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NATIONAL CONSUMER DISPUTES REDESSAL COMMISSION, NEW DELHI
V.B. Gupta, Presiding Member and Mrs. Rekha Gupta, Member
Kishore Shriram Sathe —Petitioner
versus
Mr. Vivek Gajanan Joshi —Respondent
Revision Petition No. 1953 of 2011
(From the order dated 28.01.2011 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai in Appeal no. 1430 of 2009)
Decided on 1.10.2013
Counsel for the Parties:
For the Petitioner:Mr Ajay Vikram Singh, Advocate.
IMPORTANT POINT
Partner of Firm cannot be sued in his individual capacity.
Headnote:Consumer Protection Act, 1986—Sections 15, 17, 19, 21 and 24-A—Real estate—Flats—Even after stipulated date of possession respondent failed to construct building wherein residential flat was promised to be allotted to petitioner—Complaint dismissed by State Commission in appeal—Registered partnership is recognized as a person vis-à-vis juristic person as a service provider and if deficiency in service is to be alleged against registered firm consumer complaint ought to have been filed against firm—Partners of firm could be joined along with firm, but, it is not contemplated that a consumer complaint could be filed only against a person like an opponent against whom action is brought in his personal capacity—Consumer complaint suffers a vital defect and it cannot be proceeded against opponent—Cause of action to file a consumer complaint arose in 1992 and consumer complaint filed only on 17.01.2006 is barred by limitation—No jurisdictional error, illegality or infirmity in order passed by State Commission warranting interference—Revision petition dismissed with cost of Rs.5,000/-. (Paras 8 to 12)
Mrs. Rekha Gupta, Member—Revision petition No. 1953 of 2011 has been filed against the judgment and order dated 28.01.2011 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (“the State Commission’) whereby allowed the first appeal no. A/09/1430.
The facts of the case as per the petitioner/complainant are that on or about 15.03.1988 the respondent/ opposite party offered to sell the residential flat in a building named as Bhagirathi Apartments situated at S. No. 272, plot no. 13, Chinchwad Taluka, Haveli, District Pune.
The petitioner was desirous to purchase a flat for residential purpose. The petitioner on knowing about the construction of a building named ‘Bhagirathi Apartments’ approached the respondent on or about 15.03.1988 with a view to purchase a residential flat in the above said building.
On knowing the intention of the petitioner to purchase the residential flat, the respondent offered to sell flat no. 7 situated on 2nd floor of building Bhagirathi Apartments, Shridharnagar, Chinchwad, Pune 411 033.
The petitioner and the respondent made and executed an agreement dated 07.04.1998, registered in the office of Joint Sub-Registrar, Haveli no. 2, Pune at S No. 5294. By the said agreement the respondent agreed to sell and the petitioner agreed to purchase the said flat for a total consideration of Rs.1,68,500/-. The respondent by the said agreement assured to give possession of the said flat on or before 31.10.1988. The petitioner has paid to the respondent Rs.1,40,000/- towards part payment as demanded from time to time.
Even after the stipulated date of possession respondent failed to construct the building wherein residential flat was promised to be allotted to the petitioner.
Therefore, the petitioner on various occasions persistently made demands orally and in writing either to give the possession of the flat or refund the amount received from the petitioner. The respondent on every such occasion gave false assurance to refund the amount of consideration of Rs.1,40,000/- along with the interest as agreed by the said agreement.
The respondent sent letters dated 24.01.1992, 10.03.1992 assuring the petitioner that certain steps shall be taken whereby the petitioner need not suffer and worry. However, again the respondent did not act as per his assurances.
The petitioner therefore recently sent letter dated 01.02.2005 to the respondent demanding refund of said Rs.1,40,000/- along with interest and compensation. The respondent received said letter on 04.02.2005 and showed his willingness before Mr Mehendall, the member of All India Consumer Panchayat, Pune, to refund the entire amount with interest @ 15% per annum and compensation within 15 days. However, this time also the promise of respondent proved to be false one.
Thus the respondent has wilfully failed and neglected to refund the amount of part consideration of Rs.1,40,000/- received from the petitioner or to give possession of said flat till date.
The cause of action to file this complaint first arose on 31.01.1988 when the respondent failed to give possession of the said flat and thereafter on various occasions from time to time in spite of his promises. The respondent on or about 04.02.2005 again promised to refund the said due amount to the petitioner but did not do so. The cause of action is of continuing nature and therefore this complaint is within limitation period. Relaying on the various assurances of possession of said flat or refund of said amount given by the respondent the petitioner did not file the complaint till date.
It is, therefore, kindly prayed that the respondent be ordered to:
(a) To refund to the petitioner Rs.1,40,000/- along with interest @ 18% from the date of payment till its realisation;
(b) To pay Rs.2,00,000/- to the petitioner towards compensation for mental agony, inconvenience to the petitioner and his family members, physical discomfort, loss of benefit of rebate under Income Tax Act, interest paid litigat
