Tamil Nadu

South Chennai

CC/258/2014

A.Jayapal - Complainant(s)

Versus

M/s.Anandhi - Opp.Party(s)

Party in person

23 Jul 2018

ORDER

                                                                        Date of Filing  : 27.01.2014

                                                                          Date of Order : 23.07.2018

 

DISTRICT CONSUMER DISPUTES 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

 

C.C. No.258/2014

DATED THIS MONDAY THE 23^RD DAY OF JULY 2018

                                 

A. Jayapal,

F/o. B. Malarvizhi,

Purchaser,

No.32/9, III Main Road,

Rathinapuri,

Koyambedu,

Chennai – 600 107.                                                     .. Complainant.

 

                                                            ..Versus..

 

1. Tmt. M. Anandhi,

W/o. Thiru. M. Murugan,

Seller,

M/s. Jai Varsha Homes,

No.1, 3^rd Cross Street,

Trustpuram,

Kodambakkam,

Chennai – 600 024.

 

2.  Thiru. M. Murugan,

S/o. Mr. S. Muthukumar,

Seller,

M/s. Jai Varsha Homes,

No.1, 3^rd Cross Street,

Trustpuram,

Kodambakkam,

Chennai – 600 024.                                          ..  Opposite parties.

          

For complainant                      :  Party in person

Counsel for opposite parties  :  M/s. N. Raja Senthoor Pandian &

                                                    others

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 praying to repay a sum of Rs.32,090/- towards relaying of tiles with interest at the rate of 24% p.a., to replace the tiles in the master bedroom and kitchen, to pay a sum of Rs.6,00,000/- towards compensation for unfair trade practice, to pay a sum of Rs.9,500/- towards compensation of rent per month from September 2013 to till the completion of the work and  to pay a sum of Rs.1,50,000/- towards compensation for mental agony and deficiency in service with cost of Rs.10,000/- to the complainant.

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

 The complainant submits that his daughter B. Malarvizhi had entered into a Memorandum of Agreement on 21.01.2008 with the opposite parties for purchasing the impugned flat in which he is a witness.  Due Sale Deed for the undivided share also executed in favour of B. Malarvizhi.   The possession also handed over by the opposite party on 12.07.2008.   The complainant further submits that the actual amount paid to the opposite parties for the purchase of the above flat ‘H’ is Rs.28,24,050/- and  the entire amount was sourced by the complainant and his wife from the sale proceeds of her plot at Razaak Garden, Arumbakkam, Chennai – 600 106.   Further the complainant submits that the ceramic tiles laid by the opposite parties in the dining hall, main hall and both the bed rooms and kitchen got broken suddenly.   Evenafter repeated requests and demands, the opposite parties has not replaced the same.   Hence the complainant was constrained to replace the tiles by spending Rs.15,000/- on 03.01.2012, Rs.17,090/- on 02.11.2012 and Rs.9,500/- on 07.09.2013.   Further the complainant submits that due to the damage of tiles he was not able to induct tenants resulting huge loss from September 2013.  Hence the complainant issued notice to the opposite parties through Registered post dated:19.11.2013 but the covers were returned as “unclaimed”.  Again, the complainant on 19.11.2013 sent the complaint to the E-mail address of the 2^nd opposite party but has not received any reply.   The act of the opposite parties caused great mental agony to the complainant.  Hence the complaint is filed.

2.     The brief averments in the written version filed by the  opposite parties is as follows:

The opposite parties specifically deny each and every allegations made in the complaint and puts the complainant to strict proof of the same.   The opposite parties state that the complainant suppressed the material facts and filed this case to harass the opposite party.  Further the opposite parties state that the real purchaser is Malarvizhi and all the documents stands in the name of Malarvizhi and none of the document stands in the name of Jayapal.  The complainant also has not produced any document like Power of Attorney or Letter of Authorization to file this case.  The complainant has no locus standi to file this complaint before this Forum.  Further the contention of the opposite parties is that as per clause 9 of the agreement it is stated as follows:

“The Purchaser further agree that after taking possession of the said premises he/she shall have no claim against the Builder in respect of any work or items in the said premises which may be alleged not to have been carried out or completed”.    Hence the purchaser Malarvizhi also taken possession of apartment and due acknowledgement dated:12.07.2008 also given  stating that the apartment is in a good condition without any complaint.  Further the opposite parties state that the complaint is barred by limitation.  Further the opposite parties state that there is no deficiency in service on the part of them.  The complainant without any locus standi filed this case.  Hence the compliant is liable to be dismissed.

3.   In order to prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A9 are marked.  Proof affidavit of the opposite parties filed and no documents filed and marked on the side of the opposite parties.

4.     The points for consideration is:-

1. Whether the complainant is entitled to a sum of Rs.32,090/-towards relaying of tiles in the master bedroom and kitchen with interest at 24% p.a. as prayed for?

2. Whether the complainant entitled a sum of Rs.6,00,000/- towards unfair trade practice and mental agony  Rs.9,500/- per month towards loss of rent with cost of Rs.10,000/- as prayed for?

5.     On point:-

Heard both sides.  Perused the records namely the complaint, written version, proof affidavits, documents etc.   Admittedly, the complainant is the father of the actual owner of the flat, Malarvizhi.  The complainant has not filed any Power of Attorney or Letter of Authorization from the actual owner Malarvizhi.  The complainant pleaded and contended that his daughter B. Malarvizhi had entered into a Memorandum of Agreement on 21.01.2008 with the opposite parties for purchasing the impugned flat in which he is a witness.  Due Sale Deed for the undivided share also executed in favour of B. Malarvizhi.   The possession also handed over by the opposite party on 12.07.2008.   The complainant pleaded that “infact the actual amount paid to the opposite parties for the purchase of the above flat ‘H’ is Rs.28,24,050/-.  The entire amount was sourced by the complainant and his wife, J. Senthamilselvi from the sale proceeds of plot at Razaak Garden, Arumbakkam, Chennai – 600 106”.   But the complainant has not produced any document to prove the above said transaction.  Admittedly, all the documents stands only in the name of Malarvizhi and not in the name of complainant.  The said Malarvizhi has not filed any case against the opposite parties establishes that the actual owner Malarvizhi have no grievance against the opposite parties.  The complainant also has not produced any document to prove that only on the instruction of actual owner Malarvizhi this case has been filed.   Without proving the proper authorization, the complaint is unsustainable. 

6.     Further the contention of the complainant is that the ceramic tiles laid by the opposite parties in the dining hall, main hall and both the bed rooms and kitchen got broken and damaged suddenly.   Evenafter repeated requests and demands, the opposite parties has not replaced the same.   Hence the complainant was constrained to replace the tiles by spending Rs.15,000/- on 03.01.2012, Rs.17,090/- on 02.11.2012 and Rs.9,500/- on 07.09.2013 as per Ex.A4 and Ex.A5.   But the complainant has not produced any document to prove such damage.  The photographs showing the damage of tiles in the master bedroom cannot be accepted because it is unilateral behind the knowledge of opposite parties.  The complainant also has not taken any steps to appoint an Advocate Commissioner to find the damages also.  Further the contention of the complainant is that due to the damage of tiles he was not able to induct tenants resulting huge loss from September 2013.  But the complainant has not produced any substantial records. 

7.     The complainant’s Counsel cited the decisions reported in

1 (2011) CPJ 109 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

Between

D.S. Yadav

-Versus-

Indian Railway Welfare Organization & another

Held that

        “Since it was a hidden defect, Respondent No.2 could not have detected the same at the time of taking over the possession.   This defect could only be detected on the occupation usage of the flat by Respondent No.2 Seepage of the water affected Petitioner only and not Respondent No.2 as the water seeped from upper floor to the floor below which was occupied by the Petitioner”.

and in

AIR 2009 SUPREME COURT 357

Between

Tarun Chatterjee J

Versus

Lokeshwar Singh Panta. J

Held that

“(C) Contract Act (9 of 1872), S.28- Scope – Supply agreement – Clause in agreement giving unilateral right to determine liquidated damages to purchaser – Also providing that quantification of said Liquidated Damages shall be final and cannot be challenged by supplier – Is clearly in restraint of legal proceedings u/s.28- Thus, said provision in agreement, held, bad”.

8.     The learned Counsel for the opposite party contended that the complainant suppressed the material facts and filed this case to harass the opposite party.  In the cause title itself, the complainant mentioned as follows:

A. Jayapal,

F/o. B. Malarvizhi,

Purchaser,

No.32/9, III Main Road,

Rathinapuri,

Koyambedu,

Chennai – 600 107.   

 

 The real purchaser is Malarvizhi and all the document stands in the name of Malarvizhi and none of the document stands in the name of Jayapal.  The complainant also has not produced any document like Power of Attorney or Letter of Authorization to file this case.  The complainant has no locus standi to file this complaint before this Forum. 

9.     Further the contention of the opposite parties is that as per clause 9 of the agreement it is stated as follows:

“The Purchaser further agree that after taking possession of the said premises he/she shall have no claim against the Builder in respect of any work or items in the said premises which may be alleged not to have been carried out or completed”.    The purchaser Malarvizhi also taken possession of apartment and due acknowledgement dated:12.07.2008 also given  stating that the apartment is in a good condition without any complaint.  The complainant also has not taken any steps to appoint Advocate Commissioner to find out the real damages.   The unilateral collection of photos shall not reveal the real facts.  Further the contention of the opposite parties is that the complaint is barred by limitation.  On 12.07.2008, the possession was taken by the purchaser Malarvizhi but this case was filed only on 27.01.2014.  Further the contention of the opposite parties is that there is no deficiency in service on the part of them.  The complainant without any locus standi filed this case.  Considering the facts and circumstances of the case, this Forum is of the considered view that the complaint has to be dismissed. 

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

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 23^rd day of July 2018. 

 

MEMBER –I                                                                      PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

Ex.A1	21.01.2008	Copy of Memorandum of Agreement entered into by the purchaser B. Malarvizhi, D/o. of the complainant with the opposite parties with plan
Ex.A2	06.02.2008	Copy of the certified copy of Sale Deed No.311 Dated:06.02.2008 in favour of M/s. B. Malarvizhi, Daughter of the complainant by the 2nd opposite party
Ex.A3	04.01.2008 to 12.07.2008	Copy receipts for the payment made by Mrs. B. Malarvizhi, Daughter of the complainant to the opposite parties
Ex.A4	03.01.2012	Copy of bill for laying tiles afresh in the broken area during Dec 2011
Ex.A5	02.11.2012	Copy of bill for laying tiles afresh in the broken area during Oct 2012
Ex.A6	19.11.2013	Copy of notice sent to the opposite parties by registered post together with unclaimed covers
Ex.A7	19.12.2013	Copy of letter sent to the opposite party No.2 to his email
Ex.A8	20.01.2014	Copy of statement of account of the W/o of the complainant issued by State Bank of Hyderabad, Koyambedu, Chennai showing the rent receipt
Ex.A9	22.01.2014	Copy of Original bill of New General Studio and Video, College Road, Chennai – 600 014 together with copies of photos showing the present status of the floor area of the flat ‘H’ and also CD containing its photo

 

OPPOSITE  PARTIES SIDE DOCUMENTS:  NIL

 

MEMBER –I                                                                      PRESIDENT