consideration are as under:-

1. Whether the complainant proves deficiency in service on the part of the OPs?
2. Whether the complainant is entitled for the reliefs as mentioned in the complaint?
3. What order?

8. Our answer to the above points are as under:

       Point No.1 & 2:-Affirmative in part.

      Point no.3:-As per the final order.

REASONS

9. Point No.1&2:. At the first instance, we would like to refer the documents admitted and produced by the complainant and Op-3 & 4. It is also relevant to refer some of the admitted facts.

10. The complainant reiterated the facts pleaded in the complaint in his affidavit evidence. Exhibit P-1 deed of partnership came to be executed between V.Nandagopal and S.Ravi, who formed OP-1 partnership firm i.e. Transcity Developers. This partnership deed came to the registered  before the Registrar of Firms as could be seen from Exhibit P-2. Exhibit P-3 indicates that             OP-1 issued a brochure about the availability of sites in transcity property. There was a agreement of sale as per Exhibit P-4 dt.01.08.2014 between OP1 firm represented by Managing partner Dr.V.Nandagopal and the complainant in respect of plot no.719 for total consideration of Rs.5,40,000/-. It is proved from the Exhibit P-5, P6 & P7 that complainant made the payment of Rs.10,000/- dt.01.08.2014 by cash, Rs.1,79,000/- on the same day by means of cheque and Rs.19,500/- by means of Bank transfer on 16.05.2021 in favour of OP-1.

11. OP-2, OP-3 & 4  have entered Memorandum of Understanding on 31.05.2019, wherein OP-2 as one of the partner of OP-1 settled the dispute and agreed to pay Rs.1,00,00,000/- to OP-3 to 5. This document further indicates that i.e. clause-XVIII(a), OP-2 being the first party accepting Memorandum of Understanding and he will sole party, who will be liable to any action of the firms in which deceased V.Nandagopal was party along with 1^st party. This memorandum of understanding binds on OP-2.

12. It is pertained to note that series of complaints bearing no.903/2019 and 904/2019, 139/2019 to 155/2019 to 304/2019 and 324/2019 came to be filed against OPs including M.T.Srinivasa. The complaints came to be lodged against the present OP-1 & 2 and the complaints against present OP-3 to 6 came to be dismissed. Further, aggrieved complainants filed batch of appeal no.1006/2020 to 1044/2020 and 3/2021 on the file of Hon’ble State Commission. Hon’ble State Commission vide order dt.07.09.2021 allowed all the appeals and passed order against present OP-1 to 6. Present OP-3 ,4 & 6 filed Review Petitions  no.8/2021 to 82/2021, 84/2021 to 119/2021, which came to be dismissed on 07.01.2022.

13. It is relevant to note that even though present OP-3 & 4 were appeared before 4^th Addl. District Consumer Forum in earlier proceedings, but failed to file version. This fact is stated in para-4 & 6 of the earlier order of District Consumer Forum, but in the earlier proceedings present OP-1,2,5 & 7 filed version admitting their responsibilities. When OP-3 & 4 have not filed any version in the earlier proceedings, but unfortunately this fact was not brought to the notice of Hon’ble State Commission in the appeals. Whereas  Hon’ble State Commission  while disposing appeals in para-5 of the order clearly stated that “OP-3 & 4 have entered appearance through their counsel, but failed to file version” but in para-6 of the order the Hon’ble State Commission has observed that statement of version of OP-3 & 4  pleaded that they have running real estate business in the name of Transcity Developers have purchased lands for formation of layouts and they have settled the matter between in Lok Adhalath dt.13.08.2019. This  para-6 also referred by the Hon’ble State Commission while passing the impugned order in Review petitions. In the earlier proceedings, the present OP-1,2,5 & 6 only admitted their liability. In view of the Memorandum of Understanding between OP-2, OP-3 & 4. OP-2 being surviving partner is solely responsible to the complainant along with OP-5 & 6. It is relevant to note that the complainant has not produced the compromise dt.13.08.2019 to fix the responsibility on OP-3 & 4. In the earlier proceedings OP-1 & 2, 5,7,8 have stated company is re-construed, but the complainant has not produced any document to show that OP-1 registered firm either re-constituted or company re-constituted.

14. It is relevant to refer section-6 of partnership Act, it speaks  about mode of determining of existence of partnership clause-C of the explanation speaks that the widow or child  of the deceased partner cannot construed as partners with the person carrying business. OP-3 & 4 cannot be construed as partners with OP-1 &2.

15. Section 42 of the Indian Partnership Act speaks about dissolution  of happenings on the certain contingences. The contract  between the parties is dissolved by death of the partner. Admittedly after the death of Nandagopal on 21.01.2018 OP-1 partnership firm dissolved, but continued by OP-2. It is relevant to note that payment is made to OP-1 in the year 2014 and on 16.05.2021. It means the complainant made payment to OP-1 represented by OP-2 after death of Nandagopal to the tune of Rs.19,500/-. If the order of Hon’ble State Commission is taken into consideration, the OP firm might have continued by OP-2,5& 6 and not by OP-3 & 4. OP-6 is wife of OP-2. OP-2,3 & 6 are the parties to Memorandum of understanding dt.31.05.2019. OP-6 Smt.Veda.S.Ravi is also signed as witness to this Memorandum of understanding.

16. The complainant claims the order for refund of Rs.2,27,500/-. On consideration of Exhibit P5 & P7, the complainant has made payment of Rs.2,08,500/- to OP-1 represented by OP-2. Therefore, the complainant is not right in claiming refund of Rs.2.27,500/-. The complaint is filed against six  persons, but the complainant has wrongly mentioned relief column direct OP-1 to 7 in place and OP-1 to 8 in another place. The payment of Rs.2,08,500/- is lying with OP-1 &2  from the dates respectively P5 to P7. Therefore, OP-1 &2, 5 & 6 are only liable for Rs.2,08,500/- as they admitted the liability in the earlier proceedings also. The complainant claims  interest at 24%p.a., compensation of Rs.2,00,000/- and Rs.50,000/- cost of litigation.

17. In view of decision of Hon’ble Supreme Court of India reported in 2022(2)CPC(1) in the matter between Experian Developers Pvt.Ltd., V/s Sushma Ashok Shiroor, the complainant is entitled to interest at 9%p.a. from the date of respective payments till realization. When we award interest as compensation, but the complainant is not entitled to compensation separately. The cost of litigation is quantified at Rs.5,000/-.

18. Point no.3: In view of the discussions referred above, the complaint requires to be dismissed against OP-3 &4. Complaint  requires to be allowed in part against OP-1,2,5 & 6. OP-1,2,5 & 6 are liable to refund Rs.2,08,500/- with interest at 9% p.a. from the date of respective payments i.e. on Rs.1,79,000/- on 01.08.2014 and Rs.19,500/- from 16.05.2021 till realization. OP-1,2,5 &6 are also liable to pay Rs.5,000/- towards cost of litigation. Accordingly, we proceed to pass the following 

O R D E R

1. The complaint as against OP-3 & 4 is dismissed.
2. The complaint against OP-1,2,5 & 6 is allowed in part.
3. OP-1,2,5 & 6 shall refund Rs.2.08,500/- with interest at 9% p.a. from the date of payments till realization to the complainant with cost of litigation of Rs.5000/- .
4. OP-1,2,5 &6 shall comply this order within 60 days.
5. Furnish the copy of this order to both the parties and return extra pleadings with documents to the parties.  

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 26^th  day of July, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party no.1 – Nil

Documents produced by the representative of opposite party no. – 3 & 4:

Documents produced by the representative of opposite party no. – 2,5 & 6: Nil