Arvind Rajpal Yadav Vs. Charudatta Vasantrao Tulkarpurkar and Others - Court Judgment

S. B. Mhase, President

[1] Heard Adv. Anand Kulkarni on behalf of the Appellant/Opponent No.2.

[2]  This appeal takes an exception to an order dated 25/5/2012 passed by the District Forum, Solapur in Consumer Complaint No.27 of 2011. By this order the complaint was partly allowed by the District Forum and the Appellant/Opponent No.2 alongwith Respondent No.2/Opponent No.3 and the Respondent No.3/Opponent No.1 are directed to execute registered sale deed as per agreement to sale dated 5/6/2008. It is further directed that normally the expenses should be borne by the Respondent No.1/Complainant but the conveyance has not been executed since the year 2008 by the Appellant and the Respondents Nos.2 and 3 and, therefore, expenses required for registration of such documents have increased thrice and, therefore, the Appellant and the Respondents Nos.2 and 3 are directed to bear the 50% expenses. For mental agony suffered by the Respondent No.1/Complainant there is a direction to pay Rs.30,000/- and if, the amount is not paid within a period of 30 days there is a further direction to pay interest @ 9% p.a.

[3]  Being aggrieved and dissatisfied with this order of the District Forum present appeal has been filed by the Appellant/Opponent No.2, namely – Mr. Arvind Rajpal Jadhav. Other Opponents, namely, the Opponent No.1 – M/s. Aishwarya Developers and the Opponent No.3 – Mr. Avinash Shriram Bachuvar, who is also a partner of the Opponent No.1 firm and its power-of-attorney holder have not filed an appeal challenging the impugned order passed by the District Forum. Thus, as a result of not challenging the order by the Opponents Nos.1 and 3, these Opponents have acquiesced to the order passed by the District Forum and the said order is challenged only by the Appellant/Opponent No.2. In short, order under challenge has attained finality as against the Opponents Nos. 1 and 3 in the present facts and circumstances of the case.

[4]  Contention which is raised by the Learned Counsel for the Appellant is that the Appellant is not liable and is not under an obligation to comply with the agreement to sale which was executed in the favour of the Respondent No.1/Complainant on 5/6/2008 because according to him, said agreement to sale was executed on behalf of the Opponent No.1 firm, namely – M/s. Aishwarya Developers by its partner and general power of attorney holder Mr. Avinash Shriram Bachuvar. It was executed after the death of one Mr. Jayant Patil who was the owner of the land under development. It is submitted that said Mr. Jayant Patil expired on 12/8/2003 and, therefore, the agreement for sale cannot be executed by Mr. Avinash Shriram Bachuvar on 5/6/2008 and thus, it is claimed that order passed by the District Forum is not sustainable in law. It is further submitted that the partnership firm is not in existence.

[5]  It is an admitted position that Mr. Avinash Shriram Bachuvar and Mr. Arvind Rajpal Yadav (Appellant/Opponent No.2) had formed a partnership firm witnessed by a partnership deed dated 18/12/2001. It appears that said partnership deed is not registered. However, document of partnership is on record and its shows that the Appellant and Mr. Avinash Shriram Bachuvar who were the partners of said partnership firm had decided to carry on business in the name and style ‘M/s. Aishwarya Developers. It is further to be noted that the said partnership firm has entered into a development agreement with Mr. Arvind Rajpal Jadhav and Mr. Jayant Patil. Mr. Arvind Rajpal Jadhav and Mr. Jayant Patil are the land owners of Gat No.301 (Old) and New Gat No.158/1/1B, Majrewadi, Taluka – North Solapur, District – Solapur situated within the limits of Solapur Municipal Corporation. Thus, on behalf of Aishwarya Developers, Mr. Avinash Shriram Bachuvar being a partner of the said firm entered into a development agreement dated 19/12/2001. It is to be noted that Mr. Arvind Rajpal Jadhav (Appellant/Opponent No.2) was thus, a partner of firm – M/s. Aishwarya Developers and equally an owner of the land under development and, therefore, he was and is a promoter under the provisions of the Maharashtra Ownership Flats Act, 1963. Developer firm namely – M/s. Aishwarya Developers is also a promoter alongwith its partners and the deceased land owner, namely – Mr. Jayant Patil is also a promoter of the said scheme. It is to be noted that Mr. Jayant Patil has executed an irrevocable power-of-attorney in favour of Mr. Avinash Shriram Bachuvar on 18/12/2001 and thereafter this scheme was floated by M/s. Aishwarya Developers. Looking to all these documents the Respondent No.1/Complainant entered into an agreement for sale and since the service as promised under the agreement for sale was not rendered a consumer complaint was filed.

[6]  Learned Counsel for the Appellant tried to submit that the partnership firm – M/s. Aishwarya Developers is dissolved. However, there is no document on the record. It is an admitted position that on the record there is no such dissolution deed executed between the partners and, therefore, that is a fictitious and false contention raised to protract the claim of the Respondent No.1/Complainant.

[7]  Assuming for sake of argument that firm has been dissolved. However, that does not affect the obligations of the promoters under the Maharashtra Ownership Flats Act, 1963. Opponent No.1, M/s. Aishwarya Developers is a partnership firm and a partnership firm is not a legal entity in a general law. It is a group of persons coming together for the purpose of carrying on business in the name and style of partnership firm, in the present case, namely – M/s. Aishwarya Developers. Thus, when-ever M/s. Aishwarya Developers is impleaded as a party, all the partners are represented. Not only that since M/s. Aishwarya Developers is not a legal entity under the general law, it is the individual partner who are responsible in their individual capacity and that is settled position of law under the Indian Partnership Act, 1932 and, therefore, even though the partnership firm is dissolved, the assets of the partnership firm are taken by the partners to the proportion of their share and, therefore, their individual liability and obligation qua the Respondent No.1/Complainant do not cease to exists. It is also well settled principle under the Indian Partnership Act, 1932 that one of the partners of the firm can enter into an agreement with third parties for and on behalf of the partnership firm and such an agreement is binding on all the partners of the firm. On 5/6/2008, Mr. Avinash Shriram Bachuvar has executed an agreement for sale for an on behalf of the firm, M/s. Aishwarya Developers with the Respondent No.1/Complainant and, therefore, said document is binding on all the partners of the firm. It is very interesting to note that under the Consumer Protection Act, 1986 a ‘person has been defined under Section-2(1)(m) and a ‘firm whether registered or not is treated as a ‘person for the purpose of a consumer litigation and thus, registration of a partnership firm is not mandatory under the Consumer Protection Act, 1986. However, registration of a partnership firm is mandatory under the Indian Partnership Act, 1932 and if a partnership firm is not registered, Section-69 of the Indian Partnership Act, 1932 prohibits institution, of a suit. However, a consumer complaint is not a suit and, therefore, those provisions embodied under Section-69 of the Indian Partnership Act, 1932 are not applicable to a proceeding before Consumer Fora under the Consumer Protection Act, 1986. On the contrary, in view of specific definition of ‘person under Section-2(1)(m) of the Consumer Protection Act, 1986 even an unregistered firm is covered under the definition of the term – ‘person and such an unregistered firm can be sued before Consumer Fora and the legislature has rightly taken into consideration this aspect. Ultimately viewed from any angle agreement for sale dated 5/6/2008 executed by Mr. Avinash Shriram Bachuvar for an on behalf of the firm, M/s. Aishwarya Developers is binding even as against the present Appellant, Mr. Arvind Rajpal Jadhav. Moreover, said agreement is binding on the Appellant since the partnership firm, M/s. Aishwarya Developers and its other partner, Mr. Avinash Shriram Bachuvar have acquiesced to the order passed by the District Forum, as observed earlier and it is well settled principle of law that if one of the partners of the firm acquiesce to an order it is an acquiescence for and on behalf of the firm and it is binding on all the partners of the firm. Acts of one of the partners of the firm can always bind other partners for a firm and create obligation against them and, therefore, an individual appeal filed by the Appellant is not sustainable in law.

[8]  Even the death of one of the land owners, namely – Mr. Jayant Patil will not affect the rights accrued to the Respondent No.1/Complainant under the agreement to sale dated 5/6/2008 because all the land-owners and the Opponents are the promoters under the law. Mr. Jayant Patil, during his lifetime, executed an irrevocable power-of-attorney in favour of Mr. Avinash Shriram Bachuvar. Such an irrevocable power-of-attorney also binds legal heirs of Mr. Jayant Patil after his death and thereby even death of Mr. Jayant Patil will not affect the right of a person holding such power-of-attorney to transfer the property.

[9]  Another contention tried to be raised by the Learned Advocate for the Appellant at the eleventh hour is that the agreement to sale dated 5/6/2008 is not a registered agreement. Section-16 of the Maharashtra Ownership Flats Act, 1963 makes it clear that provisions of the Maharashtra Ownership Flats Act, 1963 are in addition to Transfer of Property Act, 1882. ‘Sale is defined under Section-54 of the Transfer of Property Act, 1882 and agreement to sale is provided under Section-54 of the said Act. It is well settled principle as per Transfer of Property Act, 1882 that agreement to sale does not, of itself, create any interest in or charge on such property but it creates a right to get another conveyance from the person and, therefore, agreement to sale is not required to be registered compulsorily under the Registration Act and, therefore, non-registration of the agreement to sale dated 5/6/2008 cannot affect the rights of the parties to avail the services as claimed under the agreement to sale. Apart from that Section-4A of the Maharashtra Ownership Flats Act, 1963 deals with effect of non-registration of agreement required to be registered under Section-4 of the said Act and that also protects the rights of the parties to avail the services. However, only effect of non-registration of an agreement is that such an unregistered document cannot be used for the purpose for which it is executed but it can be used for collateral purpose and here in the present case collateral purpose is to avail services as per the agreement and, therefore, viewed from any angle non-registration of agreement to sale dated 5/6/2008 will not affect the rights of the Respondent No.1/Complainant to avail the services from the Opponents.

[10] Upon taking into consideration the case of the Respondent No.1/Complainant, order passed by the District Forum cannot be faulted with. We do not find any substance in the present appeal. However, we do not want to part with this order by simplicitor dismissing the appeal. What is important to be noted is the fact that agreement to sale was executed in favour of the Respondent No.1/Complainant on 5/6/2008 and as per the said agreement, flat and property is to be given to the Respondent No.1/Complainant. However, even after lapse of so many years it is still not given to the Respondent No.1/Complainant and the Respondent No.1/Complainant was required to file a consumer complaint after having obtained an order from the District Forum and when the partnership firm and the other partner of the partnership firm have acquiesced to the order passed by the District Forum, Appellant/Opponent No.2 who is one of the partners of the firm on flimsy grounds has preferred this appeal just to protract the litigation and to harass the consumer. We do not want to encourage such kind of litigations and, therefore, in order to curb such types of litigations we have to deal with iron hands and, therefore, we dismiss this appeal by imposing costs of Rs.25,000/- which shall be deposited by the Appellant/Opponent No.2 into Legal Aid Account of this Commission within a period of thirty days from today. Upon failure on the part of the Appellant/Opponent No.2 to deposit the costs within the stipulated period, Registrar shall issue certificate under Section-25(3) of the Consumer Protection Act, 1986 to the District Collector for recovery of costs as arrears of land revenue.