STATE CONSUMER DISPUTE REDRESSAL COMMISSION

BIHAR, PATNA

Appeal No. 452 of 2018

Smt. Pushplata Kumari, W/o-Sri Arun Kumar, Resident of Jayprakash Nagar, P.G Line, Teenpulwa Kadamgali, PS- Jakkanpur, District- Patna

                                                                                                                                                                                … Appellant

Versus

Smt. Santi Devi, W/o Late B.P. Sinha, Resident of Flat No. 302, Santi Abinav Enclave, Mithapur, PO,G.P.O, PS- Jakkanpur, District- Patna-1   

                                                                                                                                                     …. Complainant/Respondents

Counsel for the Appellant: Adv. Pritam Kumar

Counsel for the Respondent: Adv. Shyamal Krishna Sinha

Before,

Hon’ble Mr. Justice Sanjay Kumar, President

Mr. Ram Prawesh Das, Member

Dated 20.07.2023

As per Sanjay Kumar, President.

O r d e r

1. Present appeal has been filed for setting aside the order dated 19.11.2018 passed by Ld. District Consumer Forum, Patna in Complaint case no. 227 of 2009 whereby and wherunder the Ld. District Consumer Forum has allowed the complaint case and directed appellant to complete the construction work of the flat in question with all amenities as per terms and conditions of development agreement dated 22.08.2000 and further directed appellant to pay Rs. 25,000/- as compensation to the complainant within 2 months.
2. Briefly stated the facts of the case is that complainant had filed present complaint case in the District Consumer Forum, Patna giving rise to complaint case no. 227 of 2009 for direction to opposite parties to complete full construction of the Shanti Abhinav Enclave including full construction of the common area in the said Enclave including staircase, lift, terrace ground floor of all the car parking areas as per provisions of the development agreement dated 22.08.2000.
3. It is further stated that husband of complainant Late B.P. Sinha had entered into an agreement with M/s Ashwarya Construction (I) Pvt. Ltd, Patna vide development agreement dated 22.08.2000 whereby and whereunder. M/s Ashwarya Construction (I) Pvt. Ltd had agreed to construct the apartment at their own cost in the said piece of land as contained in schedule of the said development agreement in terms of which M/s Ashwarya Construction (I) Pvt. Ltd. agreed to give 34.41% of the total built up area with proportionate share in the land to the owner and 65.59% of builtup area with proportionate share in the land to the prospective buyer.
4. Subsequently, there was an exclusive partnership deed entered between M/s Ashwarya Construction (I) Pvt. Ltd and one Pushpalata Kumari (O.P. no. 1) on 17.07.2006 for construction of remaining portion of Shanti Abhinav Enclave in which 100% of capital was to be invested by opposite party no. 1 with 100% profit in the project and M/s Ashwarya Construction (I) Pvt. Ltd. shall be sleeping partner and will help opposite party no. 1 to construct the remaining part of building in terms of sanctioned plan.
5. Opposite party no. 1 did not complete the work for development of  the land  as per development agreement as such complainant as well as purchasers of flats approached the District Consumer Forum, Patna for direction to opposite party no. 1 to complete the construction work of the building and provide other amenities in development agreement as they have paid the consideration amount.
6.  Initially a preliminary objection was raised by O.P. no. 1 that complainant has not paid consideration amount to O.P. no. 1 as such she is not consumer and original developer M/s Ashwarya Construction (I) Pvt. Ltd has not been made party who is a necessary party.  However, preliminary objection was overruled by order dated 14.05.2000 and O.P. no. 1 was directed to file written statement.
7.  In written statement filed by opposite party no. 1 a stand was taken that in view of order dated 21.02.2008 of town Commissioner, Patna not to do any type of work she is helpless to do any work unless said order of Municipal Commissioner is modified.
8. After hearing both the parties the District Consumer Forum, Patna held that it is an admitted position that O.P. no. 1 had entered into a partnership deed with M/s Ashwarya Construction (I) Pvt. Ltd as such O.P. no. 1 has substituted herself in place of M/s Ashwarya Construction (I) Pvt. Ltd. which had earlier entered into development agreement dated 22.08.2000 with the late husband of complainant.
9. The District Consumer Forum further held that complainant is the land owner and she has right to pursue the matter as per provision of the development agreement  dated 22.08.2000 after demise of her husband. It was further held that it is true that the complainant has not added M/s Ashwarya Construction (I) Pvt. Ltd as a party but that will not absolve O.P. no. 1 from the responsibility of executing the terms of development agreement dated 22.08.2000 because she knowingly and intentionally had entered into agreement with M/s Ashwarya Construction (I) Pvt. Ltd and complainant has right to persuade opposite party no. 1 to complete the project in terms of  development agreement.
10. The District consumer forum, Patna has extracted relevant paragraph no. 5 of the development agreement dated 22.08.2000 which reads as follows;

“the developer shall submit the building plan prepared by the said Architect in accordance with law, to Patna Regional Development Authority (P.R.D.A) and other authorities. The plan of the proposed construction shall be submitted to P.R.D.A and other appropriate authority, if any in the name of owner Sri Brajendra Prasad Sinha, S/o Late Sachidanand Sinha. The owner shall sign all relating papers as required by the developer for obtaining sanction of the said building plan on behalf of the owner from Patna Regional Development Authority and /or other authorities, if any and cost and expenses relating to above shall be paid and borne by the developer’’.

11. The District Consumer Forum, Patna has further quoted para-5 partnership deed dated 17.07.2006 which reads as follows:

“ that the first party (O.P. no. 1) will be a working partner, who shall provide 100% capital according to business need and will be sole responsible for any loss or any damage in the business. The second party (M/s Ashwarya Construction (I) Pvt. Ltd) will be a sleeping partner who will look after the project whether the same is being constructed according to sanctioned map or not more so the second party (M/s Ashwarya Construction (I) Pvt. Ltd) will do the work for the advantage of the partnership.”

12. The District Consumer Forum, Patna relying on the terms of development agreement dated (22.08.2000) and partnership deed (dated 17.07.2006) has held that it is crystal clear that M/s Ashwarya Construction (I) Pvt. Ltd is also a sleeping partner and as such the opposite party no. 1 has right to persuade the sleeping partner for help in completing the rest project as per development agreement (dated 22.08.2000).
13. The District Consumer Forum finally held in its order dated that by not completing the unfinished work of Shanti Abhinav Enclave opposite party no. 1 has committed deficiency in service and accordingly directed O.P. no. 1 to complete the construction of flat in question with all amenities in terms of development agreement dated 22.08.2000 within a period of 6 months from the date of receipt of order passed by the Commission after obtaining necessary permission from the Municipal Commissioner.
14. O.P. no. 1 is further directed to pay Rs. 25,000/- to the complainant by way of compensation and cost of litigation within 2 months.
15. Aggrieved by order dated 19.11.2018 passed by District Consumer Forum, Patna passed in complaint case no. 227 of 2009 O.P. no. 1 has preferred this appeal.
16. Counsel for the appellant submits that there was no agreement between complainant and O.P. no. 1 and and Development agreement (dated 22.08.2000) was entered between husband of complainant (land owner) and Ashwarya Construction (I) Pvt. Ltd as such Ashwarya Construction (I) Pvt. Ltd (Developer) was a necessary party in absence of whom complaint case was bad for non-joinder of necessary party.
17. Opposite party no. 1/appellant is helpless to do any type of work in view of order dated 21.01.2008 Passed by Municipal Commissioner unless order dated 21.01.2008 is set aside/modified.
18. Heard counsel for the parties.
19. Development agreement dated 22.08.2000 entered between husband of complainant (land owner) and developer M/s Ashwarya Construction (I) Pvt. Ltd. through its Managing Director is an admitted fact and in terms of which Ashwarya Construction (I) Pvt. Ltd. (Developer) was to construct Multi storey building namely Shanti abhinav Enclave with share as 34.41% and 65.59% of Built up area.
20. However, Aishwarya Construction (I) Pvt. Ltd failed to construct Multistorey building and entered into exclusive partnership agreement dated 17.07.2006 with O.P. no. 1 to get the incomplete work completed by O.P. no. 1 by 100% Capital Investment.
21. Relevant terms of Partnership deed reads as follows:

1. Whereas, the parties aforesaid intend and agree to partnership for the completion of the project of one of the multistoried building known as Shanti Abhinav Enclave…..
2. Whereas, the second party had entered into a development agreement on 22.08.2000 with one land owner namely Smt. Shanti Devi, W/o- Late B.P. Sinha… for the construction of multistoried building in the name and style of Shanti Abhinav enclave as stated above on the conversion basis i.e. the said land owner would retain 34.41% of the total builtup area including flats and parking areas of the building and the second party would retain remaining 65.59% of the builtup area.
3. Whereas, the second party could construct only the frame work of pillar and roof casting up to second floor of the aforesaid Shanti Abhinav Enclave and on pressure of the allottees the second party contacted with the first party (O.P. no. 1) to complete the project and agreement was made between the parties on 20.04.2005 who also constructed the framework of third floor and brick work of the first and second floor also sanitary and electrical work of the first and second floor and some grill and door window fittings also done by the first party.
4. Whereas, the second party (M/s Ashwarya Construction (I) Pvt. Ltd) had given two cheques of Rs. 3,50,000/- only to first party (O.P. no. 1) regarding part payment against the third floor casting but the said cheques were returned unpaid due to insufficient balance and thus, again project could not be completed and now there are more pressures by the allottees of the aforesaid Shanti Abhinav Enclave so with a purpose to complete the project this partnership is being framed between both the parties who agree mutually to the following terms & conditions.     
                (i).....
                (ii).....
               (iii)....
               (iv).....    

(v) That the first party (O.P. no. 1) will be a working partner who shall provide 100% capital according to the business need and will be sole responsible for any loss or any damage in the business. In other words he will also be entitled to 100% profit in the business. The second party (M/s Ashwarya Construction (I) Pvt. Ltd) will be a sleeping partner who will look after the project whether the same is being constructed according to sanctioned map or not, more so, the second party (M/s Ashwarya Construction (I) Pvt. Ltd) will do the work for the advantage of the partnership.

(vi) that since the second party made a development agreement with aforesaid land owner (complainant) and it was agreed to complete the aforesaid project within scheduled time but the same could not be completed within the scheduled time, although, the second party (M/s Ashwarya Construction (I) Pvt. Ltd) has made an agreement with 14 allottees of the aforesaid complex.

22. The terms and conditions of partnership deed entered between opposite party no. 1 and Ashwarya Construction (I) Pvt. Ltd leaves no doubt that partnership deed was project specific and to complete the unfinished work as such opposite party no. 1 had stepped into the shoes of Ashwarya Construction (I) Pvt. Ltd for completion of project as such non addition of Aishwarya Construction (I) Pvt. Ltd (sleeping partner) has caused no prejudice to opposite party no. 1. No relief was claimed against (M/s Ashwarya Construction (I) Pvt. Ltd) by the complainant.
23. Interest of consumer is paramount and it is the duty  of commission to protect consumers from unfair trade practice and to grant their lawful claim. In present case even after making payment of the consideration amount possession of the flat has not been handed to the consumers  for much more than 10 years which reflects gross deficiency in service and unfair trade practice adopted by opposite party no. 1 in connivance with Ashwarya Construction (I) Pvt. Ltd (sleeping partner) to frustrate the rightful claim of complainant by dubious method.    
24. The appeal is devoid of any merit and is accordingly, dismissed.

(Ram Prawesh Das)                                                                                                       (Sanjay Kumar,J)

       Member                                                                                                                         President

Md. Fariduzzama