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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. Inder Jit Singh, Presiding Member
Akshay Doshi – Appellant
versus
G. Sundar and Ors. – Respondents
First Appeal No. 1321 of 2017
(Against the Order dated 03/04/2017 in Complaint No. 111/2009 of the State Commission Maharashtra)
Decided on 5.8.2024
Consumer Protection Act, 1986 – Section 19 [Consumer Protection Act, 2019 –Section 51] – Appeal – Services – Allotment of Flat / Plot – Delayed Possession – It is to be noted that in the present case what Consumer Fora are looking into is not the enforceability of a Contract or specific performance of a contract but the deficiency in service on the part of builder under the provisions of Consumer Protection Act – Therefore, in the given facts and circumstances of the case, where only a receipt has been issued towards booking of a flat specified therein but no subsequent allotment letter was issued or any agreement to sell or sale agreement was signed, we have to see whether failure of the builder to honour his commitment to allot the flat promised under the said receipt of advance amount constitute a deficiency in services – The dissolution of a partnership firm does not absolve its partners from obligations under the Maharashtra Ownership Flats Act, 1963. Partnership firms, while not considered distinct legal entities under general law, consist of individuals collectively engaging in business activities. Even post-dissolution, partners remain liable for obligations incurred during the firm’s existence, as prescribed by Section 45 of the Indian Partnership Act, 1932. Agreements made by one partner on behalf of the firm are binding on all partners, as per the provisions of the Indian Partnership Act, 1932. The Consumer Protection Act, 1986, defines ‘person’ to encompass firms, regardless of registration status, enabling legal recourse against unregistered partnership firms. An agreement executed by one partner on behalf of the firm carries legal validity for all partners – On facts, OP No.1 firm having accepted advance money towards allotment of a specific flat to the Complainants, was under an obligation to sign the agreement to sell under the provisions of MOFA and allot the unit in question. Failure to do so constitute a deficiency in service on the part of OP No.1, partnership firm and OP no.2 being its partner, is liable for the acts of OP-Partnership Firm, which has since been dissolved – Appeal dismissed. [Para 15 to 23].
Result: Appeal dismissed.
ORDER
The present First Appeal (FA) has been filed by the Appellant against Respondents as detailed above, under section 19 of Consumer Protection Act 1986, against the order dated 03.04.2017 of the State Consumer Disputes Redressal Commission Maharashtra (hereinafter referred to as the ‘State Commission’), in Consumer Complaint (CC) no. 111 of 2009 inter alia praying for setting aside the order dated 03.04.2017 of the State Commission. The Appellant was Opposite Party (OP) No.2 before the State Commission and the respondents were Complainants before the State Commission. The respondents appeared as Caveators on 17.08.2017, therefore no notice was issued to the Respondents. Parties filed Written Arguments / Synopsis on 05.01.2023 (Appellant) and 28.10.2022 (respondents) respectively, Compilation of Case laws have also been filed by the parties on 16.04.2024 and 12.04.2024 respectively. Delay in filing the FA is condoned after considering the reasons stated in IA No. 9049 of 2017 and those adduced during the hearing.
2. Brief facts of the case, as emerged from the FA, Order of the State Commission and other case records are that Original Complainant Smt. G..Sivayogam (since deceased) booked a flat No.501, admeasuring 895 sq. ft., built up area, 5th Floor, I wing situated at Raheja Estate, Off. WE. Highway ,Borivali (East), Mumbai at a consideration of Rs.2501/- per sq. ft. with M/s Bhoomi Construction (OP No.1 before the State Commission), a partnership Firm in their project ‘Bhoomi Breeze’, of which OP No.2 and OP No.3 (before the State Commission), namely Akshay Doshi and Ramesh Mehta respectively are the partners. However, name of OP No.3 (Ramesh Mehta) before the State Commission was deleted vide order dated 20.07.2011 passed by the State Commission. During the pendency of the Complaint before the State Commission, the original Complainant Smt. G.Sivayogam expired and she was substituted by her legal heirs, who were impleaded in the proceedings. It is the case of the Complainants that receipt was issued by OP(s) in respect of said flat and receiving of Rs.51,000/- but even after receiving the said amount, no agreement was executed by the OP(s). The possession of the flat was not given by the OP(s). Being aggrieved, the original complainant filed a CC before the State Commission claiming possession of said flat or in any other building in the nearby vicinity for the promised area by accepting remaining consideration and to execute agreement for sale and register it. The Complainant in the alternative also prayed for compensation of Rs.23.00 lacs.
3. The State Commission vide order dated 03.04.2017 partly allowed the complaint with following directions:
“1. Consumer complaint is partly allowed with costs quantified at Rs.15,000/- (Rupees Fifteen Thousand only) payable to the complainants by the opponents.
2. Opponents are directed to hand over possession of flat bearing No. 501, admeasuring 895 sq.ft. built up area, 5th floor, ‘I’ Wing of proposed Bhoomi Breeze Building situated at Raheja Estate, Off. W.E. Highway, Borivali (East), Mumbai to the complainants within four months from the date of payment of remaining consideration i.e. R s.23,95,995/- (Rupees Twenty Three Lakhs Ninety Five Thousand Nine Hundred Ninety Five only). If the opponents refused to accept the amount, then complainants should deposit the amount in this Commission under intimation to the opponents and from that date within four months possession should be handed over to the Complainants.
Alternatively at the option of Complainants
Opponents are directed to hand over possession of any other flat of the same area in the same building or in the nearby vicinity to the complainants within four months from the date of payment or deposit of remaining consideration i.e. Rs.23,95,995/- (Rupees Twenty Three Lakhs Ninety Five Thousand Nine Hundred Ninety Five only)
Alternatively at the option of Complainants
Opponents are directed to refund the amount of
(i) Dissolution – The dissolution of a partnership firm does not absolve its partners from obligations under the Maharashtra Ownership Flats Act, 1963(2) Agreement – OP No.1 firm having accepted adva....
(1) Civil court - the case of the complainants is falling under ‘housing category’ and does not involves any complication question of facts, which can easily be decided by this commission and the mat....
Party payment - The complainant undoubtedly is entitled to be duly compensated for the loss and injury inflicted upon him. He is also entitled to a flat in lieu of which he had made part payment.
Alternate Flat – In the instant case, the impugned order has rightly upheld the prayer of the appellant for possession and ordered the handing over of possession of the alternative flat to the appell....
(1) Housing Construction or business activity – Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Ac....
Consumer complaints regarding property booking must adhere to statutory obligations, including executing agreements upon receipt of payments.
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