BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 621/2007 against C.C. 367/1997, Dist.. Forum, Guntur
Between:
Nallapati Lakshminarayana
S/o. Late Venkateswarlu
R/o. Narasaraopet
Guntur. *** Appellant/
Complainant.
. And
1. Nagarjuna Real Estates
Rep. by its Managing Director
Municipal Office Centre
Narasaropet, Guntur Dist.
2. Kodela Siva Prasad
S/o. Sanjeevaiah, MLA
Narasaraopet, Guntur Dist.
3. Dr. Marri Peddaiah
S/o. Gopalakrishnaiah
Medical Practitioner
Kotabazar
Narasaraopet, Guntur Dist.
4. Puneti Lakshmi Narasaiah
Partner Lakshminarasimha Delux
Narasaropet, Guntur Dist.
5. Punati Rajasekhara Rao
S/o. Laxminarasaiah
Lakshminarasimha Delux
Narasaropet, Guntur Dist.
6. Vemulapalli Venkata Narasaiah
TDP Member, Pathuru
Narasaropet, Guntur Dist.
7. Smt. Bollineni Venkataratnam
W/o. Late Raghava Rao
Chairperson, Mandala Praja Parishad
Narasaraopet, Guntur Dist.
8. Smt. Pudota Padma
W/o. Late Satish Kumar
Prakash Nagar
Narasaraopet, Guntur Dist. *** Respondents/
Ops
(Not pressed against R2 & R3)
Counsel for the Appellant: M/s. V. Gourisankara Rao.
Counsel for the Resps: M/s. M. Hari Babu.
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
MONDAY, THIS THE TWENTY THIRD DAY OF AUGUST TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) The appellant is unsuccessful complainant.
2) The parties are described as arrayed in the complaint for felicity of expression.
3) The case of the complainant in brief is that R1 is dealing in real estate business and it floated a scheme under the name and style of ‘Nagarjuna Nagar’ at Narasaraopet wherein it was agreed to sell 240 sq.yds of plot for Rs. 50,000/- payable at Rs. 500/- p.m. for 48 months besides Rs. 1,000/- towards membership and first instalment and Rs. 1,000/- towards 50th instalment. There would be a draw and if a member gets allotment of a plot, he need not pay the balance. There would be a draw for the rest of members. The members will also be entitled to bumper prize for every five months besides Maruthi car as a special prize during the 25th month. Accordingly he was allotted ticket No. 188 and 189. He was entitled to a plot in the 7th month in respect of ticket No. 188. While he was entitled to another plot in 25th month in respect of ticket No. 189. R1 did neither conduct the draws nor allot plots. On that he issued a legal notice for which while admitting membership denied its liability. However, it expressed its willingness to execute sale deed without disclosing the allotment of plots. It was guilty of unfair trade practice. R1 did not fulfil its promise as mentioned in the scheme. Sri Satish Kumar who constituted R1 concern died. R2 to R4 made representation to him in regard to the scheme. He filed O.S. 19/1999 on the file of Principal Junior Civil Judge at Narasaraopet where R1 was figured as defendant No. 1. It revealed that R5 & R6 and one Bollieneni Raghava Rao represented his estate. However, in order to avoid multiplicity of proceedings he impleaded R5 & R6 as parties. R2 to R4 were mainly responsible. R7 is the wife of deceased Raghava Rao; R8 is the wife of deceased Satish Kumar. They are in possession and enjoyment of the properties. Therefore he filed the complaint directing the opposite parties to disclose its title, furnish copies of title deeds and approved lay out and execute sale deed in regard to the plots allotted to him and pay compensation of Rs. 2 lakhs besides distribute prizes as mentioned in the brochure and for costs.
4) R1 resisted the case. While denying each and every allegation made in the complaint, however, it alleged that it has floated the scheme and all through it has been adhering to the rules and regulations stipulated in the pass book. The complainant having satisfied with the title and draft lay out the joined as a member for allotment of plots. As per the scheme the draws were drawn and the names of the beneficiaries were announced. The complainant became successful beneficiary in 7th month in respect of ticket No. 188 and in 21st month in respect of ticket No. 189 as such he was not entitled to further draws, and his name was deleted from the draws. It has no objection to produce title deeds and draft lay out. Final lay out could not be obtained due to technical objection. However, every effort is being made to get the sanction in this regard. Therefore, it prayed for dismissal of the complaint with costs.
5) R2 filed his written version alleging that he has no concern with R1 a registered partnership firm wherein Sri Pudota Sathish Kumar, R5, R6 and Bollineni Raghava Rao are partners. In fact the complainant has filed O.S. No. 19/1999 on the file of 1st Addl. Munsif Court at Narasaraopet against R1 and others for the self same relief. Since he had no concern with the said firm nor a signatory to the agreement he was not liable. He filed I.A. No. 1603/2001 under Order I Rule 10(2) CPC to delete him as a party to the suit and the same was allowed on 19.6.2002. Aggrieved by the said order the complainant preferred CRP No. 3061/2003 and the same was dismissed. He also filed another CRP No. 4628/2003 under Article 277 of Constitution of India and the same was dismissed on 12.4.2006. As the orders have become final and he being not a party he prayed for dismissal of the complaint with costs.
6) R3 equally resisted the case. He also alleged that he had no concern whatsoever with R1 firm. The complainant had already filed O.S. No. 19/1999 on the file of 1st Addl. Munsif court for the self same relief. He cannot file a complaint before the Dist. Forum and therefore prayed for dismissal of the complaint with costs.
7) R5. R6 and R8 filed a memo adopting the version filed by R1.
8) R4 did not choose to contest the matter and remained set-ex-parte. R7 did not choose to file his version.
9) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A13 marked while R2 filed his affidavit evidence and did not file any documents.
10) The Dist. Forum after considering the evidence placed on record opined that R4 to R7 are not proper parties and allowed the complaint in part against R8 and held that the complainant was entitled to Rs. 50,000/- towards compensation with interest @ 9% p.a., from the date of complaint till the date of realization against assets of late Satish Kumar which are in the hands of R8 besides costs of Rs. 1,000/-.
11) Aggrieved by the said decision the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have directed the respondents to execute the sale deeds and distribute prizes besides compensation of Rs. 2 lakhs. R2 & R3 were partners/directors. It had failed to refer to the affidavit evidence of members. It ought to have allowed the complaint against R4 to R8 who are partners. The respondents did not file approved lay out, list of members etc. and the compensation awarded is too meagre, and therefore prayed that the appeal be allowed.
12) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
13) Before considering the merits of the matter, it may be stated that the complainant did not press the appeal against R2 to R4 and therefore the appeal is liable to be dismissed against them. During the course of hearing of the appeal the complainant filed I.A. No. 813/2010 to receive additional evidence and the same was allowed. They were marked as Exs. A14 to A22.
14) At the outset we may state that the complainant though had the assistance of an advocate was unable to know as to whether R1 is a company or a partnership firm as R1 is arrayed as ‘Nagarjuna Real Estates’ represented by its Managing Director. In the narration of the complaint it was mentioned one Pudota Satish Kumar was the Managing Director and he died on 28.9.1989. He alleged that in O.S. No. 19/1999 filed by him, R1 alleged that the said firm was constituted by P. Satish Kumar, P. Rajasekhara Rao (R5), Vemulapalli Venkata Narasaiah (R6) and Bollineni Raghava Rao since died represented by R7 herein. Though he did not agree with the said fact he impleaded R2 to R8 on the ground that they were mainly responsible for various omissions and commissions that occurred in the conduct of business of R1. He represented that they were directors. R5 & R6 were impleaded as necessary parties in view of the contention taken in the written statement.
15) The fact remains that though the complainant alleged these facts when he preferred the appeal he himself did not press the appeal against R2 & R3. He intends to rely on brochure Ex. A9 to allege that R2 to R4 are directors and late P. Satish Kumar was the Managing Director, who issued the brochure under the name and style of ‘Nagarjuna Real Estate’.
16) The very complainant on his behalf and on behalf of members of Nagarjuna Nagar filed a suit against R1 to R4 for permanent injunction restraining the respondents from conducting draws and allotment of plots without disclosing their title in the property etc. He alleged that he came to know that late P. Satish Kumar got the sale deeds executed in respect of plots Nos. 31 and 32 in the names of Jampani Suresh Babu and Namineni Suchitra on 14.8.1997. He further stated that he also executed sale deeds in respect several other plots. He filed I.A. 100/1999 in O.S. 19/1999 for temporary injunction till the disposal of suit against R1 to R4 on which the court passed the orders of ‘status quo’. It is not known as to what happened to the suit filed by him. Be that as it may when the partnership in question is at will and in the light of death of Managing Director, and other partners, we do not know whether it is continuing. He enclosed a memo filed by the deceased mentioning that he had no objection to execute the sale deeds.
17) By virtue of partnership deed relied by the complainant, the complainant has rightly not pressed the complaint against R2 & R3. Name of R4 does not find place in the partnership deed. Therefore no proceedings could be held against R4. R5 & R6 are alone alive amongst the partners. The other partners viz., Bollineni Raghava Rao and Pudota Satish Kumar are represented by their wives R7 & R8 respectively.
18) The learned counsel for the complainant alleges that Ex. A3 & A4 reveal that plot Nos. 188 & 189 were allotted to him. We may state that this reference pertains to pass book numbers but not plot numbers. Therefore it cannot be said that the plots were allotted to him. The complainant however alleges that R1, R5 to R8 agreed to register the plots in his favour and therefore the relief sought for ought not to have been denied. We may state that the complainant obviously was unaware as to the status of R1. He impleaded some persons as he liked without disclosing their status and later gave up against R2 & R3. Now he intends the decree to be passed against R5 to R8. Since it is a partnership firm no individual liability could be fastened against R7 & R8 who were representing the deceased partners. There cannot be any individual liability on the death of their husbands who were partners. Undoubtedly the complainant at the most could realize the amounts paid by him from out of the assets of partnership firm in the hands of R7 & R8 equally so with R5. It is not known whether the firm is subsisting or dissolved on the death of the partners. Simply because an agreement of sale was executed by P. Satish Kumar representing as Managing Director of Nagarjuna Real Estate, it would in no way convey title in the partnership firm. Agreement of sale would not convey any title. The complainant having not satisfied with the complaint, also filed a suit for the self same relief, and he did not spell out as to the outcome of the suit. The version of R1 would in no way advance the case of the complainant for obtaining sale deeds from the respondents. While late P. Satish Kumar was alive he undertook to execute the sale deed, however on his death obviously without re-constitution of the firm by these respondents they cannot be directed to execute the sale deeds. It is unfortunate that the complainant was unable to plead as to what happened to the firm on the death of P. Satish Kumar and other partners. Obviously it is an unregistered partnership firm, and therefore no records could be taken from Registrar of Firms. By virtue of bar u/s 69 of the Indian Partnership Act it is not known as to what could be the defence of the respondents in the suit filed by the complainant for the self same relief.
19) At the cost of repetition, we may state that the complainant did not press the claim against R2 & R3 and could not mention as to why R4 was impleaded. R7 & R8 are LRs of deceased partners. Therefore they cannot be directed to get the sale deeds executed on behalf of the firm. More over two of the partners are no more, evidently no plots were allotted.
The National Commission in Punjab Urban Planning and Development Authority Vs. Kishan Pal Chander in R.P. No. 1583/2005 dt. 23.11.2009 held that in case plot was not allotted, he would be considered as a prospective investor only, and that he cannot be considered as a consumer. For benefit we excerpt a passage from the order:
“Foras below have erred in not appreciating that mere application for allotment did not give the respondent, any right to the allotment of the plot. It is well settled that filing of application for allotment at the highest, grants the proposed allottee, only a right to be considered and no higher right than that accrues to him. This question has been examined by Hon’ble Supreme Court in Morgan Stanley Mutual Fund v. Kartick Das reported in (1994) 4 SCC 225 in which it was held as under:-
“31. Therefore, it is after allotment, rights may arise as per the contract (Article of Association of Company). But certainly not before allotment. At that stage, he is only a prospective investor (sic in) future goods. The issue was yet to open on 27-4-1993. There is not purchase of goods for a consideration nor again could he be called the hirer of the services of the company for a consideration. In order to satisfy the requirement of above definition of consumer, it is clear that there must be a transaction of buying goods for consideration under Clause 2(1)(d)(i) of the said Act. The definition contemplates the pre-existence of a completed transaction of a sale and purchase. If regard is had to the definition of complaint under the Act, it will be clear that no prospective investor could fall under the Act.
In the light of the above order, the order of the Dist. Forum is liable to be set-aside. Since the respondents did not choose to prefer any appeal against the order of the Dist. Forum, we do not want to dismiss the complaint on the said score. We do not see any merits in the appeal.
20) In the result the appeal is dismissed. However, no costs.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 23/08/2010.
*pnr
