Per – Hon’ble Mr. S. R. Khanzode, Presiding Judicial Member
This consumer complaint alleges deficiency in service on the part of the Opponents/Builders & Developers for not handing over possession of a shop situated on the ground floor admeasuring 300 sq. ft. and residential accommodations situated on the first and second floors having total area admeasuring 2,100 sq. ft., from the property which was developed.
[2] Undisputed facts are that the Complainant, namely – Mr. Rafiq Mahmood Naik (hereinafter referred to as ‘the Complainant’ for the sake of brevity) entered into an agreement of development of his property bearing Survey No.215, Hissa No.5/2-B/5, having area admeasuring 0H.12.44Ares, situated at Village Zhadgaon, out of municipal limit within Gram Panchayat Shirgaon, Taluka and District Ratnagiri. Accordingly, a development agreement dated 27/2/2004 was executed with said M/s. Samrat Constructions, having partners, namely – Mr. Irfan Muhammadalli Chougule and Mr. Irfan Ismail Mungi (hereinafter referred to as ‘the erstwhile firm’ for the sake of brevity). As a part of the said development agreement, by way of consideration, as was agreed by the erstwhile firm, the Complainant was to receive the property i.e. a shop admeasuring 300 sq. ft., situated on the ground floor and residential accommodations totally admeasuring 2,100 sq. ft., situated on first and second floor of the building. It is further alleged by the Complainant that the erstwhile firm did not comply with said obligation and failed to hand-over the possession of the above-referred property to him and, therefore, he has filed this consumer complaint on 9/9/2010, claiming relief of possession of the above-referred property and alternatively for compensation to the extent of value of the above-referred property made at the time of execution of development agreement dated 27/2/2004 for the purpose of stamp-duty @ `21,80,000/- together with interest thereon @ 24% p.a., from the date of the said development agreement; further claimed compensation of `50,00,000/- for mental torture, inconvenience, hardship etc., and in addition to it, claimed costs of `1,00,000/-. Further, also claimed a compensation @ `25,000/- totaling `10,50,000/- as per development agreement. It is not clarified as to how figure of `25,000/- is arrived at and to which clause of the development agreement it pertains).
[3] The Opponent No.1 i.e. first partner of erstwhile firm, namely – Mr. Irfan Muhammadalli Chougule appeared and resisted the claim as per his written version dated 6/10/2010. He has submitted that he was a partner of erstwhile firm but he stood retired from the erstwhile firm with effect from 24/11/2004 and since then, he ceased to have any concern with the said firm. Said firm is now reconstituted with partners, namely – Mr. Irfan Ismail Mungi (the Opponent No.2 i.e. second partner of erstwhile firm) and his mother, namely – Smt. Khairunnisa Ismail Mungi. The reconstituted firm holding the same name – ‘Samrat Constructions’ continues to carry the business as the Builder/ Developer. It is his contention that the Complainant is well aware of these facts and changes. Even the flat/shop purchasers from the building filed consumer complaints bearing Nos.161 of 2009 to 166 of 2009 before the District Consumer Disputes Redressal Forum, Ratnagiri against the reconstituted firm, supra, and which came to be decided on 17/4/2010. The Complainant herein being a party Opponent No.2 in those consumer complaints was well aware of these developments. Therefore, present complaint filed after the said decision is not maintainable and particularly, he cannot be held responsible for the alleged deficiency in service on part of the builder/developer.
[4] Inspite of due service, the Opponent No.2, namely – Mr. Irfan Ismail Mungi preferred to remain absent, failed to file his written version and as such, consumer complaint proceeded in his absence.
[5] Heard Adv. Shamim S. Padvekar on behalf of the Complainant and Adv. Mrs. Sushmita Lawane on behalf of the Opponent No.1.
[6] Documents viz. copy of the development agreement dated 27/2/2004, copy of the order dated 17/4/2010 passed in Consumer Complaints bearing Nos.161 of 2009 to 166 of 2009 (supra) are not in dispute and read and referred by both the parties and hence they are taken into consideration.
[7] Under Section-13(4) of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’ for the sake of brevity) on behalf of the Complainant his own affidavit dated 1/2/2011 is tendered in evidence while on behalf of the Opponent No.1, namely – Mr. Irfan Muhammadalli Chougule, his own affidavit dated 14/7/2011 is placed on the record. Pertinent to note that the affidavit of the Complainant is verbatim reproduction of his complaint and did not refer at all to the submissions made by the Opponent No.1, namely – Mr. Irfan Muhammadalli Chougule in his written version (supra) particularly about change brought into the constitution of the erstwhile firm way back on 24/4/2004 witnessed by a document dated 23/2/2005 and also a public notice published in the newspaper dated 18/3/2008. He also does not refer or tried to answer relating to the consumer complaints bearing Nos.161 of 2009 to 166 of 2009 before the District Consumer Disputes Redressal Forum, Ratnagiri, supra, to which he was a party.
[8] It is basically for the Complainant to establish his own case. There is hardly any evidence led to establish the total scope of the project i.e. the building which was built by way development of the property on the land. It also does not specify and show the total number of shops and the flats and property is left after ignoring the shops/flats which were subject matter of the Consumer Complaint Nos.161 of 2009 to 166 of 2009, supra, as per the sanctioned plan. This is particularly important because only on the basis of such information one could give executable direction specifying the area to be handed over from the ground floor and the first and second floor of the building by way of consideration to the Complainant. It is pertinent to note that shops bearing Nos.14, 16, 18 and 18 and flats bearing Nos.A-202, A-201, A-203 were the subject matters of the consumer complaints bearing Nos.161 of 2009 to 166 of 2009 (supra) and were directed to be placed in possession of the respective flat/shop purchasers, namely, the Complainants in those respective consumer complaints. Being one of the party to those consumer complaints, the Complainant is presumed to be well aware of the same.
[9] Further, with the change in the constitution of the erstwhile firm viz. the Opponent No.1, namely – Mr. Irfan Muhammadalli Chougule retired from the firm with effect from 24/11/2004 and Smt. Khairunnisa Ismail Mungi, the mother of the Opponent No.2, namely – Mr. Irfan Ismail Mungi, was admitted as a partner in the newly constituted firm (with the change in partnership, though the business of the firm continued in the same name, it materially changed the constitution of the said firm and, therefore, referred as ‘the new firm’). Therefore, erstwhile firm and showing initial members and its partners as the Opponents in the present consumer complaint would not be a ‘person’ within the meaning of Section-2(1)(m) of the Act, as on the date of filing of this consumer complaint on 9/9/2010, erstwhile firm did not exist as a ‘person’ as described in the title of the consumer complaint as the Opponents and, therefore, present complaint alleging deficiency in service on the part of the Opponents in the present form based upon development agreement dated 27/2/2004 is not maintainable. It may not be out of place to mention that, the Complainant elected to proceed with the consumer complaint in its present form, even though his attention was invited to these aspects.
[10] Besides this, the Complainant failed to take into cognizance the change in liabilities and particularly, of the fact that on retirement from the partnership firm witnessed by a document dated 23/2/2005 did not keep alive any obligation on the part of the Opponent No.1, namely – Mr. Irfan Muhammadalli Chougule in respect of alleged deficiencies and, therefore, present consumer complaint as such is liable to be dismissed.
[11] If, for the sake of argument we assume that the consumer complaint is filed as against M/s. Samrat Constructions only, then, the title as described in the present consumer complaint represents not a firm which is in existence today. If we take it as filed only against the initial partners, namely – Mr. Irfan Muhammadalli Chougule and Mr. Irfan Ismail Mungi, then, present complaint is again not tenable since it is based upon the initial constitution of the firm, namely – ‘Samrat Constructions’ and does not take into consideration the rights and liabilities which were passed on to the new firm which ultimately, as revealed from the record, constructed the building.
Taking into consideration all these aspects we find that the consumer complaint deserves to be dismissed. We hold accordingly and pass the following order:-
ORDER
Consumer complaint stands dismissed.
In the given circumstances, both the parties to bear their own costs.
Pronounced on 6th January, 2012
