Tamil Nadu

South Chennai

CC/316/2019

Mrs. Sakunthala - Complainant(s)

Versus

Proprietor of Jai Enterprises, Mr. J. Balamurugan - Opp.Party(s)

T.S Rajamohan

26 Apr 2023

ORDER

Date of Complaint Filed : 10.12.2019

Date of Reservation      : 10.04.2023

Date of Order               : 26.04.2023

          DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT: TMT. B. JIJAA, M.L.,                                         : PRESIDENT

                    THIRU. T.R. SIVAKUMHAR, B.A., B.L.,         :  MEMBER  I 

                   THIRU. S. NANDAGOPALAN., B.Sc., MBA.,   : MEMBER II

               

CONSUMER COMPLAINT No.316/2019

WEDNESDAY,THE 26^th DAY OF APRIL 2023

 

Mrs. S. Sakunthala,

W/o. Samuel,

No.1/5, Bharathiyar Street,

Ambal Nagar,

Ramapuram,

Chennai – 600 089.                                                         …Complainant.

..Vs..

Mr. J. Balamurugan,

S/o late Jayaraman,

Proprietor of Jai Enterprises,

No.23, Sembanthar Street,

Kamakoti Nagar,

Valasaravakkam,

Chennai – 600 087.                                                  .. Opposite party.

                                                               

* * * * *

Counsel for the complainant       : M/s. T.S. Rajamohan

Counsel for Opposite party         : Exparte on 23.01.2020

 

  On perusal of records and having heard the oral arguments of the Counsel for the Complainant, this Commission delivered the following:

ORDER

Pronounced by Member-I, Thiru. T.R. Sivakumhar., B.A., B.L.,

(i) The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to direct the opposite party to repay a sum of Rs.2,2,000/- paid by the Complainant under the scheme for purchase of residential plot together with the interest @24% p.a computable from January 2009 continuously until date of full payment and to pay a compensation in a sum of Rs.2,50,000/- for the mental agony and hardship caused to the Complainant in having wilfully and deliberately defrauded the Complainant along with cost.

I.  The averments of Complaint in brief are as follows:-

1.   The Complainant submitted that the Opposite Party is doing real estate business in the name and style of Jai Enterprises, and during the lifetime of his father, namely, Jayaraman, he was doing real estate business along with his father and after the death of his father, he was continuing the same business in the same name. The nature of business of the Opposite Party is that he would enter into an Understanding with the Owners of Immovable Property in and around Chennai for the purpose of developing the vacant lands by forming layout consisting of residential/commercial plots, and to attract the customers for sale of the vacant plots by introducing various schemes by collecting monthly installments towards the value of the land. During 2005 the Complainant had joined in Chit Scheme floated by the Opposite Party whereby a sum of Rs.1300/- per month has to be paid for total of 25 months and on completion of payment in full the Opposite Party would register Sale Deed in respect of the property developed by him. As such the Opposite Party had entered into an Understanding with Mrs.Sorna rani, the Owner of immovable property Comprised in New Survey No.70-A of Mangadu Village, Sriperumbudur Taluk, Kancheepuram District, within the Jurisdictional limits of SRO, Kundrathur. And a General Power of Attorney dated 04.06.1997 was registered as Document No.724 of 1997 by the said Sorna Rani nominating C.Doraiswamy, who happens to be the representative of the Opposite Party, in respect of larger extent of 2.24 Acres. The Opposite Party had formed a layout in the said extent of land and named the layout as Sri Janani Nagar Annexe of Jai Enterprises indicating the Survey Nos. 70,71, 72/1. She had subscribed a residential Plot, having paid a sum of Rs.2,20,000/- to the Opposite Party, who had offered to sell Plot No.49 measuring an extent of 846 sq.ft in the said Layout, i.e, Sri Janani Nagar Annexe, Mangadu, including the registration expenses. Accordingly the Opposite Party had registered a Sale Deed dated 07.08.2009 registered as Document no.5663 of 2009 in SRO, Kundrathur, thereby had sold and conveyed the said Plot, which is unapproved at a market value of Rs.1,69,200/-. An agreement dated 09.09.2005 to effect registration of the said plot with its mode of payment has been executed by A.Jayarman, the father of the Opposite Party and the Opposite Party, whereby the value of the said plot was fixed at Rs.1,69,200/- and a sum of Rs.15,000/- has been paid by her as advance and the balance sum has to be paid at Rs.1,300/- per month for 46 months, and on receipt of entire payment the said plot would be registered and in case of any default in the monthly payments the allotment of the said plot would be cancelled and some other plot would be offered for sale and also on default 3% interest has to be paid and if the advance sum was sought for return the same would be returned on deduction of Rs.4000/-. On receipt of the registered Sale Deed she felt very happy as her dream of purchasing a housing Plot near Chennai was fulfilled and was with hope to construct a residential house in the said Plot in future. But, during May 2019 she visited and to her utter shock and surprise had found that the boundary stones in respect of her plot were removed, on enquiries made she found that Plot no.48 was sub-divided into Plot Nos.48 and 48A and the property was sold to her was annexed to Plot No.48A, whereas the said plot No.48A was not created which does not form part of the layout provided to her and the Opposite Party had proceeded in conveying Plot No.48A to one K.Sumathi, under Registered Sale Deed dated 07.07.2008 vide Document no.6346 of 2008. Immediately she approached Sub Registrar’s office, Kundrathur for issuance of encumbrance certificate, she was shocked and surprised when she found that the Opposite Party had inserted Plot No.48A taking advantage of the Unapproved Layout. By providing the layout which does not contain Plot No.48A the Opposite party had played fraud and thereby the Opposite Party had misrepresented and cheated her by executing a registered Sale Deed of a Plot which was virtually not in existence. On knowing the above facts, when she approached the Opposite party, it was replied to her to take some other plot and he was not in a position to execute any Sale Deed in respect of such Plot which he had offered to give it to her as his representative Duraisamy was not alive. The Opposite Party had defrauded her by receiving a huge sum as Sale Consideration which amounts to deficiency of service and he is bound to return back the sum of Rs.2,20,000/- paid by her on various dates together with damages and costs. The Opposite party now project himself as a member of a leading national party and threatened her if she approaches Court or Police. There is no Plot No.49 indicated by the Opposite Party in the Sale Deed dated 07.08.2009 as well as in the Plan prepared and furnished to her, hence it is clear that the Opposite Party had willfully and deliberately cheated and defrauded her. She had sent a Legal Notice dated 18.07.2019 by speed post acknowledgement due for refund of Rs.2,20,000/- paid by her until August 2009 together with interest computable @ 18% per annum from August 2009 until payment in full, in spite of receipt of the said notice the Opposite party has not chosen send a reply, though continuing his business in the same address. Hence the complaint.

II.   The Opposite Party set ex parte:

 Notice was sent to the opposite party and was duly served on 21.01.2020. Despite the notice being served to the Opposite Party failed to appear before this Commission either in person or by an Advocate on the hearing date i.e. 23.01.2020. On that day, the opposite party was called absent and  set ex-parte. Subsequently, the case was proceeded to be heard on merits.

III. The complainant has filed his proof affidavit, in support of his claim in the complaint and has filed documents which are marked as Ex.A-1 to A-9. Written argument of complainant  filed.

Points for Consideration:-

1.     Whether the Complainant is a Consumer and the complaint filed by the Complainant falls under the purview of Consumer Protection Act?

2.     Whether the complaint filed by the Complainant suffers by non-joinder of necessary parties?

3.     Whether the Opposite Party had committed deficiency of Service to the Complainant?

4.     Whether the Complainant is entitled for the reliefs claimed in the complaint?

5.     Whether the Complainant is entitled for any other relief/s?

POINT NO. 1 :-

2.     The contentions of the Complainant are that she had purchased a Plot bearing No.49 measuring an extent of 846 sq.ft in Sri Janani Nagar Annexe, Mangadu, under a Chit Scheme from the Opposite Party. The Opposite Party had formulated and developed a larger extent of 2.24 Acres comprised in Survey Nos. 70, 71, 71/2as un approved residential Plots on Understanding entered into with the Land Owner, namely Mrs.Sorna Rani and the said Mrs.Sorna Rani had nominated Mr.Doraiswamy as her registered power agent, who was a representative of the Opposite Party. On the strength of the registered Power of Attorney, the Opposite Party’s representative, Mr.Doraiswamy had conveyed and sold the said Plot to her under Sale Deed dated 07.08.2009 registered as Document no.5663 of 2009in the Office of the Sub Registrar, Kundrathur. She was provided with a Layout Plan of Sri Janani Nagar Annexe by the Opposite Party. She was with a fond hope of constructing a residential house in the dream plot she had purchased near Chennai, to her shock and surprise when visited her plot during May 2019 she found that the boundary stones were removed and on enquiry she found that the Opposite Party had subdivided Plot No.48 into Plot Nos. 48 and 48A and sold Plot No.48A to one K.Sumathi, when no such Plot No.48A was plotted in the Layout provided to her, taking advantage of the Plots were unapproved the Opposite party had inserted Plot No.48A and on verifying the Encumbrance Certificate she come to know that she was cheated and defrauded by receiving a huge sum of Rs.2,20,000/- on the sale of the said Plot No.49 to her, by inserting Plot No.48A,  which amounts to deficiency of service. When the said facts were taken to knowledge of the Opposite party, who had replied to her to take some other plot and he was not in a position to execute any Sale Deed in respect of such Plot which he had offered to give it to her as his representative Duraisamy was not alive. The Opposite Party had defrauded her by receiving a huge sum as Sale Consideration which amounts to deficiency of service and he was bound to return back the sum of Rs.2,20,000/- paid by her on various dates together with damages and costs, which was not responded in spite of the receipt of the Legal Notice dated 18.07.2019 sent by her.

3.     On discussion made above and on perusal of complaint and exhibits marked in support of the complaint, as the issue raised by the Complainant relates to purchase of an Immovable Property, being a Plot, under a Registered Sale Deed in the year 2009, which was found in the unapproved layout provided to the Complainant during the purchase of the subject Plot and which was virtually not in existence in the year 2019 when she visited her said plot, as Plot No.48 was subdivided as Plot Nos. 48 and 48A and Plot No.49 sold to her was sold as Plot No.48A and thereby the Opposite party had defrauded the Complainant after having received a huge sum of Rs.2,20,000/-, amounts to deficiency of service, is not at all maintainable as the dispute in respect of Immovable property does not fall under the purview of Consumer Protection Act,1986, as Section 2(o) defines “service” means service of any description which is made available to potential (users and includes, but not limited to, the provision of) facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, boarding or lodging or both (housing construction) entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service. Therefore this Commission is of the considered view that the Complainant is not a consumer and the complaint filed is not maintainable. Accordingly Point No.1 is answered.

Point Nos.2 and 3:

4.     Though the Complainant had produced an unregistered Undertaking dated 09.09.2005 executed by A.Jayaraman, the father of the Opposite Party and by the Opposite Party, jointly, in favour of the Complainant, which was marked as Ex.A-1, the same could not be relied upon as the said exhibit does not contain the signatures of the executants and witnesses. Further in the Sale Deed dated 07.08.2009 registered as Document no.5663 of 2009 in the Office of the Sub Registrar, Kundrathur, in respect of Plot No.49 in favour of the Complainant, there was clear mentioning of Plot No.48A on the eastern side of the boundaries. Further in Ex.A-6 Sale Deed dated 07.07.2008 registered in favour of one K.Sumathi, Plot No.49 was shown on the Western side of the boundaries. Further from Ex.A-3 the Unapproved layout plans alleged to have been provided before registration of Sale Deed, Plot No.49 is found with its measurements mentioned in the registered Sale Deed, whereas in Ex.A-4 though Plot No.49 is found but not with the measurements mentioned in the registered Sale Deed of the Complainant. It is to be noted that the Sale in respect of Plot No.48A has taken place on 07.07.2008 itself which was prior to the Sale of Plot No.49 in favour of the Complainant and hence the allegation that the boundary stones laid in Plot No.49 was found to be removed and Plot No.48 was subdivided as Plot No.48 & 48A, is not acceptable. Further, when the Opposite Party is not at all a party to the Sale Deed that has been executed and registered in favour of the Complainant, present complaint filed against the Opposite Party as a developer of the Unapproved plots without arraying the Seller, if the Power Agent was known to be dead, is not valid in law. Hence it is clear that the Complainant had failed to array the Seller as a party to the above complaint and had not filed any material evidence to prove the deficiency of service as alleged against the Opposite Party. Therefore, we are of the considered view that the Complaint is not maintainable and the Opposite Party had not committed deficiency of service to the Complainant. Accordingly Point Nos.2 and 3 are answered.

Point Nos.4 and 5 :-

5.     As discussed and decided the above points against the Complainant, the Complainant is not entitled for the reliefs claimed in the complainant and hence is not entitled for any other relief/s. Accordingly Point Nos. 4 and 5 are answered.

In the result the complaint is dismissed. No costs.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 26^th of April 2023.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                   B.JIJAA

      MEMBER II                            MEMBER I                       PRESIDENT

List of documents filed on the side of the Complainant:-

 

Ex.A1	09.09.2005	Undertaking of the Opposite Party
Ex.A2	07.08.2009	Sale deed executed by Opposite Party
Ex.A3		Sketch that does not contain Plot No.48A prepared by Opposite Party
Ex.A4		Sketch that does not contains Plot No.48A prepared by Opposite Party
Ex.A5	12.02.2019	Encumbrance certificate
Ex.A6	12.07.2019	Certified copy of Sale Deed in respect of Plot No.48A
Ex.A7	18.07.2019	Complainant Lawyer notice
Ex.A8		Postal return cover
Ex.A9		Layout of the Opposite Party for promotion recently

 

List of documents filed on the side of the Opposite Party:-

 

NIL

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                   B.JIJAA

      MEMBER II                            MEMBER I                       PRESIDENT