Tamil Nadu

North Chennai

210/2013

K.R.Gopinathan Nair,plot no.47,Brindavan nagar - Complainant(s)

Versus

C.Rajendran,The Managing Director, - Opp.Party(s)

G.Gopalakrishnan

16 Aug 2016

ORDER

 

                                                            Complaint presented on:  30.10.2013

                                                                Order pronounced on:  24.08.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

WEDNESDAY THE 24^th    DAY OF AUGUST 2016

 

C.C.NO.210/2013

 

 

 

K.R.Gopinathan Nair,

Plot No.47 Brindavan Nagar,

Madambakkam, Chennai – 600 126.

 

                                                                                    ….. Complainant

 

..Vs..

1. C.Rajendran,

The Managing Director,

Sarala Housing (P) Ltd.,

No.1/8, 1^st  Floor, Welcome Colony,

Thirumangalam, Anna Nagar West,

Chennai – 600 101.

 

2. C.Rajendran,

The Managing Director,

Sarala Housing (p) Ltd.,

No.273, 58 C, 1^st Floor,

Z-Block, 5^th Avenue,

Anna Nagar,

Chennai – 600 040.

.....Opposite Parties

Date of complaint                                 : 30.10.2013

Counsel for Complainant                      : G.Gopalakrishnan

Counsel for opposite parties                     : Mr.H.Adaikal Arockiaraj

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

           The Complainant after seeing various advertisement and lay outs shown by the Opposite Parties, the Complainant  paid a sum of Rs.32,46,000/- during the period 21.08.2007 to 19.02.2010 towards the sale consideration for the purchase of the plot Nos.77,78,94,95 & 96 in Sri Balaji Nagar, Kattubakkam Village, Arakonam Taluk, Vellore District, Plot Nos.7 and 8 in Dollar country, Kovikuppam Village, Tiruvallur District and Plot Nos. 519,520,521 & 522, in Kuberan Nagar, Ammanoor Village, Arakonam Taluk, Vellore District to the Opposite Party and the receipt of the amount was also acknowledged by the Opposite Party. The Opposite Party has also executed an agreement on 21.08.2010 and he has also promised to execute the sale deed for all the lands and register the same within 20 days from the date of receipt of the amount. However the Opposite Party did not register the land in favour of the Complainant even after receiving the full payment. The Opposite Party again executed a fresh agreement in favour of the Complainant that he will execute the sale deed in his favour  and also admitted the receipt of Rs.32,46,000/- in the said agreement. Again the Opposite Party did not execute the sale deed as agreed and the act of the Opposite Party is an unfair trade practice and also Deficiency in Service. Thereafter the Opposite Party issued cheque for the value of Rs.40,00,000/- in favour of the Complainant for refunding the amount and failed to register the land. All the cheques were returned by the bank on the instruction given by the Opposite Party for stop payment. Hence the Complainant gave a police Complaint to the Commissioner of Police, Egmore on 29.09.2011. Due to the intervention of the police and also issuance of the legal notice, the Opposite Party agreed to pay a sum of Rs.34,06,800/- and issued six cheques for the said amount. Out of them five cheques were encashed for a sum of Rs.27,95,000/- including cash on hand received a sum of Rs.2,95,000/-. The last cheques dated 12.06.2012 drawn for a sum of Rs.6,11,800/- was returned  for insufficient fund. Hence the Opposite Party is liable to pay the balance a sum of Rs.6,11,800/- to the Complainant and thereby the Opposite Party has committed Deficiency in Service without registering the land as promised. Hence the Complainant filed this Complaint to pay to him a sum of Rs.6,11,800/- and also compensation for mental agony with cost of the Complaint.

2. WRITTEN VERSION OF THE  OPPOSITE PARTIES IN BRIEF:

The Opposite Parties agreed to sell the plots situated in Vellore and Thiruvalluvar District to the Complainant. The Complainant can work out his remedy only in the Civil Court by filing a suit for specific performance.  As the property is situated at Vellore District and Thiruvalluvar District this Forum has no jurisdiction to entertain the Complaint. The Opposite Party is a Real Estate Dealer. He is involved in the business of buying and selling of the lands. The Complainant met the Opposite Party in the year 2007 for purchasing of plots and purchased 5 grounds of lands in Thiruvellore and Arakonnam in the year 2007 and 2008 by making payments on installments. The Complainant wanted to purchase another 6 plots of lands from the Opposite Party in two places and made part payments during 21.08.07 and 19.02.10 and receipts for the payments were properly issued by the Opposite Party and the same were received and acknowledged by the Complainant. A sum of Rs.1,69,000/- was due to be paid by the Complainant to the Opposite Party towards full and final sale consideration of the said 11 grounds of lands. The Complainant met the Opposite Party and wanted a letter for the receipt of Rs.32,46,000/- and obtained his signature in the hand written letter by the Complainant. On the same day, another agreement containing the same contents were typed in the letter pad of the Opposite Party and the signature of the Opposite Party was obtained by the Complainant. The Opposite Party had signed in those documents as the Complainant told him that, those letter were required for submitting his income tax returns. The Complainant insisted for issuance of cheques as guarantee and hence the Opposite Party issued three blank signed cheques. The above said cheques which were obtained as security were misused by the Complainant and hence the Opposite Party was forced to give stop payment for the same. The Complainant before issuing legal notice for the dishonour of the cheques, preferred a Complaint before the commissioner of police and by exercising undue influence obtained six post dated cheques from the Opposite Party for the said amount of Rs.32,46,800/- and out of 6 cheques issued by the Opposite Party 5 cheques were honoured and the Complainant had received a total sum of Rs.27,95,000/- After the issuance of the said six cheques to the Complainant due to the intervention of the police on the Complaint given to the commissioner of police by the Complainant on 29.09.2011, the Opposite Party  made cash payment of Rs.12,95,000/- to the Complainant from 12.10.2011 to 12.12.2011. Thus he had paid Rs.27,95,000/- through five cheques which is clearly admitted by the Complainant through his legal notice. During his cross examination as PW-1, in the criminal case, (CC.No.175/2012 pending before the Hon’ble Fast Track Court, Alandur) the Complainant had clearly admitted that, he had also received cash payment of Rs.12,95,000/- from the Opposite Party on various dates and the cash receipts duly signed by the Complainant. The Opposite Party had so far paid a total sum of Rs.40,90,000/- whereas the liability to the Complainant as per the Complaint is only Rs.32,46,000/- and hence the Opposite Party is not liable to pay anymore amount to the Complainant. As the Complainant has purchased the plots with an intention to make profit out of the same and hence the above Complaint is not maintainable and the same is liable to be dismissed.

3. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complainant is entitled to any relief? If so to what relief?

4. POINT NO :1

          It is an admitted fact that the Opposite Parties is a real estate dealer and they were involved in the  business of buying and selling of lands  and the Complainant paid a sum of Rs.32,46,000/- during the period 21.08.2007 to 19.02.2010 towards the sale consideration for the purchase of 5 plots  at Sri Balaji  Nagar, Kattupakkam Village Arakonnam, 2 plots   at Kovikuppam, Thiruvalluvar District and another 4 plots at Kuberran Nagar, Arakonnam Taluk,  and in furtherance of sale to execute sale deeds the Complainant and Opposite Parties entered Ex.A1 agreement and since he had executed sale deed, another Ex.A2  agreement was entered between them even after that the Opposite Parties did not execute the sale deed he issued Ex.A4 post dated 3 cheques to return the amount and the said cheques returned by the bank with return memo which is marked as Ex.A5  and thereafter the Complainant preferred Ex.A6  Complaint dated 29.09.2011 to the Commissioner of Police  and  some of cheques were encashed by the Complainant.

          5. The Complainant alleged that Ex.A8 cheque for Rs.6,11,800/- was returned by the bank  due to insufficient of funds  under Ex.A9 memo and hence the Opposite Parties committed Deficiency in Service and unfair trade practice.

          6. The Opposite Parties would contend that they have not committed any Deficiency in Service, further the Complainant had purchased the plot with an intention to make profit out of the same by way of resale and therefore he cannot be considered as a Consumer and further in pursuance of agreement the Complainant has to approach only a Civil Court by filing specific performance suit and further this Forum has no jurisdiction to entertain the Complaint and prays to dismiss the Complaint.

          7. Admittedly the properties situated outside the jurisdiction of the Forum. However the Opposite Parties are carrying on business and having office within the jurisdiction of this Forum. Therefore this Forum has jurisdiction to entertain this Complaint.

          8. Both the parties admits that the Complainant paid  the amount to the Opposite Parties  for the purchase of 11 plots  at various places.  The reason for purchasing the plot by the Complainant has not been pleaded either in the Complaint or in his proof affidavit.  The Opposite Parties specifically stated in the written version that the Complainant has purchased the plots with an intention to make profits out of the same. This fact was not denied by the Complainant. Further the Complainant purchasing 11 plots irresistibly proves that only for resale and to make profit. Therefore the Complainant making profit by way of resale is only a commercial transaction and he cannot be considered as a Consumer.

9. The Opposite Parties filed Ex.B2 to Ex.B5 vouchers for repayment of amount of Rs.12,95,000/- to the Complainant. The Complainant himself pleaded in his Complaint that a sum of Rs.6,11,800/- cheque only returned and he received the other amounts from the Opposite Parties. The Complainant filed this Complaint for the Deficiency committed by the Opposite Parties only in respect of the above said sum of Rs.6,11,800/- has not been repaid to him. Since the Complainant purchased the plots only to make out a profit by way of resale, the return of cheque Ex.A8 cannot be considered as Deficiency in Service and in respect of the same he wants to work out his remedy he has to approach only the Civil Court, by adducing elaborate evidence. Therefore we hold that considering the facts and circumstances of the case the Opposite Parties have not any Deficiency in Service.       

10. POINT NO :2

In point No.1, it is decided that only by way of filing a Civil Suit and adducing elaborate evidence and documents, the case can be decided and in view such conclusion the Complainant can be given liberty to file a Civil Suit with same set of cause of action and to work out his remedy if any and this Complaint is liable to be dismissed without cost.

In the result the Complaint is dismissed with liberty to the Complainant to file a Civil Suit with same set of cause of action within two months from the date of this order to work out his remedy in the manner known to law. There will be no order as to costs.     

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 24^th   day of August 2016.

 

MEMBER – II                                                               PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 21.08.2010                   Agreement between Complainant & Accused

                           

Ex.A2 dated 25.05.2011                   Agreement between Complainant & Accused     

 

Ex.A3 dated 29.07.2011                   Letter issued by the Complainant to the Accused

Ex.A4 dated 10.08.2011                   Previous Post Dated 3 cheques

Ex.A5 dated 20.09.2011                   Return Memo for dishonoured 3 cheques

Ex.A6 dated 29.09.2011                   Police Complaint against the Accused

Ex.A7 dated 03.10.2011                   Legal Notice by Complainant to Accused

Ex.A8 dated 12.06.2012                   Cheque bearing No.734373 for Rs.6,11,800/-

Ex.A9 dated 04.08.2012                   Return Memo Report for item No.8

Ex.A10 dated 16.08.2012                 Legal Notice by Complainant to the Accused

Ex.A11 dated 21.08.2012                 Acknowledgement card from the Accused

Ex.A12 dated NIL                             Copy of the Criminal Complaint U/s.138N.I.Act

Ex.A13 dated 12.10.2011                 Letter sent to the Complainant

Ex.A14 dated 17.11.2011                 Mutually agreed to settle the mater

Ex.A15 dated 12.10.2011                 Sarala Housing (P) Ltd (Voucher)

Ex.A16 dated 12.10.2011                 Sarala Housing (P) Ltd (Voucher)

Ex.A17 dated 19.11.2011                 Sarala Housing (P) Ltd (Voucher)

Ex.A18 dated 12.12.2011                 Sarala Housing (P) Ltd (Voucher)

Ex.A19 dated 13.12.2013                 Statement Account

 

 

LIST OF DOCUMENTS FILED BY THE  OPPOSITE PARTY :

Ex.B1 dated 16.08.2012                   Photo copy of the Legal Notice issued by

                                               Complainant to the Opposite Party

 

Ex.B2 dated 12.10.2011                   Payment voucher towards payment of

                                               Rs.1,95,000/- made by Opposite Party to the

                                               Complainant

 

Ex.B3 dated 12.10.2011                   Payment voucher towards payment of

                                               Rs.5,00,000/- made by Opposite Party to the

                                               Complainant

 

Ex.B4 dated 19.11.2011                   Payment voucher towards payment of

                                                Rs.3,00,000/- made by Opposite Party to the

                                                Complainant

 

Ex.B5 dated 12.12.2011                   Payment voucher towards payment of

                                               Rs.3,00,000/- made by Opposite Party to the

                                               Complainant

 

 

 

 

MEMBER – II                                                               PRESIDENT