BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION- AT HYDERABAD.
FA.No.296/2007 against CD.No.233/2001 District Forum,Srikakulam.
Between-
Nilakanta Nagar, Berhampur – 2, Dist.Ganjam, Orissa.
st Line, Berhampur-2,
Dist.Ganjam, Orissa.
ASKA, Dist.Ganjam, Orissa.
Chandra Prava Street, 2nd Line, Berhampur-1,
Dist.Ganjam, Orissa.
Berhampur, Dist.Ganjm, Orissa.
Berhampur-2, Dist.Ganjam, Orissa.
Berhampur-2, Orissa.
Berhampur-2, Dist.Ganjam, Orissa.
Main Line, Berhampur-5,
Dist.Ganjam, Orissa.
Premnagar Main Road,
Berhmpur-2, Dist.Ganjam, Orissa.
Premnagar Main Road, Berhampur-2,
Dist.Ganjam, Orissa.
Station, Nilakantanagar, Berhampur-2, Dist.Ganjam, Orissa.
Premnagar 7th line, Berhampur-2, Dist.Ganjam, Orissa.
…Appellants/Complainants.
And
G.T.Road, Srikakulam, Andhra Pradesh,
Rep. by its Manager, D.Rambabu.
Ex-Chairman Srikakulam Municipality,
Gujarati Peta, Srikakulam, Andhra Pradesh.
Ex.Sarpanch, Near State Bank of India, P.O.Kotabommali, Dist.Srikakulam,
Andhra Pradesh.
Srikakulam, Andhra Pradesh.
Srikakulam, Srikakulam Dist., Andhra Pradesh.
Srikakulam, Srikakulam Dist., Andhra Pradesh.
…Respondents/Opp.Parties.
- Dr.P.P.Ramaiah.
- Mr.D.Krishna Murthy (For R1, R2 and R6)
Other respondents served.
FA.No.1360/2007 against CD.No.158/2001 District Forum,Srikakulam.
…Appellant/Complainant.
And
G.T.Road, Srikakulam, Andhra Pradesh,
Rep. by its Manager, D.Rambabu.
Ex-Chairman Srikakulam Municipality,
Gujarati Peta, Srikakulam, Andhra Pradesh.
Ex.Sarpanch, Near State Bank of India, P.O.Kotabommali, Dist.Srikakulam,
Andhra Pradesh.
Srikakulam, Andhra Pradesh.
Srikakulam, Srikakulam Dist., Andhra Pradesh.
Srikakulam, Srikakulam Dist., Andhra Pradesh.
…Respondents/Opp.Parties.
- Dr.P.P.Ramaiah.
- Mr.D.Krishna Murthy (For R1, R2 and R6)
Other respondents served.
QUORUM- THE HON’BLE MR.JUSTICE D.APPA RAO, PRESIDENT,
SMT.M.SHREESHA,HON’BLE LADY MEMBER,
AND
SRI G.BHOOPATHI REDDY, HON’BLE MALE MEMBER.
TUESDAY, THE TENTH DAY OF JUNE,
TWO THOUSAND EIGHT.
Common Oral order (Per Hon’ble Mr.Justice D.Appa Rao, President)
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1. Perused the written arguments filed by the learned counsel for the appellants. Heard the learned counsel for respondents 1, 2 and 6, Sri D.Krishna Murthy. Since both the appeals pertain to the very same subject matter, we feel that these appeals could be disposed of by a common order.
2. It is the case of the complainants that they have enrolled themselves as members for purchase of house sites in Navabharat Nagar Junction situated at Srikakulam. They have paid instalments. However, no plots were allotted despite lottery was drawn for allotment of plots to various members. When they intend to raise dispute, they found that the office was locked and nobody was present to discuss as to why allotment of house sites was not made. Thereupon, they issued registered notices through an advocate for which no reply was received. Therefore, they prayed that plots be provided together with compensation or in the alternative to refund the total cost of the plot i.e. Rs.21,000/- with interest from the date of final lottery to each of the member, besides compensation of Rs.25,000/- to each of them and costs.
3. The opposite parties resisted the complaint.
4. The 1st opposite party filed counter alleging that he was an employee and has nothing to do with the affairs of the Ushodaya Real Estates.
5. Opposite parties 2 to 6 filed common counter alleging that originally they have started the Scheme under the name and style of M/s.Ushodaya Real Estates, a registered firm, in the month of November, 1993 and after reconstitution of the said firm, opposite parties 3 to 5 retired from the partnership firm and thereafter opposite parties 2 and 6 and one Sanjeev Bihani continued as partners. Opposite party No.6 is the Managing Partner and opposite party No.2 and Sanjeev Bihani are partners of the said firm. As per the terms and conditions of the Scheme, the member has to pay consideration amount in instalments for purchasing plots and who wins the plot in the monthly lottery need not pay the remaining instalments, and the plot would be allotted to him. Notices were sent to all the members including the winners of the lottery to participate in the casting of lots for allotment of plots, and lots were cast in respect of all those applicants. The complainants had also signed in the register in the presence of guests when the final draw was conducted. The members, who were allotted plots, have paid the registration charges and the sale deeds were also executed in their favour. The complainants did not attend when the plots were allotted and this fact was informed to them. Since the complainants did not pay the amounts as agreed upon they were not entitled to any of the plots. The complaint was barred by limitation. The complaint was also bad for non-joinder of one Sanjeev Bihani. Therefore, they prayed for dismissal of the complaint with costs of Rs.10,000/-.
6. The District Forum after considering the contentions among other things opined that the complainants did not choose to implead one Pradeep Bihani as the person representing Ushodaya Real Estates. In the absence of Ushodaya Real Estates represented by a proper person, the matter cannot be adjudicated. Accordingly, the complaint was dismissed.
7. Aggrieved by the said decision, the complainants preferred these appeals contending that the brochure was published by Ushodaya Real Estates as a registered partnership firm. They have impleaded Ushodaya Real Estates as party. Since the 1st opposite party was representing the firm, they have impleaded it. The finding that some of the parties have been retired and they were not impleaded and the same was violative of provision of CPC was against the provisions of Consumer Protection Act. The matters ought to have been decided basing on the principles of natural justice.
8. The point that arises for consideration is whether the complaint is maintainable without impleading some of the partners and whether the dismissal was in proper?
9. At the outset, it may be said that there is no dispute that the complainants were enrolled themselves as members with the 1st opposite party Ushodaya Real Estates, a registered partnership firm. Admittedly, they have shown various partners as parties to the complaint. May be some of the parties had retired from the partnership firm. The fact that they were retired from the partnership firm was not informed to any of the complainants nor the said fact was evidenced by any document.
10. The complaint was filed basically for allotment of the plots, which the firm had promised to allot on receipt of some amounts. They have also claimed in the alternative for refund of the amount with interest stipulated in the brochure besides compensation. Despite the fact that there is no need for adherence of the provisions of the Civil Procedure Code (CPC) and the matters have to be decided by applying principles of natural justice (vide Sec.13 (3) the District Forum considered the complaint as though it was a Suit filed, invoking Order XXX C.P.C. A reading of Sec.13 of C.P.Act makes it clear, that except the provisions of Order 1 Rule 8 and Order XXII CPC, no other provision of C.P.C. has any application. It is unfortunate that in spite of the fact that the very firm is impleaded as R.1, the District Forum has chosen to dismiss the complaint on the ground that provision of Order XXX is not complied with. It is a settled law that when matters filing under C.P.Act are adjudicated, the only principles that are applicable are the principles of natural justice. The District Forum ought to have seen whether the complaint attracts any of the disputes mentioned in Sec.2 of the C.P.Act. In fact the very Act stipulates that a complaint could be filed even against an unregistered firm contrary to the embargo created under Sec.69 of the Partnership Act. Sec.2(1)(m) of C.P.Act defines a “person” which includes a firm whether “registered or not”. In the present case, the firm is infact registered. In the light of the said proposition, there is no need to implead all the partners. The firm itself has legal entity against which, the complaint could be filed. The reasons assigned for dismissal of the complaint at the threshold, are unjust and liable to be set aside. The District Forum ought not to have dismissed the complaint on the technical ground, when it is a settled principle of law that, the disputes arising under C.P. Act shall not be adjudicated on technical grounds.
11. In the result, the appeals are allowed setting aside the orders of the District Forum. The District Forum is directed to restore the complaints and dispose of the same according to law, after giving notice to both parties either to lead evidence or to argue on the evidence that was already adduced. The District Forum is directed to dispose of the matters within a period of three months from the date of receipt of the order. No costs.
PRESIDENT LADY MEMBER MALE MEMBER
Dt-10.06.2008.
