ORDER
S.N. Kapoor, J. (Presiding Member)
1. The above named two appeals have arisen from the order of the Maharashtra State Commission, allowing the complaint of who is now complainant/respondent No. 1 in both the appeals. The FA No. 196 of 1999 was filed by Mr. Sandeep Keshav Vartak and Mrs. Mamta Sandeep Vartak, the partners who claims to have retired from the firm M/s. Priya Pooja Developers. M/s. Priya Pooja Developers and their existing persons Ramesh Shrikant Mishra and Mrs. Sushila Ramesh Mishra have filed FA No. 200 of 1999.
2. Brief facts giving an occasion to filing of these two appeals are as mentioned hereinafter.
3. The complainant/respondent No. 1, Rajiv Radhe Shyam Agarwal purchased a Bungalow No. 11, admeasuring 1675 sq. ft. with 999 sq. ft. open area situated at Village Dhaniv in Vasai Taluka of Thane District for the total consideration of Rs. 6.5 lakh from M/s. Priya Pooja Developers. At that time, undisputedly, Sandeep Keshav Vartak and Mrs. Mamta Sandeep Vartak appellants in Appeal No. 196 of 1999 and Shri Ramesh Shrikant Mishra and Mrs. Sushila Ramesh Mishra, appellants in Appeal No. 200 of 1999 were partners of M/s. Priya Pooja Developers. The possession of the Bungalow was to be given by M/s. Priya Pooja Developers by 14.4.1996 but it was delivered on 25.10.1996. The complainant/respondentNo. 1 in both appeals Rajiv Radhe Shyam Agarwal noticed several deficiencies in the construction after occupation. The complainant/respondent gave notice to the opposite party on 26.6.1997 mentioning various deficiencies in the construction but without any appropriate response. He sent telegram on 6.11.1997. That also remained unanswered. The complainant appointed an architect, Mararand Tambe to give report about the deficiencies. Mr. Mararand Tambe submitted his report dated 15.8.1998 and pointed out about 10 deficiencies and quantifying estimated expenditure of Rs. 4,05,100 for rectifying the deficiencies. The complainant/respondent accordingly claimed the said amount of Rs. 4,05,100 plus the amount of interest, for delay on the part of M/s. Priya Pooja Developers, Rs. 60,000 towards compensation for the inconvenience and Rs. 6,000 towards the cost.
4. The common plea in the two common defences of the retiring as well as the existing partners of M/s. Priya Pooja Developers are mentioned hereinbelow:
The complainant failed to make the payment in time. There were no deficiencies in the premises. Tine complainant took possession after due inspection. The complaint was made for the first time after lapse of 8-10 months. Hence, the claim was not tenable. Besides, the complainant/respondent himself carried out certain alterations, which brought about structural defects for which the complainant himself was responsible. Hence, the complaint was not tenable.
5. In addition to the above, Sandeep Keshav Vartak and Mrs. Mamta Sandeep Vartak were liable at all after retirement from the partnership firm on 14.11.1997 and after respondent Mr. Ramesh Shrikant Mishra and Mrs. Sushila Ramesh Mishra have taken over all the assets and liabilities of M/s. Priya Pooja Developers in terms of retirement deed, at all and as such the complaint was not maintainable against them.
6. Undisputedly, the facts are that Bungalow A type was purchased for Rs. 6.5 lakh and the entire amount was paid through various cheques between 3.6.1996 and 2.11.96. The possession was handed over to the complainant on 25.10.1996. There was also an assurance given by the opposite party that “Notwithstanding anything hereinbefore, we undertake to rectify any defect, leakage and carry out repairs, leak, etc. in the said Bungalow No. 11 (Type-A) within one rainy season.” It can be stated that when the possession was given in October when the rains were practically over, this guarantee was to cover the rainy season of 1997.
7. In this backdrop, we have heard the parties at length and gone through the records. Following points need our consideration:
(i) Whether there was any defect/deficiency in the construction of the Bungalow sold to the complainant/respondent No. 1?
(ii) If the point No. 1 is answered in affirmative then what would be the estimated amount of expenditure to be incurred to bring it to the desired level of construction, etc. in terms of the agreement?
(iii) Whether Sandeep Keshav Vartak stands discharged altogether from the date of retirement?
(iv) If deficiency is found who shall be liable to pay compensation in terms of the grievance?
(v) Other relief, if any.
8. As regards the first point as per the notice of the complainant, which had not been replied to by the appellant, it is apparent that the following defects were found:
1. Teak wood main door with telescopic peepholes (Magic eye) and call bell, letter Box and Godrej night latch not provided.
2. Bathroom and W.C. doors are not wood flush doors and other doors are not plywood doors nor the wooden doors properly painted.
3. Tower bolts and other fittings not provided in the doors, W.C. toilets, etc.
4. M.S. Bars for safety not provided to W.C. and bathroom windows.
5. Aluminium windows are rusted, having dents and rubber bidding has cracks.
6. Tile skirting of staircases and stairs not done.
7. Extremely poor quality of marble used in flooring, staircases, etc.
8. Broken marble fitted, gaps in joints, polishing of Marble floor, full high dado not done in the W.C. and bathrooms.
9. Plastering of the built eulsi wall of the bungalow not done. Broken tiles fitted in W.C. and bathrooms, major cracks in RCC slab and walls, W.C. bathrooms.
10. Seepage of water in the roofs, walls, W.C. toilets.
11. Water proofing of top surface of walls/roofs/W.C. not done.
12. Cracks, holes, gaps, carotis, etc. in the walls, roof and flooring, etc.
13. No fruit trees planted.
14. Common light in front of the bungalow not functioning.
15. Car parking not provided.
16. W.C/toilet not provided in the top floor.
17. Bungalow No. Board not fixed on the main entrance of the bungalow.
18. Flooring of driveway not properly done. No proper levelling, water stagnates leading to slippery of persons.
19. Electric bells and globes not fixed on the compound wall entrance.
20. Electric bell not fixed on the main gate.
21. Sewerage tank not provided and water outlets not connected to the main sewerage line and water outlets as per the scheme. Water tanks not fixed.
22. Painting and fixing of railing of staircases not properly done.
23. Overflow pipe in the overhead water tank not provided.
24. Electrical points and fittings not completed.
25. Stairs of paints, cement, etc. not cleaned in the windows, fittings, etc.
26. Mismatch of colour of tiles fitted in the W.C. and bathrooms, etc.
27. No polishing of marble of the kitchen, cracks and charities in marble/tiles/sink gaps in wooden window frames and walls.
28. Leakage of water in the window frames.
29. Snowcem painting of the interior of the bungalow not done.
30. Colour wash of elegant matching colours of exterior of the bungalow not done.
31. Storage geyser not provided in master bedroom.
32. Compound wall is too low and its height needes to be sufficiently increased so as to prevent overlooking and to serve the purpose of compound wall. Compound wall has several cracks, as it has not been constructed with proper foundation.
33. Water nozzles supply of water to the neighbouring bungalow CV No. 6 not shifted from Bungalow No. A. 11 nor the common compound wall with these bungalows sealed with chain and plinth protection of walls not properly done. Water drainage pipes outlets not properly provided. Railing on terrace not fixed. Cash memos and guarantee cards of electrical and sanitary equipment fixed not supplied.
34. Plumbering work incomplete, Flush tanks leaking, wash basins having cracks.
35. Drainage pipes leaking.
36. Other deficiencies in fittings and fixtures and repairs, etc.
9. The State Commission after noting the defects and considering report of the architect, Mr. Tambe has rightly rejected the pleas taken in the report. The complainant took immediate steps to point out the deficiencies in order to safeguards. He got it inspected by Mr. Tambe excepting the miscellaneous expenses of Rs. 10,000 no amount in respect of any other item could be deleted or reduced from the statement of the respondent. More we go through the evidence more we find that by giving an undertaking to remove defects on one side and by refusing to remove the defect on the other side, the appellants are virtually abusing their dominant position after receiving money. At the first flush, the amount awarded appeared to be plausible. However, it may alsobe noticed that out of the total cost of Rs. 6.5 lakh of the bungalow would include the price of land as well as the construction. The value of the land would not be less than 40% of the total amount. If we take into consideration i.e. around Rs. 2,60,000 should be the value of the land. The remaining amount would include the cost of construction as well as the profit of the appellant. In such circumstances, the cost of construction would not be more than Rs. 3,00,000 or so leaving the rest of the amount towards profit. From the report it would appear that this entire amount had been given. It may also be noted that the respondent No. 1 is himself an engineer. If there were so many defects at the time of taking possession then it should not have taken 8-10 months to inform about the defects in one’s own case as an engineer may be extraordinary cautious that appears to be the cause why did he ask other person to inspect. But an instinct to help the complainant could also not be ruled out. This may be the reason. However, in the aforesaid circumstances, we feel mat a sum of Rs. 2.00 lakh wouldbe appropriate for removing the defects in view of the report of the architect, keeping some margin about some exaggeration in expenditure is but natural.
10. As regards interest, we feel that insofar as delay in delivering of possession is concerned, since the possession has been given, the complainant would be entitled to interest ©12% on the sum of Rs. 6,50,000 from the date of receipt of deposits till the date of actual delivery of possession i.e. 25.10.1996.
11. As regards the interest on the amount of Rs. 2,00,000 taking into consideration the period of time involved and rate of interest prevalent those days, we feel that the complainant would be entitled to interest from 1.11.1996 till the date of actual payment @ 12% p.a. Parties should be left to bear their own cost.
12. As regards the liability of the retiring persons i.e. Sandeep Keshav Vartak and Mrs. Mamta Sandeep Vartak, in terms of Sub-sections (2) and (3) of Section 32 of the Indian Partnership Act, 1932 it reads as under:
32. A retiring partner may be discharged from any liability to any third party for acts of the firm done before his retirement by an agreement made by him with such third party and the partners of the reconstituted firm, and such agreement may be implied by a course of dealing between such third party and the reconstituted firm after he had knowledge of the retirement.
33. Notwithstanding the retirement of a partner from a firm, he and the partners continue to be liable as partners to third parties for any act done by any of them which would have been an act of the firm if done before the retirement, until public notice is given of the retirement:
Provided that a retired partner is not liable to any third party who deals with the firm without knowing that he was a partner.
(Emphasis supplied)
13. There is no agreement between the retiring partners and the partners of the reconstituted firm and the third party. Secondly, it is not claimed that any notice of the retirement was given by retiring partners. It may further be mentioned that in terms of the registered retirement agreement filed on record dated 14.11.1997, Clause 5 of the retirement deed is important. It may be further mentioned that Schedule ‘A’ by which could have provided some basis for objections of these two retiring partners is the specific amount of liability mentioned in Schedule ‘A’. In no other respect any claim made by the complainant/respondent is mentioned in Schedule ‘A’. Consequently, the liability to pay the amount as has been held hereinabove is joint and several of all the then existing partners of M/s. Priya Pooja Developers namely, Sandeep Keshav Vartak, Mrs. Mamta Sandeep Vartak, Ramesh Shrikant Mishra and Mrs. Sushila Ramesh Mishra, the then partners at the time of delivering of possession of the bungalow.
14. In view of the aforesaid circumstances, both the appeals are partly accepted.