BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

                                                                    Dated this the 28^th of February 2011

PRESENT

                                                     SMT. ASHA SHETTY           :   PRESIDENT

                                                                         SMT.LAVANYA M. RAI       :   MEMBER

                                                                           SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.129/2010

(Admitted on 17.04.2010)

Mr.N.Abdul Hakeem,

So. Mammunhi Beary,

Aged about 41 years,

RA. Nekkarekadu,

Vittal Kasba Village,

Bantwal Taluk.                                 …….. COMPLAINANT

(Advocate for the Complainant: Srii.P.Bhanu Shankar)

          VERSUS

1. AIG Home Finance India Ltd.,

(Formerly known as Weizmann Homes Ltd.)

No.28, IV Floor,

Centenary Building,

M.G. Road,

Bangalore  560 001.

Rep. by its Authorized Officer.

(Advocate for Opposite Party No.1: M/s.Laksha Law Associates).

2. Sheikh Sherief Saheb,

S/o. Late Sabu Saheb,

Aged about 42 years,

Residing at Gumpakallu,

Puttur Kasba Village,

Puttur Taluk.                             ……. OPPOSITE PARTIES

(Opposite Party No.2: Exparte).

                                      ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant purchased non-agricultural immovable property held on warg right and situated at Chikkamudnoor Village of Puttur Taluk  bearing R.S. No.132/9 measuring 0.30 cents northern portion together with all mamool and easementary rights appurtenant thereto and also together with the residential building bearing D.No.1-166 and 1-143A from Opposite Party No.2 by executing a sale deed dated 03.12.2004 before the SRO Puttur bearing document No.BKI 1417/2004-05 for a valid consideration of Rs.11,00,000/-.

It is stated that, after getting the sale deed registered the Complainant has taken the possession of the schedule property and started to reside therein along with his family.  At that time, one person who is not known to the Complainant came to the locality and submitted to the Complainant that, he has purchased the houses situated in the schedule property and requested the Complainant to vacate the house.  Immediately the Complainant has approached the Revenue Inspector and enquired about the location of the said houses.  At that time, the Revenue Inspector has stated that, the houses shown in the sale deed is not situated in the schedule property and the door shown in the sale deed is also different and thereafter the Complainant came to know that, the houses as well as land purchased by the Complainant is not situated in the schedule property and immediately approached the Opposite Party and got issued a notice and requested the Opposite Party to rectify the sale deed but the Opposite Party not cared to reply the same. 

It is further stated that, the Opposite Parties have colluded with each other and induced the Complainant to purchase the schedule property by incorporating false recitals in the registered sale deed purporting the same to be a sale in respect of schedule property.  It is further stated that, the Opposite Parties have played a fraud on the Complainant and misled the Complainant to enter into registered sale deed which purports to get a good title to the Complainant.  By doing so, the Opposite Parties have committed a breach of trust towards the Complainant and Opposite Party also cheated the Complainant.  Because of the above, the Complainant is now residing in the rented house.  The Complainant alleged that, the act of the Opposite Parties amounts to deficiency in service.

And further stated that, the Opposite Party No.1 have issued a demand notice asked the Complainant to pay a sum of Rs.14,31,368.43 within 60 days.  The Complainant in view of the reasons stated above is not liable to pay the aforesaid amount and the Complainant is not a defaulter and stated that, the Complainant is ready to pay the aforesaid amount as mentioned in the notice if the Opposite Party get the registered sale deed rectified and consequently hand over the possession of the schedule property to the Complainant.  Hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to rectify the aforesaid sale deed dated 03.12.2004 and handover the vacant possession of building situated in the schedule property and also claimed Rs.10,00,000/- as compensation and Rs.2,000/- as cost of the notices and proceedings.

2.       Version notice served to the Opposite Parties by RPAD. Opposite Party No.2 despite of serving notice neither appeared nor contested the case till this date.  Hence, we have proceeded exparte as against the Opposite Party No.2.  The acknowledgement placed before the FORA marked as court document No.1.

Opposite Party No.1 appeared through their counsel filed version stated as follows:-

Opposite Party No.2 i.e., Mr.Sheik Sharief Saheb had availed a home loan facility from this Opposite Party by executing an agreement dated 30.11.2004 for the purpose of construction of a residential house bearing door No.1-166 & 1-143A, AS No.32-9A of Chikkamundoor Grama and Village, Puttur, Mangalore.  As security towards the repayment of the said loan the Opposite Party No.2 had mortgaged the aforementioned property in favour of the 1^st Opposite Party.  Thereafter, the 2^nd Opposite Party had defaulted in making the payments despite of number of reminders and the loan account of the Opposite Party No.2 declared as ‘NPA’.   In November 2004, Opposite Party No.2 along with the Complainant had approached this Opposite Party and showed his desire that he intends to close the said loan by selling the said property to the Complainant and the Complainant shall pay the remaining outstanding dues payable by the Opposite Party No.2 to the Opposite Party No.1.  Opposite Party No.1 considered the request of the Opposite Party No.2 and Rs.8,25,000/- was sanctioned in the name of Complainant and one Mrs. B.Fathima for the purchase of aforementioned residential house which was repayable initially in 180 months.  The Opposite Party No.2 had executed a sale deed dated 03.12.2004 in favour of the Complainant in respect of the said property for consideration of Rs.11,00,000/-.  As security towards repayment of the said loan the title deeds of the said property were deposited with the 1^st Opposite Party to create an equitable mortgage.  Thereafter, despite of repeated request and reminders issued by the 1^st Opposite Party, Complainant committed default in repayment of the loan amount and hence issued a demand notice and stated that, the loan facility was terminated and a sum of Rs.14,31,368.43 was due.  And further stated that, the 1^st Opposite Party initiated proceedings under Section 32(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and stated that there is no deficiency and the complaint is not maintainable and prayed for dismissal of the complaint.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the complaint filed by the Complainant is maintainable and whether this FORA has jurisdiction to entertain the complaint?

2. Whether the Complainant proves that the Opposite Parties committed deficiency in service?

3. If so, whether the Complainant is entitled for the reliefs claimed?

4. What order?

4.         In support of the complaint, N.Abdul Hakeem (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.   Ex C1 to C4 were marked for the Complainant as listed in the annexure.   One Sri.B.Jagadish Nayak (RW1), Authorized Representative of the Opposite Party No.1 filed counter affidavit and answered the interrogatories served on him.  Ex R1 to R7 were marked for the Opposite Party No.1 as listed in the annexure.   The Complainant produced notes of arguments.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:                          

                       Point No.(i): Negative.

                       Point No.(ii) to (iv): As per the final order.  

Reasons

5.  Point No. (i) to (iv):

In the instant case, the facts which are admitted is that, the Complainant has purchased the residential building with land mentioned in the complaint from the Opposite Party No.2 by executing a sale deed registered before SRO Puttur on 03.12.2004 in document No.BKI 1417/2004-05 for a valid consideration of Rs.11,00,000/-.  The Opposite Party No.1 is the financier who granted financial assistance to the Complainant to purchase the above said property to the tune of Rs.8,25,000/- by executing a necessary loan documents. 

The allegation of the Complainant is that, after getting the sale deed in his favour, he has taken the possession of the schedule property and started to reside therein.  At that time one person who is not known to the Complainant came to the locality and submitted to the Complainant that he has purchased the houses situated in the schedule property and requested the Complainant to vacate the house.  Thereafter, the Complainant approached the Revenue Inspector and the Revenue Inspector has stated that, the houses shown in the sale deed is not situated in the schedule property and door number shown in the sale deed is also different.  Thereafter, immediately Complainant approached the Opposite Party and issued a notice and contended that the Opposite Parties colluded with each other and induced the Complainant to purchase the schedule property by incorporating false recitals in the registered sale deed purporting the same to be a sale in respect of schedule property and played a fraud on the Complainant and cheated to him.  From the above allegation of the Complainant clearly reveals that, no doubt, the Opposite Party No.2 committed fraud on the Complainant and misled the Complainant to enter into a registered sale deed which purports to get a good title to the Complainant for which the Complainant has to approach a proper authority and not before this FORA under deficiency of service. The subject matter involved in this case is a fraud and cheating by the Opposite Party No.2, hence the complaint filed by the Complainant is not falling within the purview of Consumer Protection Act.  In a case of like this nature, the Complainant has to approach before the appropriate authority to redress his grievances and not under the deficiency. 

In view of the above observation, we hold that the subject matter involved in this case is a fraud and cheating committed by the Opposite Party No.2, hence the above subject matter cannot be dealt within the purview of Consumer Protection Act which requires voluminous evidence and documents.  Therefore, the complaint is dismissed with a liberty to the Complainant to approach the appropriate authority to resolve his controversy involved in this case.  No order as to costs.                                                                                                       

6.       In the result, we pass the following:                          

ORDER

            The complaint is dismissed with a liberty to the Complainant to approach before the appropriate authority to resolve his controversy involved in this case.  No order as to costs.                                                                                   

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record room.

(Page No.1 to 9 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 28^th day of February 2011.)

       PRESIDENT                    MEMBER                              MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – N.Abdul Hakeem – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 03.12.2004: Certified copy of the sale deed.

Ex C2 – 09.03.2010: Lawyer’s notice issued to the Opposite Parties.

Ex C3 –                  : Postal acknowledgement.

Ex C4 –                  : The returned postal cover.

Witnesses examined on behalf of the Opposite Party No.1:

RW1 – Sri.B.Jagadish Nayak (RW1), Authorized Representative of the Opposite Party No.1.

Documents produced on behalf of the Opposite Party No.1:    

Ex R1 –                : Copy of the loan agreement.

Ex R2 – 03.12.2004: Copy of the Sale Deed for Rs.11,00,000/-.

Ex R3 – 12.08.2003: Copy of the sale deed for Rs.8,50,000/-.

Ex R4 – 23.06.2009: Copy of the Recall notice.

Ex R5 – 11.09.2009: Letter of the Opposite Party No.1 to the Complainant and Mrs.B.Fathumma.

Ex R6 – 03.02.2010: Possession Notice of the Opposite Party No.1.

Ex R7 – 26.06.2010: Statement of Account pertaining to the Complainant.

Dated:28.02.2011                            PRESIDENT