A. P. Sahi, President Member
1. In these two appeals Shri Swarjeet Sagi and Shri Kashya Dhruv are the sons in law of Mr. Sunil J. Sachdev, who is the managing partner of M/s. Gharonda Builders and Developers and Smt. Meenal Dhruv is the daughter of Sunil J. Sachdev. The contention of all these three persons are that the impugned orders of the State Commission dated 27.01.2021 in these appeals arising out of complaint no. 56 of 2015 and 50 of 2015, works great injustice, in as much as, they are neither partners of the developer/ builder firm, M/s. Gharonda Builders and Developers, nor they are even remotely connected with it and as such they were incorrectly arrayed as opposite parties in the complaint. They are nowhere liable for any deficiencies alleged against the Builder/ Developer. However, the appellants did not appear before the State Commission and in the absence of any written version being filed on their behalf, their right to file a written version was forfeited. They moved an application seeking to set aside the ex parte order, which was dismissed on 08.01.2019. An appeal was filed before this Commission against the said order, which was also dismissed on the ground of being barred by time.
2. The appellants then moved IA/723/2019 in CC/50/2015 and a similar application was filed in the connected matter. A copy of the application no. 723 of 2019 has been filed on record and the affidavit filed in support thereof dated 04.06.2019 is extracted herein under:
“AFFIDAVIT
I, Sunil J Sachdev, S/o. Late Jayanthilal Sachdev, aged about 61 years, Occ: Business and Managing Partner of OP1, R/o 4-4-932/1 to 3, Kandaswamy Lane, Opp. Hanuman Vyayamashala, Sultan Bazar, Hyderabad-500 095, do hereby solemnly affirm and state on oath as under:
1. I submit that, I am the Deponent herein and Opposite Party No.2 and Managing Partner of OP1 in the above mentioned Complaint, as such I am well acquainted with the facts of the case and what is being deposed hereinunder and further I am also deposing on behalf of OP No.1 in the capacity of being its Managing Partner.
2. I submit that, the Complainant had filed the above Complaint against the Opposite Parties alleging deficiency of service on all false and baseless allegations/averments, as such the same is liable to be dismissed.
3. I submit that, the Complainant had filed the above complaint against we the Petitioners and also against my family members who include two of my daughters and two son-in-laws. I submit that, but for Roopal Saagi who is arrayed as Opposite Party No.5 in the main complaint, the remaining Opposite Parties i.e., Opposite Party no.3, 4 & 6 were never partners of the Opposite Party no.1. I further submit that, the Opposite Party no.3 to 6 have never participated in any of the transactions that allegedly took place between Opposite party no.1 and the Complainant. I submit that, in order to demonstrate that the Opposite party no.3, 4 & 6 are not partners of the Opposite party no.1, it becomes imperative that the partnership deed of the Opposite party no.1 be received and marked as exhibits in support of the Opposite party contentions. I submit that, the Complainant only with a malafide intention to thrust undue pressure and coerce the Opposite party no.2 had made his entire family as parties to the present complaint and thereby gain illegally. I submit that, if at all the partnership deed is received by this Hon’ble Commission, no loss would be caused to the Complainant and in the contrary if the said document is not received by this Hon’ble Commission, the Opposite parties would be put to irreparable loss and injury, which cannot be compensation at any subsequent stage.
4. I submit that, the above said matter now is posted for Arguments in the main case and under such circumstances, it becomes imperative that the evidence of the Opposite party no.1 & 2 be reopened for the purpose of receiving the documents and marking the same as exhibits in support of the Opposite parties contentions for fair adjudication of the dispute.
It is therefore prayed that, the Hon’ble Commission may be pleased to reopen the evidence of the Opposite parties for the purpose of receiving the Partnership deeds pertaining to the Opposite Party no.1 and mark them as exhibits in support of the Opposite party no.1 & 2’s contentions and pass such other order/s as this Hon’ble Commission deems fit and proper, in the interest of justice.”
3. Through the application filed accompanying the said affidavit a prayer was made to allow the partnership deeds pertaining to the firm M/s. Gharonda Builders and Developers to be brought on record to demonstrate that the appellants had absolutely no concern with the reliefs sought for in the complaint as they were neither partners and nor had anything to do with the development being made by M/s. Gharonda Builders and Developers.
4. The counter to the said application was filed by the complainants, which is extracted herein under:
“COUNTER AFFIDAVIT OF THE RESPONDENT NO.1
I, D. Srinivas S/o D. K. Rajum aged about 48 years, Occ: Service, R/o Hyderabad, do hereby state on oath as follows:
1. I am the Respondent No.1 herein and the Complainant No.1 in the above complaint, as such, well acquainted with the facts of the case. Respondent No.2 is my mother and I am giving this affidavit for myself and also on behalf of Respondent No.2 with her knowledge and consent. I have read the affidavit filed in support of the present application.
2. It is submitted that the very filing of the present application is gross abuse of the process of this Hon’ble Commission and the process of law inasmuch as the Petitioners herein who are Opposite parties 1 and 2 in the above consumer complaint, are in collusion with the Opposite parties 3 to 6. In this context, it is pertinent to mention that the Respondents 2 to 5 herein filed IA No.10/2019 with identical averments/allegations but with slightly different prayer i.e., to permit them to participate in the proceedings along with documents. The said application was dismissed by this Hon’ble Commission, by orders dated 08.01.2019. It is also pertinent to state that the same counsel filed the said petition as the present counsel in the present applicator.
3. Aggrieved by the above dismissal of the said interlocutory applications, the Respondents 2 to 5 herein filed FA/ No.463/2019 orders, along with IA No.4549/2019 and 4550/2019 before the Hon’ble National Consumer Disputes Redressal Commission at New Delhi and the National Commission was pleased to dismiss the same by orders dated 24.05.2019, which has been already brought to the notice of this Hon’ble Commission.
4. I submit that the above consumer complaint has been coming-up for arguments on behalf of the Opposite parties since almost more than one year. On one pretext or the other, the Opposite parties are not getting ready with the arguments and the present application is yet another attempt on the part of the Petitioners to re-open the entire issue and re-agitate the closed issue which had attained finality. The Opposite parties 3 to 6 having failed in their attempts to prolong the proceedings, now the present petitioners have filed this application.
5. I humbly state that pressing the documents at this belated stage is of no avail for the Petitioners inasmuch as there is no plea in the pleadings in this regard by the Opposite parties. Under the circumstances, the documents which have been created cannot be now pressed into service and we will suffer irreparable loss and injury if the present application is allowed. I am also advised to state that such an application is not maintainable either in law or on facts inasmuch as the evidence is also closed and the consumer complaint is posted for arguments. Our arguments are concluded more than one month. On the pretext that the Petitioners and the Opposite parties are settling the matter with the Complainants in seriatum and that we have to wait for our turn, the Petitioners have been taking adjournments from time to time before this Hon’ble Commission and now at this belated stage, the Petitioners have come forward with the present application which is not maintainable either in law or on facts.
It is, therefore, prayed that this Hon’ble Commission may be pleased to dismiss the petition of the Petitioner with exemplary costs and pass such other further or other orders as deemed fit and proper in the circumstances of the case. ”
5. The aforesaid contest was decided by the State Commission on 14.10.2019 by the following order:
“This Interlocutory application is filed by the Petitioners/Opposite parties 1 and 2 seeking to re-open the evidence of Opposite parties for the purpose of receiving the Partnership deeds pertaining to Opposite party No.1 and mark them as exhibits in support of the Opposite parties 1 and 2's contentions.
2) It is contended by the Petitioners that except Respondent No.5, Respondents 3, 4, 5 and 6 were never the partners of the firm and have not participated in any of the transactions allegedly took place between the Petitioner No.1 and the Respondent No.1. Only with mala fide intention to thrust undue pressure and coerce the Petitioner No.2, the Respondents 3, 4, 5 and 6 were made as parties to the complaint and to establish the same, the Partnership deeds be received on record and marked as exhibits.
3) Counter is filed by Respondent No.1 to the effect that the present application is gross abuse of process of law as the Petitioners are in collusion with Respondents 3 to 6. In fact, with identical averments, they filed IA No.10/2019 slightly with different prayer to permit them to participate in the proceedings along with documents which was dismissed by this Commission by orders dated 08.01.2019. As against the same, an appeal bearing FA No.463/2019 along with FAIA No.4549/2019 and 4550/2019 were filed before the National Commission at New Delhi, which were dismissed by orders dated 24.05.2019. When the matter is coming-up for arguments, instead of getting ready with arguments, the Petitioners are making attempts to re-open the entire issue and re-agitate the closed issue which had attained finality. The present application is not maintainable and does not merit any consideration. Hence, prayed to dismiss with exemplary costs.
4) Heard both and perused the entire material on record. Admittedly, the documents that are proposed to be filed are the partnership deeds which in ordinary circumstances would be necessary for effective adjudication. However, the facts of the instant case do not justify exhibiting of the said documents for the following reasons.
a) The complaint was originally filed by Respondent No.1 against the Opposite parties 1 and 2. The Opposite parties 3, 4, 5 and 6 are made parties to the complaint apparently on the ground that they are the partners of the firm which is represented by Opposite party No.2.
b) Opposite parties 3 to 6 did not contest the consumer complaint and their right to file the written version was forfeited. However, subsequently an attempt was made by Opposite parties 3 to 6 to set aside the ex parte order dated 02.12.2016 by and under which the right of Opposite parties 3 to 6 to file written version was forfeited.
c) Vide orders dated 08.01.2019 this Commission has dismissed the said application and the Opposite parties 3 to 6 have preferred an appeal but not within limitation, with a delay of more than 800 days. The Hon'ble NCDRC, New Delhi has disposed of the appeal holding that there are no grounds to condone the delay.
5) The main stay of the arguments of the Respondent/Complainant is that the Opposite parties 3 to 6 having failed to come on record and contest the CC, have resorted to this procedure of getting partnership deed filed to show that the Respondents No.3, 4, 5 and 6 are not the partners of the partnership firm which is represented by Opposite party No.2. It is submitted that having failed in their attempts both in the State Commission as well as the National Commission, the Opposite parties 3 to 6 have devised this method of putting forth their case by getting the partnership deed filed through Opposite parties 1 and 2.
6) As a matter of fact, if this case is filed against the firm, the Complainant is required to mention the same and name of the partners of the firm. It is also for them to prove as to whether all the persons arrayed as Opposite parties are partners of the firm. Similarly, the Opposite parties can raise the contention that the parties as arrayed are not the partners of the firm and they have been improperly and unnecessarily impleaded as parties to the litigation. These are issues to be considered in the main hearing of the matter. Needless to say that if the Opposite parties 3 to 6 are not partners and if the Complainant fails to prove the same, the liability, if any, cannot be fastened on them and similarly if they the partners, even though there is no partnership deed, the liability of the partners co-exist with the managing partner.
7) In view of the afore going discussion and in view of the peculiar facts and circumstances of the case, I feel that the partnership deed cannot be received in evidence at this stage, more particularly, in view of the facts stated supra.
8) Needless to say that it is open to both the parties to take their respective contentions based on the pleadings on record. None of the observations made herein above shall be taken as any findings on the rival contentions with regard to the liability or otherwise.
9) In the result, the application is dismissed, but no costs.”
6. Learned counsel for the appellant contends that these facts are undisputed and the State Commission itself had observed that these are issues to be considered in the main hearing of the matter, leaving it upon to the parties to raise this contention accordingly. Learned counsel has invited the attention of the Bench to paragraph 6 of the order quoted and highlighted above, and has urged that the dismissal of the application was unwarranted, nonetheless, the State Commission had protected the interest of the appellants to demonstrate that they were not partners of the firm.
7. To support this contention, the partnership deeds dated 12.11.1998, 04.04.2001, 09.04.2001 and 05.02.2009 have been brought on record and were also filed before the State Commission along with the application no. 723 of 2019.
8. As noted above the said partnership deeds were not accepted on record as evidence by the State Commission and therefore the contention of the learned counsel for the appellants is that the final impugned order of the State Commission which ignores this aspect is unsustainable and hence the same deserves to be set aside.
9. It is submitted that in spite of the observation made in the order quoted hereinabove particularly paragraph 6 thereof, the impugned order has been passed unmindful of those facts, which vitiates the impugned order.
10. Learned counsel submits that the decree arising out of the impugned order cannot be executed as no liability can be fixed on the appellants arising out of any agreement that was entered with M/s. Gharonda Builders and Developers. There is no vicarious liability nor any legal liability arising out of the impugned order against the appellants that could have been directed by the State Commission in the background above.
11. It is also submitted that even if the appellants’ right to file the written version had been forfeited, it is the complainants who had to prove the fact of the appellants being partners of the firm which they failed to do. The State Commission therefore could not have passed the orders against the appellants. Learned counsel has also invited the attention of the Bench to the written submissions filed on their behalf on 04.07.2024, which is on record. It is reiterated on behalf of the appellants that the observations made in IA/723/2019 have been completely overlooked at the time of the disposal of the complaint. It is also urged that there is nothing on record to indicate that the appellants ever participated in the transactions, which has given rise to the dispute and hence neither any liability can be fixed on the appellants nor can the order be executed against them.
12. On the other hand learned counsel for the respondents/ complainants has filed written submissions contending that the appellants had not either filed their written version or any evidence affidavit to controvert the allegations regarding the appellants being partners in the firm. Thus, the partnership deeds now sought to be introduced cannot be take into account. It is further submitted that the legal notices which were issued, named the appellants, who did not respond to the said notice and therefore at this stage the plea raised in these appeals cannot be accepted. The written submissions dated 03.07.2024 are on record.
13. In order to clarify the issues, the matter was again listed on Monday (08.07.2024), when the learned counsel for the parties joined online and finally advanced their submissions.
14. The list of documents which have been relied on by the learned counsel for the respondents/ complainants before the State Commission does not indicate that these are receipts issued by the appellants herein. The receipts have been issued by the firm, M/s. Gharonda Builders and Developers. The issuance of receipts nowhere establishes that the appellants had received the said consideration amount. The agreement to sell also mentions M/s. Gharonda Builders and Developers as a partnership firm with Mr. Sunil J. Sachdev as partner. The names of the appellants do not appear in the said document as a vendor or even a person responsible for any performance of the contract. If a legal notice was sent naming them also as contention by the respondents/ complainants that no reply was received to the legal notice, the same cannot be a ground to presume that they were partners. The partnership firm has to be either on the basis of some deed or some document to demonstrate their existence as partners. It is correct that the appellants did not appear or chose to file a written version or lead evidence and therefore their right to contest the complaint by filing any evidence was forfeited. They could have also participated at the stage of final arguments, but it appears that the application was moved for filing of the partnership deeds, that was rejected on two occasions and a belated appeal filed before the National Commission was rejected. However, the second attempt that was made through IA/723/2019 filed on 04.06.2019 to which a counter was filed by the respondents/ complainants was dismissed by the State Commission with the observation as contained in paragraph 6 of the order dated 14.10.2019 quoted hereinabove to be considered at the time of hearing. The observations made by the State Commission therein in my opinion was in conformity with the law laid down by the Apex Court in the case of Balraj Taneja vs. Sunil Madan, (1999) 8 SCC 396, Paragraph 29, which is extracted herein under:
“29. As pointed out earlier, the court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In a case, specially where a written statement has not been filed by the defendant, the court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression “the court may, in its discretion, require any such fact to be proved” used in sub-rule (2) of Rule 5 of Order 8, or the expression “may make such order in relation to the suit as it thinks fit” used in Rule 10 of Order 8.”
15. Thus, the documents relied on by the complainants, namely, the receipts and the agreement nowhere established that the appellants were partners or in any way liable for any performance of the contract. In the absence of any such evidence led by the complainants, merely because the appellants did not file their written version, cannot be treated as an admission on their behalf to construe that they are the partners of the firm. It is for this reason that the State Commission in paragraph 6 of the order dated 14.10.2019 made observations leaving the said question to be heard and decided at the final hearing stage, provided the complainants succeed in proving the same. Except the statements, made there was nothing to establish that the appellants were partners of the firm, and interestingly the State Commission seems to have completely overlooked its own observations dated 14.10.2019 while passing the impugned order as noticed hereinabove. The State Commission has nowhere considered the issue relating to the evidence of the appellants being the partners of the firm.
16. In the above circumstances, the State Commission was under an obligation to decide this issue keeping in view its own order dated 14.10.2019 that has been ignored as well as in view of the judgment of the Apex Court in the case of Balraj Taneja (Supra) as followed in a three judges’ decision of the Apex Court later on in the case of Asma Lateef v. Shabbir Ahmad, (2024) 4 SCC 696. Paragraph 28 of the said judgment is extracted herein under:
“28. What emerges from a reading of Balraj Taneja9, with which we wholeheartedly concur, is that only on being satisfied that there is no fact which needs to be proved on account of deemed admission, could the court pass a judgment against the defendant who has not filed the written statement; but if the plaint itself suggests involvement of disputed questions of fact, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts. Balraj Taneja9 also lays down the law that provision of Order 8 Rule 10 CPC is by no means mandatory in the sense that a court has no alternative but to pass a judgment in favour of the plaintiff, if the defendant fails or neglects to file his written statement.”
17. Thus, for all the reasons stated hereinabove, the allegations of the respondents/ complainants in so far as the present appellants are concerned, remained unsubstantiated by any proof to establish that the appellants were partners of the firm. In the absence thereof, the appellants cannot be held liable at all. This was a clear case of misjoinder on allegations without proof of the appellants being partners of the firm and they seem to be neither proper nor necessary parties in the absence of such proof. The State Commission ignored its own doubt about the same and proceeded to decree the complaint against the appellants unmindfully without adverting to the said issue.
18. The appeals therefore deserve to be allowed in so far as the appellants are concerned and therefore the order of the State Commission dated 27.01.2021 is set aside in so far as the appellants herein are concerned. The appeals are accordingly allowed and the order and decree of the State Commission shall stand modified to the aforesaid extent only leaving the decree against the firm and its partners intact.
