By Smt. Bindu. R, President:
The above Consumer Case is filed by Binu, S/o. Mathai, Paliathmolel House, Poomala Post, Sulthan Bathery, Rep by Power of Attorney Holder, Sr. P.P. Mathai, S/o. Paily, Aged 70 years, Paliathmolel House, Poomala Post, Sulthan Bathery against Mr. Mukkoottumannil Thomas Abraham, S/o. Abraham, Poomala Post, Mandokkara, Nenmeni Amsom Desom, Sulthan Bathery Taluk and others alleging deficiency of service and unfair trade practice from the side of the Opposite Parties.
2. Complainant states that the Opposite Parties entered into an agreement with the father of the Complainant on 21.05.2015 and agreed to sell the property admeasuring 8 cents in R.S.41/6B of Nenmeni (V) including newly constructed house having plinth area of 2000 sq ft and improvements which is scheduled as B schedule in the agreement for a total consideration of Rs.77,70,000/-. According to the Complainant, the 2nd Opposite Party had signed the agreement on his personal capacity as the Managing Director of the 3rd Opposite Party, a company constituted under the Companies Act and also as power of attorney holder of the 1st Opposite Party. The complainant states that the Opposite Parties had advertised in the news papers and also shown the brochure, plan etc to the Complainant about their project. According to the Complainant he agreed to purchase the property based on the assurance of the Opposite Parties that they are developing a residential area (township) in the total extend admeasuring 4.70 acres in Survey No.41/6B and 47 owned by 1st Opposite Party which is shown as A schedule in the agreement. The Complainant stated that the Opposite Parties made to believe the Complainant that they will develop the property according to the plan submitted before the Local Self Government and also in consonance with the brochures supplied by Opposite Parties and Complainant was also made to believe that they are indented to construct a township as agreed and will provide all common amenities to those who purchase the houses in the property. Believing the words of the Opposite Parties the Complainant decided to purchase the property. The Opposite Parties had projected a plan to construct a township on the land with name “Signarc Palacia” comprising thirty nine independent houses inside a common boundary with gate and common amenities including 4500 sq. feet extravagant Club house, Gymnasium for ladies and gents, multipurpose hall, Table tennis and billiards, Chess carom and cards room, Roof top party area, Jogging track, Yoga room, Garden Benches, Swimming pool with kiddie pool, Indoor badminton court, Children’s play area, Basket ball court, Gazebos, Wooden deck, Kids skating yard, Landscaped children’s park, 10m wide gate, Compound wall with fencing, Entrance plaza with security cabin, 24 hours round the security, Sewage treatment plant, Intra telecommunication system, Centralized water tank, Organic waste convertor, Bore well and natural well, CCTV surveillance for common areas, 5 meter wide internal road with drainage, Drip irrigation for common areas, Natural park for senior citizens etc. In addition to the above common facilities the opposite parties had also offered individual facilities such as 6 hrs. UPS power back up, Solar water heater etc. It was also assured that there will be clinic, super market, guest room, beauty saloon for gents, ample car parking for visitors, car spa and beauty parlor. According to the complainant he was impressed by the project proposed to be constructed since it provides a lot of common amenities with a lot of security. The complainant states that he had intended to purchase the property with house for the purpose of accommodating his aged parents comfortably in a township with number of houses nearby and with common facilities including water, electricity, road, security, clinic, Supermarket etc. etc.
3. The Complainant states that the Complainant had paid the entire amount to the Opposite Parties and the 1st Opposite Party had executed the sale deed on 01.09.2015 infavour of the Complainant at SRO Sulthan Bathery. According to the Complainant he is the 1st person to purchase a house in the project named “Signarc Palacia”. The Complainant states that even though the Opposite Parties started construction of two more houses in the property the same was not completed and the entire area became bushy and over grown and feeling like insecure area. At present the Complainant is the only occupant and that too investing a huge amount in a total area of 4.70 acres of land. The Opposite Party had not provided water supply, security etc as offered and the aged parents staying in the said building is feeling insecure in the said building. According to the Complainant the Opposite Parties agreed to complete the project and provide all common amenities offered in the brochure on or before 01.10.2018 but they have not even completed the work of two other houses in the project, which amounts to deficiency of service on the part of the Opposite Parties. Total sale consideration paid by the complainant is Rs.77,70,000/- including the cost of various amenities which the Opposite Parties agreed to provide to the complainant in the brochure and at present the Complainant is not in a position to use the property and house with full fledged amenities which the Opposite Parties agreed to provide as per the agreement and brochures. Since the Opposite Parties had failed to provide the amenities as agreed, the complainant had spent Rs.15,00,000/- to secure the basic amenities which, according to the Complainant, the Opposite Parties are liable to repay. The Opposite Parties are bound to complete the project and fulfill the amenities offered, and if not, Opposite Parties are liable to compensate the Complainant. The Complainant states that the Opposite Parties demolished the shed used as a construction shed mentioned in the agreement and when enquired, the Opposite Parties said that they had stopped the project and are going to convert the land for other purposes. On enquiry, the Complainant came to know that the branch office of 3rd Opposite Party at Sulthan Bathery is also closed down. In response to the lawyers notice sent by the Complainant, 2nd Opposite Party sent a reply stating that they had cancelled the agreement between the 1st and 2nd Opposite Parties and 2nd Opposite Party is not liable to complete the project. Notice issued to 1st and 3rd Opposite Party were returned as left with endorsement “no such person in the address”. Hence the Complainant praying for giving direction to the Opposite Parties to provide common amenities in A schedule property as agreed in the agreement and brochure within a specified period and for other reliefs.
4. From the records it is seen that an IA 444/2022 is filed for amendment of the complaint and which is seen allowed but the amendment was not carried out by the Complainant.
5. Upon notice 1st and 2nd Opposite Parties entered into appearance and filed their separate version. 3rd Opposite Party was set exparte on 15.02.2020.
6. 1st Opposite Party in their version contented that the complaint is a collusive complaint between the Complainant and the 2nd Opposite Party. It is contented in the version that the Complainant has instituted a suit as OS 96/2019 before the Munsiff Court, Sulthan Bathery against 1st Opposite Party on the basis of the same transaction and hence the complaint cannot be entertained. According to 1st Opposite Party the Complainant is not a consumer and hence the Commission has no jurisdiction to entertain the same. 1st Opposite Party has not made any deficiency of service or unfair trade practice or caused any loss to the Complainant and hence the complaint is liable to be dismissed. The allegation that the agreement between the father of the Complainant and 1st Opposite Party dated 21.05.2015 agreeing to sell 8 cents of property and the house for Rs.77,70,000/- and the allegation that 2nd Opposite party signed the agreement as agent of 1st Opposite Party are not correct. The advertisements through news papers and the brochures, plan etc and the other allegation of assurance etc are totally denied by the Opposite Party, since the same are not correct. According to 1st Opposite Party no such agreement was executed between the Complainant or his father to this Opposite Party and according 1st Opposite Party there is no privity of contract between the parties. According to 1st Opposite Party, for various reasons it can be realized that the agreement is not a genuine document which is not a registered document and cannot be admitted in evidence.
7. According to 1st Opposite Party, with reference to large extent of property held by 1st Opposite Party under two title deeds, he had entered into two agreements dated 15.01.2014 and 08.08.2014 respectively with 3rd Opposite Party represented by 2nd Opposite Party for developing the land into separate layouts of residential sites, roads and for common amenities and also to construct common compound wall and gate for which two power of attorney deeds were also executed in favour of 3rd Opposite party through 2nd Opposite Party. According to 1st Opposite Party, the 2nd and 3rd Opposite Parties were not at all conferred with any power to dispose off the property to 3rd parties or to enter into any agreement for the said purpose. If the agreement is executed on the basis of the power of attorney executed by 1st Opposite Party the agreement is void and the document is ultra virus. The agreement and power of attorneys are made as the developers of land and not as builders. But the alleged sale agreement is executed by 2nd and 3rd Opposite Parties as the builders and hence the sale agreement is not binding on 1st Opposite Party and they have no responsibility or liability on the basis of the same which is also not brought to the notice of the 1st Opposite Party prior to the complaint. The subject matter of the power of attorney and the agreement are different and 1st Opposite Party suspects manipulation and collusion between 2nd and 3rd Opposite Parties and the Complainant and the document is a fraudulent document. In the agreement it is stated that the title, possession and enjoyment of 1st Opposite Party with 2nd and 3rd Opposite Parties as per assignment deeds No.681/97 and 2977/14 is incorrect and the title deeds are in the name of 1st Opposite Party alone and 2nd and 3rd Opposite Parties have no right or title over the property. The allegation that this Opposite Party had a project plan to construct township along with 2nd and 3rd Opposite Party etc are denied. Only agreement entered into between 1st Opposite Party and other Opposite Parties is for development of lay out alone. In the said development agreement or in the alleged project the Complainant is not at all involved. According to 1st Opposite Party, he had neither approached the Complainant with the alleged project nor he had shown any project plan or brochures to the Complainant and had not authorized the 2nd and 3rd Opposite Parties or anybody else for the said purpose. It is also contented that since according to the Complainant the alleged sale agreement was executed in favour of his father, the Complainant has no locus standi to approach this Forum on the basis of an agreement in which he is not a party. The allegation of insecurity, feeling like forest etc are not correct and denied by the 1st Opposite Party. The allegation of the Complainant that he had paid a huge amount eventhough the price of land is low is not correct and denied by 1st Opposite Party. According to 1st Opposite Party the only transaction between the Complainant and 1st Opposite Party is the registered sale deed which only covers 8.5 cents of land with building and common road. The remaining property of 1st Opposite Party is not included and not referred in the sale deed. The 1st Opposite Party had not undertook to provide any advantage by way of water supply security as alleged. According to 1st Opposite Party the sale agreement contains some promises made by 2nd and 3rd Opposite Parties and in default the party can seek specific performance through court which is not done by the Complainant. According to 1st Opposite Party he had not given any promises, assurances as alleged and 1st Opposite Party is not liable for any violation of promises or assurances. The allegation of total consideration of Rs.77,70,000/- including the value of amenities and the further allegation of spending Rs.15,00,000/- to secure the basic amenities etc are not correct and denied by 1st Opposite Party. As far as 1st Opposite Party is concerned, he had not given any promises either to the Complainant or to his father. According to 1st Opposite Party, he is not liable for the acts done by 2nd and 3rd Opposite Parties, without any authority. According to 1st Opposite Party, OS 96/19 is pending before the Munsiff Court, Sulthan Bathery and they have filed written statement in the case. 1st Opposite Party admitted that he had assigned an extent of 8.5 cents with house building to the Complainant as per sale deed No.3099/2015 and apart from that there was no prior deal or sale agreement between 1st Opposite Party and the Complainant. The sale was for a total price of Rs.29.50 Lakhs and 1st Opposite Party admitted the receipt of the said amount from the Complainant. It is also admitted by 1st Opposite Party that the father of the Complainant had sold his property to 1st Opposite Party on the same day by an independent deed. According to 1st Opposite Party no project as “Signarc Palacia” was developed by them. According to 1st Opposite Party, he had constructed only one house in the said property which is sold to the Complainant as per sale deed No.3099/15. Remaining property belongs to 2nd Opposite Party who is in exclusive possession of the same. According to 2nd Opposite Party the Complainant is not legally entitled to any right and amenities with respect to the remaining property which is not a subject matter of the same. Since 2nd Opposite party had not execute any agreement offering amenities, he is not liable to provide the same to the Complainant. The allegation of payment of total consideration of Rs.77.7 Lakhs to the Opposite Parties is not correct where as the total consideration for sale is only Rs.29.5 Lakhs and the said amount is received by 1st Opposite Party and not by 2nd and 3rd Opposite Parties. 1st Opposite Parties had not made any representation to the Complainant as per the alleged brochures and agreement and 1st Opposite Party has no liability to fulfill the contract as alleged by the Complainant. The 1st Opposite Party is a stranger to the alleged agreement and it is not brought to the knowledge of 1st Opposite Party at the time of executing the sale deed or thereafter. Since 2nd and 3rd Opposite Parties had failed to perform their duties as a developer, 1st Opposite Party had cancelled the agreements and power deeds in their name and it is also stipulated that loss if any occasioned to any third party, the person who had entrusted such person will be liable for the same. Therefore if the Complainant had sustained to any loss due to the false promises of 2nd and 3rd Opposite Parties they alone are liable for the same and to that perspective 1st Opposite Party is an unnecessary party to the proceedings. The allegation of trespass, threat, assault and causing injury and the following police complaints etc are denied by 1st Opposite Party since the allegations are false, baseless and they are made only for the purpose of the complaint. According to 1st Opposite Party, he has settled in USA for the last several years and the alleged mischief is only imaginary. 1st Opposite Party contented that he had purchased some property along the eastern side of the larger holding for getting additional road access to his remaining property from a newly formed private road. The said private road was cut in the boundary property by its owner and it joins the common road already in existence in the property of 1st Opposite Party. To facilitate the same the large pipe tube was provided in the canal in the boundary. The said work was neither done by 1st Opposite Party nor in the property of 1st Opposite Party. According to 1st Opposite Party he had spent huge amount for paving the common road with interlocks and for very large gates with huge arch on the front on the western side. The Complainant has no right over the remaining property belonging to 1st Opposite Party and the remedy available to the complainant is to approach civil court with proper petition against 2nd and 3rd Opposite Parties and prayed for dismissal of the complaint.
8. 2nd Opposite Party in their version contented that the Opposite Parties had entered into an agreement with the father of the complainant for the sale of 8 cents of property along with a building having an area of 2000 sq.ft for Rs.77,70,000/- on 21.05.2015. 2nd Opposite Party also admitted that the said property is stated as B schedule property in the agreement and 2nd Opposite Party had signed the documents for his on behalf and on behalf of 3rd Opposite Party. On that day itself he had signed the power of attorney of 1st Opposite Party. According to 2nd Opposite Party, the 1st Opposite Party had advertised through news papers and brochures. According to 2nd Opposite Party it is not known to 2nd Opposite Party that whether the purchase was made by the Complainant is on the basis of the assurance given by the Opposite Parties or not. According to 2nd Opposite Party, the Opposite Parties agreed to improve the property. 2nd Opposite Party also admitted the allegation that they had agreed to improve the facilities during the course of time. According to 2nd Opposite Party they have started the company named “Signarc Palacia” with the full support and on the basis of agreement with 1st Opposite Party, the intention of which is to construct house building with amenities of Club House, Gym, Children’s park, Carams room, Chess room, Yoga room etc. But the 1st Opposite Party cancelled the agreement with 2nd Opposite Party on 30.05.2017 and thereafter the 3rd Opposite Party is not in existence. According to 2nd Opposite Party after the cancellation of the agreement, 2nd Opposite Party had no knowledge about the management of the company. Since 2nd Opposite Party is restrained from entering into the property, 2nd Opposite Party was not in a position to complete the work as agreed and had not been able to fulfill the conditions in the agreement with the Complainant. According to 2nd Opposite Party, 1st Opposite Party is liable to cure the defects or deficiency if any sustained to the Complainant. 2nd Opposite Party contented that the condition in the agreement with the Complainant can be fulfilled by 2nd Opposite Party if and only if the agreement between 1st and 2nd Opposite Parties are inexistence and also only if the entire plots are sold out by them. According to 2nd Opposite party, the 1st Opposite Party could not sell the remaining plots and to act according to the contract due the Demonetization during that period. According to 2nd Opposite Party the project was started with intention to give all the facilities to the customers of the housing complex which was failed due to reasons beyond their control. According to 2nd Opposite Party, he had invested huge amounts to develop the land and hence 2nd Opposite Party had taken steps to realize the same from 1st Opposite Party. Hence prayed for dismissal of the complaint with costs.
9. Evidence in this case consist of the oral evidence of PW1 to PW4 and ExtsA1 to A17 (A12 to 14 with objection) from the side of the Complainant and the oral evidence of OPW1 and Exts.B1 and B2 from the side of Opposite Parties.
10. The following are the points to be analysed to derive into an inference of the facts.
- Whether the Complainant is maintainable before this Commission?
- Whether the Complainant sustained to any deficiency of service or unfair trade practice from the side of Opposite Parties?
- If so, the compensation and costs for which the Complainant is entitled to get?
11. In this case the specific case of the Complainant is that believing the words
and assurances of the Opposite Parties, the Complainant purchased 8 cents of land with newly constructed building for a total sale consideration of Rs.77,70,000/- and according to the Complainant, Opposite Parties have assured common amenities through news papers and brochures for their project of constructing a township with independent houses, which are not provided to the Complainant which ended in the present complaint. On the other hand 1st Opposite Party denied the alleged agreement with the Complainant admitting the sale deed executed between 1st Opposite Party and the Complainant with respect to 8 cents of property with building. 2nd Opposite Party contented that it is on the basis of the support given by 1st Opposite Party, they have started the project and published the advertisements and brochures regarding the project. But 1st Opposite Party had cancelled the agreement entered into between 1st and 2nd Opposite Parties and hence he could not perform in accordance with the assurances made by him.
12. The Commission had made a very thorough probe into the records and other documents to answer the question of maintainability of the complaint in hand. It can be seen from records that the complaint is filed by Binu, S/o. Mathai as power of attorney holder of Sr. P.P. Mathai, S/o. Paily against Mr. M. Thomas Abraham and others. The allegation of the Complainant is that the Opposite Party had entered into an agreement with the father of the Complainant on 21.05.2015 where in it was agreed by the Opposite Party to sell the property admeasuring 8 cents in Re Survey No.41/6B of Nenmeni (V), including newly constructed house and improvements for a total consideration of Rs.77,70,000/-. The argument of the Complainant is that the 2nd Opposite Party had signed the agreement on his personal capacity as the Managing Director of the firm and also on the strength of power of attorney given by the 1st Opposite Party ie M. Thomas Abraham. The further allegation of the Complainant is that the Opposite Parties had a project plan to construct a township in the land with name “Signarc Palacia” with ever so many common facilities and other amenities which had attracted the Complainant to buy the property from the Opposite Parties. On verification it is seen that the Complainant had, by himself not executed any sale agreement, and the consumer relationship between the Complainant with 2nd and 3rd Opposite Parties and the details regarding agreements or deeds executed between 1st Opposite Party with 2nd and 3rd Opposite Parties are also not available since no documents or evidences are produced by the Complainant to establish these aspects. Further and above that from the date of purchase of the land onwards it can be seen that the agreements and power of attorney for transaction between both the parties were executed on different dates which make the case highly complex making the complaint unfit to be dealt with by the Commission since the evidence before the Consumer Commission are summary in nature. In this case detailed evidences are required to establish the allegation in the complaint. The 1st Opposite Party in the case has executed a power of attorney with the 2nd Opposite Party who is the Managing Director of the Company. The details regarding the powers given to the power of attorney holder is to be examined to derive into the extension and limitation of power conferred upon the 2nd Opposite Party by the 1st Opposite Party. Further for such verification the documents and the previous documents and all the agreements executed between all the parties are to be verified. In such a stage the case is mixed up with law and facts and the complaint seems to be of complex nature requires detailed verification and evidences leading to the nature of a civil case. The trial of the consumer complaint is summary in nature. More over and above that at the time of giving deposition in box the Complainant had admitted that OS 96/19 is pending with reference to the same matter. In the above circumstances this Commission is of the view that this complaint do not comes under the purview of a consumer complaint and therefore point No.1 is found against the Complainant.
13. Since point No.1 is found against the Complainant we do not have considered point No.2 and 3.
Hence Consumer Case is dismissed with liberty to approach the competent court for redressal of his grievances as per provisions of law.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 30th day of October 2024.
Date of filing:11.01.2019.
PRESIDENT: Sd/-
MEMBER : Sd/-
MEMBER : Sd/-
APPENDIX.
Witness for the Complainant:
PW1. P.P. Mathai. Agriculture.
PW2. Ravisankar. R.S. Assistant Executive Engineer,
PWD, Building Sub Division,
Sulthan Bathery.
PW3. M. Mohanan. Agriculture.
PW4. Anil Eradi. Business.
PW5. Adv. V.P. Pramod. Advocate.
Witness for the Opposite Parties:
OPW1. A.P. Yacob. Rtd. Teacher.
Exhibits for the Complainant:
A1. Power of Attorney. dt:04.05.2018.
A2. Memorandum of Agreement. dt:21.05.2015.
A3. Notice.
A4. Broacher.
A5. Copy of Deed. dt:01.09.2015.
A6. Copy of Lawyer Notice. dt:01.11.2018.
A7. Returned Notice.
A8. Reply Notice. dt:14.11.2018.
A9. Copy of Commissioner Report. dt:17.05.2019.
A10. Bill. dt:24.11.2017.
A11. Copy of Complaint. dt:07.03.2019.
A12. Copy of Agreement. dt:22.05.2015.
A13. Certified Copy of Deed dt:01.09.2015.
A14. Photo.
A15. Receipt. dt:18.05.2015.
A16. Copy of Plan.
A17. Copy of Plaint. dt:02.05.2018.
C1. Commission Report. dt:22.05.2023
Exhibits for the Opposite Parties:
B1. Photo.
B2. Copy of Power of Attorney.
PRESIDENT: Sd/-
MEMBER : Sd/-
MEMBER : Sd/-
