Tamil Nadu

South Chennai

459/2010

S.saravanan - Complainant(s)

Versus

R.Marimuthu, Chairman,Southern Railway Corporation - Opp.Party(s)

S.Rajes Kannan

07 Jun 2016

ORDER

                                                                        Date of Filing :   14.12.2010

                                                                        Date of Order :   07.06.2016.

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

                 DR. T.PAUL RAJASEKARAN, M.A PGDHRDI, AIII,BCS : MEMBER II

 

C.C.NO.459/2010

TUESDAY THIS  7^th DAY OF JUNE 2016

 

S. Saravanan,

Flat No.7, IHFD Nagar,

Ramakrishnapuram 1^st Street,

Adambakkam,

Chennai 600 088.                                                 ..Complainant

 

                                         ..Vs..

1.  Southern Housing Corporation Limited,

No.12/10, Sarojini Street,

T.Nagar,

Chennai 600 017.

 

2. Mr. R.Marimuthu,

Chairman,

Southern Housing Corporation Limited,

12/10, Sarojini Street,

T.Nagar,

Chennai 600 017.                                               ..Opposite party   

 

 

For the Complainant                    :   M/s. Rajes Kannan     

For the opposite party                 :   M/s. P.Chandrasekar & another   

 

Complaint under section 12 of the Consumer Protection Act 1986.  The  complaint is filed seeking direction against the opposite parties to pay a sum of Rs.9,94,062/- as compensation and costs of the complaint  to the complainant.  

ORDER

 

THIRU. B. RAMALINGAM PRESIDENT

1.The case of the complainant is briefly as follows:-  

 

 The complainant submit that he has entered into an agreement with opposite parties  and purchased a complaint mentioned flat, and also taken delivery of the same, whereas there were defect in the construction as there were some in completion of construction for which the complainant has completed the construction by using his own fund and the opposite parties have also not executed the sale deed in favour of the complainant.     Accordingly the complainant issued legal notice through his counsel on 16.11.2010 and the same was received by the 1^st opposite party and they have sent an evasive reply on 23.11.2010.    As such the complainant has sought for claiming to pay a sum of Rs.9,94,062/- as compensation and costs of the complaint  to the complainant.    Hence the complaint.

Written Version of opposite parties are  in briefly as follows:

2.     The opposite parties denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.     The opposite parties submits that the complainant father Dr.N.Subramaniam was a director of the company till 2005 and the alleged builder agreement is a fraud committed by the complainant by using the pre-signed agreement in the name of his son.   It is customary that the office of the opposite party will have the unfilled pre-signed agreement for urgency purposes which will be evident in the places which is filled in the pen is not attested by the executants.    The cash receipt for the alleged payment made by the complainant is not enclosed along with the complaint.   The handing over letter for the flat is also not enclosed.   The father of the complainant had committed various fraud and the company had already issued legal notices and is in the process of filing criminal complaints against him and only to harass the opposite party he had colluded with Mr.Muralidharan who is also witness in the alleged agreement had forged and created the documents.   The flat was trespassed by the Muralidharan who was illegally made as director with the help of complainant father Dr.N.Subramani and the opposite party had already preferred a complaint against the said Muralidharan and the father of the complainant for involving in the fraudulent activities.  The opposite parties further submit that transactions have said to have been related to the period of 1998 to 2003 as such this  complaint  filed in the year 2010 is barred by limitation as per the C.P. Act 1986.  As such this complaint is liable to be dismissed, and the complainant is not entitled for any other relief sought for in the complaint.     

3.   Complainant has filed his Proof affidavit and Ex.A1 to Ex.A4 were marked on the side of the complainant.   Proof affidavit of  Opposite parties filed and no document was marked on the side of the  opposite parties.   

4.      The points that arise for consideration are as follows:-

 

1.   Whether the deficiency of service on the part of the opposite

         parties  alleged in the complaint by the complainant are true?

 

2.   Whether the complaint filed by the complainant is barred by limitation under section 24-A of the C. P. Act. 1986. ?

 

3.   Whether the  complainant is entitled for the reliefs sought for in the complaint against the opposite parties? If so, to what extent?

 

 

5. POINTS 1 to 3:

 

             Perused the complaint filed by the complainant, the  written version filed by the  opposite parties, proof affidavit filed by  the complainant and the opposite parties and the documents Ex.A1 to Ex.A4 filed on the side of complainant  and considered the arguments of the both sides.

6.     Complainant has stated that he has entered into an agreement with opposite parties  and purchased a complaint mentioned flat, and also taken delivery of the same, whereas there were defect in the construction as there were some in completion of construction for which the complainant has completed the construction by using his own fund and the opposite parties have also not executed the sale deed in favour of the complainant despite of his demand as such filed this complaint claiming  that the opposite parties has to pay damage for the above said allegations of deficiency to the extent of Rs.9,94,062/- on different heads mentioned in the complaint. 

7.     Whereas the opposite parties has raised severe objections stating that the alleged builders agreement itself of forgery in nature and complainant has not entered with the opposite parties for any agreement for purchase of flat and not paid any amount as alleged in the complaint.  The allegation made in the complaint that he has taken over the possession of the flat is also not true, on the contrary the said flat was sold to one Srinivasan, whereas  one Muralidharan who was made  as director with the help of complainant’s father Subramaniyam who was also one of the former Director of the opposite parties company, for involving the fraudulently activities on several occasions  and the said Muralidharan has made forgery by selling more than  10 flats and was  also trespassed the said flat illegally.  The company also has already issued legal notice and in the process of filling the criminal  case against the complainant’s father Subramaniyam  and   Muralidharan.  The opposite parties have also raised the objection even as per the complainant contention transactions have said to have been related to the period of 1998 to 2003 as such this  complaint  filed in the year 2010 is barred by limitation as per the C.P. Act. As such this complaint is liable to be dismissed, and the complainant is not entitled for any other relief sought for in the complaint.

8.     The objections  on the point of limitation, raised by the opposite parties that the complaint filed by the complainant is barred by limitation under Consumer Protection Act 1986 is  acceptable on the basis of the averments made in the complaint i.e the complainant has stated in the complaint that he has paid entire amount of Rs.5,62,500/- for the purchase of the flat and entered into an builders agreement Ex.A1, dated 03.07.2003 and subsequently has averred that he has taken delivery of the flat as per the agreement but without mentioning the actual date of taking delivery of the flat and also not filed any document in respect of the same.  As such if there were any incompletion of construction in the flat at the time of taking delivery of the flat the complainant would have filed this type of complaint within two years from the date of taking delivery of the flat.  Whereas the complainant neither mention the date of delivery of the flat in the complaint or filed any proof  of document for the same.  It is also pertinent to mention that  if the complainant relied upon  on the basis of the exchange of notices Ex.A3 and Ex.A4,  which were taken place  in the year of 2010 and says that this complaint is in time is not sustainable as per the decision of Hon’ble National Commission, New Delhi rendered in the case of  Niloba Ghanshyam and Naik and Anr – Complainant –vs- Lodha Pranik Developers Pvt., Ltd., (Earlier known as Pranik Landmark Associations) and Ors – Opposite parties  published in 2014 (3) CPR 158 (NC).  Therefore, we are of the considered view as contended by the opposite parties, this complaint filed by the complainant is barred by limitation under section 24A of the Consumer Protection Act 1986, and liable to be dismissed illumine. 

9.     Further the complainant has alleged that he has completed the defective incomplete constructions by using of his own money which has caused for Rs.1,50,000/-  and also claimed the same against the opposite parties.  Whereas   to prove the above said facts also the complainant has not given any details of the defect / in complete constructions alleged in the complaint and not filed   any  supporting documents for the alleged  expenses to the tune of Rs.1,50,000/- spent by the complainant. 

10.    It is also pertinent to mention that   though the complainant has alleged that the opposite parties have not executed the sale deed in favour of the complainant in respect of the alleged flat purchased by him and asking for compensation Rs.7,34,062/- towards the same in the complaint, the complainant has not established by producing necessary document for the said  claim.  Because   the document relied upon by the complainant for the purchase of the said flat which is Ex.A1  in which there is no whisper about the execution of sale deed by the opposite parties in favour of the complainant for the said flat or even for the UDS of land as  to be mentioned in the normal course of such transactions.    If really the complainant   had paid the entire consideration for the purchase of flat and had taken possession of the flat, the proper relief should have been asked by the complainant would be the execution of the sale deed for the said flat, but contrary to this the complainant has sought for only compensation of Rs. 7,34,062/- which also create  serious doubt  to believe the   case of the complainant.

11.    Further though the complainant has stated that he has paid entire amount of  consideration of Rs.5,62,500/- as mentioned in the agreement Ex.A1, the averment in the agreement  are not found properly but there were mentioning of further payments etc., Though the complainant has relied upon the letter dated 03.07.2003, Ex.A2 as a proof for acknowledgement of the opposite parties, for the receipt of the said amount, when considering the dates mentioned in the agreement  Exs.A1 and  A2 are one and the same i.e 03.07.2003 it creates doubt on the content mentioned in the said  letter.  Further even as per the reply notice Ex.A4 said to have been given by the opposite parties dated 23.11.2010, itself mention that the opposite parties denying the alleged payment made by the complainant for the purchase of the said flat, and requested for the production of proof of  necessary documents for the alleged payment.  Whereas even in this proceedings, the complainant has not produced separate document of proof for the alleged payment made for the purchase of the flat.  The complainant have been filed this complaint and seeking relief against the opposite parties must establish his case independently by producing necessary documents is of the settled principle of law.  Therefore, though the opposite parties has not filed any document, considering the facts and circumstance of this particular case, as discussed above, the complainant has not established his case. 

12.    Further it is also pertinent to mention that the opposite parties have raised several allegations against the complainant’s father and one Muralidharan who were the then Directors of the opposite parties’ company and they have committed illegal activities, as such, the complaint mentioned agreement Ex.A1 and Ex.A2 relied upon by the complainant were fraudulently created  in favour of the complainant who was, during the relevant period was a student and not having any income  or capacity to make payment and enter into an agreement for purchase of flat.  Whereas the said allegations  which were made by the opposite parties in their reply notice Ex.A4, and in written version and the proof affidavit are not specifically denied by the complainant in this proceedings.

13.    Therefore we are of the considered view as discussed above in detail that the complaint filed by the complainant is barred by limitation and the complainant has  also miserably failed to  prove his case against this opposite parties, as such the complainant is not entitled for any relief sought for in the complaint and  the complaint is liable to be dismissed.   Accordingly the points 1 to 3 are answered.   The parties are directed to bear their own costs. 

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

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  7th   day  of  June   2016.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1- 3.7.2003    - Copy of Builder’s agreement.

Ex.A2- 3.7.2003    - Copy of confirmation letter from the opposite party.

Ex.A3- 16.11.2010 – Copy of legal notice by the complainant.

Ex.A4- 23.11.2010         - Copy of reply from the opposite party.

 Opposite parties’ Exhibits:-     

 .. Nil ..

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.