Date of filing : 26.07.2018

Judgment : Dt.19.3.2019

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Ashis Kumar Gauatam and Aparna Gautam alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) The Ganapati Construction, (2) Smt. Aruna Mukherjee, (3) Sri Subrata Chattopadhaya, (4) Sri Pradip Kumar Naskar and (5) Miss Jhilik Naskar

            Case of the Complainant, in short, is that by an agreement for sale dt.13.5.2016 Complainant agreed to purchase the flat mentioned in the schedule of the complaint petition at a total consideration price of Rs.20,00,000/-. OP No.1 to 3 and one Radhashyam Mondal are the developers and OP No.4 & 5 are the owners of the property. A development agreement was also executed between OP firm being represented by its partners and the owners. Developer firm being represented by its partners and the owners OP No.4 & 5 executed a power of attorney in favour of Pallav Mukherjee (since deceased) who was also one of the partners of the said OP No.1/firm. Agreement for sale dt.13.5.2016 was executed between the developers and the Complainants and the owners were represented by their power of attorney holder namely Pallav Mukherjee. Complainant has paid the entire consideration price of Rs.20,00,000/- to the partners of the developer firm. The respondent No.3 delivered the possession of the flat with the garage to the Complainant on 5.12.2016. After taking possession, Complainant has obtained the electric connection which in fact has been provided by the developers, but the deed has not been executed in favour of the Complainant as said Pallav Mukherjee died on 3.2.2017, leaving behind the OP No.2 his only legal heir. One of the partners of the OP Firm namely Radhashyam Mondal resigned from the partnership firm. So, he is no more a partner of the firm. So, the Complainant requested the OP No.2 and 3 to register the deed in their favour, but OP No.2 paid no heed even though respondent OP No.3 agreed to execute the sale deed. A letter was also sent to the OP No.2 asking for registration of the sale deed but of no use. So, the present complaint has been filed praying for directing the OPs to execute and register the sale deed in favour of the Complainant in respect of the scheduled flat and for other reliefs.

            Complainant has annexed with the complaint petition copy of agreement of sale dt.13.5.2016, possession letter, electricity bill, copy of the death certificate of Pallav Mukherjee and the notice sent by the Complainant dt.28.3.2018.

            On perusal of the record, it appears that the notice was sent to the OPs but in spite of its service, no step has been taken by the OPs. Vide order dt.31.10.2018 the case was fixed for ex-parte hearing.

            During the course of evidence, Complainants filed their evidence in  examination in chief, supporting their case as stated in the petition of complaint. Thereafter argument has also been advanced.

 So, the following points require determination

(1) Whether there has been any deficiency in providing service by the OPs?

(2) Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

Point No.1 & 2

Both the points are taken up together for a comprehensive discussion.

The Complainant has filed agreement for sale dt.13.5.2016, wherefrom it appears that the agreement was entered into between OP No.1 a partnership firm represented by its three partners namely Pallav Mukherjee, Radhashyam Mondal and Subrata Chattopadhyay and the owners were represented by Sri Pallav Mukherjee, Constituted Attorney and one of the partners of the firm, to sell the subject flat at a total consideration price of Rs.20,00,000/-. It appears that the agreement is signed by the alleged constituted attorney Pallav Mukherjee and one of the partners Subrata Chattopadhyay only on the last two pages of the agreement. The rest of the pages of the agreement is only signed by the Complainants and does not bear the signature of those partners or the constituted attorney. Be that as it may, since the case has been proceeded ex-parte, there is no contrary evidence that the agreement was not executed, as per the terms and conditions as stated therein. Complainants have also filed a letter of possession wherefrom it appears that the possession of the flat has been handed over to the Complainant by the partner, Subrata Chattopadhaya and they have accepted the possession on 5.12.2016. The Complainants have also filed Pass Book of the Bank Account in the Indian Bank showing therein payment of the amount of Rs.20,00,000/-. The payment is also acknowledged in the possession letter by the said partner of the firm namely Subrata Chattopdhyay. The possession of the flat by the Complainant, is further evident from the electricity bill filed by the Complainant, which stands in the name of Ashis Kumar Gautam. So, the Complainant is in possession of the property and entitled to the execution of the deed in their favour. But, question which requires to be considered is whether such direction can be given to the OPs, specially the OP No.2 who is the mother of the deceased Pallav Mukherjee one of the partners of the firm. In this context, it may be pointed out that when a partner of the partnership firm dies, in the absene of any contract, partnership firm is dissolved. Section 42 of the Indian Partnership Act provides for dissolution of the partnership on occurrence of certain contingency which also includes death of a partner. So, the said section is clear that subject to the contract between partners, a firm stands dissolved on the death of a partner. However, in case where terms of the partnership are silent on continuation of partnership after the death of a partner may be implied from the conduct of the parties.

Admittedly, OP No.2 was not a partner but her son was the partner who died. So, automatically she cannot become partner of the said partnership firm. She could not inherit the same. The provision as highlighted above, is very categorical. Moreover, said Pallav Mukherjee was a constituted attorney of the owners being OP No.4 & 5. So, on the death of the said Pallav Mukherjee, effect of power of attorney terminates. So, the mother cannot step into the shoes of the her son either as constituted attorney or as a partner of the firm. It further appears that another partner namely, Radhashyam has already resigned and so there remains only OP No.3. A partnership firm cannot function only with one partner. So, even though the agreement of sale dt.13.5.2016 was executed between the Complainant, OP firm represented by its three partners and constituted attorney of owners/OP No.4 & 5 and subsequently possession has also been delivered by OP No.3 when another partner Pallav Mukherjee was alive but after the death of Pallav Mukherjee the constituted attorney of OP No.4 & 5, OP No.4 & 5 being the owners are liable to execute the deed of sale in respect of the subject flat in the name of Complainants. In such a situation, the case is liable to be dismissed against OP No.1 to 3 and allowed against other OPs No.4 & 5.

These points are answered accordingly.

Hence

                      ordered

            CC/451/2018 is allowed ex-parte against OP No.4 & 5 and dismissed against OP No.1 to 3. OP No.4 and 5 are directed to execute and register the sale deed in respect of the schedule flat in favour of the Complainants within three months from the date of this order.