By. Smt. Bindu. R, President:

            This complaint is filed by Sanoop, S/o. M. M. Sunny,  Maveliputhenpurayil House, Perikkalloor Post, Pulpally Village, Sulthan Bathery Taluk against Way one Resorts LLP represented by Its Designated Partner and 6 others as Opposite Parties alleging deficiency of service and unfair trade practice from the side of Opposite Parties.

            2.  The allegations in the complaint are that the Opposite Parties along with their partner concern viz nucleus premium properties received Rs.12,50,000/- during 2017 in installments from the Complainant for starting a Resort project in 2.46 acres of land in Block 31 in Resurvey No.181/8, 9  & 10 of Muppainad Village Wayanad District.  According to the Complainant he had invested the said amount in the project believing that the project will be completed by 31.12.2018 and he can use the income derived therefrom for his livelihood.  During covid period, the Opposite Parties assured that the project will be completed by 31^st of June 2021 but against the assurance they had abandoned the project without completing the same which amounts to unfair trade practice on the part of Opposite Parties.  The Complainant states that when the Complainant requested for return of money, Opposite Party assured that the project will be handed over to the Complainant on 31.06.2021 by completing the same but the Opposite Parties had not acted as per the assurance and hence the complaint praying for a direction to the Opposite Parties to return Rs.12,50,000/- with 12% interest from 25.11.2017 and for other reliefs.

            3. Upon notice from the Commission, the Opposite Parties entered into appearance and filed their joint version contenting that the complaint is not maintainable and the Complainant is not a consumer under Consumer Protection Act 2019.  According to the Opposite Parties the Complainant is a partner of M/s. Way One Resorts LLP, by virtue of agreement dated 25.11.2017.  According to the Opposite Parties and the Complainant invested in the firm as a partner, he is entitled to get share of profits and losses in proportion to the shares taken by him in the 1^st Opposite Party firm and hence the Complainant has no locustandi to file the complaint.  As per the agreement there is arbitration clause, if any dispute arose and hence the present complaint is not maintainable.  The Opposite Parties contented that Way One Resorts LLP, the 1^st Opposite Party, is a Partnership Firm which promotes business model of constructing resorts through well experienced hospitality management which had promoted a proposal to build an ecofriendly resort in 99.68 acres (246.30 Cents) in Resurvey No.181/8, 9 & 10 in Block No.31 of Muppainad Village, Wayanad District and had entered in to an agreement with nucleus hotels and Resorts LLP to manage the Resort.  According to 1^st Opposite Party, they invited the partners with condition that an upcoming partner who shall invest Rs.15,00,000/- will get 0.4% profit share of the firm and 0.4% undivided share of the land.  When the Complainant contacted 1^st Opposite Party expressing his willingness to join as a partner in the Limited Liability Partnership, the 1^st Opposite Party, it designated partner, had shared the business plans and all other details to the Complainant.  According to the Opposite Parties the Complainant had joined as a partner fully understanding the nature, potential, risk and return involved in the project and executed an agreement on 25.11.2017 as per which the net profits and losses of the firm was to be shared by the Partners in proportion of the shares held by the partner.  The sharing of profit is initiated only after starting the functioning of the project.  The Opposite Party contented that the construction of the resort was stared after obtaining permit from the statutory authorities and 30% of the works were completed.  The flood occurred in 2018 and several parts of Wayanad District were badly affected by the flood.  Taking note of the damage caused due to floods, the district administration had hold the construction activities and District Collector issued stop memo to hold the construction carried out at the site. Opposite Party stated that the stop memo was challenged before the Hon’ble High Court of Kerala in WP(C)12730/20 and hence the construction of the Resort could not be completed and hence the profit sharing also could not be activated.  The Opposite Party states that considering the delay and inconveniences cause to the Complainant the 1^st Opposite Party had repaid Rs.50,000/- on 18.09.2020 and since the project is not started yielding returns the 1^st Opposite Party cannot continue the payment of amounts to the Complainant.  Opposite Party contented that when the Complainant pressurized for payment of his share of profits and the project is delayed due to reasons and circumstances beyond the control of Opposite Parties, discussion were made and the Complainant agreed to transfer his half investment to another project by Opposite Parties viz T Dew Resorts LLP at Thekkady and accordingly the investment of the Complainant is transferred to T Dew Resorts, Thekkady of which the construction is completed.  The Opposite Parties submitted that the Order dated 18.11.2021 in CP (IB)/01/KOB/2021 the National Company Law Tribunal, Kochi Bench admitted Corporate insolvency Resolution Process against 4^th Opposite Party and now the Company is under the management of Mr. K. P. Dileep, the Interim Resolution Professional and hence the complaint is not maintainable against 4^th Opposite Party.  According to Opposite Parties there is no deficiency of service or unfair trade practice from the side of the Opposite Parties and prayed for dismissal of the complaint.

            4.  Evidence in this case consists of oral evidence of PW1 and Ext.A1 from the side of the Complainant and Ext.B1 series marked from the side of Opposite Party.

            5.  The following are the question to be analyzed by the Commission to derive into an inference of the facts.

1. Whether the Complainant had sustained to any deficiency of service or unfair trade practice from the side of the Opposite Party?
2. If so, compensation and other reliefs for which the Complainant is entitled to get

6.  Heard both sides and perused the records Opposite Party filed hearing notes also.  Ext.A1 is the invest agreement dated 25.11.2017 entered into between Way One Resorts LLP represented by its designated Partner Mr. Nashid. N. P and Mr. Sanoop the Complainant.  Ext.B1 series is the Certified Copy of the Writ Petition No.WP(C) No.12730/2020 with the documents produced along with writ petition.

7.  In this case Complainant filed chief affidavit on 03.10.2023 and Ext.A1 was marked and PW1 was not Cross-examined as there was no representation  for the Opposite Party.  Since the Complainant submitted no further evidence, Complainant’s evidence was closed and adjourned for Opposite Party’s evidence to 27.10.2023.  Later as per order in I.A.518/2023 and I.A.519/2023, the evidence was re-opened and PW1 was cross-examined by the Opposite Parties.  During cross-examination, PW1 deposed that “12,50,000/-   XncnsI e`n¡pI F¶XmWv Fsâ Bhiyw Ext.A1 sâ original Fsâ ssIhi¯nep­v.  FXrI£nIfpsS adp]Sn hmbn¨pt\m¡n a\Ênem¡nbn«p­v.  Ext.A1 AÃmsX aäv H¶pw Xs¶ H¸n«n«nà F¶mWv Fsâ hmZw.  Ext.A1 Hcp investment cum partnership  BtWm F¶v F\n¡dnbnÃ.  Ext.A1 investment cum partnership  agreement BWv F¶v ]dªm AdnbnÃ.  ]Ww \nt£]n¨Xv hb\mSv PnÃbnse aqss¸\mSv hntÃPn resort ]WnXv em`w  share sN¿p¶Xn\p th­nbmtWm F¶dnbnÃ.  Resort construct sN¿p¶Xn\mtWm agreement  GÀs¸«Xv F¶dnbnÃ.  hb\mSv PnÃbnse aqss¸\mSv hntÃPn Re Sy No.181/8, 9&10 in Block 31   Resort XpS§p¶Xn\mWv F¶dnbnÃ.  Resort XpS§p¶ Øe¯nsâ DSaØÀ ]m¯p½ kemw. Sn, A_vZpÄ lanZv F¶nhcmtWm F¶dnbnÃ.  C¡mcy§sfms¡ aI\v IrXyambn Adnbptam F¶v F\n¡dnbnÃ.  Building Construct  sN¿p¶Xn\mbn 01-.01-.2018 XobXn aqss¸\mSv ]©mb¯n \n¶pw permit e`n¨ncpt¶m F¶dnbnÃ. villa ]Wnbp¶ Øe¯v t]mbn t\m¡nbn«nÃ.  e`n¨ permit {]Imcw  construction Bcw`n¡p¶Xns\¡pdn¨v F\n¡dnbnÔ.  PW1 further deposed that he doesn’t know about the stop memo issued and which is challenged before the Hon’ble High Court of Kerala.  PW1 also unaware whether any email is received by the Complainant regarding these aspects.  It is admitted by PW1, that “aI\v 1þmw FXnÀI£n Øm]\w 50,000/-þ cq] XncnsI X¶n«p­v.  FXrI£nIÄ M/s. T Dew Resorts LLP F¶ Øm]\w ]ocptaSv hntÃPn hIamän XpS§nbXns\¡pdn¨v A^nUhnän ImWp¶ps­¦n AXns\¡pdn¨v AdnbnÃ.  A§s\  FXrI£n Øm]\w hIamän XpS§nbn«nÔ.

8.  The specific case of the Opposite Party is that there is no deficiency of service and unfair trade practice from the side of the Opposite Parties.  According to the Opposite Parties, the relationship between the Complainant and Opposite Parties are that of partners and the agreement entered into between the Parties is an investment agreement.  According to the Opposite Parties the work is not stopped by the Opposite Parties willfully but as per the stop memo issued by the authorities which was challenged by the Opposite Parties before the Hon’ble High Court of Kerala through Writ Petition No.WP(C)12730/20 and the agreement is not cancelled by the Parties.  The copy of the writ petition along with the documents are marked as Ext.B1(Series).

9.  The Commission has to consider the nature of dispute between the Parties to reach into a derivation.  In this case the Complainant relied on Ext.A1 Agreement as base of the complaint.  A reading of Ext.A1 shows, in page 2, it is stated “Whereas the present partner of the firm has resolved to admit new partners to the firm for the above said purpose, on condition that maximum numbers of partners shall be limited to 250 ad the minimum investment amount for a partnership is fixed as Rs.15,00,000/- (Rupees Fifteen Lakhs Only) 20% (Twenty percent) of the investment and 20% (twenty percent) of the profit share of the firm will be hold by present partners, remaining 80% (eighty percent) of the profit share of the firm will be given to the persons who are interested to invest in the firm to facilitate such business”. 

10.  The agreement further stated that “An incoming partner who is investing Rs.15,00,000/- will have 0.4% profit share of the firm and 0.4% the undivided share of the land which is equivalent to approximately 0.984 cents and 0.4 % the undivided share of the building which is equivalent to approximately 200 square feet built up area for the firm.  Cl.1 of the agreement says “The investor agreed to invest Rs.15,00,000/- (Rupees Fifteen Lakhs only) (the investment amount) in consideration for 0.4% of the profit share of the firm.  Cl.10 of the agreement says “Net profits and losses of the firm shall inure to and be borne by the Partners, in proportion to the shares held by each partners”.

11.  Moreover a reading of Ext.A1 shows there is no agreement that the property will be handed over to the party after completing the construction.  What is stated is “Apart from the proportionate room rent revenue each partner of the firm shall get free stay in the property during each of the calendar year according to their profit share in the firm which will be calculated on the basis of 7 nights free stay for 0.40% profit share in the firm”.  It is also provided in Cl.16 of the agreement that “if the investor desires to retire from firm he can transfer his share to anyone who is interest to investing in the firm to facilitate such business based on the firm’s valuation as of the last valuation date and transferee will be admitted as a new partner of the firm.  In such events the retiring partners must inform the firm in writing with complete details of the transferee and he must read this agreement and sign an acceptance of partnership agreement indicating that he/she has done so and is willing to comply with all the provision therein.  The date of affixing his signature will be inception date of the partner”.

12.  A reading of Ext.A1 reveals that the same is a partnership agreement as an investor of the Opposite Parties project.  Moreover it is in evidence that the construction was put on hold by the district administration by issuing stop memo which is challenged by the Opposite Parties before the Hon’ble High Court of Kerala which is evidenced by Ext.B1 series.  Hence the construction is not stopped by the Opposite Parties willfully and is not deliberate.  According to Opposite Parties the profit sharing could not be started since the construction could not be completed but considering the difficulties of the partners the Complainant was paid Rs.50,000/- on 18.09.2020 which is admitted by PW1 in the box.

13.  The Commission has analyzed all the evidences produced from either side and also verified the genuinity of the subject matter of the complaint and has reached in to the following derivation.

14.  The Complainant has not proved with any records or otherwise that he is not a partner of the Opposite Party firm, whereas the Opposite Parties are of the firm opinion that the Complainant is a partner of the Opposite Party.  If so the matter shall be considered on a broad view as to whether the partners of a firm can file a complaint against the same firm.  Moreover since there is provision for arbitration as is claimed by Opposite Party is not disproved by the Complainant.  Since there is no evidences produced by the Complainant to establish that he had sustained deficiency of service and unfair trade practice from the side of the Opposite Parties, Commission found that there is no merit in the complaint and hence Point No.1 is found against the Complainant.

15.  Since Point No.1 is found against, the Point No.2 is not considered by the Commission.

In these circumstances, we dismissed the complaint without costs.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 18^th day of April 2024.

Date of Filing:-28.04.2023.

PRESIDENT   : Sd/-

MEMBER       : Sd/-

APPENDIX.

Witness for the Complainant:-

PW1.              M. M. Sunny.                                                          Farmer.

Witness for the Opposite Parties:-

                        Nil.

Exhibits for the Complainant:-

A1.                  Copy of Investment Agreement.                       Dt:25.11.2017.

Exhibits for the Opposite Parties:-

B1(Series).    Certified copy of Writ Petition No.WP(C) No.12730/2020 and

documents (81 pages).

PRESIDENT   :Sd/-

MEMBER       :Sd/-

/True Copy/

                Sd/-

                                                                                             ASSISTANT REGISTRAR

                                                                                                  CDRC, WAYANAD.

Kv/-