DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 19^th  day of April, 2024

Present      :   Sri. Vinay Menon V., President

                   :   Smt. Vidya A., Member             

                  :   Sri. Krishnankutty N.K., Member                                     Date of Filing: 26/07/2022   

              CC/131/2022

Anan P.A.

S/o. P.A. Abdul Rahman,

Mumthaz House, Shornur Road,

Palakkad City Post, Palakkad – 678 014                      -           Complainant

(By Adv. S.T. Suresh)

                                                                                      Vs

1. Manoj R.,

S/o. S. Ramachandran Iyer,

2A, Darchan,

Puthur, Palakkad – 678 001.

2. Mohanan Narayanan,

S/o. Late Narayanan,

20/82, Ramaneeyam, SRK Nagar,

Palappuram, Ottapalam

Palakkad – 679 103                                                   -      Opposite parties

(OP1 by Adv. M. Anilkumar;

OP2 by Adv. M/s. K. Krishnakumar & K. Dhananjayan)   

O R D E R

By Sri. Vinay Menon V., President

1. Bare pleadings requisite for judicial appreciation of disputed facts, are that the 1^st OP is a developer of properties and 2^nd O.P. is an owner of landed properties. During 2015, OPs 1 & 2 entered into an agreement for development of 23 cents of property belonging to the 2^nd OP. The complainant who shared camaraderie with the 1^st OP started paying consideration for purchase of a residential apartment even before entering into  a          bi-partite  agreement with OP1 on 4/10/2019. Consideration was fixed at Rs.20 lakhs. Between 14/4/2016 and 22/9/2021 the complainant had effected payment of Rs.16,75,000/- out of Rs.20 lakhs. But till date the OPs had refused to execute a sale deed of the flat and proportionate share in the land in favour of the complainant. Aggrieved thereby, this complaint is filed.
2. OP1 filed written version. He contended that he had entered into an agreement with the 2^nd OP but presently there was a number of litigations between the 1^st OP and 2^nd OP in various courts.  This OP is ready and willing to execute a deed but it was the 2^nd OP who is refusing to execute the sale deed.   The complaint is not maintainable before this Commission and can be dealt with only by a civil court of competent jurisdiction.
3. The 2^nd OP filed a detailed version stating that the so-called agreement between the OPs was a void agreement. The said agreement was revoked in the year 2017 itself as the 1st OP had failed to comply with the terms and conditions of the so-called agreement dated 18/11/2015 and lacks enforceability. This complaint is not maintainable as against the 2^nd OP. The complainant and 2^nd OP are not privy to any agreements. There are various disputes between the OPs before various fora. Complainant is a friend of the 1^st O.P. and this complaint is a collusive litigation aimed at harassing the 2^nd OP.
4. Post pleadings, the following issues were framed:

1. Whether the complaint is maintainable under the provisions of CP Act 2019?
2. Whether there is any deficiency in service on the part of OPs?
3.  Whether the complainant is entitled to the reliefs claimed?
4. Any other reliefs?

5.          (i)      Evidence of complainant  comprised of proof affidavit and Exhibits A1to A12.   

(ii)      OP1 has not adduced any evidence. OP2 filed proof affidavit. There is no

            documentary evidence.

Issue No.1  

6.         This issue was framed because this Commission felt that there were a couple of factors that needed to be answered considering the statutory provisions.

1) Whether the complaint is maintainable as against OP2?

2) Whether, in the facts and circumstances of the case, the matter is to be dealt with by

      a civil court?

7.         (1)        Whether the complaint is maintainable as against OP2 ?

i.          Fact that the 2^nd OP is the owner of property is not disputed. The reliefs sought for as against OP2 is to register the petition schedule property in the name of the complaint by way of execution of a sale deed. It goes without saying that Consumer Commissions established under CP Act does not have authority to deal with disputes wherein sale of immovable properties is concerned. The appropriate fora is a  Civil Court of competent jurisdiction.

ii.         Therefore, we hold that, in so far as the 2^nd OP is considered, this Commission has no authority whatsoever to adjudicate this dispute. Therefore we dismiss this  complaint as against the 2^nd OP.

(2)        Whether, in the facts and circumstances of the case, the matter is to be dealt                 

              with by   a civil court ?

1. This sub-issue is being raised since the 1^st OP has raised a contention that this complaint is not maintainable before this Commission and the appropriate forum is a civil court of competent jurisdiction.

ii.         The 1^st OP is a developer of properties. As per Consumer Protection Act, this Commission can deal with disputes wherein the disputes pertains to deficiency in service on the part of a builder, who is a service provider as contemplated under the Act.

iii.        Therefore, we hold that this complaint is maintainable as against OP1.       

             Issue No.2  

8.         Complainant’s case is that he was having a long-standing relation with the 1^st OP. He came to know that the 1^st OP had entered into a joint venture agreement with the 2^nd OP for development of a parcel of property belonging to the 2^nd O.P. Therefore, from 14/4/2016 onwards, he started paying consideration for purchasing a flat in the apartment being constructed by the 1^st OP. He effected final payment on 22/9/2021. A total of Rs.16,75,000/-  was paid out of Rs.20 lakhs. But the OPs had failed to execute a sale deed and hand over possession of the apartment to the complainant. It is aggrieved by this delay that this complaint is filed.

9.         Complainant further states that an agreement was entered into between the complainant and 1^st OP on 4/10/2019. The said agreement executed between complainant and 1^st OP is produced and marked as Ext.A1. Ext.A1 is a bi-partite agreement between the complainant and 1^st OP. The agreement pertains to construction and handing over of an apartment having super built up area of 1060 sq.ft with proportionate undivided indivisible interest of 7.27 % of right and title in A schedule property for a consideration of Rs.20 lakhs. The property scheduled herein is the property that was vested upon the 2^nd OP. But 2^nd OP is not a party to Ext.A1 agreement. Therefore, as can be perceived from the contents of Ext.A1, the complainant and OP1 has entered into an agreement for sale with regard to the property of the 2^nd OP. Recitals would not show that OP1 was a power of attorney of OP2. Therefore, OP1 was acting in his own capacity when he executed Ext.A1.

10.       No person can transfer a right which he does not possess.
What the 1^st OP had done is that he has entered into an agreement with regard to a building standing in the property of O.P.2, when O.P.2 himself was not a party to the agreement. Having willfully done so, conduct of the 1^st O.P. is unlawful and tantamount to unfair trade practice.  

11.       The 2^nd OP raised a contention that the agreement between him and the 1^st OP stood abrogated as early as 2017. Even though he has not cared to produce any documents to substantiate his case, his pleadings stood uncontroverted by the 1^st OP. The 2^nd OP has listed a number of disputes pending before various courts between him and the 1^st OP. Therefore, we have to presume that the statement by the 2^nd OP that the agreement between the 1^st OP and 2^nd OP stood annulled as early as 2017 is probable and that the 1^st OP was aware of the factual scenario. Yet he continued to receive consideration for the property from the complainant under the guise of consideration for the land and property. Furthermore, 1^st O.P. has no case that he had handed over the price of the property was handed over to the 2^nd O.P. out of the consideration so received

12.       Such a conduct on the part of 1^st OP tantamount to gross deficiency in service and unfair trade practice. He has also committed fraud on the complainant.  Issue No.2 is found accordingly.

Issue No.3   

13.       Apropos the findings above, it is not clear whether a construction, was made on the property of the 2^nd OP.  Also, this Commission cannot pass an order as against OP2. Hence, we are unable to grant the reliefs sought for by the complainant. But we can rightfully compensate him by imposing liability on the 1^st OP. We therefore hold as herein below:

            1)  No liability is cast against OP2 and the complaint as against OP 2 stands dismissed.

            2)  OP1 has committed deficiency in service and unfair trade practice.  

            3)  OP1 is directed to repay Rs.16,75,000/- to the complainant.

            4)  The aforesaid amount shall carry interest @ 10% from the dates the respective part

                   payments were effected by the complainant, till the date of repayment.

            5)  Complainant is entitled to a cost of Rs.50,000/-

            6)  OP1 is directed to comply with directives 3 to 5 within 45 days from the date of  

                 receipt of a copy of this Order. 

                        Pronounced in open court on this the 19^th  day of April,  2024.                                                                                                                                         

                          Sd/-                                                                                                                              

                                                                                                                                                  Vinay Menon V

                                                                                   President

                                                                                         Sd/-

                          Vidya.A

                                              Member         

                               Sd/-

                Krishnankutty N.K.

                                                                                                                                                   Member            

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1   -  Original agreement of Sale dated 4/10/2019

Ext.A2  –  Original receipt dated 14/04/2016

Ext.A3 -    Original receipt dated 25/06/2016  

Ext.A4  -   Original receipt dated 18/09/2016    

Ext.A5  –  Original receipt dated 09/02/2017  

Ext.A6   – Original receipt dated 16/03/2017    

Ext.A7   – Original receipt dated 23/08/2017   

Ext.A8   – Original receipt dated 06/06/2018

Ext.A9   – Original receipt dated 11/11/2018  

Ext.A10 – Original receipt dated 04/10/2019 for Rs.70,000/-

Ext.A11 – Original receipt dated 04/10/2019 for Rs.3,00,000/-

Ext.A12  – Print out of A/c statement from SBI.

Exhibits marked on the side of the opposite party: Nil

Court Exhibit:  Nil

Third party documents:  Nil

 Witness examined on the side of the complainant: Nil

Witness examined on the side of the opposite party:   Nil   

Court Witness: Nil

NB : Parties are directed to take back all extra set of  documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.