This appeal follows against the final order dated 29.01.2021 passed by Ld. DCDRF, Malda in CC No. 50 of 2016.

The instant Consumer complaint case was initial by Mr. Swapan Pal and his wife against M/S Kiran Enterprise , a  partnership farm and its partners ( 5 numbers).

The complainant case is nut shell is that the O.P. No.1 has a partnership farm having its office situated at R.K. Mission Road under the P.S. English Bazar, Dist. Malda and the said partnership firm having its office situated at R.K. Mission Road under the P.S. English Bazar, Dist.- Malda and the said partnership firm is in registration under the Partnership Act. The O.P. No.2 to 5 are the bonafide partners / promoters / developers of M/s. Kiran Enterprise of R.K. Mission Road Malda]

 The complainant Nos.1 & 2 jointly desired to purchase a readymade flat measuring 1400 sq ft. in the ground floor of the said building. The complainant on 20/11/2011 made contact with an aged gentleman who showed and told himself as a bonafide partner / promoter or developer of M/s. Kiran Enterprise and that gentleman told his name as Pratip Kr. Jha.

On discussion with him regarding the flat matter the complainant No.1 came to know that there are other main partners who are O.P. Nos. 2 to 4 and O.P. -6 is the landlord of the said scheduled property as well as copartner of this firm. At that time Pratip Babu also disclosed himself as the money receiver. On 25/11/2011 the complainant paid Rs. 6,00,000/- (Rupees Six Lakhs Only) and then Rs. 60,000/- Rupees Sixty Thousand Only) and Rs. 5,40,000/- (Rupees Five Lakh Forty Thousand Only) on 06/12/2012. The total amount was paid to Mr. Pratip Kr. Jha near about 12,00,000/- lakhs (Rupees Twelve Lakhs Only) in cash and cheques. The O.P. No. 5 Pratip Babu issued three money receipts. mentioning the amount dt. 25/11/2011, 12/02/2011 and 06/12/2012 for and on behalf of M/s. Kiran Enterprise R K Main Road, Malda putting full signature on the money receipt.

On 25/09/2012 the written agreement / article of agreement was executed in a non-judicial stamp paper of Rs. 20/Rupees Twenty Only)containing 11 (eleven) pages between the three partners O.P. Nos. 2 to 4.

It has been stated that the total price will be Rs. 22,75,000/- (Rupees Twenty Lakhs. Seventy Five Thousand @ Rs. 1625/- per sq. ft]

Pratip Kumar Jha signed as an witness in the said written agreement.

In the agreement it was mentioned that by 25/09/2014 the completed flat will be handed over. The Complainant No.1 went to O.P. No.5 on 25/09/2014 to know about the fact of the proposed flat but at that time the answer given by the O.P. No.5 was not fruitful from side. Thereafter, the complainant returned back from the office of M/s. Kiran Enterprise but ultimately the flat was not handed over to them. In spite of receiving 12,00,000/ (Rupees Twelve Lakhs Only) out of the total amount of Rs. 23,05,000

The complainant gave a legal notice to the O.Ps. Ultimately, there was no fruitful result. As such the to complainant has to the Forum to get relief as prayed for.

The OP No. 4 filed WV and  denied all the contentious of the Consumer Complaint.

OP No. 1 to 3 filed Joint WV and denied all the material allegations leveled against them and their positive case is that the M/S Kiran enterprise was not a partnership farm having no partnership deed as these Ops are not the partners. They were not involved in the alleged Flat booking by the complainants. They were not agreed to sell a flat to the complainants, they did not receive any money as consideration price of the value of the residential Flat.

Their positive case is that  the Office of M/S Kiran Enterprise use to run by the employees appointed from time to time accordingly no other persons were permissible to receive any money beyond the office category. The subject matter is not tenable as there was no such contract executed still now and the concerned authority also not sanctioned to that effect. The impossibility of event can not enforce by law or any court of law. The complainants failed to implead the real name who are necessary party of this case like all the staffs of the said enterprise. The complainant admitted that there was no such agreement for selling of 1400 Sq.ft. The Opposite Party never been did any thing or obtain from doing any thing which ought to have done or ought to have done or ought not to be done which amounts to negligence.

 No such amount was deposited by complainant in the office of the farm and/or not the said Pratip Kr. Jha deposited that amount. Until and unless any payment has been proved the complainant can not be claimed as consumer within the preview of C.P. Act. Without admitting anything contained in this regard if at all any transaction is made by Pratip Kr. Jha that should have bear by the said person. The activity of personal capacity does not create or generate liability of other person or enterprise where there is mal-intention of the said Pratip Kr. Jha only.

The OP No. 6 the land owner whose land was developed by M/S Kiran enterprise also contested the case by filing separate WV who contended that she has entered into an agreement with the partners of M/S Kiran Enterprise.

On 17.01.2011 she entered into an agreement i.e. Articles of Development Agreement with the firm under the name and style of M/S Kiran Enterprise represented by its partners namely i. Smt. Laxmi Jha ii. Sri. Ramanath Jha iii. Sri. Chandranath Jha i.e. Opposite Party No. 1 to 4 for the purpose of construction of an apartment building and such Articles of Development Agreement was also signed by the opposite party No.5 as witness and it was notarized on 18.01.2011.

 That the Owner and the Developer have entered into this agreement purely on principal to principal basis and nothing contained in these presents shall be construed as a Partnership business or joint venture and / or joint adventure between the Owners and Developers or Developer shall constitute an association of persons.

 That in view of the agreement dated 18.01.2011 this Opposite Party has no liability towards the complainant or towards any intending purchaser's of the proposed flat. It is a matter only between the Opposite party No. 1 to 5 and the intending purchaser/s to which the Opposite Party No. 6 is neither a party nor a beneficiary.

In that case the complainant Swapan  Paul filed affidavit-in-chief and he was cross examined on dock by the contesting Ops. The Ops filed evidence-in-chief but they were not cross examined.

The complainant side conducted the hearing of argument through Ld. Advocate. On the other hand, on the date of hearing argument scheduled for Ops, the op side filed an adjournment petition which was  not allowed by Ld. Forum and did not give further space to the Ops for tendering argument. There after Ld. Forum delivered the Final order.

Being aggrieved with the order, this appeal follows on the ground that sufficient opportunity was not provided to the Ops to contest the case and the Ld. Forum did not follow the system on natural Justice and the impugned judgment was liable to be set aside.

The appeal has been contested by the respondents through Ld. Legal counsel.

Both sides of the appeal are heard through their Ld. Legal counsels at length.

Decision with reasons:-

Having heard the Ld. Advocate of the respondents(complainant), it is revealed that OP NO. 1 M/S Kiran Enterprise as a partnership Farm, though non registered, had business of develop and promote land for the construction of dwelling houses and flats and to sale it to different customers and OP No. 2 to 5 were the partners OP NO. 5 Pratip Jha  represented himself before the respondents that he was authorized by other partners to negotiat the sale of flats with customers and to receive  the price of the flats.

The money receipts produced by the respondents show that on the date of execution of agreement to sale deed, Pratip Jha received Rs. 6,00,000/- cash from the respondents and he received cash time to time from  the complainant/respondent total Rs. 12,00,00/- by issuing receipts signed by him on behalf of M/S Kiran Enterprise.

The OP No. 2 to 4 all along say that in their absence and beyond their knowledge, Pratip Jha has received the money though he was not authorized.

According to their case, the Office of M/S Kiran Enterprise use to run by the employees appointed from time to time accordingly no other persons were permissible to receive any money beyond the office category. The subject matter is not tenable as there was no such contract executed still now and the concerned authority also not sanctioned to that effect. The impossibility of event can not enforce by law or any court of law. The complainants failed to implead the real name who are necessary party of this case like all the staffs of the said enterprise. The complainant admitted that there was no such agreement for selling of 1400 Sq.ft. The Opposite Party never been did any thing or obtain from doing any thing which ought to have done or ought to have done or ought not to be done which amounts to negligence. In fact in brief is that the O.P. No. 5 Pratip Kumar Jha is the Guardian and non working partner of the M/S Kiran Enterprise. Pratip Kr. Jha is the uncle of O.P. No. 2 & 3 and after their father's death O.P.s used to love and regards him as good as his father and they have sufficient faith upon O.P. No. 5. The said Pratip Kr. Jha printed Money Receipt in the sweet will of his own accord and the account of which was not properly maintained. The O.P. No. 5 signed in the money receipt in his own capacity. The Opposite Parties are not at all responsible for taking money from the complainants. The O.P. No. 5 Pratip Kr. Jha did all those things in his own capacity. Even he took money by issuing false receipt in the name of M/S Kiran Enterprise which was utilized else where inspite that he had no locus standi.

The appellants further contended that no such amount was deposited by complainant in the office of the farm and/or not the said Pratip Kr. Jha deposited that amount. Until and unless any payment has been proved the complainant can not be claimed as consumer within the purview of C.P. Act. Without admitting anything contained in this regard if at all any transaction is made by Pratip Kr. Jha that should have bear by the said person. The activity of personal capacity does not create or generate liability of other person or enterprise where there is mal-intention of the said Pratip Kr. Jha only.

The OP No. 2 to 4 wanted to escape from the liability on the pretext that neither Pratip jha was one of the partners of the farm nor he was authorized to receive money on behalf of the farm from the customers.

But this argument is not acceptable as because in article of agreement there is clear acceptance on the part of OP No. 2 to 4 that on the date of exaction of agreement dated 25.11.2011, Rs. 6,00,00/- was handed over as the part payment of the complainant/respondent to the M/S Kiran enterprise and in that agreement Pratip Jha put his signature as one of the witness.

On perusal of the agreement it is found that one Pratip Kr. Jha S/o. Late Anath Bandhu Jha signed in the deed as witness. Unless and until he has any relation to the Kiran Enterprise where Pratip Kr. Jha signed in the articles of agreement as witness. Moreover, on perusal of the address of Pratik Kr. Jha it is found that he is a resident of R.K Mission Road, Malda whereas the O.P. Nos. 2 to 4 are the resident of R.K. Mission Road, Malda. Why Pratip Kr. Jha has received the consideration money over the printed money receipt of Kiran Enterprise. If the Pratip Kr.Jha has no nexus with Kiran Enterprise why he received the money on behalf of Kiran Enterprise. Such intention Pratik Kr Jha is very clear that in order to avoid any future liability he put signature in the agreement as a witness.

The nexus between Pratip Kumar Jha and the partners of M/S Kiran enterprise and the active participation of Pratip Jha in construction of building of the said premises has clearly established as he also put signature as witness in the deed executed by land owner (OP No. 6,) and OP NO. 2 to 4. The involvement  of Pratip Jha all along in the project has clearly established. Pratip Jha in this transaction between the complainant and the partners of M/S Kiran enterprise has acted as an agent of M/S Kiran enterprise and initiated talk of sale of flat to the complainants. The OP No. 2 to 4 as partner of the farm can not escape their liability when a bonafide customer paid Rs. 12,00,000/- cash for purchasing a flat and ultimately he was deprived in getting the said flat due to some sort of internal problems between Pratip Kumar Jha and OP No. 2 to 4.

None cross examination of OPs witnesses does not cause the case fatal on its merit.

The record speaks that huge opportunities was provided to the OP to conduct the hearing of argument and they could not utilize the said opportunity due to their own latches and no natural justice was infringed.

So the order of Ld. Forum appears to be convincing, appropriate and no gross irregularity is detected.

On the other hand at this stage the partners of M/S Kiran enterprise are not in a position to hand over 1625 Sq.ft flat to the complainants in the said housing complex.

So the best course of action in the present context is to recovery of the money from OP No. 2 to 5 to the tune of Rs. 12,00,000/- lakhs paid by the complainants along with interest at the rate of 10% per annum since the date of article of agreement to sale dated 25.11.2011.

Hence, it is ordered

That the appeal be and the same is here by disposed of on his merit on contest without any cost with a modification of the final order of the Ld. Forum.

As per order of the Ld. Forum the OP No. 2 to 5 are jointly and separately directed to pay back Rs. 12,00,000/- lakhs along with interest at the rate of 10% per annum since the date of 25.11.2011 within 45 days from the date of receiving copy of order of this appeal and litigation cost Rs.20,000 within 45 days.

Any flout of this order shall carry extra interest at the rate of 10% per annum over the imposed amount till realization. The other portion of the order of Ld. Forum stands set aside.

Let a copy of this order  be supplied to the parties of appeal free of cost and same to be communicated to the LD. DCDRF, Malda.