Tamil Nadu

StateCommission

A/321/2015

Tmt. S. Booma - Complainant(s)

Versus

G.P.R. Builders - Opp.Party(s)

R. Dhamodaran

15 May 2023

ORDER

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble Thiru. Justice R.SUBBIAH ... PRESIDENT

             Thiru.R VENKATESAPERUMAL       … MEMBER

 

F.A. Nos.321 of 2015 & 9 of 2016

 

(Against the Order, dated 22.09.2015, in C.C. No.39 of 2011, on the file of  the DCDRF, Thiruvallur)

                                                    

                             Orders pronounced on: 15.05.2023

 

F.A. No.321 of 2015

 

1.S.Booma,

W/o.T.Sriraman.

 

2.T.V.Sriraman,

S/o.T.V.Seshacharyalu,

Both residing at 1^st Floor,

Plot No.3A, A.P.Arasu Street,

Ram Nagar, Ambattur,

Chennai 600 053.                 … Appellants/Complainants

 

vs.

 

1.M/s.G.P.R.Builders,

Rep. by

  Partners – Ganesan,

K.K.Prasad & R.Ravichandran,

No2, 3^rd Street,

Pari Nagar,

Ambattur, Chennai 600 053.

 

2. K.Ganesan,

S/o.Krishnamurthy,

No.18, Jagadambal Street,

Vijayalakshmipuram,

Ambatuur,

Chennai 600 053.

 

3. Mr.K.K. Prasad,

S/o.Ramachandra Rao,

No.2, 3^rd Street,

Pari Nagar, Ambattur,

Chennai 600 053.

 

4.Mr.R.Ravichandran,

S/o.Rajaraman,

Plot No.37, Rajaji Street,

Vijayalakshmipuram,

Ambattur,

Chennai 600 053.                         … Respondents/OPs

 

F.A. No.9 of 2016:-

 

1.M/s.G.P.R.Builders,

Rep. by its

  Partners – K.Ganesan,

K.K.Prasad & R.Ravichandran,

No.3, A.P. Arasu Street,

Ram Nagar,

Ambattur, Chennai 600 053.

 

2. K.Ganesan,

S/o.Krishnamurthy,

No.18, Jagadambal Street,

Vijayalakshmipuram,

Ambattur,

Chennai 600 053.

 

3. K.K. Prasad,

S/o.Ramachandra Rao,

No.2, 3^rd Street,

Pari Nagar, Ambattur,

Chennai 600 053.

 

4.R.Ravichandran,

S/o.Rajaraman,

Plot No.37,

Rajaji Street,

Vijayalakshmipuram,

Ambattur,

Chennai 600 053.                         … Appellants/OPs

 

Vs.

 

1.S.Booma,

W/o.T.Sriraman.

 

2.T.V.Sriraman,

S/o.T.V.Seshacharyalu,

Both residing at 1^st Floor,

Plot No.3A,

A.P.Arasu Street,

Ram Nagar,

Ambattur,

Chennai 600 053.                 … Respondents/Complainants

 

             For Appellants in F.A.321/15

  & Respondents in FA.9/16: M/s.R.Dhamodharan

For Appellants in FA.9/16

   & Respondents in FA.321/15: M/s.R.Ramprakash

 

These First Appeals came up for final hearing on 10.11.2022 and, after hearing the arguments of the counsels for the parties and perusing the materials on record and having stood over for consideration till this day, this Commission passes the following:-

COMMON ODRER

R.Subbiah, J. – President.

             Both the above appeals arise out of the order, dated 22.09.2015, passed by the DCDRF, Tiruvallur, in C.C. No.39 of 2011 which was filed by the present appellants in F.A. No.321 of 2015 as against the OPs therein, who are the present appellants in F.A. No.9 of 2016, seeking the District Forum to direct the OPs to complete certain works as mentioned therein, to do necessary corrections in the property documents relating to the complainants  duly mentioning the appropriate divided share of land and making the complainants’ property free from any encumbrance, and to pay a total sum of Rs.13 lakh which was sought under three different heads viz., service deficiency, mental agony and unfair trade practice, besides costs of the complaint. 

             Since both the appeals are interconnected and the points & issues involved are also common, they are given disposal by this common order.

            

             2. The controversy involved in these appeals lies in a very narrow compass and hence, it is unnecessary to elaborate the entire facts except those that are relevant for our discussion.

             The OPs/Promoters undertook a construction project in Plot No.3 measuring an extent of 3173 sq. ft. in R.S. No.27/3, A.P. Arasu Street, Oragadam Village, Ambattur Taluk, Tiruvallur District, to construct 8 flats in 2 Blocks, of which, Block-A was said to be for double bedroom flats in the ground and first floors, each with 550 sq. ft. of undivided share while Block-B was for single bedroom flats at the ground and first floors each with 250 sq. ft. of UDS.  By urging the complainants to take 2 flats in the first floor of A Block, OPs-2 to 4 promised them that they would change the Plan so as to join 2 flats in the 1^st floor of the said Block and convert it into a 3 bed room flat and thereupon, the complainants had entered into a construction agreement with the 1^st OP represented by the other OPs on 22.04.2005 for the purchase of  971 sq. ft. of undivided share out of 3173 sq. ft. and a flat in the 1^st floor having a plinth area of 1690 sq. ft. for a total cost of Rs.14,25,000/-.  The complainants took the housing loan for a sum of Rs.13.50 lakh from the ICICI Bank to meet the payment. While so, in the first week of July, 2005, OPs-2 to 4 told the complainants that they had to sign certain documents in the Sub Registrar Office, Ambattur, as required by the ICICI in connection with the housing loan and, without even knowing the contents of the documents, the complainants signed the same by trusting OPs-2 to 4, who had surreptitiously sub-divided Plot No.3 into two plots as 3A and 3B without duly apprising the complainants, vide rectification deed, dated 18.07.2005.  Despite repeated requests, the documents pertaining to the same were not supplied even after lapse of one year period.  Before the construction was complete in all aspects, the OPs urged the complainants to move to their flat in June 2007 without even a formal hand-over letter.  It is only at a later point of time, the complainants learnt that by doing sub-division, the OPs fraudulently reduced the total extent of land conveyed to the complainants to 971 sq. ft. instead of 1017 sq. ft.  Similarly, it was also learnt that, after execution of the sale deed in favour of the complainants on 22.04.2005, suppressing the said factum, in the applications submitted for building plan, permit, etc.,  before the Municipal Authorities, by representing themselves as the power agents of the owner of the site, OPs-2 to 4 had put their signatures and thereby, fraudulently obtained the building plan which is illegal and such dishonest act of the OPs  caused great mental agony to the complainants. Further, they failed to carry out all the works as per the construction agreement and, in that regard, the complainants had sent a letter to OP No.3 on 17.01.2008.  For the legal notice issued by the OPs on 22.02.2008, the complainants issued a reply through their counsel detailing the pending/defective works, etc.  The 1^st complainant also filed a private complaint, whereupon, a police case was registered which resulted in the proceedings before the JM Court, Ambattur, in C.C. No.477 of 2008 and trial of the said case is in progress.  As the OPs committed service deficiency and adopted unfair trade practice by not handing over the flat formally, not finishing various works, not handing over the building plan, not transferring the EB card and not handing over the completion report, the complaint was filed before the District Forum for the reliefs, as mentioned supra.

             The OPs resisted the complaint by stating inter alia that they never urged the complainants to take two flats in the first floor of Block-A with 971 sq. ft. of the undivided share; that no promise was ever made to change the plan so as to join two flats in the first floor of Block-A and convert the same into a 3 bedroom flat; that the complainants, who are well educated, only after being satisfied with the contents of the documents which they had duly scrutinized, had entered into the agreement for the purchase of the undivided share of 971 sq. ft. out of 3173 sq. ft. and agreed to purchase the property; that it was the complainants who availed the housing loan from the Bank that had verified the entire documents before sanctioning the loan and the sums were disbursed by the bank upon verifying each and every stage of construction; that the sub-division was done only at the request and consent of the complainants; that the complainants are entitled to 971 sq. ft. alone and hence, they cannot claim anything more than that; that the claim of the complainant that the OPs had undertaken to construct a compound wall between the sub-divided properties, to provide a borewell and motor for each block, etc. is a falsehood; that, while other flat owners came forward to  receive the formal completion report on the fixed date, the complainants wantonly failed to turn up; and that, in order to escape payment of dues, a false complaint was lodged by the complainants before the JM, Ambattur; and, by denying all other allegations, the OPs sought for dismissal of the complaint.

       In order to substantiate the claim and counter-claim, both sides filed their respective proof affidavits and while on the side of the complainant, 11 documents were filed as Exs.A1 to A11, no document was filed by the OPs. The Report of the Advocate Commissioner and that of the Engineer were marked as Exs.C1 & C2 respectively.

     The District Forum, by the impugned order, dated 22.09.2015, held on the basis of Exs.C1 and C2 that the construction carried out by the OPs is not at all on par with the construction agreement and consequently, allowed the complaint in part, in the following terms:-

               “ In the result, this complaint is allowed in part.  Accordingly, the opposite parties are jointly and severally directed to rectify the inner defects in kitchen Area, Bed rooms and outer defects viz. To provide separate Bore well for plot No.3-A, To finish properly the Rain water harvesting pipe line and to rectify the projection of First Floor Roof slab of the plot No.3-B  upto 1 ft. into the Plot No.3-A as mentioned in the ExC2 (Engineer’s Report) within one month from the date of receipt of the copy of this order, failing which, the opposite party is directed to pay Rs.2,00,000/- (Rupees two lakhs only) and to pay a sum of Rs.25,000/- (Rupees twenty five thousand only) towards compensation for deficiency in service and caused mental agony etc., and Rs.5,000/- (Rupees five thousand only) towards cost. “

 

             3.  Aggrieved by the above direction, the OPs have filed F.A. No.9 of 2016 and, dissatisfied with the award on the ground that the District Forum ought to have granted the relief sought for by them in its entirely, the complainants have preferred F.A. No.321 of 2015.

             For the sake of clarity, the parties are hereinafter referred to as per their respective rankings before the District Forum.

 

             4. Heard the submissions of the counsels appearing for the parties.

             It is the arguments of the complainants that the instances of service deficiency, dishonest acts and unfair trade practice on the part of the OP are numerous, in that, with a promise to the complainants to convert the flat in question into a 3 bed-room type accommodation,  after execution of the construction agreement/sale deed, they surreptitiously sub-divided the plot into two parts so that the complainants could get only a reduced extent of 971 sq. ft. instead of 1017 sq. ft. which is the actual extent that should have been made available to them; that, after executing the sale deed in favour of the complainants, they misrepresented themselves as the power agents of the complainants before the Municipal Authorities for obtaining the plan approval and permission, as such, the approval obtained by the OPs, who are not the authorized persons to sign the relevant Applications & Forms, is rendered illegal; and that many works slotted for completion in the construction agreement were not carried out.  However, the District Forum despite acting upon the reports of the Advocate Commissioner and that of the Engineer marked as Exs.C1 and C2 which revealed apparent lapses, defects and shortcomings on the part of the OPs in carrying out the construction, ultimately deviated itself by straitening the relief sought for by the complainants with an exiguous award that does not serve the interest of justice having regard to the  proved case & claim of the complainants and hence, absolute interference is called for by allowing their appeal and granting the entire relief as sought for in the complaint.  

             Per contra, it is the contention of the OPs that if the cause of action is traceable to the Construction Agreement, dated 22.04.2005 or to the date of occupation of the flat by the complainant during June 2007 or even to the letter of the complainants to the OPs dated 17.01.2008 or to the contingency specifically recited in the construction agreement, dated 22.04.2005, to the effect that the complainants shall make the objections within 7 days on completion of every portion of the work to enable on the spot verification of the work, in all the above instances, the limitation period of 2 years had already got lapsed for the complaint which was filed only on 13.11.2011; as such, the complaint is clearly hit by limitation.

            When the complainants lodged a criminal complaint, the police refused to entertain the same and it was at the court’s direction, an FIR was registered culminating in the proceedings before the JM, Ambattur, in C.C. No.477 of 2008, wherein, the court acquitted the OPs of all the charges by its judgment dated 16.04.2014 and the appeal filed by the complainants against the said judgment was also dismissed by the I Additional Sessions Court, Tiruvallore, in Cr. Appeal No.48 of 2015, vide judgment dated 23.01.2017, against which, no revision has been filed by the complainants.

             Further, the permit & plan approval from the Municipal Authorities were obtained by the OPs only in the capacity as power of attorney of the complainants and that being so, the allegation of misrepresentation and fraud is an absolute falsehood.  Also, the sub-division was done only upon the request and consent of the complainants.   In fact, all the works as mentioned in the agreement were carried out and whatever the alleged defects noted in the reports under Exs.C1 and C2 were obviously outside the scope of the construction agreement, however, without appreciating those vital aspects, the lower forum factually erred in concluding against the OPs on the strength of the Exs.C1 and C2, which are totally irrelevant to the case, and unjustly fastened the liability and hence, the impugned order warrants interference of this Commission by allowing their appeal.

             From a reading of the averments in the complaint as well as the version of the other side, one can easily come to a conclusion that the whole issue involved is only a civil dispute between the parties and it absolutely lacks the trait of a consumer dispute.  Whether any promise was made by the OPs to the complainants for changing the Plan to convert the flat in question into a 3 bedroom accommodation; whether the sub-division was made with or without the knowledge of the complainants; whether there was any reduction in the extent of the UDS, etc. are all disputed questions of fact which cannot be decided in the present course of summary proceedings.  A perusal of the construction agreement, in particular, Schedule-B thereof shows that the undivided share is for an extent of 971 sq. ft. and Schedule-C only gives the description of the location in the first floor as an area of 1690 sq. ft. including one half part depth of the joints between the floor of the dwelling units above it and the internal and external walls between such levels and areas reserved for common usage with the building.   That is why the District Forum itself has concluded that in respect of sub-division, it cannot decide the issue.  Having concluded so, it deviated itself by too much harping upon Exs.C1 and C2 to hold that the OPs have not disputed the defects noted, completely oblivious to the specific objections of the OPs in CMP No.3 of 2013 against the said reports and their stand that the said defects cannot be correlated to the construction agreement.  In our view, the impugned direction issued by the District Forum to rectify the defects and in default to pay the award amount is absolutely incorrect in the given circumstances and the highly disputed set of facts.  In a case of this nature, the parties should have been relegated to raise their claim and grievance before the Civil Court where, apart from filing exhaustive documentary evidence, they can adduce oral evidence with an opportunity to cross-examine the other side, which exercise cannot be undertaken in the summary proceedings.  Inasmuch as the impugned direction is wholly unsustainable both on facts and in law, we have no hesitation to set aside the same by allowing F.A. No.9 of 2016 filed by the OPs and by dismissing the appeal filed by the complainants, in F.A. No.321 of 2015.

 

             5. In the result, F.A. No.321 of 2015 stands dismissed and F.A. No.9 of 2016 is allowed, by setting aside the impugned order, dated 22.09.2015, passed by the DCDRF, Thiruvallur, in C.C. No.39 of 2011.  No costs.

            

    

R VENKATESAPERUMAL                                                                                                                          R.SUBBIAH, J.

MEMBER                                                                                                                                                            PRESIDENT.

 

ISM/TNSCDRC/Chennai/Orders/FEBRUARY/2023.