Tamil Nadu

StateCommission

FA/34/2014

N. PUSHPA - Complainant(s)

Versus

METRO CITY FOUNDATION, PARTNER - Opp.Party(s)

V.Balaji

26 Apr 2022

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. No.34 of 2014

(Against the Order, dated 20.05.2013, passed in C.C. No.89 of 2012, on the file of the DCDRC, Coimbatore)

                                                    

                               Orders pronounced on:   26.04.2022

 

N. Pushpa,

W/o. Mr. Nandakumar,

No.37, Susaipuram,

Tiruppur – 641 601.                                                                                                              … Appellant / Complainant.

 

vs.

 

1. M/s. Metro City Foundations,

Represented by Mr. D. Prabhu,

Partner

 

2. D.Prabhu,

Partner

 

3. P.Jayanthi,

Partner

Respondent Nos.1 to 3 are residing at:-

No.10, Deepam Complex,

100 Ft. Road, Gandhipuram,

Coimbatore-12.

 

4. M.P.S. Thiyagarajan, (Deceased),

S/o. M.P. Subramanian,

Partner,

M/s. Metro City Foundations,

 

5. T. Sudha,

W/o. Mr. M.P.S.Thiyagarajan.

 

Respondent Nos.4 & 5 are residing at:-

No. 49, Ramalinga Layout KPN Colony,

Tiruppur - 641 601.                                                                                                          … Respondents/Opposite parties.

 

    

             For Appellants                 :  M/s. V. Balaji

             For Respondents              :  Served called absent

 

This First Appeal came up for final hearing on 13.04.2022 and, after hearing the arguments of the appellants’ counsel and perusing the materials on record and having stood over for consideration till this day, this Commission passes the following:-

 

O R D E R

R.Subbiah, J. – President.

 

             This Appeal has been filed as against the Order, dated 20.05.2013, passed by the DCDRC, Coimbatore, in C.C. No.89 of 2012, in dismissing the complaint filed by the original appellant herein, on a finding that the matter is to be adjudicated in a civil court and not in a consumer court, since it is clearly a business-to-business dispute.

 

             2. For the sake of convenience, the parties shall be referred to in the course of this order, as per their respective rankings before the District Forum.

             In brief, the case of the complainant, as given in the complaint filed before the District Forum, is as follows:-

             The 1^st OP is a Building Promoter running business under the name and style of ‘Metro City Foundations’ (in short MCF), which is represented by its Managing Partner.  The other OPs are the Partners of the said Firm.  During the middle of 2006, the 1^st OP made wide publicity in Newspapers about promoting Multi-storied Housing Apartments at Avanashi Road, Pappanaickenpalayam, Coimbatore, under the name and style of ‘Lexus Regency Flats’.  With an intention to purchase a flat, the complainant approached the office of the 1^st OP and, after arriving at a mutual understanding, he decided to purchase a 3 Bedroom Flat-B4 in the Lexus Regency.  The cost of the said Flat with 1975 sq. ft. built-up area along with 700 sq. ft. of undivided share of land was Rs.53,34,000/-.  In continuation as per the agreed terms, complainant entered into a separate construction agreement on 30.11.2006 as first step for construction with the 2^nd OP on behalf of the 1^st OP.  As the second step, he entered into a registered sale deed on 29.12.2006 and purchased 700 sq. ft. of land from the 4^th and 5^th OPs on behalf of the 1^st OP for Rs.14.00 lakh.  As per the said agreement, the complainant has to pay Rs.39,34,000/- for construction of Flat-B4 in Lexus Regency, in total, Rs.53,34,000/- (14,00,000 + 39,34,000), for both building and flat. As per the agreement, the OPs undertook to construct the multi-storied flats in accordance with the development plan sanctioned by the Director of Town and Country Planning and to get permission from the Local Planning Authority and other statutory bodies for getting electricity, water connection, etc.  Similarly, the complainant also undertook to pay the costs of construction at different stages as detailed in the schedule annexure of the construction agreement.  As per clause-3 of the agreement, the OPs have to complete the construction and hand over possession of the Flat by January, 2008, and, in default, the developer/OPs shall pay the complainant interest at the rate of 18% p.a. for the delayed period of delivery.  Until 30.01.2008, the complainant made a payment of Rs.38,50,000/- as per the agreement, but, due to internal disputes between the partners of the 1^st OP, there was an inordinate delay of 2 years in completing the construction. Only on 18.01.2010, the OPs handed over the flat to the complainant, after a delay of two years.  Not satisfied with the work, the complainant sent a protest letter to the OPs on 19.01.2010, pointing out the unfinished works and requested the OPs to complete the works as per the terms of the agreement.  Until 30.01.2008, the complainant paid Rs.38,50,000/- to the OPs and later on, made a payment of Rs.16 lakh, thus, in total, he paid Rs.54,50,000/-.   Since there was a delay of two years, as per the terms, the complainant is entitled to a total interest for a sum of Rs.18,24,000/-.  Further, he was also put to mental agony over the act of the OPs in not handing over possession of the flat in time.  Hence, he sent a legal notice, dated 05.01.2012, calling upon the OPs to pay him Rs.18,24,000/-, but, they did not choose to reply to the same.  Therefore, he filed the complaint, seeking the District Forum to direct the OPs to pay jointly and severally a sum of Rs.18,24,000/- with 18% interest from the date of petition till realization for delayed delivery of possession and to pay a compensation of Rs.1,50,000/- for causing metal agony, pain, etc. due to deficiency in service, besides costs of the proceedings.

 

             3. OP Nos.1 to 3 remained ex-parte.  The claim of the complainant was resisted by OP Nos.4 and 5, by filing a written version, inter alia, contending thus:-

             By denying all the averments made in the complaint, it is stated that OP Nos.4 and 5 are the owners of the land and OP No.2 is an architect, who alone took care of the construction of Lexus Regency Flats.   The present OPs, apart from giving their valuable land, also further funded to complete the project and, in that process, they gave their personal properties as security to the financial institutions.  Since the property in which the flats are constructed is mortgaged with the State Bank of India, the owner of the land should obtain NOC from the Bank in favour of the purchaser and also, the purchasers need to deposit the amount in the SBI Account of MCF/Partnership Firm.  These OPs, as land owners, registered the undivided share in favour of the complainant vide sale deed, dated 29.12.2006, thereby, they complied with their part of obligation.  But, they are not aware of the understanding between the complainant and OP No.2 regarding the agreement to purchase one flat for Rs.53,34,000/-.  As per the records available with MCF, the cost of a flat is Rs.56,32,756/-. OP No.2 and some of the purchasers including the complainant entered into two types of construction agreements ie., one with a lower amount and another with higher amount, without bringing it to the knowledge of these OPs and MCF.  This would have been done only for the purpose of cheating these OPs, who are the land owners and who funded for completion of the project.  OP No.2 did not invest a single pie for the project.  Appropriate legal action is taken by these OPs against the illegal action done by the complainant and OP Nos.2 and 3. The cost of the flat stated by the complainant as Rs.53,34,000/- is false.  As per the records available with MCF, the complainant paid only Rs.46 lakh.  Such short payment is a serious lapse on the part of the complainant and it is only after payment of the entire amount, he can get possession of Flat-B4. But, without even clearing the dues, the complainant had forcibly taken possession of the flat in collusion with OP No.2.   As per the terms and conditions, the complainant ought to have paid the amount to the SBI, Tiruppur Branch and not to any other Bank, but, he colluded with the 2^nd OP and caused substantial loss both to the MCF as well as to the present OPs. Similarly, these OPs deny that, as per the construction agreement, dated 30.11.2006, the OPs are liable to construct/hand over possession of the flat by January, 2008, and, in default, they have to pay the complainant interest at the rate of 18% p.a. for the delayed period of delivery.  These OPs are not aware of the said agreement executed between OP No.2 and the complainant. Even as on January, 2008, as admitted by the complainant, only a sum of Rs.38,50,000/- alone was paid and even such payment is not admitted by these OPs.  The complainant had suppressed the real facts and come forward with unclean hands.  These OPs already initiated criminal and civil proceedings against the complainant.  He is prosecuted as an accused in C.C. No.66 of 2011 on the file of JM No.1, Coimbatore, besides civil cases in O.S. No.96 of 2011 before the I Additional District Munsif, Coimbatore, and in O.S. No.173 of 2011 before the Principal District Munsif, Coimbatore, and all the said cases are pending adjudication.  Moreover, the complainant had issued notice to OP Nos.2 and 3 only for the sake of formality.  When a dispute arose between OP Nos.2 and 4, it was referred for mediation.  Only when one Mr.Jeganathan was discussing the issue, OP No.4 realized that he is not only one of the purchasers but also closely associated with OP No.2, who was instrumental in bringing him (Mr.Jeganathan) as Mediator.  To safeguard his right, immediately, OP No.4 issued a notice to Mr.Jeganathan not to mediate the issue any more, however, he continued with the mediation and passed orders in favour of OP No.2 without even hearing OP Nos.4 and 5.  Challenging the same, the complainant filed AOP No.476 of 2011 and the same is pending adjudication before the District Court, Coimbatore.  Absolutely, there being no scope even to allege any deficiency in service, the complaint is liable to be dismissed.

              

             4.  To substantiate the claim and counter-claim, both sides filed their respective proof affidavits and, while the complainant marked 22 documents as Exs.A1 to A22,  OP Nos.4 to 7  marked 10 documents as Exs.B1 to B10.  The District Forum, after consideration, by citing a decision of the National Commission reported in 2011 (2) CPR 12 (NC), concluded that the matter is to be adjudicated only in a civil court and not in a consumer court, since it is clearly a business-to-business dispute and ultimately, dismissed the complaint by holding that the OPs have not committed any deficiency in service. Hence, the present Appeal.

 

             5.  Heard the submissions made by the learned counsel for the complainant and perused the materials available on record.

 

             6.  It is mainly pointed out by the learned counsel for the complainant that the prime reason assigned by the District Forum for dismissing the complaint is that various litigations are pending between the parties before civil and criminal courts and hence, it would be but appropriate that the matter could be better adjudicated before the civil court concerned.   According to him, such conclusion is wholly untenable for the reason that pendency of civil suits cannot be a bar for deciding the issue in the complaint on the ground of deficiency in service.  In support of his submission, learned counsel has relied upon a decision reported in I 2016 CPJ 331 (NC) (Nirmal Kumar Das v. Trishna Rana), wherein, a reference was made to a Judgment of the Apex Court in Satpal Mohindra v. Surindera Timber Stores (IX (1999) SLT 449), for the proposition that proceedings under the Consumer Protection Act and a Civil Court can simultaneously go on, even if the issues involved in the two proceedings are substantially similar.  Reliance is also placed upon a decision of the Apex Court in Harshad J. Shah v. LIC of India & Ors. (III-1997-CPJ-8-SC), wherein, it has been held that mere filing of the suit for recovery of the amount may not be an absolute bar on the commission to go into that question for the reason that the issue before the Civil Court is not the deficiency in the service unless that is specifically raised as a defence in the suit and similarly, mere filing of the suit by the Bank does not put a bar on the Tribunal to go into the merits in the complaint.

             Undoubtedly, there is no dispute in accepting the dictum laid down in the above case laws to the effect that existence of parallel or other adjudicatory forum cannot take away or exclude the jurisdiction created under the Consumer Protection Act, for, the remedies are independent of each other.   It follows that, in our considered opinion, the complaint is absolutely maintainable before the consumer forum.  However, at the same time, the real and actual question involved is as to whether the complex issues involved here can be decided by the consumer forum in a summary manner or not.   A reading of the complaint as well as the counter-version would show that there exist disputed questions of fact on various aspects viz., contesting OPs disowning the construction agreement/purchase of flat, denial of payment transactions, obscurity over cost of the flat/period of construction/delivery of flat, etc.   When there exist such disputed questions of fact, by merely going through the pleadings and connected piece of documents, the consumer forum cannot arrive at a definite conclusion, for, a comprehensive adjudication of the issues involved needs, apart from marking of all relevant documents in a wholesome manner, recording of elaborate oral evidence that includes cross-examination of witnesses, which can only be done before appropriate civil court.   Therefore, it is re-emphasized that, although the complaint is very well maintainable, the same cannot be decided in summary proceedings owing to the complexity of the issues involved, as adverted to above.  Therefore, we do not find any infirmity or error in the impugned order passed by the District Forum, which clearly observed that the matter has to be decided before appropriate civil court by letting in voluminous evidence and examination of witnesses that cannot be done in summary proceedings.   As such, we have no other option but to confirm the impugned order.

 

             7.  In the result, the appeal fails and it is dismissed, by confirming the impugned order, dated 20.05.2013, passed by the DCDRC, Coimbatore, in C.C. No.89 of 2012.  No costs.

 

 

 

R.VENKATESAPERUMAL                                                                                                                R.SUBBIAH, J.

MEMBER                                                                                                                                                 PRESIDENT.

 

ISM/TNSCDRC/Chennai/Orders/April/2022.