State Consumer Disputes Redressal Commission
Mr. Inderjitsingh Jagirsingh Bansal vs Mrs Ashwini Ajit Panse on 13 December, 2022
A/16/969
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Appeal No.A/16/969
(Arisen out of order dated 22/06/2016 passed in Complaint No.560 of 2014 by the
District Commission, Pune)
Mr.Inderjitsingh Jagirsingh Bansal,
R/o: House No.396/43, "Bansal Corner",
90/1, Dhankawadi, ....... Appellant(s)
Pune - 411 043.
Versus
1. Mrs.Ashwini Ajit Panse (original Complainant)
R/o D-4, Parmar Paradise,
Sadhu Waswani Circle, Pune Station,
Pune - 411 001.
2. Mr.Jagirsingh K. Bansal
Since deceased through its legal heirs,
A) Mr.Nirmal Singh Bansal,
R/o. Plot No.N-18,
Additional MIDC, Satara.
B) Mr.Jagdishsingh Bansal,
R/o. 288, Shivajinagar,
Pune 411 005.
C) Mr.Surjit Singh Bansal
C1) Mr.Chidi Kaur
C2) Mr.Monu Singh Bansal
C to C2 are R/o Flat No.18,
Bansal Corner, S.No.30, Hissa No.1/5 & 1/7,
Dhankawadi, Pune 411 043.
D) Surender Karu Mankoo,
R/o. Bhagwan Villa, Kate Galli,
Station Road, Nashik.
1
A/16/969
E) Rani Kaur (Harjeet Kaur) Sall
R/o 2174/1, Shaheed Karnil Nagar,
Behind Shid Mavidu, Gall No.2C,
Ludhiyana (Punjab).
F) Jasawant Kaur Gundev,
R/o 82, Sant Nagar,
Gurulata Society Lane,
Aranyeshwar, Pune 411 009.
3. Pune District Consumer Disputes Redressal Forum,
Pune, having its office at,
New Administrative Building, "B" Wing,
4th Floor, Opposite Council Hall,
Pune 411 001. .........Respondent(s)
BEFORE:
Justice S.P. Tavade - President
S.T. Barne - Judicial Member
For the Appellant(s) : Advocate Bharati Jarande
For the Respondent(s) : Advocate Meghana Kirloskar for Respondent No.1.
ORDER
th
(13 December, 2022)
Per Hon'ble S.T. Barne - Judicial Member:
(1) Appellant - Inderjitsingh Jagirsingh Bansal has preferred this appeal against the judgment and order in Complaint No.560 of 2014 decided by District Consumer Disputes Redressal Commission, Pune on 22/06/2016. The appellant is the original opponent no.7 and partner of original opponent no.1 partnership firm, known as M/s.Bansal Constructions. The respondent no.1 - Mrs.Ashwini Ajit Panse, is the original complainant. Respondent no.2 is the partnership firm and 2 A/16/969 Respondent nos.2(A), 2(B), 2(C), D, E and F are the legal heirs of deceased partner Jagirsingh K. Bansal. Parties are referred hereinafter as per their status in the original complaint.
(2) It is the case of complainant before the District Commission that she is retired Central Government employee and senior citizen. The parties are running business of construction in the name and style as "M/s.Bansal Constructions". They are doing construction on Plot Nos.1 and 2 of S.No.30/1, Hissa No.1/5 and 1/7 at Dhankawadi, Pune. Said plot was originally belonging to Mr.Jagirsingh Kartarsingh Bansal and it has been developed by the opponents as per the provisions of Maharashtra Ownership Flats Act, 1963. One of the partners - Mr.Jagirsingh Kartarsingh Bansal had executed power of attorney in favour of his son/partner Mr.Inderjitsingh J. Bansal for development of said property. This complainant had booked flat in the said building bearing Flat No.45 on third floor for total consideration of Rs.1,89,000/-. Initially, she had deposited amount of Rs.20,000/- as booking charges on 22/05/1994. Then on 17/12/1994 she had issued another cheque of Rs.80,000/-. The opponents agreed to execute the registered agreement in view of the provisions of Maharashtra Ownership Flats Act, 1963. The opponents received total amount of Rs.1,93,000/- from time to time from complainant towards consideration of flat including M.S.E.B. connection charges. However, in spite of receiving entire amount the opponents avoided to execute registered Agreement to Sell. It is further contention of the complainant that opponent delivered physical possession of flat to the complainant on accepting total consideration. The opponents have also given no objection to transfer the electricity meter in the name of the complainant. Gunthewari certificate is also issued by the Municipal 3 A/16/969 Corporation, Pune. The opponents had also agreed to execute registered Agreement to Sell and demanded Rs.1,07,600/- towards stamp duty. The complainant has also paid the said stamp duty to opponents. The draft was prepared and it was also franked. However, the opponents did not remain present before the Sub-Registrar, Haveli. Thus the opponents by remaining absent before the Sub-Registrar avoided to register the agreement and thereby caused deficiency in service towards the complainant. Due to aforesaid act of the opponents the complainant could not utilise sum of Rs.1,07,000/- and sustained loss. Hence, the complainant has filed the consumer complaint claiming directions against the opponents to execute registered agreement for sale and to pay compensation of Rs.5,00,000/- towards mental agony and loss sustained on account of stamp duty.
(3) The present appellant/opponent no.1 gave appearance before the District Commission and filed his written statement to the complaint. It is his contention that the complaint is not maintainable as there is no cause of action. It is bad for non-joinder of necessary parties. It is the contention of this opponent that the opponent was partnership firm during life time of his father wherein the opponent no.1 and his father were the partners. However, it is denied by this opponent that he was avoiding to execute the registered agreement in respect of Flat No.45, even after receiving the entire consideration and failed to put the complainant in possession. It is also denied that when the opponents agreed to execute the registered agreement she has paid amount of Rs.1,07,600/- for stamp duty. He has also denied about draft of deed of assignment was prepared for registration and franking of document was made for want of knowledge. It is the contention of this opponent that he was and he is ready to execute the deed of assignment in favour of complainant 4 A/16/969 without claiming any amount. There is no deficiency in service on its part. He has also admitted contentions in the complaint to the extent of payment of full consideration made by the complainant to the opponent towards the flat. It is the contention of opponent that the father of opponent Mr.Jagirsingh Kartarsingh Bansal was the owner of the suit flat. He has formed the partnership along with the present opponent no.1. As per partnership deed after the death of any of the partner other legal heirs would join the partnership and even otherwise as suit property was in the name of his father, after his death same right vested in the legal heirs as the deceased died intestate. Hence, opponent no.1 has prayed for dismissal of complaint as against him.
(4) It reveals from the judgment that during pendency of complaint the other legal heirs of Jagirsingh Kartarsingh Bansal were brought on record. However, they failed to appear before the District Commission though they were duly served. Hence, complaint is proceeded ex-parte against them. The District Commission after giving opportunity of hearing the parties was pleased to allow the complaint partly thereby directing the opponents to execute registered Deed of Assignment in respect of Flat No.45 constructed on Plot Nos.1 and 2 out of Survey No.30/1, Hissa No.1/5 and 1/7 situated at Dhankawadi, Pune in favour of the complainant. The District Commission has also awarded costs and global compensation towards mental agony with direction to comply said order within six weeks from the date of order, failing which further awarded interest @9% per annum on the amount from the date of order till receipt of entire amount. Being aggrieved by the said order the opponent no.1 has preferred present appeal on the following grounds:
5A/16/969 (5) That the District Commission failed to consider that the opponent no.1 was power of attorney holder of his father. On the death of his father said power of attorney came to an end on 05/07/1994. In the said power of attorney also selling rights were not given to opponent no.1. The District Commission failed to consider that the complainant has made refund of stamp duty from competent authority. The opponent no.1 has not caused any kind of deficiency in service for complainant or caused any monetary loss to the complainant. Nobody approached to this opponent no.1 or other legal heirs for execution of Deed of Assignment, before challenging the complaint before the District Commission. After the judgment of District Commission, it was published in the newspaper, because of which the reputation and image of the opponent no.1 got blemished and he is suffering losses in his business. Due to some legal problem the opponent no.1 has become helpless to execute the Deed of Assignment. Hence, in the given circumstances he has prayed for setting aside the order of the District Commission.
(6) Heard learned Advocates for the parties.
(7) The learned advocate for opponent no.1 argued that, in the year 1993-
94, Bansal Construction, a partnership firm has started construction business. The opponent no.2 and his father late Jagirsingh Kartarsingh Bansal were the partners. The father of Opponent no.1 executed power of attorney in his favour to deal with business on behalf of partnership firm. It is not disputed that the complainant has booked the Flat No.45 in the building constructed by said firm for consideration of Rs.1,89,000/-. She has paid entire consideration. She was also put in possession of the flat. However, in the year 1994 the father of Opponent no.1 died. Therefore, the power of attorney executed in 6 A/16/969 favour of opponent No.1, the present appellant came to an end. The Opponent No.1 (the present appellant) became helpless and he could not alone execute the registered agreement in favour of complainant. The other legal heirs of his father were also not cooperating. Therefore he could not execute the registered deed of assignment. Therefore, according to Opponent no.1, in the given circumstances Consumer Protection Act is not attracted.
(8) The learned Advocate for the complainant argued that opponent no.1 has not disputed the agreement between complainant and Bansal Construction, a partnership firm. The opponent no.1 himself admitted that on the death of his father he alone could not execute the deed of assignment. However, he kept on accepting the amount without disclosing about the death of his father. All the payment receipts are at page number 65 to 71 of appeal compilation. Except booking charges all payments received are accepted by the opponent no.1 after the death of his father. This conduct on the part of opponent no.1 amounts to unfair trade practice and deficiency in service towards the complainant. It is mentioned in Clause No.16 of the Partnership Deed produced on record that, on the death of one of the partners the legal heir of said partner may continue with the partnership firm. However, it is not made clear what happened further with the partnership firm. Whether it is continued as proprietary firm or partnership firm or it is dissolved. The other legal heirs of the deceased partner are taken on record of consumer complaint during pending the consumer complaint. However, they have chosen to remain absent before the District Consumer Commission as well as before this Commission in appeal. Therefore, the consumer complaint as well as appeal proceeded ex-parte against them. The evidence adduced by the complainant remained uncontroverted.
7A/16/969 (9) It has come on record that complainant entered into transaction with Bansal Constructions through opponent no.1 who accepted entire amount of consideration from complainant. She is put in possession of the flat. However, there is no registered deed of assignment executed in her favour, which is violating the Maharashtra Ownership Flats Act. In spite of several efforts on the part of the complainant, the opponents are avoiding to execute registered Deed of Assignment in favour of complainant either in the capacity of partnership firm or legal heir of deceased partner. The opponent no.1 kept accepting the amount of consideration from the complainant even after the death of his father, one of the partners of their partnership firm. All other opponents in spite of passing order by District Consumer Commission failed to execute registered deed of assignment when the registered power of attorney in favour of opponent no.1 came to an end due to death of their father. It also reveals that the complainant had purchased the stamp duty for registration of the document. There is draft with franking produced on record. It is alleged by the complainant that the opponents remained absent before the office of Sub-Registrar and avoided to execute registered agreement and thus, since 1994 till filing of complaint the opponents failed to execute the Deed of Assignment.
(10) In view of aforesaid evidence, we are of the opinion that the opponents have caused delay in executing the registered document/deed of assignment in favour of complainant they have caused mental agony and harassment and loss to the complainant. Therefore, the District Consumer Commission has rightly concluded that there is deficiency in service on the part of opponents, also issued direction for execution of registered deed of assignment and awarded costs and compensation of 8 A/16/969 Rs.2 lakhs to the complainant against all the opponents. Therefore, there is no need to interfere with the judgment and order of the District Consumer Commission. Hence the order.
ORDER The appeal is dismissed with no order as to costs.
Pronounced on 13th December, 2022.
[Justice S.P. Tavade] President [S.T. Barne] Judicial Member emp 9