M/S. Alcove Construction Pvt. Ltd vs Lalita Bansal & 4 Ors

This appeal has been filed by the appellant M/s. Alcove Construction Pvt. Ltd. against the order dated 3.4.2017 passed by the State Consumer Disputes Redressal Commission, West Bengal, (in short 'the State Commission') on MA/883/2016 filed on behalf of opposite party No.3 in CC/491/2015.

Brief facts of the case are that on 20.04.2012, one agreement was executed between the respondent No.1 and M/s. Rajat Merchandise Pvt. Ltd., being a partnership firm for the purchase of a flat No.14-D, Tower 1, Diamond City South, Kolkata. Respondent No.1 raised certain disputes and as a result filed a complaint before the State Commission. One misc. application was filed before the State Commission on behalf of opposite party No.3/present appellant for dismissal of the complaint and also in the alternative for the deletion of the name of M/s. Alcove Realty from the array of the parties in the complaint on the ground that M/s. Alcove Realty is its logo and is not a legal entity. It was further stated that there exists no lis between M/s. Alcove Realty and the respondent No.1 and the respondent No.1 has not sought any relief against M/s. Alcove Realty. It was stated in the application that the appellant has submitted the written version before the State Commission and wherein it has been specifically pleaded that M/s. Alcove Realty is not a legal entity but is merely a symbol or logo which is being used by the appellant as per the law. The State Commission after hearing the parties dismissed the misc. application filed by the appellant on the ground that there exists a nexus between M/s. Alcove Realty and M/s. Rajat Enterprise and the same can only be decided after the evidence is led by the parties.

Hence the present appeal.

Heard the learned counsel for the appellant as well as AR of the respondent No.1. All the other respondents remained absent despite service.

Learned counsel for the appellant stated that a bare perusal of the complaint will reveal that out of the four opposite parties, M/s. N.K.Realtore (P) Ltd. is the only legal entity and the rest are nothing but a figment of imagination of the respondent No.1. It is specifically stated that none of the respondent Nos.2,3 and 4 are the legal entity which can be sued in the eye of law. It is also pertinent to mention that respondent No.1 has not made M/s. Rajat Enterprises a party in the complaint case, though an agreement was executed between them for the purchase of the flat and a lis existed between the respondent No.1 and Rajat Enterprises which is a partnership firm. It is further stated that a bare perusal of the reliefs sought by the respondent No.1 would reveal that relief has been sought against only one party as in the prayer portion, the respondent No.1 has sought relief against " Opposite Party" only without disclosing which party. The respondent No.1 has not made any prayer that she is seeking relief against all the respondents collectively/severally.

Learned counsel for the appellant mentioned that all the correspondences by the complainant have been made with Rajat Enterprises as would be clear from his letter dated 12.11.2010, 03.04.2012 & 12.01.2012. In the written statement filed on behalf of respondent No.3, it has been clearly mentioned that opposite party No.3 is not a legal entity and is only a logo, therefore, the complaint cannot be filed against the opposite party No.3. In the written statement, it was clearly stated that opposite party No.3 did not have any privity of contract with the complainant and opposite party No.3 has not received any consideration. Opposite Party No.3 has also not provided any service to the complainant, therefore, there can be no question of deficiency of service. The State Commission has not considered all these issues while passing order in MA /883/2016, which was moved by opposite party No.3 for deletion of opposite party No.3 from the array of the parties. The complainant is not entitled to file complaint against opposite party No.3.

On the other hand, AR of respondent No.1 stated that respondent No.1 had booked a flat with Diamond Group, however, respondent No.1 received a reply from MD of Rajat Enterprises dated 07.07.2014 where on the top left side of the letter, Alcove Realty is written along with some figure. The AR of respondent No.1 stated that it means that the Rajat Enterprises, and Alcove Realty are related and are one and the same. Just to avoid any responsibility, the opposite party has floated many firms and companies so that no pin pointed responsibility could be fixed on any of them although all of them are same. When Mr. Amar Nath Shroff was with the Diamond Group, then respondent No.1 had booked the flat. However, later on he changed the group to Alcove Realty and he is Director in all the companies and therefore, basically all companies are one. Hence, it is necessary to keep all of them as opposite party so that complainant's claim is not dismissed due to non-joinder of any necessary parties. AR of respondent No.1 further stated that he has also filed print out of website of Alcove Realty where for example, it is mentioned on 13.06.2018 on the website that "special documentary feature on Alcove Realty on CNBC Awaaz Channel" .

AR of respondent No.1 further stated that complainant has treated Alcove Realty as a firm as related details are not known to the complainant. From the information given in the website, this does not seem to be only a logo. The opposite party No.3 has filed its written statement and therefore, the State Commission has taken into account all the aspects that are mentioned by opposite party No.3/appellant. No proof has been filed by the appellant to prove that Alcove Realty is only a logo and not a company or a firm. The State Commission has considered all the vital questions, points and aspects and ordered continuance of opposite party no.3 in the complaint case.

I have given a thoughtful consideration to the arguments advanced by both the sides and have examined the material on record. Learned counsel for the appellant has not filed any document to prove that this so called logo Alcove Realty belongs to the appellant. If this is a logo, the same should have been registered as a logo in the name of the appellant under the relevant law. During the argument stage, it was asked from the learned counsel whether this logo is registered under the relevant law, the leaned counsel replied that the same is not registered. If the logo is not registered then atleast two questions arise whether this is to be considered as a logo and whether this logo belongs to the appellant. As no documents have been filed for clarifying these questions, the question whether it is a logo or it belongs to the appellant remain unanswered.

The complainant has shown that a letter dated 07.07.2014 written by the MD of Rajat Enterprises bears the name of Alcove Realty on the left side of the letter, therefore, not knowing the fact that Alcove Realty was a logo or a firm or a company, the complainant has made Alcove Realty as a party, which is opposite party No.3. From this, it is clear that whatever may be the relationship between Alcove Realty and the Rajat Enterprises, it is clear that Rajat Enterprises is using the name of Alcove Realty on their letter head and they are thus definitely connected to each other. Learned counsel for the appellant has tried to distinguish between the two and has stated that the complainant has not made Rajat Enterprises, in the complaint case a party. When the Alcove Realty is mentioned on the letter of the Rajat Enterprises, the complainant may be under genuine and bona fide belief that both are same. Thus, even if Rajat Enterprises and Alcove Realty were separate entities and if Alcove Realty has been made a party by the complainant, no illegality has been committed by the complainant. It may be another matter that without Rajat Enterprises as a party, the complaint may suffer from non-joinder of necessary party, but this is a question which will be seen and decided by the trial forum and this does not have any bearing on the order passed by the State Commission in MA/883/2016 filed by the appellant. The operative portion of the State Commission order reads as under:-

"After hearing both sides, it appears to me that the involvement of OP No.3 with the alleged incident or the nexus between M/s. Rajat Enterprise (Developer) and OP No.3 M/s. Alcove Realty cannot be decided at this stage without appreciation of evidence to be led by the parties.

Considering the above, more particularly, when the burden of proof of alleged deficiencies lies on the complainant and further there is prima facie evidence to show that OP No.3 has made publication in a Newspaper describing themselves as developer, any order of deletion or striking off the name of OPO No.3 would seriously be prejudicial to the interest of the complainant, who has come before this Forum as a 'Consumer' as defined in Section 2(1)(d) of the Consumer Protection Act.

Consequently, the application filed by OP No.3 being MA/883/2016 is, thus, rejected on contest."

From the above, it is clear that the State Commission has taken a view that the issue of opposite party No.3 being a necessary party or not cannot be decided at this stage. Furthermore, in the light of the examination made above, the question relating to whether Alcove Realty is a logo and whether this is owned by appellant cannot be properly decided without completing the evidence of all the parties and therefore, in my view, the order of the State Commission does not suffer from any illegality or material irregularity.

Based on the above examination, I do not find any merit in the appeal and accordingly the First Appeal No.895 of 2017 is dismissed.