State Consumer Disputes Redressal Commission
Mrs Bharti B Pursnani vs M/S Shubham Builders & Developers on 16 August, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Consumer Complaint No.CC/15/644
1. Mrs.Bharati B.Pursnani
2. Mr.Rajesh K.Pursnani
Both R/o.13/Golden Peak Building
4th floor, Dr.Ambedkar Road
Khar (West), Mumbai 400 052 .....Complainants
Versus
1. M/s.Shubham Builders & Developers
At D-1, 4th floor, Renuka Chambers
Opp.Crossword, J.M.Road
Shivaji Nagar, Pune 411 004
Through its partners
2. Mr.Bharat Babulal Jain
R/at Flat no.A-1902
Gundecha Garden, Lalbaug
Mumbai 400 012
3. Mr.Rajeev Herpreshad Jaiswal
R/o.Flat no.201, Panchsheel-IV
Raheja Township, Malad (West)
Mumbai 400 097
4. Mr.Anant Dilip Pandit
Partner of M/s.Shubham Builders &
Developers
Apex Multicons Pvt.Ltd.
Office no.201 to 204
2nd floor, City Square Building
Near Zenith Shivaji Nagar
Pune 411 005
5. Mr.Prakash C.Rakhyani
R/o.Flat no.502, A wing
5th floor, Waghere Park
Near Kirti Hospital
Pimpri, Pune 411 017 .........Opponents
1
6. Mr.Rahul Bhagwanrao Kadam
R/o.A-3/201, Karishma
Near Sangam Press, Kothrud
Pune 411 029
7.Mr.Ramesh Shankarrao Shrimanwar
R/o.C/903, 10, Kastur Kunj
ICS Colony, Bhosale Nagar
Pune 411 005
8. Mr.Laxman Motiram Mudkhede
R/o.77, Vivek Nagar
Nanded 431 605
BEFORE: Smt.Usha S.Thakare, Presiding Judicial Member
A.K.Zade, Member
PRESENT: Mr.Uday P.Warunjikar -Advocate for complainants
Ms.Saba Ghadiali-Advocate for opponent no.3
Mr.Girish Shedge-Advocate for opponent nos.6 to 8
ORDER
Per Hon'ble Smt.Usha S.Thakare, Presiding Judicial Member
1. Consumer complaint bearing no.CC/15/644 is filed by complainants Mrs.Bharati B. Pursnani and Mr.Rajesh K. Pursnani by alleging deficiency in service against 8 opponents. The complainants are daughter and son respectively of late Mrs.Mohini K. Pursnani. Complainants and late Mrs.Mohini K. Pursnani purchased from opponent no.1 the Bungalow NO.28(I) being constructed in their project named "SERENE COUNTY"
on a plot of land bearing Gat no.113/2 admeasuring totally about 4 Hectares being and situated at village Varsoli, Taluka Maval, District Pune. The complainants are resident of Mumbai. Mrs.Mohini K. Pursnani died on 27th October, 2013 leaving behind the complainants as her only legal heirs. The complainants are represented through Mr.Ashok Chotrani as their Constituted Attorney. Power of Attorney dated 07/10/2009 is annexed with the complaint.2
2. The opponent no.1 is a partnership firm carrying on business in the name and style of M/s.Shubham Builders & Developers and opponent nos.2 to 8 are all partners of opponent no.1. The complainants are consumers. Opponent nos.4 to 8 represented to the complainants that they are partners of opponent no.1 and that they all are the Developer and Promoter of a project consisting of bungalow/building/row house project named as "SERENE COUNTY" on a plot of land bearing Gat no.113/2 admeasuring totally about 4 Hectares lying being and situated at village Varsoli, Taluka Maval, District Pune.
3. According to the complainants, opponent nos.1 and 4 to 8 represented to the complainants that their title to the said plot of land whereon the said project is to be constructed is clear, marketable and free from any encumbrances. They distributed the brochure showing the amenities and other specification of the project and bungalows and the amenities shown therein included Lawn Tennis, Jogging Track, Cricket Pitch, Mini Basket Ball, Play Park, Indoor Park, Indoor Games, Gazebo, Party Lawn, Cafeteria, Meditation Hall, Gymnasium, Water Filteration plant, Intercom facility, Fireplace-Steam, Sauna, Indoor Jacuzzi, House keeping facility, Servants/Drivers quarters, Street lights, etc. The opponents represented that they have got the Building plans and layout sanctioned from the competent local authorities and the construction is being carried out strictly according to the said approval sanctions and permissions obtained from the local authorities.
Believing on the representations made by the opponents, the complainants agreed to purchase a Bungalow/Unit no.28(I) having carpet area of 1920 sq.ft. along with surrounding space and parties entered into an Agreement for Sale dated 13/03/2009 which was registered with the Sub- Registrar of Assurances. Complainants agreed to purchase the said bungalow for a total consideration of Rs.48,96,000/-. The said agreement 3 was registered on 13/03/2009 and stamp duty of Rs.1,96,000/- and registration charges of Rs.30,000/- were paid by the complainants.
It is alleged that the opponents in the capacity of promoter/ developer agreed to complete the project with all amenities including the common amenities, such as, common road, common light, water supply, swimming pool, health club and agreed to give physical possession of bungalow within 24 months from the date of agreement with Occupation Certificate on or before 13/03/2011. By Agreement dated 13/03/2009 opponent nos.1 and 4 to 8 have agreed and confirmed that they shall execute Deed of Conveyance in favour of Co-operative Society or such other entity of the purchasers of the said bungalows as per provisions of Maharashtra Ownership Flats Act, 1963. The complainants paid part consideration amount of Rs.24,68,000/- to the opponent no.1 under Sale Agreement dated 13/03/2009. Even after extracting huge amount from the complainants, the opponent nos.1 and 4 to 8 did not take interest in completion of the project and to hand over possession of unit to the complainants/flat purchasers. They neglected to complete the construction of the said project. Complainants contacted the opponents. They were shocked to learn from opponent nos.6, 7 & 8 that all three of them have retired from the said project/firm and they stated that other continuing partners and new partners shall complete the construction on the said plot of land and they will be liable to hand over duly completed premises as per agreement.
Opponent nos.2 and 3 made representation to C.A. of the complainants that they have been impleaded as partners of opponent no.1 firm. They induced the C.A. of complainants to pay an additional amount of Rs.250/- per sq.ft. if the complainants are interested and willing to get the construction work completed in all respects and to procure vacant and peaceful possession of their booked bungalow. In view of inducement made by the opponent nos.2 &3, for payment of additional sum of Rs.250/-
4per sq.ft. to get possession of their bungalow, the complainants along with other helpless purchasers reluctantly agreed to pay the said additional sum in order to get the possession at the earliest.
Opponent nos.2 & 3 made yet another inducement to the complainants/other purchasers to enter into a Memorandum of Understanding dated 29th June 2013, which was already prepared by them. The complainants were constrained to execute MOU on 29/06/2013, under which opponent nos.2 & 3 extracted further sum of Rs.2,72,000/- out of total illegally demanded amount of Rs.6,40,000/-. Opponent nos.2&3 unduly influenced the complainants to pay the entire balance consideration amount of Rs.24,28,000/- which was payable under the said registered Sale Agreement. Believing in the representations made by opponent nos.2&3 to complete the said project and hand over possession thereof, the complainants parted with the entire balance sum of Rs.24,28,000/-. Opponent no.1 along with all its partners thus extracted from the complainants a total sum of Rs.48,96,000/- under registered Agreement for Sale without completing the work.
After payment of entire consideration and additional amount, no further work is being carried out on the project. The opponents failed and neglected to complete the project and to give possession of bungalow as promised under agreement and under MOU dated 29/06/2013. The complainants and other purchasers approached to the opponents for procuring possession of their premises. At that time opponent nos.2 & 3 apologized for non completion of work and assured that construction shall be completed and all the purchasers shall be put in their respective possession on or before 30/06/2014, failing which, the opponents shall refund the entire amount with interest @ 24% p.a. together with compensation to all buyers for delay caused in handing over their respective possession. However, assurance was not fulfilled. The opponents failed to 5 fulfill their promise. The complainants were constrained to address a legal notice dated 21/08/2014 through their advocate and called upon the opponents to complete the project and hand over peaceful possession of the unit within 15 days. None of the opponents replied the notice except opponent no.4. Opponent no.4 while replying the notice made false statement. The complainants addressed another legal notice through advocate dated 28/06/2015 but of no use.
Ultimately, the complainants have filed consumer complaint bearing no.CC/15/644 with a request to declare the opponents as guilty of deficiency in service and for adopting unfair trade practice. The complainants have requested to direct the opponents to complete the entire project with all amenities and to hand over possession of bungalow /unit no.28(I) to the complainants as per agreement with Occupation Certificate. The complainants have also claimed compensation for mental pain, agony and harassment and also claimed costs of litigation.
4. Opponent nos.3, 6, 7 & 8 have resisted the claim by filing written statement. They have filed their written statement on 18/04/2016. Consumer complaint is proceeded ex-parte against opponent nos.1, 2, 4 & 5 by order dated 18/10/2016.
5. Opponent no.3- Mr.Rajeev H. Jaiswal by filing written statement denied all adverse allegations. It is specifically denied that the opponent no.3 is guilty of deficiency in service. It is submitted that consumer complaint is filed only to extort money from opponent no.3. Opponent no.3 is not partner of opponent no.1 and there is no relationship as 'consumer' and 'service provider' between complainant and opponent no.3. 'Deed of Retirement' dated 19/10/2013 is not completely executed document on which there are no signatures of opponent no.2 and opponent no.5. Said document is only a draft. Retirement of partners of opponent no.1 was 6 never happened. As such, opponent nos.2 and 3 never became the partners of opponent no.1. There is no liability on opponent no.3. Opponent no.3 seeks direction to delete his name as opponent.
It is further submitted that complainant no.1 is not the purchaser of unit. In Agreement of Sale names of purchasers are written as
1)Mrs.Mohini Kanayalal Pursnani 2) Mrs.Bharati B.Pahilwani and
3)Mr.Rajesh Kanayalal Pursnani. Complainant no.1 is mentioned as Mrs.Bharati B. Pursnani. The complaint filed by wrong person is not tenable. Power of attorney has no authority to file complaint on behalf of complainant no.1. Opponent no.3 does not know if the complainants are daughter and son of late Mrs.Mohini K.Pursnani. Complainants have not given correct date of death of Mrs.Mohini K.Pursnani. In spite of death of Mrs.Mohini K. Pursnani, notice was sent in the name of deceased by Advocate Mr.Anil D'Souza. Opponent no.3 is not part of any transaction with complainants, as he is not partner of opponent no.1. He never asked the complainants to part with their money. MOU dated 29/06/2013 was executed by Mr.Ashok J. Chotrani on the basis of powers given to him, but in fact, at the time of executing MOU dated 29/06/2013, purchaser Mrs.Mohini K.Pursnani was dead. Flat purchaser Mrs.Bharati B. Pursnani had not given any power to Mr.Ashok J. Chotrani. MOU is not maintainable and cannot be taken as evidence. Mr.Ashok J. Chotrani does not have any right to represent complainant no.1. MOU is false and fabricated. Complainants have paid an amount of Rs.27 lakhs through cheques to opponent no.2-Mr.Bharat Jain and not to opponent no.1. Opponent no.3 received notice but it was not replied as he was not concerned with the premises purchased by the complainant from opponent no.1. The complainants are not entitled for any of the prayers. Complaint is liable to be dismissed with costs.
6. Opponent nos.6 to 8 resisted the claim by filing written statement and 7 denied all adverse allegations. It is specifically denied that they are guilty of deficiency in service or for unfair trade practice. It is admitted that Mrs.Mohini Pursnani had entered into an Agreement for purchase of Bungalow no.28(I) from opponent no.1. Opponent no.1 is a partnership firm. It is specifically denied that opponent nos.2 to 8 are partners of opponent no.1. It is also denied that the complainants have paid an amount of Rs.99,22,000/- to the opponents or they have paid an amount of Rs.24,68,000/- to opponent no.1 under agreement dated 13/03/2009. These opponents submit that the complainants have deliberately suppressed the material facts.
7. It is submitted that the complainants are well aware of the dispute between these opponents and opponent Nos.1 to 3. They are also aware about the prohibitory order passed by the District Court, Pune. Complainants are well aware why the project is stalled and how the fraud has been played by opponent Nos.2 and 3 against these opponents. Under these circumstances the complainants had no cause of action for filing present complaints against present opponents and therefore the complaints are liable to be dismissed with costs. Complainants have deliberately suppressed material facts. Opponent Nos.2 to 8 have formed Partnership Firm under the name and style of "Shubham Builders and Developers"
which is registered partnership firm. Said Partnership Firm acquired development rights of plot Nos.21 to 25 and 27 to 43 totally admeasuring 12622.75 sq.mtrs carved out of sanctioned layout of survey No.113/2 totally admeasuring 04 H. 00 R situated at village Varsoli, Tal.Maval, Dist.Pune. Opponents have invested entire amount for acquiring development rights of the said property as well as for commencing the work of the development including sanction of the building plan etc. As per the conditions of Partnership Deed Shri.Rahul Kadam and Shri.Anant Pandit were authorized to operate bank accounts. Said Partnership Firm entered into some Agreements to Sell and thereby agreed to sell some units to the respective 8 purchasers on the terms and conditions mentioned therein. At the time of formation of the said partnership firm and at the time of entering into the above mentioned agreements, these opponents have decided to float ownership scheme of the bungalows, row houses, twin bungalows etc. in a luxury manner and these opponents have taken all care while commencing the said work on the site. Opponents have opened account in Axis Bank, Jangli Maharaj Road Branch, Pune and Canara Bank, Jangli Maharaj Road Branch, Pune in the name of Partnership Firm. Said accounts were operated by Opponent Shri.Rahul Kadam and Shri.Anant Pandit. However, Shri.Anant Pandit subsequently refused to give accounts of the firm and therefore opponent Shri.Rahul Kadam has stopped signing cheques and thereafter the dispute arose between these opponents and Shri.Anant Pandit and Shri.Prakash Rakhyani.
8. It is alleged that Shri.Anant Dilip Pandit and Shri.Prakash Chouthram Rakhyani made collusion with each other and have illegally formed another partnership firm on 17/03/2009 in the name and style of "Shubham Builders". Both of them have deliberately adopted the name of earlier partnership firm and opened a separate bank account in ICICI Bank showing therein that Anant Pandit and Prakash Rakhyani are the only partners of the said firm and started accepting further consideration of the units from the respective unit holders. These opponents also came to know that Shri.Anant Pandit and Shri.Prakash Rakhyani by taking undue advantage of formation of illegal partnership firm started dealing with other units with the prospective purchasers and entered into some agreements with the purchasers and sale proceeds of the said units have been deposited in new account and withdrawn the same and used for their own purposes. Shri.Anant Pandit and Shri.Prakash Rakhyani have hijacked business of the original partnership firm. Shri.Anant Pandit filed Misc.Application No.746 of 2010 before the District Court, Pune under section 9 of the Arbitration Act for seeking prohibitory orders against these opponents. Misc.
9Application is filed on the basis of concocted story that Shri.Prakash Rakhyani issued notice dated 17/03/2009 and dissolved partnership firm and came with false case that Shri.Anant Pandit issued letter dated 25/03/2009 and requested all the partners to come for amicable settlement, failing which Anant Pandit and Prakash Rakhyani will continue to complete project individually in the same name. Alleged notice as well as letter were not issued to these opponents. These opponents came to know that opponent Nos.2 and 3 formed another partnership firm in the name and style of "Shubham Builders and Developers" wherein both of them are only partners. They have admitted in the said petition that they have entered into some agreements under their signatures. After getting knowledge of the said fact, these opponents issued Public Notice on 28/09/2010 in Daily Times of India through Advocate and informed public at large that opponent Nos.2 and 3 have played fraud upon these opponents and are trying to create third party interest and further requested public at large not to enter into any transaction with opponent Nos.2 and 3. Moreover, these opponents filed another Misc.Application No.801 of 2010 before the District Court, Pune. District Court, Pune was pleased to reject application for temporary injunction filed by Anant Pandit as Misc.Appln.No.746 of 2010. District Court, Pune was pleased to allow application of these opponents filed as Misc.Appln.No.801 of 2010 and thereby restrained Shri.Anant Pandit and Shri.Prakash Rakhyani from operating bank accounts of the partnership firm, carrying out any development on the site and creating third party interest in the suit property. This order is not challenged by Shri.Anant Pandit and Shri.Prakash Rakhyani.
9. It is further alleged that Shri.Anant Pandit had filed Arbitration Petition No.43 of 2010 before the Hon'ble High Court of Judicature at Bombay for appointment of sole arbitrator as per the terms and conditions of the partnership deed. Opponent Nos.6 to 8 gave no objection for appointment of the Arbitrator and referring the dispute to the Arbitrator.
10Hon'ble High Court was pleased to appoint Shri.S.S.Banhatti as sole Arbitrator for dissolution of the partnership firm and settlement of the accounts of the firm. Arbitration proceeding is still pending. Opponent Nos.6 to 8 were always ready and willing to perform their part of agreement and were ready to complete the scheme and ready to handover possession of units to the purchasers. However, Shri.Anant Pandit and Shri.Prakash Rakhyani played fraud upon opponent Nos.6 to 8 and illegally formed separate partnership firm and sold out some units of the original partnership firm through newly formed illegal partnership firm. Opponent Nos.6 to 8 obtained prohibitory order from the District Court. Under such circumstances, even though opponent Nos.6 to 8 were ready and willing to complete the scheme, the said scheme could not be completed and possession of the units was not handed over to the complainants. Opponent Nos.6 to 8 by notice dated 01/11/2010 informed the complainants about the fraud played by Shri.Anant Pandit and Shri.Prakash Rakhyani. However, complainants did not bother to send any reply to the said notice. Opponent Nos.6 to 8 thereafter again sent notice dated 20/12/2010 and informed the complainants that the District Court passed restraining order against opponent Nos.2 and 3 and copy of said order was also sent to the complainants. However, complainants did not bother to send reply to the notice. Complainants did not take any action since year 2010. In fact there was collusion between the complainants and opponent Nos.2 and 3. Opponent Shri.Prakash Rakhyani and Shri.Anant Pandit had no authority to give possession to the complainants.
10. According to the case made out by the Opponent Nos.2 and 3 in Arbitration Petition No.746 of 2010 the firm was dissolved on 13/03/2009 and therefore after dissolution of partnership firm without setting accounts of the partnership firm, opponent No.3 had no right to collect any amount from the complainants and to give possession to the complainants. In fact 11 the complainants have not paid any amount to the opponent Nos.6 to 8 or original partnership firm and therefore these opponents being partners of the original firm are not liable to perform their part of the agreement unless and until arbitration proceedings are completed. Opponent Nos.6 to 8 have invested huge amount towards development of the said property. In fact Shri.Prakash Rakhyani and Shri.Anant Pandit have not invested any amount in the said project and therefore these opponents have taken immediate steps for dissolution of the partnership firm and arbitration proceedings. Some of the unit purchasers approached these opponents and informed that they are going to settle the dispute with Shri.Anant Pandit and Shri.Prakash Rakhyani and Shri.Raju Jaiswal and Shri.Bharat Jain are going to take over the business of the original partnership firm and they will pay off the amounts that may be due to these opponents. The responsibility of completing the said project in all respects and handing over possession of the units to the respective unit holders will be taken by them. At the time of meetings Shri.More, Shri.Suri and Shri.Bharat Jain informed these opponents that due to the order of the District Court and arbitration proceedings, various unit purchasers are suffering and depriving from their units and requested to co-operate them. Shri.Raju Jaiswal, Shri.Bharat Jain paid some amount to these opponents towards share of these opponents in the said partnership firm and it was agreed that Shri.Bharat Jain, Shri.Jaiswal, Shri.Anant Pandit and Shri.Prakash Rakhyani will continue original partnership firm and all the responsibility of the said project will be taken by the said continuing partners and these opponents will retire from the said partnership firm. However, Shri.Bharat Jain and Shri.Jaiswal have not paid the entire agreed consideration and did not execute Deed of Retirement. These opponents even filed application for withdrawal of arbitration application No.801 of 2010. However, the proposed continuing partners did not execute Deed of Retirement and therefore these opponents had no alternative but to continue the said arbitration application No.801 of 12 2010.
11. It is submitted by the opponent Nos.6 to 8 that Shri.Anant Pandit and Shri.Prakash Rakhyani are responsible for completing the project. These opponents have filed police complaint with Deccan Police station, however, the concerned police officers did not take cognizance of said complaint and therefore Shri.Ramesh Shrimanwar filed private complaint in the Court of Judicial Magistrate First Class, Pune and the Court of Judicial Magistrate First Class, Pune directed Deccan police station to lodge F.I.R. against Shri.Anant Pandit and Shri.Prakash Rakhyani as per provisions of 156(3) of the Criminal Procedure Code. In pursuance of the said complaint both of them were arrested and released on bail. It is submitted that opponent Nos.2 and 3 failed to comply their responsibility and hence consumer complaints are liable to be dismissed against opponent Nos.6 to 8.
12. Opponent nos.6 and 7 have played fraud upon these opponents and formed new partnership firm by adopting name of opponent no.1. These opponents from time to time informed all unit purchasers including the present complainants about fraud played by opponent nos.6 and 7. Various court orders were also informed but the purchasers did not bother to meet these opponents. On the contrary, along with Mr.Vinayak Vitthal More, Mr.Sushilkumar Suri, Mr.Raju Jaiswal and Mr.Bharat Jain, Mrs.Nayan Khadapkar made collusion with each other. Opponent nos.6 & 7 exercised malpractices. They have taken responsibility of completing the project in all respects. It is the responsibility of opponent nos.6 and 7 to comply with all the demands of present complainants. The consumer complaint is liable to be dismissed against opponent nos.6 to 8.
13. Under these circumstances, following points arise for our determination and we record our findings for the reasons given below:-
13 Sr.No. Points Finding
1. Whether consumer complaint is Yes
maintainable against opponents?
2. Whether opponent is guilty of deficiency Yes
in service?
Whether complainants are entitled for
3. possession of booked unit bearing Yes
no.28(I) with all amenities and O.C.?
4. Whether complainants are entitled for Yes, as per final
compensation and costs of litigation? order.
5. Complaint is partly
What order?
allowed.
REASONS :-
14. Complainants have led evidence by filing affidavit of evidence. Opponent nos.6 to 8 have filed evidence to give counter blow the same. Both the parties have filed brief notes of arguments. Power of attorney holder Mr.Ashok Chotrani, who is a Constituted Attorney of the complainants has filed receipts of payment on record by filing additional affidavit. Complainants have relied on brochure of "SERENE COUNTY"
i.e. project issued by opponent no.1, Agreement of Sale dated 13/03/2009, Memorandum of Understanding (MOU) dated 29/06/2013, legal notice issued to the opponents dated 21/08/2014, reply of opponent no.4 dated 10/10/2014, notice issued by the complainants to the opponents dated 28/06/2015.
15. No evidence is adduced on behalf of opponent no.3 separately. He has simply submitted that whatever has been stated and submitted in written version is true and correct and should be treated as part and parcel of affidavit dated 18/04/2016.
16. Opponent nos.6 to 8 have relied on following documents:-
1. Copy of Partnership Deed dated 05/12/2006,
2. copy of Reconstituted Partnership Deed dated 01/08/2007,
3. copy of Deed of Partnership dated 17/03/2009 executed between 14 Mr.Prakash Rakhyani and Mr.Anant Pandit,
4. copy of Petition No.746/2010 filed in the Court of Hon'ble District Judge, Pune,
5. Copy of Public Notice issued by opponent nos.4 to 6 in Daily Times of India dated 02/10/2010,
6. copy of Public Notice reply issued by opponent nos.2 & 3 in Times of India dated 08/10/2010,
7. copy of Arbitration Petition filed by Mr.Anant Pandit against opponent nos.4 to 6,
8. copy of Misc.Application no.801/2010 filed by opponent nos.4 to 6 in District Court, Pune,
9. copy of Reply to Misc.Application no.801/2010 filed by Mr.Anant Pandit,
10.copy of order dated 30/10/2010 in Misc.Application no.801/2010,
11.copy of legal notice dated 01/11/2010 issued by opponent nos.6 to 8 to the complainants,
12.copies of 3 post envelopes with returned acknowledgement receipts of said notice,
13.copy of legal notice dated 20/12/2010 issued by opponent nos.6 to 8 to the complainants and
14.copies of Acknowledgement receipt of said notice received by Mr.Rajesh Pursnani.
17. Opponent no.1- M/s.Shubham Builders & Developers is a registered partnership firm. Opponent nos.4, 5, 6, 7 & 8 are the partners of opponent no.1. Opponent no.1 is developer and promoter of bungalow/building/row house project named as "SERENE COUNTY" on a plot of land bearing Gat no.113/2 admeasuring totally about 4 Hectares lying being and situated at village Varsoli, Taluka Maval, District Pune. Opponent no.1 through partners got the building plan sanctioned from the concerned Town Planning Authority and started the project in or about 2007. Late 15 Mrs.Mohini K. Pursnani along with complainants purchased bungalow no.28(I), which was being constructed in the project named as "SERENE COUNTY" of opponent no.1. Complainants entered into an Agreement of Sale dated 13/03/2009, which was registered with Sub-Registrar. Complainants and deceased - Mohini K. Pursnani agreed to purchase a bungalow for a total consideration of Rs.48,90,000/-. Complainants paid stamp duty and registration charges at the time of registration of agreement. Till today, the complainants did not receive possession of booked bungalow. Therefore, the complainants have filed consumer complaint by alleging deficiency in service against the opponents.
18. Admitted fact is that the said partnership firm acquired development rights of the Plot Nos.21 to 25 and 27 to 43 totally admeasuring 12622.75 sq.mtrs. carved out of sanctioned layout of Survey No.113/2, totally admeasuring 04 Hectares situated at Village Varsolli, Taluka Maval, District Pune. As per conditions of Partnership Deed, Mr.Rahul Bhagwanrao Kadam and Mr.Anant Dilip Pandit were authorized to operate bank accounts. Opponents had opened account in Axis Bank, Jangli Maharaj Road Branch, Pune and Canara Bank, Jangli Maharaj Road Branch, Pune of the partnership firm and the said accounts were being operated by opponent Rahul Kadam and opponent Anant Pandit. However, Shri.Anant Pandit subsequently refused to give accounts of the firm and therefore opponent Shri.Rahul Kadam has stopped signing cheques and thereafter the dispute arose between these opponents and Shri.Anant Pandit and Shri.Prakash Rakhyani.
19. Opponent Anant Pandit filed Misc. Application No.746/2010 before the Hon'ble District Court, Pune under Section 9 of the Arbitration Act for seeking prohibitory orders against present opponent nos.6 to 8. They issued Public Notice on 28/09/2010 in Daily Times of India through Advocate and informed public at large that the opponent nos.4 and 5 have played fraud 16 upon these opponents and are trying to create third party interest and further requested public at large not to enter into any transaction with opponent nos.4 and 5.
20. Opponent nos.6, 7 & 8 had filed another Misc.Application no.801/2010 before the Hon'ble District Court, Pune. In Arbitration proceeding bearing no.801/2010 in reply present opponents Mr.Anant Pandit and Mr.Prakash Rakhyani admitted that opponents were the partners of opponent no.1. Opponent nos.6, 7 & 8 failed to contribute the funds for development. Opponent Anant Pandit was constrained to dissolve the partnership firm on account of non contribution of funds by opponent nos.6 to 8. It is brought to our knowledge that opponent no.1 is a partnership at Will. While passing order, Pune District Court held that firm is not legally and validly dissolved. The very act of opponent Mr.Anant Pandit in establishing a new firm is illegal and bad in law. Ultimately, learned District Court, Pune allowed the application filed by present opponent nos.6, 7 & 8 and rejected Misc. Application no.MA/10/746 filed by opponent Mr.Anant Pandit. It is clear that all the opponents are still partners of opponent no.1 firm. All the partners are jointly and severally liable to fulfill the obligations of the firm.
21. Learned counsel Mr.Warunjikar urged that the complainants have duly proved that they have paid consideration as per agreement to opponent no.1 through partners. The opponents cannot deny the payments made by the complainants to the firm through partners.
22. By keeping in mind the arguments advanced on behalf of both the parties and admitted facts, let us proceed to appreciate the evidence on record to decide the points for determination.
As to point no.1:-Maintainability
23. It is urged on behalf of the Learned Advocate for Opponent Nos.6 to 17 8 that complicated questions of facts and law are involved in these consumer complaints. Opponent Nos.2 and 3 played fraud against opponent Nos.6 to 8. Opponent Shri.Anant Dilip Pandit and Shri.Prakash Chouthram Rakhyani made collusion with each other and have illegally formed another partnership firm on 17/03/2009 in the name and style of "Shubham Builders". Both of them have deliberately adopted the name of earlier partnership firm and opened a separate bank account in ICICI Bank showing therein that Anant Pandit and Prakash Rakhyani are the only partners of the said firm and started accepting further consideration of the units from the respective unit holders. Shri.Anant Pandit and Shri.Prakash Rakhyani by taking undue advantage of formation of illegal partnership firm started dealing with other units with the prospective purchasers and entered into some agreements with the purchasers and sale proceeds of the said units have been deposited in new account and withdrawn the same and used for their own purposes. Shri.Anant Pandit and Shri.Prakash Rakhyani have hijacked business of the original partnership firm. Shri.Anant Pandit filed Misc.Application No.746 of 2010 before the District Court, Pune under section 9 of the Arbitration Act for seeking prohibitory orders against these opponents. Dispute is already referred to the Arbitrator. Complicated issues of fraud, formation of new partnership firm, undue advantage of partners Shri.Anant Pandit and Shri.Prakash Rakhyani cannot be decided in a summary proceeding. It requires elaborate evidence. Examination of the witnesses and thorough investigation of the documents are necessary. Complicated issues can be decided by the Civil Court in Civil Suit. Civil Suit is a remedy available to the complainants. Considering the complicity of the proceedings and issues involved consumer complaints are not maintainable.
24. We do not find any substance in this argument. Consumer complaints are filed by independent unit holders by alleging deficiency in service. In a summary proceeding we have to decide the consumer dispute between the 18 parties. We are not supposed to deal with inter-se dispute between the partners. We are least concern with dissolution of partnership firm and settlement of account between the partners. It is true that there are several litigations filed by the partners of the firm against each other. Disputes and grievances between the partners and firm will be decided at proper Court/ Forum by the competent authority. A simple question is before us whether opponents are guilty of deficiency of service. Issue raised by the complainants pertaining the consumer dispute can be decided before this Commission.
25. Hon'ble Apex Court while passing judgment in the case of Dr.J.J.Merchant and others v/s. Shreenath Chaturvedi on 12/08/2002 in Appeal (Civil) no.7975/2001 held as under:-
"It was next contended that such complicated questions of facts cannot be decided in summary proceedings. In our view, this submission also requires to be rejected because under the Act, for summary or speedy trial, exhaustive procedure in conformity with the principles of natural justice is provided. Therefore, merely because it is mentioned that Commission or Forum is required to have summary trial would hardly be a ground for directing the consumer to approach the Civil Court. For trial to be just and reasonable long drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground. It would also be totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided. The Act provides sufficient safeguards."19
26. In view of the ruling laid down by the Hon'ble Apex Court, we do not find substance in the objection raised on behalf of the opponent. Grievance raised by the complainants can be decided by the State Commission and we are of the view that the consumer complaints are tenable before the State Commission.
27. Complainants agreed to purchase a bungalow from the project of opponent no.1 for consideration. Agreement was executed by opponent no.1 in favour of the complainants and deceased- Mohini K. Pursnani. Complainants are the legal heirs of deceased - Mohini K. Pursnani. Consumer complaint is filed by claiming deficiency in service as the complainants did not get possession of booked unit in spite of payment of total consideration. Brochure of the project launched by opponent no.1 is on record. Documents filed on behalf of the complainants are not disputed. Documents and affidavit show that the complainants are consumers of opponent no.1. Opponent nos.4, 5, 6, 7 & 8 are the partners of opponent no.1. Opponent no.2 -Mr.Bharat Jain did not come forward to deny that he is partner of the firm or he has received payment from the purchasers. Document i.e. MOU is not disputed on behalf of opponent nos.2&3. M.O.U. was executed when purchaser Mohini Pursnani was alive. She died on 27/10/2013.
28. Till today partnership firm is not dissolved. Opponent nos.6 to 8 are still partners of opponent no.1 firm. Complainants made payment of consideration to opponent no.1 through partners for which receipts are issued.
29. It is evident that M.O.U. was executed on 29/06/2013. Said MOU is between purchaser -Mohini Kanayalal Pursnani, present complainants through their Constituted Power of Attorney holder Mr.Ashok J.Chotrani and opponent-Bharat Babulal Jain and opponent -Rajeev H.Jaiswal.
20Present opponent nos.2 and 3 made submission in MOU that they have taken over the entire project along with all, right, title and interest including development rights acquired under the partnership firm named M/s.Shubham Builders and Developers in the said property bearing Schedule including the acquiring the right, title interest and ownership of the land bearing Gat No.113/2 total admeasuring 4 H along with structure standing thereon situated at Village Varsoli, Taluka Maval, District Pune within limits of Jilha Parishad Pune and within the jurisdiction of the Sub- Registrar office Maval, more particularly mentioned in Schedule I subject to the rights of purchasers/clients/members upon the terms and conditions and continue with same. Present opponent nos.2 and 3 undertook that project would be completed within six months. Complainants agreed to pay escalation charges to present opponent nos.2 and 3. Receipt of payment made to opponent-Bharat Jain is on record. Opponent nos.2 and 3 cannot deny their liability and cannot deny that they are not partners of the firm.
30. One thing is clear that the complainants have made payment to opponent no.1 as per direction of the partners. The bonafide purchasers/ complainants/consumers should not suffer due to dispute between and amongst the partners. They are entitled to claim amenities as per agreement and the opponents are liable to remove the deficiencies and to pay the payment of amounts spent by the complainants to make the premises habitable and the financial loss suffered by the complainants. Complainants have paid extra amount towards consideration. They paid more payment than that of agreed amount which is liable to be refunded.
31. It is further urged that in arbitration proceedings prohibitory order was passed against opponents Mr.Anant Pandit and Mr.Prakash Rakhyani. They were restrained from creating third party interest in respect of subject matter of arbitration proceedings and to deal with the properties in any way. They were restrained from operating the bank accounts in the name of 21 M/s.Shubham Builders and Developers till disposal of main arbitration proceedings. However, there was no prohibitory order against opponent nos. 6, 7 & 8. They could have proceeded with the completion of the project, particularly when amount was paid by the complainants to opponent no.1. Amount was also paid to opponent nos. 6, 7 & 8 through Association of purchasers. Prohibitory order is not hurdle to file consumer complaint before Consumer Fora.
32. The opponents failed to substantiate that the amenities mentioned in Schedule V of the Agreement were provided by the opponents. It is the statutory duty of the opponents/ builders to give booked units to the complainants with Possession Certificate, Completion Certificate and Occupation Certificate with all amenities as per agreement. The opponents never cared to maintain the project. Claim for statutory benefits and amenities can be decided before this Fora.
33. Provisions of section 28 of Partnership Act, 1932 speaks about "Holding out". Section 28(1) reads as under:-
"Anyone who by words spoken or written or by conduct represents himself, or knowingly permits himself to be represented, to be a partner in a firm, is liable as a partner in that firm to anyone who has on the faith of any such representation given credit to the firm, whether the person representing himself or represented to be a partner does or does not know that the representation has reached the person so giving credit."
34. Opponent nos.2 and 3 made representation as partners of firm and compelled the complainants to make payment. In view of section 28 of Partnership Act, 1932, they can be termed as partners of the firm.
35. Learned counsel Mr.Shedge for the opponents vehemently urged that the complainants were informed about the fraud played by the opponent 22 nos.2 & 3. Still payment was made to opponent nos.2 & 3. The complainants Mr.Vinayak Vitthal More, Mr.Sushilkumar Suri along with Mr.Raju Jaiswal and Mr.Bharat Jain have made collusion with each other. They have deceived the complainants. Therefore liability cannot be fastened on opponent nos.6, 7 & 8, when they never received payment from the complainants.
36. In view of Memorandum of Understanding (MOU) the relationship between complainants and all the opponents is that of 'consumer' and 'service provider'. We do not find any substance in the objection that consumer complaint is not maintainable against opponent no.2 as he is not partner of the firm. Consumer complaint is tenable against all opponents. In view of this discussion, we answer point no.1 for determination in affirmative.
As to point no.2:- Deficiency in service
37. Complainants have filed consumer complaint with a request to declare the opponents as guilty of deficiency in service and unfair trade practice. It is requested that the opponents be directed to remove deficiency of service, complete the entire project with all amenities and complete the bungalow/ unit no.28 (I) and to hand over unit no.28(I) with all amenities to the complainants with O.C.
38. Learned Counsel Mr.Warunjikar has drawn our attention to the agreement executed in favour of the complainants and deceased - Mohini K. Pursnani. It is evident that the complainants agreed to purchase bungalow /unit no.28(I) for consideration of Rs.48,96,000/-. At the time of registration of agreement on 13/03/2009, they have paid registration charges as well as stamp duty. Agreement of Sale is at 'Exhibit D'. Undisputed payment receipts substantiate that the complainants have paid total amount of consideration to the opponent no.1 through partners.
2339. Opponent no.1 published a brochure pertinent to their project. Opponent no.1 assured to give amenities to the purchasers and induced the prospective purchasers to purchase the units from the project. Brochure is at "Exhibit C". Opponent no.1 assured to give following amenities :-
1. Lawn Tennis
2. Jogging Track
3. Cricket Pitch
4. Mini Basket Ball
5. Play Park
6. Indoor Games
7. Gazebo
8. Party Lawn
9. Cafeteria
10. Meditation Hall
11. Gymnasium
12. Water Filteration plant
13. Intercom Facility
14. Fireplace
15. Steam
16. Sauna
17. Indoor Jacuzzi
18. House Keeping Facility
19. Servants /Drivers Quarters
20. Street Lights
40. In Agreement for Sale in Schedule V, amenities which are to be provided to the purchasers are given. By agreement, opponent no.1 through partners agreed to provide Servants /Drivers Quarters with costs to the purchasers. Complainants till today are waiting for the possession of booked unit/ bungalow with assured amenities and O.C. It appears that while executing MOU as per Exhibit E on 29/06/2013, the complainants/helpless purchasers paid an amount of Rs.6,40,000/- to opponent nos.2&3. Opponent nos.2 & 3 assured to complete the project but failed to complete project and hand over possession, of unit to the complainants.
41. Opponent nos.1, 2, 3 & 5 did not contest the claim. Admittedly, 24 complainants have booked Bungalow NO.28(I) being constructed in their project named "SERENE COUNTY". In view of section 5 of Maharashtra Ownership Flats Act, 1963, duty is cast upon the promoter to maintain separate account of sums taken as advance or deposit from the purchasers intending to take units from the project of the builder/promoter. The fact is within the knowledge of the opponents, whether said account is maintained in the name of the complainants/purchasers. It is for the opponents to give details as to when the amount was paid by the purchasers and said amount was disbursed for which purpose. The promoter/ builder is duty bound to make full disclosure of transactions in respect of that account. Opponent no.1 and partners did not make disclosure of transactions and account maintained in the name of purchasers/complainants. The opponent nos.4, 5 & 6 are the partners of opponent no.1 firm but they have not filed written statement on behalf of opponent no.1.
42. It is the submission of opponent nos.4, 5 & 6 that as per terms and conditions of Partnership Deed Mr.Rahul Bhagwanrao Kadam and Mr.Anant Dilip Pandit were authorized to operate bank accounts. The accounts were operated by Mr.Rahul Bhagwanrao Kadam and Mr.Anant Dilip Pandit. Opponent Mr.Anant Dilip Pandit subsequently refused to give accounts of the firm and therefore, opponent Mr.Rahul Kadam stopped signing the cheques and dispute arose between opponent nos.6, 7 & 8 ( on one side) and Mr.Anant Dilip Pandit and Mr.Prakash C. Rakhyani (on other side). It can be inferred that these opponents have no knowledge about the payment made by complainants/ purchasers to opponent no.1 through opponent nos.2 & 3.
43. Opponent nos.2 & 3 did not come forward to deny payment. Payment made by the complainants to the firm through partners i.e. opponent nos.2 & 3 is a valid payment. Said payment is binding on opponent nos.4, 5 & 6. As on today all the opponents are partners of 25 opponent no.1 firm. Opponent no.1 firm is not dissolved.
44. It is urged on behalf of the opponents that opponent nos.6 to 8 were ready and willing to complete the scheme. The said scheme could not be completed. The opponents were having interest and genuine intention to complete the scheme. The opponents have time and again informed all the unit purchasers about the fraud played by Mr.Anant Pandit and Mr.Prakash Rakhyani and sent notice dated 11/11/2010 to the complainants about the fraud played by opponents- Mr.Anant Pandit and Mr.Prakash Rakhyani and also gave information about the order passed against opponent nos.2 & 3. Notice was duly served upon the complainants. These opponents again sent notice on 20/12/2010 to the complainants. In spite of that unit purchasers did not bother to verify the fact. Complainants have not taken any action against opponent nos.4 & 5. Opponent nos.4 & 5 have prepared false and fabricated possession letters. In fact, opponent Mr.Prakash Rakhyani had no authority to issue possession letter to the complainants/purchasers. According to the case made out by opponent nos.4 & 5 in Arbitration Petition no.746/2010 the firm was dissolved on 13/03/2009. After dissolution of firm, opponent no.3 had no right to collect the amount from the claimants and to issue possession letter to the complainants. Therefore, original firm is not liable to perform part of the agreement.
45. Learned advocate Mr.Shedge for opponent nos.6, 7 & 8 on the basis of evidence pointed out that unit purchasers Mr.Vinayak Vitthal More, Mr.Sushilkumar Suri along with Mr.Raju Jaiswal and Mr.Bharat Jain approached these opponents and informed that they are going to settle the dispute with Mr.Anant Pandit and Mr.Prakash Rakhyani. It is further informed that Mr.Raju Jaiswal and Mr.Bharat Jain are going to take over the business of the original partnership firm and they will pay off all the amounts that may be due to these opponents and all the responsibility of completing the project. These opponents decided to settle the matter.
2646. Own pleadings of opponent nos.6, 7 & 8 show that Mr.Raju Jaiswal and Mr.Bharat Jain paid some amount to these opponents towards share of these opponents in the partnership firm. It was agreed that Mr.Bharat Jain, Mr.Jaiswal, Mr.Anant Pandit and Mr.Prakash Rakhyani will continue the original partnership firm and they will take responsibility of the project. It is very much clear that opponent Bharat Jain and opponent Jaiswal have not paid entire agreed consideration and therefore, "Deed of Retirement" as agreed was not executed. It means that the opponents are partners of firm i.e. opponent no.1. They have received payment from opponent Bharat Jain and opponent Jaiswal. It is harped upon by the complainants that amount is paid to opponent no.1 through opponent nos.2 & 3. The submission made by the opponents and the nature of proceedings show that there is a dispute between the partners/opponents. The dispute and litigation between partners inter-se will not affect the genuine claim of the complainants. It is for the opponents to complete the project, to give legal possession of booked unit to the complainants with all amenities. The partners can settle their internal dispute before proper court and settle the account of the partnership firm. They cannot deny claim of the complainants after receipt of entire consideration.
47. Inordinate delay in handing over booked bungalow to the complainants after receipt of entire amount of consideration amounts to deficiency in service. Opponents failed and neglected to honour their commitment to complete the project and to hand over possession of bungalow to the complainants in spite of receipt of legal notices. False assurances were given to complete the project within time. Except opponent no.6 other opponents did not bother to answer the notices. In view of this discussion, we find no hesitation to hold that the opponents are guilty of deficiency in service and unfair trade practice. As a result, we answer point no.2 for determination in affirmative.
27As to point nos.3 and 4 :-
48. Complainants did not get possession of booked bungalow. They are entitled to get possession of bungalow with Occupation Certificate. Opponents are liable to complete the entire project with all amenities as per assurance. There is inordinate delay in completing the project. Opponents are entitled to claim amount of consideration as per agreement. Opponents are at fault for collecting extra amount of Rs.6,40,000/-. Opponents are jointly and severally liable to refund the excess amount to the complainants with interest. Complainants booked a bungalow for the stay and enjoyment. They have invested hard earned money to book a bungalow. Inordinate delay in getting possession of bungalow caused mental harassment and physical hardship to them. They are entitled for compensation of Rs.2,00,000/- for mental pain and agony. Complainants are required to file consumer complaint to agitate their rights and to get the possession of bungalow. They were required to engage services of an advocate and to issue notices. They are entitled for amount of Rs.50,000/- towards costs of litigation. As a result, we pass following order:-
ORDER
1. Consumer complaint is partly allowed with costs.
2. It is hereby declared that the opponents are guilty of deficiency in service and unfair trade practice.
3. Opponents are hereby directed to complete the construction of unit /bungalow no.28 (I) booked by the complainants having carpet area 1920 sq.ft. constructed in project named "SERENE COUNTY" on a plot of land bearing Gat no.113/2 admeasuring totally about 4 Hectares being and situated at village Varsoli, Taluka Maval, District Pune and hand over possession of said unit/bungalow to the complainants with Occupation Certificate with all amenities as mentioned in Schedule V of the Agreement of sale within three 28 months from the date of receipt of free copy of order.
4. Opponents do pay jointly and severally an amount of Rs.6,40,000/-
with interest @ 9% p.a. from the date of Memorandum of Understanding (MOU) i.e.29/06/2013 till realization of amount.
5. Opponents do pay jointly and severally an amount of Rs.2,00,000/- to the complainants towards compensation for mental pain and agony.
6. Opponents do pay jointly and severally an amount of Rs.50,000/- to the complainants towards costs of litigation and shall bear their own costs.
7. All the opponents do jointly and severally comply the above mentioned order within a period of three months from the date of receipt of free copy of order.
8. Free copies of the order be furnished to the parties.
Pronounced on 16th August, 2018.
[Usha S.Thakare] Presiding Judicial Member [A.K.Zade] Member Ms 29