KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NOS:380/2010, 388/2010, 140/2010 & 141/2010
COMMON JUDGMENT DATED:30-04-2011
PRESENT:
SMT VALSALA SARANGADHARAN : MEMBER
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
APPEAL NO:380/2010
Relcon Properties Pvt. Ltd.,
1st floor, Pukalakkattu Complex,
Thammanam Road, Kochi-28, : APPELLANT
Repd. by its Managing Director.
(By Adv:M/s Peter & Karunakaran)
Vs.
1. Arjun,
‘Devadatha’, 35/2616 D,
T.D.Sannithi Road,
Karanakodam, Thammanam.P.O,
Kochi-32.
: RESPONDENTS
2. Krishnan,
‘Panchajanyam’,
35/2616 C,
T.D.Sannithi Road,
Karanakodam, Thammanam.P.O,
Kochi-32.
(By Adv:Smt.R.Suja Madhav)
APPEAL NO:388/2010
Relcon Properties Pvt. Ltd.,
1st floor, Pukalakkattu Complex,
Thammanam Road, Kochi-28, : APPELLANT
Repd. by its Managing Director.
(By Adv:M/s Peter & Karunakaran)
Vs.
Arjun,
‘Devadatha’, 35/2616 D,
T.D.Sannithi Road, : RESPONDENT
Karanakodam, Thammanam.P.O,
Kochi-32.
(By Adv:Smt.R.Suja Madhav)
APPEAL NO:140/2010
1. Arjun,
T.D.Sannithi Road,
Thammanam.P.O,
Kochi-32.
: APPELLANTS
2. Krishnan,
–do- -do-
Repd.by power of attorney holder-
K.Sasikumar.
(By Adv:Smt.R.Suja Madhav)
Vs.
Relcon Properties Pvt. Ltd.,
1st floor, Pukalakkattu Complex,
Thammanam Road, Kochi-28, : RESPONDENT
Repd. by its Managing Director.
(By Adv:M/s Peter & Karunakaran)
APPEAL NO:141/2010
1. Arjun,
‘Devadatha’
T.D.Sannithi Road,
Thammanam.P.O, : APPELLANT
Kochi-32. Rep. by power of
Attorney holder-K.Sasikumar
(By Adv:Smt.R.Suja Madhav)
Vs.
Relcon Properties Pvt. Ltd.,
1st floor, Pukalakkattu Complex,
Thammanam Road, Kochi-28, : RESPONDENT
Repd. by its Managing Director.
(By Adv:M/s Peter & Karunakaran)
COMMON JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
The above 4 first appeals are preferred from the common order dated:27/6/2009 of the CDRF, Ernakulam in CC-167/07 and 168/07. Those complaints were preferred against the opposite party, M/s Relcon Properties Private Limited alleging deficiency of service and unfair trade practice on account of the failure to hand over the agreed and assured extent of 4.5 cents of land each for the villas purchased by the complainants in the said consumer complaint Nos.167/07 & 168/07. It was further contended that the complainant in CC.167/07 was given possession of 3.73 cents of land instead of 4.5 cents and that the complainants in CC.168/07 were given possession of land having an extent of 3.60 cents instead of 4.5 cents. Hence the complainants in those complaints prayed to reverse the measurement of the plots or in the alternative to pay compensation of Rs.3,85,000/- and Rs.4.30,000/- respectively to the complainants.
2. The opposite party entered appearance in both the said consumer complaints and filed written version denying the alleged deficiency of service. It was further contended that the complainants are not consumers as defined under Sec.2(1)d of the Consumer Protection Act and that the Forum below has no jurisdiction to entertain the complaints as Civil Court has the jurisdiction to deal with the dispute in those complaints. It was also contended that the complaints are barred by limitation and bad for mis-joinder and non-joinder of necessary parties. It was also contended that 4.5 cents of land would take in the private road adjoining the plots allotted to the complainants. Thus, the opposite party prayed for dismissal of those complaints.
3. Before the Forum below on behalf of the complaints their power of attorney holder was examined as PW1 and a witness on their side was examined as PW2. The authorized officer of the opposite party was examined as DW1. Exts.A1 to A10 and B1 to B5 documents were marked on the side of the parties to CC.167/07. Exts.A1 to A7 were marked on the side of the complainants in CC.168/07. No document was produced from the side of the opposite party in CC.168/07. But the opposite party relied on Extsd.B1 to B5 documents produced in CC.167/07. The Forum below disposed of the said complaints in CC.167/07 and 168/07 by joint trial and treating the complaint in CC.167/07 as the leading case. On an appreciation of the evidence on record, the Forum below passed the impugned order allowing the complaints and thereby directing the opposite party to refund Rs.57,750/- to the complainant in CC.167/07 with interest at the rate of 12% per annum from the date of the complaint till realization and that the opposite party in CC-168/07 was directed to refund Rs.67,500/- to the complainants therein with interest at the rate of 12% per annum from the date of the complaint till realization. The complainant in CC.167/07 is not fully satisfied with the compensation awarded by the Forum below and so he filed the First Appeal .140/10 for enhancement of compensation. The complainants in CC-168/07 are also not fully satisfied with the compensation awarded by the Forum below. Hence the First Appeal.141/2010. The opposite party in the aforesaid CC-167/07 and 168/07 is aggrieved by the impugned order passed by the Forum below. Hence the First Appeals-388/10 and 380/2010 respectively.
4. We heard all the parties in the above 4 first appeals. The appellants/complainants prayed for modification of the impugned order and to grant proportionate amounts in respect of the land development cost which was collected by the opposite party and also requested for awarding cost to the complainants. The learned counsel for the appellants/complainants also relied on the documentary evidence available on record and pointed out the failure on the part of the opposite party, M/s Relcon Properties Private Limited to hand over possession of the agreed extent of land measuring 4.5 cents. On the other hand, the appellants/opposite parties prayed for setting aside the impugned order passed by the Forum below. Learned counsel for the appellants/opposite parties pointed out the admission made by PW1 regarding the liability of the complainant in CC.167/07 to pay Rs.93,945/- to the opposite party, M/s Relcon Properties Private Limited and that the liability of the complainants in CC.168/07 to pay Rs.83,945/- to the opposite party, M/s Relcon Properties Private Limited. He also relied on Ext.A7 memorandum of the settlement entered into between the complainant and the opposite party settling the dispute including the dispute regarding extent of land. Thus, the appellants/opposite parties prayed for setting aside the impugned order passed by the Forum below and for dismissal of the complaints in CC-167/07 and 168/07.
5. For the sake of convenience and for avoiding confusion, the parties to these 4 first appeals will be referred to according to their rank and status before the Forum below (CDRF, Ernakulam) in CC-167/07 and 168/07.
6. There is no dispute that the complainants in CC-167/0-7 and 168/07 entered into sale agreement for purchase of land measuring 4.5 cents (approximately) each and also agreement for construction of villas for the complainants in the said 2 plots. Ext.A4 in CC-167/07 is copy of the deed of agreement for sale entered into between the vendors and the complainant, Arjun.S for sale of approximately 4.5 cents of land. It is true that A4 agreement dated:16th May 2005, the vendors are named as Dr.S.A.Priya, Preetha, Dr.Vasanthi Achuthanandan and the purchaser is shown as the complainant, Arjun.S. The recitals in A4 agreement for sale would make it abundantly clear that M/s Relcon Properties Private Limited had entered into an earlier agreement with those vendors and A4 agreement for sale was executed as instructed and directed by opposite party, M/s Relcon Properties Private Limited. It is further to be noted that A4 agreement is signed by the authorized signatory of M/s Relcon Properties Private Limited as vendors and that the complainant, Arjun has been affixed his signature as purchaser. Ext.A5 agreement for construction of the villa was entered into between the complainant, Arjun.S and the opposite party, M/s Relcon Properties Private Limited. The recitals in A5 agreement would also make it clear that there was an agreement between the complainant and the opposite party for purchase of the plot having an extent of approximately 4.5 cents of land and to build up a villa in the said plot. Ext.A2 is the brochure issued by the opposite party, M/s Relcon Properties Private Limited with respect to their scheme for construction of villa by the name Relcon Midtown Villas, South Janatha Road, Palarivattom. The specification of the plots and villas are given in A2 brochure which was issued by the opposite party, M/s Relcon Properties Private Limited. Another important aspect to be noted at this juncture is the recitals in A5 agreement for construction regarding payment of a total of Rs.23,50,000/- towards consideration being the value of the plot and the cost of construction of the villa in the said plot. It is further to be noted that the total consideration was fixed at Rs.23,50,000/- which would take in the value of the plot as well as cost of the villa and that the entire consideration of Rs.23,50,000/- has to be paid to the opposite party, M/s Relcon Properties Private Limited. Thus, it can be seen that the complainants in CC.167/07 and 168/07 availed the services of the opposite party, M/s Relcon Properties Private Limited for the purpose of the getting possession of the plot with the villa thereon on a consideration of Rs.23,50,000/-.
7. It is the case of the complainants that the opposite party failed in handing over possession of 4.5 cents of land; but instead of 4.5 cents of land, the complainant in CC.167/07 was given into his possession 3.73 cents of land and the complainants in CC.168/07 was given into their possession only 3.60 cents of land. According to the complainants, the opposite party committed deficiency of service and unfair trade practice in rendering services to the complainants. Thus, it can be seen that the complainants have alleged deficiency of service and unfair trade practice on the part of the opposite party in rendering services to the complainants. The documentary evidence available on record would make it abundantly clear that the complainants availed the services of the opposite party on consideration. So, the complaints in CC.167/07 and 168/07 can be treated as maintainable and the complainants can be considered as consumers as defined under sec.2(1)d(ii) of the Consumer Protection Act, 1986. The Forum below has rightly relied on the decision rendered by the Hon’ble Supreme Court in Lucknow Development Authority Vs.M.K.Guptha, AIR 1994 SC 787 and also the decision rendered by the Hon’ble National Commission in Haryana Urban Development Authority Vs. Vaneetha Rai Wadhawan (II 2003 CPJ (1) NC). Whether there was deficiency of service or unfair trade practice on the part of the opposite party, M/s Relcon Properties Private Limited is a matter to be decided on merits. But the complaints filed alleging deficiency of service and unfair trade practice on the part of the opposite party are to be treated as maintainable.
8. The opposite party has also got a case that the complaints are barred by limitation and the same are bad for non joinder and mis-joinder of necessary parties. It is true that the vendors of the landed property are Dr.Vasantha Achuthanandan etc. But the aforesaid vendors had already executed an earlier agreement with M/s Relcon Properties Private Limited and the sale agreement and sale deed were executed on behalf of the opposite party M/s Relcon Properties Private Limited. It is also to be noted that the consideration for the sale was also received by the opposite party M/s Relcon Properties Private Limited. It is the definite case of the complainants that the so called vendors are only name lenders and the transaction in effect entered into between the complainants and the opposite party, M/s Relcon Properties Private Limited. The evidence on record would also support the said case of the complainants. So, the Forum below is justified in holding that the complainants are not bad for non-joinder or mis-joinder of necessary parties.
9. Admittedly, the complainants entered into sale agreement dated:16/5/2005 and agreement for construction was also entered into between the parties during 2005 and the sale deeds were executed on 9/9/2005. The villas were handed over to the complainants on 6/4/2006. It is on getting possession of the villa, the complainants could understand the actual extent of the plot and they could realize the fact that the said plots are not having the extent of 4.5 cents each. So, the cause of action for the complaints in CC.167/07 and 168/07 had arisen after 6/4/2006. It can be seen that the complaints have been filed within one year from the date of the cause of action which had arisen on 6/4/2006. If that be so, it can very safely be concluded that the complaints are not barred by limitation. Thus, the Forum below had the jurisdiction to entertain the complaints in CC.167/07 and 168/07.
10. The case of the complainants is that the opposite party had assured handing over possession of 4.5 cents of land each to the complainants; but the opposite party failed to hand over possession of 4.5 cents each. It is the definite case of the complainants that the complainant in CC.167/07 was given possession of 3.73 cents of land instead of 4.5 cents and that the complainants in CC.168/07 were given into their possession 3.64 cents of land instead of 4.5 cents. Ext.A3 document in CC.167/07 and Ext.A7 document in CC.168/07 would establish the extent of the land in the possession of the complainants.
11. The opposite party, M/s Relcon Properties Private Limited would contend that there was no such assurance that the complainants will be given into their possession 4.5 cents of land each. It is the case of the opposite party that the extent of 4.5 cents was shown as approximate extent of property. The opposite party has also got a case that the total extent of 4.5 cents of land would take in portion of the project road in the project area of M/s Relcon Midtown villas. The opposite party has also relied on the recitals in the sale deed dated:9/9/2005 entered into between the vendors and the complainants/purchasers with respect to the plots. Ext.A6 is copy of the sale deed in favour of the complainant Arjun.S in CC.167/07. The description of the property given in A6 sale deed would make it clear that the extent of 4.5 cents would take in half portion of the project road on the South in Karanakkodam Desom in Punithura Village comprising in survey No.216/5. It is to be borne in mind that A6 sale deed was executed on 9/9/2005. There is no case for the complainants that they entered into sale deed without understanding the recitals and conditions incorporated in the sale deed. The aforesaid recitals in A6 sale deed would make it clear that the complainants are only entitled to get 4.5 cents of land which would take in a portion of the project road. There is no evidence available on record to show the extent of the project road which shall form part of the plot measuring 4.5 cents. Ext.A2 document marked in CC.168/07 is copy of the sale deed in favour of the complainants in CC.168/07. The recitals in the said sale deed would also show that 4.5 cents of land would take in a portion of the project road. The sale agreement and the agreement for construction of the villa would also make it clear that the extent of 4.5 cents of land was shown as approximate extent. There is no agreement or other documents available on record to show that the opposite party had agreed to hand over absolute possession of a plot measuring 4.5 cents. On the other hand, in all documents, the extent of the plot is shown as 4.5 cents approximately. So, there is no meaning or basis in demanding absolute possession of 4.5 cents of land. There was no such agreement to show that the opposite party had assured or offered absolute possession of a plot having an extent of 4.5 cents. But the facts and circumstances of the case would show that there was no such agreement entered into between the complainants and the opposite party, M/s Relcon Properties Private Limited agreeing to hand over possession of plot having an extent of 4.5 cents. So, the alleged deficiency of service and unfair trade practice levelled against the opposite party, M/s Relcon Properties Private Limited cannot be upheld as such.
12. Ext.A7 Memorandum of understanding entered into between the complainants and the opposite party would make it crystal clear that the disputes involved in the present complaint had been amicably settled between the parties by the aforesaid memorandum of understanding dated:23/10/2006. Execution A7 memorandum of understanding is admitted by PW1, the power of attorney holder of the complainants. Ext.A1 is the power of attorney executed by the complainant Arjun.S in CC.167/07 in favour of his father K.Sasikumar. Ext.A1 in CC.168/07 is the power of attorney executed by the complainants therein infavour of their father, K.Sasikumar. The power of attorney holder as PW1 categorically admitted execution of memorandum of understanding by the complainants and the opposite party, M/s Relcon Properties Private Limited. PW1 has got a case that the aforesaid settlement was not with respect to the dispute regarding extent of the land. But the recitals in A7 memorandum of understanding would make it clear that all the disputes among the complainants and the opposite party have been amicably settled. It is made specifically clear that the difference of opinion among the parties including the dispute regarding extent of the land and construction of the villa have been mutually settled and the parties have no further claims with respect to the above transaction and that the memorandum of understanding is entered into between the parties with full consciousness and the said settlement is the full and final settlement of their entire claims. As per the said settlement the parties had also agreed to return the cheque drawn on the Federal bank Limited, Vyttila to the complainants. It is to be borne in mind that the aforesaid memorandum of understanding was executed on 23/10/2006. Therefore, it can be concluded that the disputes involved in these complaints had been settled on 23/10/2006. If that be so, the present claim for refund of the amount or to revise the measurement of the plots cannot be allowed. The Forum below cannot be justified in directing the opposite party to refund Rs.57.750/- to the complainant in CC.167/07 and Rs.67,500/- to the complainants in CC.168/07. In fact, the complaints in CC.167/07 and 168/07 ought to have been dismissed as the disputes involved in those complaints had been settled by the parties vide the memorandum of understanding (settlement) dated:23/10/2006. This State Commission is pleased to interfere with the impugned order dated:27/6/2009 passed by CDRF, Ernakulam in CC.167/07 and CC.168/07 and thereby the impugned common order is set aside and the complaints therein are dismissed. If that be so, the First Appeal No.380/10, 388/10 preferred by the opposite parties are allowed and thereby the impugned common order in CC.167/07 and 168/07 is set aside and the complaints therein are dismissed. The First Appeal Nos.140/10 and 141/10 preferred by the complainants are dismissed. As far as these 4 first appeals are concerned, the parties are directed to suffer their respective costs throughout.
In the result Appeal.380/10 and 388/10 are allowed and the impugned common order dated:27/6/2009 passed by CDRF, Ernakulam in CC.167/07 and 168/07 is set aside. The complaints therein are dismissed. The First appeal Nos.140/10 and 141/10 are dismissed. As far as these 4 appeals are concerned, the parties are directed to suffer their respective costs throughout.
M.V. VISWANATHAN: JUDICIAL MEMBER
VALSALA SARANGADHARAN: MEMBER
VL.
