Date of Filing 14.03.2023

                                                                                                            Date of Disposal: 26.10.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                    …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                           ……MEMBER-I

CC.No.28/2023

THIS THURSDAY, THE 26^th DAY OF OCTOBER 2023

1.Mrs.N.B.Thenmozhi,

   W/o.N.Ramesh,

   Rep. by her Power of Attorney,

   N.Ramesh,

   S/o.Namasivayam,

   Plot No.22, 6^th Cross Street,

   Thiru Vk Ka Nagar, Near Agni Homes Gate,

   Thundalam, Karambakkam, Chennai 77.

2.Mr.N.Ramesh,

    S/o.Namasivayam,

    Plot No.22, 6^th Cross Street,

    Thiru Vk Ka Nagar, Near Agni Homes Gate,

    Thundalam, Karambakkam, Chennai 77.                                     ......Complainants.

                                                                        //Vs//

1.M/s.D.K.Builders,

   Rep. by its Proprietor P.G.Duraiya, (Deceased).

2.Mrs.D.Selvi,

3.Mr.D.Saranyan,

4.Mr.D.Haribabu,

5. Mr.D.Vignesh,

All the above 2^nd to 5^th opposite parties residing at

No.17A, New No.25, Chokkattan Road,

Nungambakkam, Chennai 600 034.                                                 …..Opposite parties.

Counsel for the complainant                                      : M/s.S.Suresh Kumar, Advocate.

Counsel for the opposite parties 2 to 5                    : M/s.S.R.Sudhanraj, Advocate.

This complaint coming before us on various dates and finally on 16.10.2023 in the presence of M/s.S.Suresh Kumar, counsel for the complainant and M/s.S.R.Sudhanraj, counsel for the opposite parties and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY THIRU.P.VINODH KUMAR, MEMBER-I

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties with respect to the construction works made by them and direct the opposite parties to pay a sum of Rs.14,69,550/-  towards the cost of completing the construction and to pay a sum of Rs.15,00,000/- towards compensation for the mental agony and hardship caused to the complainant along with cost of Rs.50,000/- towards litigation expenses.

Summary of facts culminating into complaint:-

2. It is the case of the complainants that the complainants and the 1^st opposite party had entered into a Joint Venture Development of the complainant’s husband property in 2013 but later for reasons best known, the 1^st opposite party had unilaterally withdrawn from it.  Subsequently, the complainant wanted to construct a residential property, the 1^st opposite party agreed to do so and proposed a construction agreement in terms of the Memorandum of Understanding in 2014. The estimate for construction of the residential property land was valued at Rs.27,87,749/- by the opposite party, specifically excluding the cost of construction of the first floor and cost of steel.  In pursuant to the said construction agreement, the complainants had paid the entire specified cost to the 1^st opposite party. The estimated period for completion of the construction was 6 months.  Upon the 1^st opposite party’s request the transactions were only through cash and the complainants have remitted all of the due payments well ahead of the due date. That the construction of the residential property was stopped midway suddenly and the 1^st opposite party decided to demand excess money and harass the complainant and the construction of the residential property was abruptly left hanging and it was completely uninhabitable and dilapidated. That the residential property was valued by a certified Engineer and Approved Valuer in 2018 and the building was valued at Rs.14,69,550/-  as on the year 2013. That the complainant had lost money to the tune of around Rs.14,69,550/- excluding the costs of several sleepless nights, mental trauma, agony and physical ailments because of the opposite party’s deficiency in service and unlawful, unprofessional actions and behavior that amounts to a breach of trust. The 1^st opposite party initiated arbitration proceedings against the complainant in accordance with the terms contained in the Joint Venture Agreement.  That the learned Arbitrator passed an award against the complainant and being aggrieved by the same the complainants preferred an appeal before the High Court of Madras in O.P.No.479/2018. That the 1^st opposite party proprietor P.G.Duraiya got demised in early 2021 which was known to the complainant very belatedly at the end of 2021. That there was a delay caused due to the settlement talks that happened between the complainant and the 1^st opposite party’s proprietor P.G.Duraiya and owing to the unprecedented covid 19 outbreaks. A legal notice dated 16.12.2022 was cast upon the opposite party calling upon them to jointly and severally to comply the demands set out there in.  Thus aggrieved by the act of the opposite parties the present complaint was filed to direct them to pay a sum of Rs.14,69,550/-  towards the cost of completing the construction and to pay a sum of Rs.15,00,000/- towards compensation for the mental agony and hardship caused to the complainant along with cost of Rs.50,000/- towards litigation expenses.

The crux of the defence put forth by the opposite parties:-

3. The complainants are taking advantage on the death of the Mr.P.G.Duraiya, Proprietor of M/s.D.k.Builders has filed the present complaint suppressing all material facts to get undue enrichment and to reap undue advantage from the opposite parties. The present complaint was filed against the dead person i.e. 1^st opposite party.  That suit filed against dead person is nullity and the same is not maintainable.  Hence the present complaint filed by the complainant knowing the fact the proprietor of M/s.D.K.Builders died on 10.06.2020 had filed the complaint against the dead person.  The complainants themselves have filed the death certificate of Late P.G.Duraiya as a document at the time of filing the present complaint.  This itself clearly envisages that the complainants having knowledge about the death of the 1^st opposite party, purposefully and wantonly has filed this complaint and the present complaint was filed beyond the period of limitation. The 1^st complainant has already in the year 2017 has made counter claim for the same cause of action against the 1^st opposite party in an Arbitration Proceedings filed by the 1^st opposite party against the 1^st complainant based on a dispute of Joint Development Agreement entered between on 05.03.2013.  After making a counter claim before the Ld. Arbitrator the complainant failed to prove her claim with supportive documents.  Hence, Ld. Arbitrator has dismissed her claim and ordered on 15.12.2017 directing the 1^st complainant to pay a sum of Rs.30,86,438/- together with 18% interest per annum from 15.12.2017 until the award was paid and further ordered that the 1^st opposite party is entitled for cost to the tune of Rs.1,18,116/- from the first complainant. The 1^st complainant filed O.P.No.478/2018 before Hon’ble High Court of Judicature at Madras to set aside the order of the Sole Arbitrator dated 15.12.2017. The Hon’ble High Court of Judicature at Madras has disposed the O.P.No.479/2018 filed by the first complainant and has only revised the rate of interest from 18% to 12%. The 2^nd complainant is no way connected to any proceedings or transactions between the 1^st complainant and the 1^st opposite party. The 1^st complainant’s husband on behalf of her had received a sum of Rs.15,00,000/- as part payment from the 1^st opposite party. The ratio of sharing of proposed flats shall be 55:45 (i.e. 55% to 1^st opposite party and 45% to 1^st complainant share). That 1^st opposite party had paid the remaining sum of Rs.10,00,000/- to the 1^st complainant on 19.06.2013 as agreed by him under the Joint Development Agreement. That the panel lawyer of LICHEL orally advised the 1^st opposite party not to proceed with the property as the property might not be accepted by Banks due to reasonable doubt on inheritance of the property by 1^st complainant’s husband through an unregistered will. The 1^st opposite party informed the 1^st complainant that he was not willing to continue the Joint Development Agreement entered with 1^st complainant and expressed his decision to withdraw from the Joint Development project during November, 2013 and further requested the 1^st complainant to repay the amount paid by the 1^st opposite party. The 1^st opposite party has made a Police complaint before Maduravoyal Police Station. The 1^st opposite party has sent a legal notice dated 10.04.2016 calling upon complainants to repay immediately the said sum of Rs.25,00,000/- together with interest at 18% per annum from 05.05.2013 till date of realization.  That the 1^st opposite party has filed a O.P.No.550/2016 for appointment of Arbitrator before Hon’ble High Court of Madras. The Arbitrator after conducting due enquiry and proceedings the 1^st complainant counter claim (for the same cause of action for which the present CC.No.28/2023) was dismissed and allowed the claim of 1^st opposite party and passed an award on 15.12.2017 for directing the complainants to pay a sum of Rs.25,00,000/- together with interest at 18% per annum and cost also allowed. The 1^st opposite party has filed execution petition before Hon’ble District Court at Thiruvallur for execution of Arbitration award.  Knowing the facts the complainants on urgency has filed appeal vide OP.No.479/2018 before Hon’ble High Court of Madras to set aside the award passed by the sole Arbitrator.  The 1^st opposite party has entered appearance in OP.No.478/2018 and has filed his counter.  The Hon’ble High Court of Madras after hearing both side arguments has passed an order on 13.11.2019 confirming the sole Arbitrator award and reduced the rate of interest along from 18% to 12%. Thus they sought for the complaint to be dismissed against the opposite parties.

4. On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A8 were submitted. On the side of opposite parties proof affidavit was filed and documents marked as Ex.B1 to Ex.B5 were submitted.

Points for consideration:-

1) Whether there is any deficiency in service as alleged by the complainant against the opposite parties has been successfully proved by the complainant with admissible evidence?

2) If so, to what reliefs the complainant is entitled?

Point No.1:-

5. It is the case of the complainant that they had entered into a joint venture agreement with the 1^st opposite party in the year 2013.  But the 1^st opposite party had unilaterally withdrawn from it.  Subsequently the complainant engaged the 1^st opposite party to construct a residential property in terms of memorandum of understanding in 2014. The construction cost is Rs.27,87,749/- and the estimated period of completion is 6 months.  The complainants paid the entire construction cost by way of cash.  The 1^st opposite party stopped the construction mid way and demanded excess amount from the complainant.  The property was valued by the certified Engineer in 2018 and the building was valued at Rs.14,69,550/- as on the year 2013.  The act of 1^st opposite party amounts to deficiency in service.  The 1^st opposite party violated the terms of construction agreement dated 17.01.2014.  The 1^st opposite party initiated arbitration proceedings against the 1^st complainant and being aggrieved by the award, the complainant preferred appeal in O.P.No.479/2018 before High Court of Madras.  Later settlement talks were initiated between both the parties. The complainants were not aware of the demise of 1^st opposite party till 2022.  The complainants issued legal notice dated 16.12.2022 to the opposite parties to comply the demands.  Since no reply received from opposite parties the complainants approached this commission.

6. To prove the case, the 2^nd complainants deposed proof affidavit with 8 documents which were marked as Ex.A1 to Ex.A8.  Ex.A1 is the construction agreement in terms of memorandum of understanding entered between the parties, Ex.A2 is the valuation Report, Ex.A3 is the order of Hon’ble High Court of Madras in O.P.No.479/2018, Ex.A4 is the legal notice sent by the complainant to the opposite parties, Ex.A5 is the reply sent by the opposite parties, Ex.A6 is the rejoinder legal notice sent to the opposite party, Ex.A7 is the Power of Attorney and Ex.A8 is the death certificate of P.G.Duraiya.

7. Per contra, the opposite parties 2 to 5 contended that the complaint filed against dead person is nullity and the same is not maintainable.  The complaint is barred by limitation.  The opposite parties 2 to 5 are no way connected to the alleged transactions between the complainants and 1^st opposite party.  The 1^st opposite party and complainants entered into a joint development agreement and 1^st opposite party paid Rs.25,00,000/- to the complainants as refundable advance.  Due to flaws in the title of the property, the 1^st opposite party backed out from the project.  The 1^st opposite party initiated arbitration proceedings against the complainants to recover the advance amount paid by him.  The Arbitrator passed an award directing the complainants to pay the amount with 18% interest and dismissed the counter claim of the complainants.  The complainants preferred appeal against the award before High Court of Madras in OP.No.479/2018 wherein the interest has been reduced to 18% to 12% by the Hon’ble High Court.  The opposite parties 2 to 5 are no way related to the transactions and therefore pray to dismiss the complaint.

8. To refute the claim of the complainant, the opposite parties 2 to 5 deposed proof affidavit with 5 documents which were marked as Ex.B1 to Ex.B5.  Ex.B1 is the Joint Venture Agreement, Ex.B2 is the order passed by Hon’ble High Court in O.P.No.550/2016, Ex.B3 is the counter claim of 1^st complainant, Ex.B4 is the Arbitration Award and Ex.B5 is the High court order in O.P.No.479/2018.

9. On perusal of the documents filed by both the parties, it is seen that there is a dispute between both the parties since the year 2016.  Ex.A1 is the unsigned Memorandum of understanding dated 17.01.2014.  Ex.A1 cannot be relied upon due to non execution of the agreement by both the parties. Ex.A2 is the valuation report and photos by the Approved valuer.  Ex.A3 is the Judgment passed in OP.No.479/2018, Ex.A4 is the reply notice issued by the opposite parties 2 to 5 and Ex.A6 is the rejoinder issued by the complainants.  The allegation of the complainant that he had paid the entire construction cost to the 1^st opposite party before due date.  However, the complainants had not filed a single document to show that he had paid the construction cost to the 1^st opposite party.  The allegation put forth by the complainants that they had paid the amount in cash is not acceptable one.

10. It is seen from the records that there was a dispute between the parties in pursuance of execution of joint development agreement in the year 2013.  We have not concerned about the dispute since we have limited our scope with respect to construction of residential property.  The question has to be decided whether the complainants made the payment to the 1^st opposite party and the 1^st opposite party failed to deliver the house within the stipulated time. The complainants had not filed any documents to prove the payment made by him.

11. The complainants had not disclosed the facts of the case with proper documents. Moreover the complainants had not chosen to appoint an Advocate Commissioner to inspect the property.  The complainants had failed to establish that the 1^st opposite party had constructed the house incomplete manner.  Moreover the complainants had not filed proper documents to substantiate their claim.  The complainants had not shown any inclination to bring the valuer before this Commission as one of the witnesses to establish the loss suffered by him.  The complainants levelled bald allegations against the opposite parties without any documentary evidence.  Hence we have come to the conclusion that there is no deficiency in service on the part of the opposite parties.  This point is answered accordingly.

Point No.2:-

12. Since we have had that the opposite parties had not committed any of the deficiency in service, the complainants is not entitled for any reliefs from this complaint.  The complaint is liable to be dismissed and accordingly dismissed.  This point is answered accordingly.

In the result, the complaint is dismissed.  No order as to cost.

Dictated by the Member-I to the steno-typist, transcribed and computerized by him, corrected by the Member-I and pronounced by us in the open Commission on this 26^th day of October 2023.

      -Sd-                                                                                                                -Sd-

MEMBER-I                                                                                                      PRESIDENT

List of document filed by the complainant:-

List of documents filed by the opposite parties:-

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MEMBER-I                                                                                                      PRESIDENT