BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY
THURSDAY, the 26th day of March, 2015
CONSUMER COMPLAINT NO.1/2013
Louis Gilbert Aroquiassamy @
Samikannu,
S/o Louis Joseph Aroquiassamy,
No.39 and 40, II Floor, Singapore Avenue,
Muthirapalayam Road, Moolakulam,
Puducherry. ………… Complainant
Vs.
M/s Honesty Associates,
Rep. by its Partners
1. P.Vetriselvam
2. G.Murali
Both are residing at
No.12, Preethi Complex,
Lenin Street, Kosapalayam,
Puducherry. …………… Opposite Parties
BEFORE:
HON’BLE THIRU JUSTICE K.VENKATARAMAN
PRESIDENT
TMT. K.K.RITHA,
MEMBER
THIRU S.TIROUGNANASSAMBANDANE,
MEMBER
FOR THE COMPLAINANT:
Party-in-Person
FOR THE OPPOSITE PARTIES:
M/s P.Sudhagar & R.Muthuvelan,
Advocates, Puducherry
(Subsequently O.P.s remained Exparte)
O R D E R
The complainant has come up with the present complaint putting forth the following averments:
The complainant is the absolute owner of the schedule mentioned property and the opposite parties 1 and 2 have entered into an agreement with him on 24.11.2007 for a joint venture as per which, the opposite parties 1 and 2 have to erect apartment in the schedule mentioned property and shall be under the name of "Shri Anandam Nivas". As per the agreement entered into between the parties, the opposite parties 1 and 2 have to obtain planning permission from the Cuddalore Land Planning Authority and would erect a building and to be completed within one year. The investment made by the complainant by way of vacant site was Rs.25,00,000/- and the opposite parties' investment was Rs.8,00,000/-. However, after the agreement, the opposite parties 1 and 2 have not shown any interest in putting up construction and dragging the matter. Therefore, the complainant was constrained to issue a legal notice on 05.02.2011 to both the opposite parties, but, they have not responded to the said notice and hence the complainant was forced to file the present complaint before this Commission.
2. Reply version was filed by both the opposite parties putting forth the following pleas:
They have obtained the order of amalgamation from the Commissioner Cuddalore Municipality. The next procedure is to get approval from the Cuddalore Land Planning Authority. However, the complainant have not come forward to hand over the property documents and failed to sign certain forms for getting planning permission. Though several time the complainant was asked to sign the necessary forms, he has not signed the forms and hence permission could not be obtained from the Planning Authority. The agreement speaks that construction has to be started only after getting permission from the Cuddalore Planning Authority. Since the complainant has not signed the necessary papers enabling them to obtain permission from the Planning Authority, permission could not be obtained and construction not started. Therefore, the opposite parties are not liable to pay any compensation. Thus, the reply version of the opposite parties seeks for the dismissal of the complaint.
3. Rejoinder has been filed on behalf of the complainant putting forth the following points;
It is not correct to state that notice that has been sent by the complainant was not served on the opposite parties. The notices were sent by Registered Post with Acknowledgement Due and the same has been acknowledged by the opposite parties. Therefore, the opposite parties cannot say that they were surprised to see the complaint filed before this Commission only through paper publication. It is not correct to state that the complainant has not handed over the property documents and has not signed the papers for getting approval from the concerned authorities. All the necessary papers have been duly signed by the complainant and the opposite parties are delaying the matter. In fact, the property in Puducherry was entrusted to them for putting up construction and that they have not completed the construction and this lead to the filing of complaint before this Commission. The opposite parties are in the habit of not completing the construction within the stipulated period. Thus, the re-joinder seeks for allowing the complaint.
4. The complainant has filed the affidavit of chief-examination as CW1. He was cross-examined by the counsel for the opposite parties. Exs.C1 to C11 have been filed and marked on behalf of the complainant. Though the opposite parties have filed the written version, they have not chosen to examine themselves before this Commission as witness and no document was marked on their side to support their case though sufficient opportunities have been given to them. Thereafter, the complainant, who has engaged the counsel has represented before this Commission that he will represent by himself. He has filed the written arguments. As stated already, there was no representation on behalf of the opposite parties and they have not chosen to file written arguments.
5. We have considered the complaint, written version and the re-joinder. We have also gone through the evidence of CW1 and the documents and we have perused the documents filed on behalf of the complainant.
6. It is the case of the complainant that he has entrusted the property in question to the opposite parties for a joint venture and entered into an agreement, dated. 24.11.2007, which is marked as Ex.C1. It is his case that he has invested Rs.25.00 lakhs and the opposite parties have invested Rs.8.00 lakhs. Even, Ex.C1 – the agreement between the parties speaks of the same. Further, at a later stage, the complainant has taken a different stand by saying that the opposite parties have not invested any money in the transactions. We are unable to believe the said stand taken by the complainant since from the beginning he was making the plea that he has invested Rs.25.00 lakhs and the opposite parties have invested Rs.8.00 lakhs. Therefore, we are of the view that the complainant has invested Rs.25.00 lakhs and the opposite parties have invested Rs.8.00 lakhs in this project. This point is answered against the complainant.
7. The next point that has to be considered is whether the opposite parties have delayed the project since the complainant has not signed the necessary forms for getting approval from the concerned authority?
It is the case of the complainant that even though he has signed the necessary forms to get planning approval, they have failed to get planning approval from the authority concerned. On the other hand, it is the case of the opposite parties that the complainant has not handed over the property documents and failed to sign the necessary forms for getting permission from the planning authority. As already stated, the complainant has sent the notice under Ex.C3 to the opposite parties by registered post with acknowledgement. The same has been acknowledged by the opposite parties, which is borne out by Exs.C4 and C5. If really the complainant has not signed the necessary forms to enable the opposite parties to obtain planning permission, immediately they would have replied the notice. But, unfortunately, they did not do so. In the written version, they claim that they know about the complaint filed in this Commission only through paper publication and it was shocking to them. When they received notice from the complainant as evidenced from Exs.C4 and C5, they cannot plead that they have not received the notice. Even for argument sake if it is taken that they aware of the complaint filed before this Commission only through paper publication, there is no reason why they have not replied for the notice received by them.
8. That apart, before this Commission, the complainant examined himself as CW1 and filed and marked Exs.C1 to C11 and he has also been cross-examined by the counsel appearing for the opposite parties. Even though sufficient opportunities have been given to the opposite parties, they have not chosen to examine any witness on their side before this Commission and no document has been filed to prove their case. Now, before this Commission, there is evidence adduced by CW1 and his cross-examination by the opposite parties and the documents filed and marked on his side. With these limited documents and evidence, we have to assess the case of the complainant as well as the opposite parties. While doing so, we are of the view that the opposite parties, who are in a position to say that the complainant has not signed the necessary forms for getting planning approval from the concerned authority, they have not done so. They have not taken any steps to examine the witness before this Commission and subjected themselves for cross-examination. Therefore, we are unable to believe the version of the opposite parties that even though they were ready to put up construction in the schedule mentioned property, the complainant has not signed the necessary forms for getting planning approval from the concerned authorities to commence construction. Therefore, we have no other go than to accept the evidence of the complainant that the opposite parties dragging the matter endlessly and failed to put up construction in the schedule mentioned property. This point is answered in favour of the complainant.
9. The complainant has entrusted the property mentioned in the schedule to the opposite parties to put up construction thereon, but the opposite parties failed to do so which is definitely deficiency in service on their part. As per the Consumer Protection Act, 1986, the complainant has to be construed as consumer. This point is also held in favour of the complainant.
10. Summing up all, we can safely conclude that the opposite parties even though accepted to put up construction in the schedule mentioned property, have failed to do so and they have also failed to establish that the complainant was at fault since he has not signed the necessary forms. In our considered view, the opposite parties have not established that the complaint has not signed the necessary forms for getting planning approval from the concerned authorities. The complainant would have definitely suffered mental agony and hardship because of the failure on the part of the opposite parties. Had the construction been completed and possession was handed over to the complainant in time, he would have rented out the property and would have earned some amount by way of rent, but he has lost income because of the opposite parties' failure to put up construction in the schedule mentioned property in time. Therefore, we award a sum of Rs.3,00,000/- (Rupees Three-Lakh only) towards physical sufferings and mental agony caused to him by the opposite parties. As far as the claim of Rs.25.00 lakh compensation is concerned, we are not inclined to grant the said amount since the complainant even today could rescind the agreement entered into with the opposite party and may entrust the same to a third party. As far as cost is concerned, we are inclined to grant Rs.10,000/- (Rupees Ten Thousand only) though the complainant has claimed only R.5,000/- as costs, since the complainant would have spent more money towards litigation.
11. Thus, the complaint is allowed to the extent indicated above.
Dated this the 26th day of March, 2015.
(Justice K.VENKATARAMAN)
PRESIDENT
(K.K.RITHA)
MEMBER
(S.TIROUGNANASSAMBANDANE)
MEMBER
LIST OF COMPLAINANT'S WITNESSES:
CW1 – Louis Gilbert Aroquiassamy @ Samikannu, Complainant, Proof-Affidavit filed on
10.04.2014 and cross-examined on 11.09.2014
LIST OF COMPLAINANT'S EXHIBITS:
Ex.C1 – Xerox copy of Construction Agreement, dt.24.11.2007 between the
complainant and the opposite party, marked through CW1.
Ex.C2 – Xerox copy of sanction letter to the amalgamation for the apartment, issued by
Cuddalore Planning Authority, dt. 12.02.2008, marked through CW1.
Ex.C3 – Copy of lawyer's notice,dt.05.02.2011, issued to partners of O.P., marked
through CW1.
Ex.C4 – Postal acknowledgement signed by 1st partner of O.P., marked through CW1.
Ex.C5 – Postal acknowledgement signed by 2nd partner of O.P., marked through CW1.
Ex.C6 – Xerox copy of construction agreement, dt.24.11.2007 in respect of property at
Puducherry between complainant and O.P., marked through CW1.
Ex.C7 – Xerox copy of Promissory deed, dt.12.08.2008, executed by O.P. to and in
favour of complainant, marked through CW1.
Ex.C8 – Xerox copy of complaint, dt.22.07.2013 by the complainant to S.H.O.,
Reddiarpalayam P.S., Puducherry, marked through CW1.
Ex.C9 – Xerox copy of complaint, dt. 13.08.2013 by the complainant to S.H.O.,
Reddiarpalayam P.S., Puducherry, marked through CW1.
Ex.C10- Xerox copy of complaint, dt. 24.12.2013 by the complainant to S.H.O.,
Reddiarpalayam P.S., Puducherry, marked through CW1.
Ex.C11- Xerox copy of acknowledgement slip, issued by S.H.O., Reddiarpalayam PS.,
Puducherry for the receipt of complaint by complainant, marked through CW1.
LIST OF OPPOSITE PARTY'S WITNESSES: -NIL-
LIST OF OPPOSITE PARTY'S EXHIBITS: -NIL-
(Justice K.VENKATARAMAN)
PRESIDENT
(K.K.RITHA)
MEMBER
(S.TIROUGNANASSAMBANDANE)
MEMBER
