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Subrata Kumar Bose v/s M/s. Emerald Realty LLP, earlier Emerald Realty Pvt. Ltd. & Another

    Complaint Case No. CC/114/2019

    Decided On, 05 November 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SHYAMAL GUPTA
    By, PRESIDING MEMBER & THE HONOURABLE MR. UTPAL KUMAR BHATTACHARYA
    By, MEMBER

    For the Complainant: Nitindra Mohan Mookherjee, Suraj Roy, Advocates. For the Opp. Party: ------------



Judgment Text

Utpal Kumar Bhattacharya, Member

Instant complaint u/s 17(1)(a)(i) has been filed against the deficiency in rendering services by the Ops. The fact of the complaint was that the Complainant entered into an Agreement for sale dated 29th day of July, 2008 with the Opposite Parties for purchasing a flat along with car parking space to be constructed on the land scheduled at page 15 of the complaint at a consideration of Rs. 20,90,000/-.

The Agreement stipulated payment of 90% of consideration before delivering the possession and the payment of Rs. 10% on the receipt of the “notice of possession” from the Ops. It was also stipulated that the Ops shall execute the Deed of Conveyance on payment of consideration in full. The Complainant paid 90% of the total consideration being Rs.18,81,000/- to the OPs as per terms of the Agreement. The Complainant received one undated letter with a calculation sheet attached with it acknowledging receipt of the above mentioned amount and demanding a balance outstanding of Rs. 3,04,085/-. Surprisingly, the OPs refused to receive the said amount when the Complainant approached them with the intention of making payment of the said amount and conveyed to the Complainant the message of their inability to accept any amount due to some disputes allegedly taken place between them.

The Complainant, thereafter, visited several times to the office of the OPs and contacted them through repeated television calls intimating them of his readiness to pay balance consideration. On all occasions, the OPs advised him to keep patience and assured him of delivering possession immediately after withdrawal of the prevailing impasse. Subsequently, on May, 7, 2018, the Complainant received a letter containing a baffling information from the OPs about the OP Company’s conversion to a limited liability partnership under the name and style “Emerald Reality LLP”. It was also conveyed therein that the OPs were not a position to take any action in view of ongoing Misc. Case over a purported dispute among the partnership of the company.

The Complainant became apprehensive of his hard and money being misappropriated as no immediate remedy to his problem was seen forthcoming and filed the instant complaint before this Commission praying for an order directing the OPs to hand over possession of the disputed flat along with car parking space and registration of the same executing the Deed of Conveyance in favour of the Complainant in accordance with law or in the alternative, to pay to the Respondent the escalated value of the flat to the tune of around Rs. 60,00,000/- together with compensation and litigation cost of Rs. 11,00,000 and Rs.1,00,000/- respectively and to reimburse the house rent of hired accommodation of the Complainant @ Rs. 16,000/- per month along with other prayers.

The complaint was heard ex parte against the OPs.

The Ld. Advocate appearing on behalf of the Complainant submitted in brief the facts in issue in the same lines narrated above. He drew the notice of the Bench to running pages 50 to 56, being the money receipts showing payment of consideration so far as per terms of the Agreement.

As he continued referring to running page 31, para 7.1, the OPs were to complete construction of the flat on or before July, 10 subject to ‘force majure’ with a grace period of six months from the date thereof unless prevented by circumstances beyond the control of the owner/vendor.

The Ld. Advocate drew further notice of the Bench to running page 59, being the communication made to the Complainant by Sri Pawan Agarwal, the partner of the OP Company, in his capacity as Director of a company of different nomenclature “Simphony Natural Projects Private Limited” informing him about delivery of possession of the subject flat against payment of outstanding amount of Rs. 3,04,085/-.

As contended, the payment, in spite of all the efforts from the Complainant, could not be made as the OPs were unwilling to accept the same for certain internal dispute amongst the partners.

The Ld. Advocate for the Complainant, with the submissions as above, prayed for the complaint to be allowed.

Considered submissions of the Ld. Advocate appearing on behalf of the Complainant. Perused the papers available with the record.

It needed no elaboration to arrive at a conclusion that the OPs were at fault for deviation from the terms of the Agreement they had entered into with the Complainant.

We did not find in the record any paper relating to the Misc. Case involving the purported dispute concerning the partnership of the OP firm. The exact nature of dispute and the order passed by the Court in respect of the Misc. Case also could not be gathered due to wilful non-participation of the OPs in the instant complaint.

It was felt that the OPs had preferred not to participate in the proceedings realising their grave lapse for violation of the terms of the Agreement and wilful avoidance of taking action to handover possession of the subject flat even after absorbing the lion share’s of the consideration in terms of the Agreement.

Conversion of the OP Company into a limited liability company, as alleged, did not absolve the partners of the OP Company of liability towards their commitments as per terms of the Agreement. As per principle, in a partnership, the liability of the partners is unlimited. This means every partner is liable for the debts of a firm incurred during the business of the firm. These debts may be recovered from the partners’ private properties if the joint estate is insufficient to meet the needs entirely. The facts and circumstances narrated above led us to conclude that there was absolute deficiency on the part of the OP Company and accordingly, the complaint needed a favourable consideration in part.

Hence,

Ordered

that the complaint is allowed in part. The partners of the OP Company is directed to handover possession of the subject fla

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t along with car parking space on receipt of the residual balance yet to be paid by the Complainant and execute the Deed of Conveyance in favour of the Complainant in accordance with law within 45 days from the date of depositing the balance consideration by the Complainant. Alternatively, the partners of the OP Company shall refund Rs.18,81,000/- along with cost and compensation of Rs. 10,000/- and Rs. 7,00,000/- respectively within 45 days from the date of the instant order, failing which, simple interest @ 9% shall accrue to Rs.25,81,000/, being the total of the refund amount and compensation, from the date of default till the entire amount is fully realized.
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