Tamil Nadu

South Chennai

CC/155/2005

Vasanth Apartments C Block - Complainant(s)

Versus

M.S.Rajamanickam - Opp.Party(s)

C.Regurajan

05 Dec 2017

ORDER

                                                                        Date of Filing :   21.12.2004

                                                                        Date of Order :   05.12.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

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

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

 

C.C.NO.155/2005

TUESDAY THIS 5^th  DAY OF DECEMBER 2017

Vasanth Apartments C-Block,

Owners Association

(Regn.No.160/2003),

No.10, Maduraisamy Madam Street,

Perambur, Chennai 600 011.

Rep. by its President,

S.Arunachalam.                                                      Complainant

 

                                        Vs

 

Mr. M.S.Rajamanickam,

Proprietor,

Vasanth Builders,

No.40, C.P. Ramasamy Salai,

Alwarpet,

Chennai 600 018.                                           Opposite party

 

Counsel for Complainant              :   M/s. S. Selvaraj         

Counsel for opposite party           :   M/s. K.R.Neelambar     

 

ORDER

THIRU. M. MONY, PRESIDENT

 

This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act 1986 seeking direction to demarcate the total area of Rs.15,850 sq. ft. of Block “c” as per the approved plan sold by the opposite party to the members of the complainant association or to pay an amountequivalent the cost of the deficit area, if any with interest and also to pay a sum of Rs.1,00,000/- as compensation for hardship and financial loss and to pay cost of the complaint.

1. The averment of the complaint in brief are as follows:

         The complainants submit that the member of the complainant’s association purchased the flats from the opposite party individually at different points of time especially while the scheme of Vasanth Apartments “C” block was an ongoing project.   Thus a portion of land measuring 15,850 sq. ft. next to the existing building of Block B shown in the schedule B of the sale deed was said to be taken up for construction and development of  flats as “C block apartment.     From the said 15,850 sq. ft.  of land undivided share of different portions of lands were sold by the builder.  As per the agreement for supervision and management services it is stated that the purchaser members of the association offered to engage the services of the engineer for a payment of Rs.30,000/-.    The complainant further submit that even after the entire payment of the cost of flats was received by the builder he failed to complete the construction as per the plan approved by the CMDA.    As far as the present case is concerned it is pertaining to the deficiency of service with regard to the failure on the part of the builder to demarcate ascertain and ensure as to the 15,850 sq. ft.  of the total area of the C block as per the approved plan.   Inspite of repeated requests, letters, and reminders the opposite party did not cure the deficiency by physically measuring and demarcating our area of 15,850 sq. ft. which he received an amount at the rate of Rs.810 per sq. ft.    Accordingly the complainant to issue legal notice to the opposite party  for which the opposite party sent a reply dated 7.3.2004 by which evasive reply given.      As such the act of  the opposite party amounts to deficiency in service which caused mental agony and hardship to the complainant.  Hence this complaint is filed.

2.    The brief averments in the Written Version filed by the opposite party are  as follows:

      The opposite party deny each and every allegations except those that are specifically admitted herein.   The opposite party state that  there is no privity of contract as between the complainant and the opposite party, the complainant is not a consumer as defined in section 2 (d) of the Consumer Protection Act, 1986.   The complaint is thus not maintainable in law and on facts and is liable to be dismissed in limini.   The opposite party submit that the flat owners in Vasanth apartments C block had purchased undivided share in the land which they constructed for themselves the flats from the owners of the said land who had appointed the opposite party herein as their power of attorney.   This opposite party had never at any point of time any interest in the said land.   There is no privity of contract as between the flat owners in Vasanth Apartments C block and the opposite party  herein in relation to the sale of undivided share in the land.    The complaint is based upon the transaction  relating to sale of immovable property which is neither sale of goods nor rendering of services.  The complaint is thus not maintainable in law and on facts before this forum.  Hence there is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed.

3.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A17 marked.  Proof affidavit of opposite party filed and no documents marked on the side of the  opposite party and also Ex.C1 marked. 

4.   The points for the consideration is: 

1.  Whether the opposite party is liable to demarcate the total area of 15,850 sq. ft. of block C as per the approved plan sold by the opposite party to the members of the complainant association or to pay an amount equivalent the cost of the deficit area if any with interest as prayed for ?

2. Whether the complainant is entitled to a sum of Rs.1,00,000/- as compensation for mental agony with cost as prayed for?

 

5. POINTS 1 & 2:

          Heard both parties.  Perused the records (viz) complaint, written version, proof affidavit and documents etc.    The contention of the complainant is that the member of the complainant’s association purchased the flats from the opposite party individually at different points of time especially while the scheme of Vasanth Apartments “C” block was an ongoing project and the constructions were partly completed.   But on a careful perusal of the document and proof affidavit it is very clear that the opposite party is a power of attorney of the owners of the land and the complainant purchased the undivided share from the owners and entered into the agreement of construction with the specific Clause 12 & 13 agreement  that

12. As the owner of the building materials the client shall insure the building materials against fire, theft etc.

13.  The Engineer / Manager is having a collective responsibility of organizing the construction of the composite scheme of flats, the client shall not dispense with the services of the Engineer / Manager order any circumstances.

Further the learned counsel for the complainant contended that Mr. M.S. Rajamanickam is the husband while Mrs. Vasantha Rajamanickam. The opposite party by changing their identity as wife is the owner of “Vasanth Builders” and Mr. Rajamanickam acting by various documents as Power of Attorney and Engineer, Supervisor etc. in order to get escape from legal liability and the Consumer Protection Act.   But admittedly the complainant purchased the undivided share individually from owner of the property.  Further the contention of the complainant is that the opposite party Mr. Rajamanickam alone got the approval for all the flats viz 32 and without approval he increased the flats into 35.    Further the learned counsel for the complainant contended that for “c” block construction land measuring 15850 sq. ft.  has been taken up next to the existing building B Block.   Further the contention of the complainant is that the opposite party obtained plan permission before selling and registered the property similarly some apartments were sold specific rights alone.  But admittedly the complainant purchased the undivided share of the property duly approved by the CMDA for construction of A, B, and C blocks collectively.  Further the contention of the complainant is that Advocate Commissioner has been appointed to find out the area available with the “C” block.   A, C blocks after measures areas filed his report stating that only 13,690 sq. ft. is alone available there is a shortage of 2160 sq. ft.   But Advocate Commissioner has not taken steps to measure B & C Block in order to find out the total area as per CMDA approval.   Equally the Advocate Commissioner has not taken any steps to find out the deficit area.   But on a careful perusal of objection filed by the opposite party the Advocate commissioner  failed to measure the pathway for “c” block and total area for A, B, and C Block.  If the Advocate Commissioner would have measure total area of A, B, C block including common path way the meager extent of 2100 sq. ft. will tally.    Further the contention of the complainant is that as per Ex.A14 & Ex.A15 extract of the Town Survey Land Register no measurement taken and extent not find out.  The complainant is claiming the cost of 1527.62 sq. ft. at the rate of 810/- with interest.  But the complainant has miserably failed to measure all A, B, and C Blocks  with Town Survey Land Register.

        The learned counsel for the opposite party contended that the undivided share of the property has been sold by the land owner through the opposite party as a power of agent.  The sale consideration is also received by the land owner in their respective names directly through account payee.   The complainant without impleading the land owner filed this case is fatal.    The land owners alone have to demarcate area of undivided share to A, B. and C block.   The opposite party is only a builder and had entered into an agreement with the purchasers of the building for construction  of flats.  The opposite party have nothing to do with the belongs regarding the undivided share.  The Advocate Commissioner appointed to measure the property and demarcate the property and filed his report.   Admittedly all A, B, C blocks were constructed as per the CMDA approved plan.   There is no necessity to demarcate  the “C” block undivided share.    The allegation of deficit area in “C” block cannot be accepted because of the A, B, C blocks jointly having measurement.   Further it is apparently to note that the Commissioner has omitted to measure and include a part of land being pathway from Maduraisamy Madam Street to the “C” block  which is conveyed to the complainants.   If all the three blocks were measure there shall be  no deficit area since all the three blocks adjusted to each other.  There is no provision to separate out only “C” block alone.   Further the contention of the opposite party is that the construction of  building Block “C” was started on 3.9.2000 and completed on 31.1.2002and this complaint was filed on 16.5.2005 after three years of handing over of the flats.   Hence the case is barred by limitation.  Further the contention of the opposite party is that adjacent to A,B, and C blocks there are 4 building belongs to Akshaya Apartments was constructed.  The complainant without measuring the entire area claiming compensation amount is wrongful enrichment.    Further the contention of the opposite party is that demarcate recovery of compensation deserves detailed elaborate evidence both orally and documentary evidence is required by way of summary trial it cannot be decided.     Considering the facts and circumstances of the case this forum is of the considered view that the complainant is not entitled for any relief as prayed for in the complaint and the points 1 & 2 are answered accordingly.

        In the result, the complaint is dismissed.No cost.  

  Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 5^th day  of  December  2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

 

Complainants’ side documents:

Ex.A1-                - Copy of Brochure.

Ex.A2-                - Copy of Advertisement of builders scheme.

Ex.A3-              - Copy of sketch of scheme.

Ex.A4-               - Copy of CMDA approved plan.

Ex.A5- 5.11.2001  - Copy of sale deed.

Ex.A6-             - Copy of agreement of supervision and management

                               services.

Ex.A7- 26.11.2002         - Copy of representation from the complainant to opp. party.

Ex.A8- 1.3.2003    - Copy of reply from the opp. party.

Ex.A9- 7.3.2003    - Copy of reply from the opp. party.

Ex.A10-17.3.2003 - Copy of  letter from the complainant.

Ex.A11- 1.5.2003  - Copy of reply from the opp. party.

Ex.A12- 27.5.2003         - Copy of letter from the complainant.

Ex.A13- 18.9.2003         - Copy of letter from the complainant.

Ex.A14- 27.10.2003- Copy of surveyor demarcation in respect of other flat.

Ex.A15- 15.12.2003- Copy of certificate of total are from survey department

Ex.A16- 6.2.2004  - Copy of lawyers notice.

Ex.A17- 21.7.2004         - Copy of reply notice.

Ex.A18-             - Copy of rough sketch.

Ex.A19-             - Copy of approved plan.  

Opposite party side document: -   ..Nil..

Ex.C1   8.8.2006  - Copy of Advocate Commissioner Report.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.