IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 17th day of January, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
Sri. K.M. Anto, Member
C C No. 136/2018 (filed on 06-07-2018)
Petitioners : 1) Sanil V.M.
S/o. Vasu,
Kaniyamparambil,
Kuzhimattom P.O.
Panachikkad kara,
Kottayam -2.
2) Sumol,
W/o. Sanil V.M.
-do-
(Dr. V.T. Rejimon)
Vs.
Opposite Parties : 1) Raju,
S/o. Sivaraman,
Mangalath House
Chozhiyakkad kara,
Panachikkad Village,
Channanikkad P.O. Kottayam.
2) Deepa
W/o. Raju
-do-
(Adv. Thomas Antony)
3) M.M. Babu,
S/o. Mathai,
Kalayil House,
Kuzhimattom P.O.
Kottayam
4) Mobin Babu
S/o. Mathai
-do-
5) Meenu Babu
D/o. Babu,
-do-
(For Op 3-5 Adv. Rajan Thomas)
O R D E R
Smt. Bindhu R, Member
The case is filed under Section 12 of Consumer Protection Act, 1986.
Complainant purchased a property of 5 cents in re-survey 196/18 and 196/18/2 in Panachicad village from the opposite party 4 and 5 here in along with the 1.5 feet road by paying Rs.1,85,000/- per cent. The deed of the said sale was executed as per the agreement for sale executed by the 4th and 5th opposite parties to the complainants on 20-07-2017. The opposite parties 3 to 5 received Rs.3,00,000/- from the complainant as advance on the same day. The said agreement was drafted by the 1st and 2nd opposite parties, who were document writers. The opposite parties 3 to 5 had introduced opposite parties 1 and 2 to the complainants and the complainant entrusted opposite parties 2 to 5 to prepare the agreement for sale and accordingly to write the sale deed also by opposite party 1 and 2. Hence the complainant is the consumer of the opposite parties. On 05-01-2018, the opposite parties 3 to 5 registered the sale deed after accepting the balance amount as per the agreement. Thereafter the complainants started constructing their house and when the complainant asked the opposite parties to remove the stonewall in the road portion of 1.5 feet, they were reluctant to do that. Only then the complainants realized the fraud committed by the opposite parties by not including the write to transport through the 1.5 feet portion of the property in the sale deed. This was done only to deceive the complainants and for undue gains. Thereafter when the complainants asked about this the opposite parties were not ready to give the path way.
Thus the act of the opposite parties defrauding the complainants by excluding the 1.5 feet path way adjacent to the public road which would have entitled the complainants for a pathway of 5.5 feet, caused to depreciate the value of the property purchased by the complainants.
The said act of the opposite party is deficiency in service which should be compensated. The opposite parties are legally bound to act according to the agreement for sale executed by them. Hence the complaint is filed for a compensation of Rs.2,00,000/- against the deficiency of service and cheating by the opposite party.
Upon notice, the opposite parties appeared and filed versions.
The opposite parties 1 and 2 filed joint version, in which they denied all the allegations of the complaint. The opposite parties 1 and 2 were not aware of the alleged agreement dtd.20-07-2017 and they came to know about this only upon receipt of notice from this Commission. The said agreement was not prepared by these opposite parties. The complainants approached the opposite party 1 and 2 directly to write the document and later the title deeds were entrusted by the owner of the property one Mobin Babu. The opposite parties 1 and 2 are not aware of any agreement dtd.05-01-18 and its conditions. They prepared the draft of the sale deed and only after getting approval from both the parties the original title deed was prepared. The opposite parties 1 and 2 did not receive Rs.38,000/- towards writing fees. But the expenses is shown as stamp duty 25,000/-, registrar fee Rs.6,240/- and mutation fee. The opposite parties 1 and 2 are not aware of any agreement regarding the pathway and so they are not liable for the same. The value of property is shown as Rs.1,85,000/- per cent in the agreement produced by the complainant. But in the sale deed it is shown as Rs.3,12,000/- only in total. So it is evident that the title deed was not prepared as per the alleged agreement for sale. There is no deficiency of service on the part of opposite party 1 and 2.
Opposite parties 3, 4 and 5 jointly filed version, in which they contended that all the allegations in the complaint against the opposite parties are false. The original sale deed was not executed according to the alleged agreement dated 20-07-2017 which has no legal sanctity as it was not a registered one. As the said agreement for sale was not registered the opposite parties are not bound by it. The sale deed was executed as per the mutually agreed conditions apart from the alleged agreement dtd.20-07-17, the complainants have no right to get the pathway widened. The opposite parties 1 and 2 prepared the original sale deed as per the directions of the complainants. The original sale deed was prepared only after the approval of the draft by both the parties and after printing on the stamp paper also both parties read and approved. Only after that the sale deed was registered. The opposite parties have never cheated or deceived the complainants. The sale price shown in the sale deed is Rs.3,12,000/- instead of Rs.1,85,000/- shown in the agreement. This itself proves that both the parties consented to cancel the said agreement and upon certain other conditions executed the sale deed. The complainants filed a civil suit against the opposite parties as OS No.195/19 before the Munisiffs Court, Kottayam and the opposite parties 4 and 4 filed another civil suit as OS 305/18 against the complainant. The opposite parties are not bound by the alleged agreement for sale and there is no deficiency of service on the part of the opposite parties 3, 4 and 5.
In the evidence part, the complainant has filed proof affidavit along with Exts.A1 to A3 series. Complainant was examined as PW1. Opposite parties adduced evidence through DW1 and DW2. Exts.B1 and B2 were also marked.
On perusal of the pleadings and evidence on record, we would like to consider the following issues.
- Is there a consumer dispute between the parties which can be adjudicated by the Commission.
- Have the complainants succeeded to establish any deficiency of service on the part of the opposite parties.
- If so, what are the reliefs?
Point No.1,2and 3
The complaint has been filed for the wrongful execution of a sale deed in contravention of the conditions of agreement for sale alleged to have been executed by the opposite parties 3 to 5 and written by opposite parties 1 and 2. The opposite parties have challenged the alleged agreement.
On examination of the documents and other evidence in details, we are of the opinion that admittedly the complainants paid the sale price to the opposite party and purchased the property from the opposite party vide the execution of a registered sale deed. The complainants main allegation is that after receiving the considerations, the opposite parties have deviated from the conditions of the previously executed agreement for sale.
As per Section 2 (i) of Consumer Protection Act, 1986 Goods means “goods” as defined in the Sale of goods Act.
Goods is defined in the Sale of Goods Act as :-
Goods are every kind of moveable property other than actionable claims and money, and include:
- Stock and shares,
- Growing crops,
- Grass, and
- Things attached to or forming part of land which is agreed to be severed before sale or under the contract of sale.
Future goods are goods that are to be:
- manufactured, or
- produced, or
- acquired, by the seller after making of the contract of sale
Section 2(o) of Consumer Protection Act, 1986, defines service as
“ ‘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, board 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;
Here the complainants have purchased an immovable property form the opposite parties 3 to 5, which does not come under the purview of definition of “ Goods” as per Consumer Protection Act, 1986. As per the term ‘goods’ intended by the Act is any immovable property. As per definition of “Service” also the complainants have not received any service from the opposite parties 3 to 5 which come under the purview of the Consumer Protection Act 1986.
The actual dispute between the complainants and opposite parties 3 to 5 is regarding Ext.A1, which is an agreement for sale alleged to have been executed by the opposite parties 4 and 5. The allegation is that opposite parties 4 and 5 have violated the conditions of Ext.A1 agreement while executing Ext.A2 sale deed. This dispute is regarding breach of contract which is civil in nature and required to be tried by adducing detailed evidence and cannot be tried summarily before this Commission. The complainants have to approach a civil court of appropriate jurisdiction to obtain a just and proper adjudication.
The allegation against the opposite parties 1 and 2 is also regarding Ext.A1 sale agreement, the allegation is that the opposite parties 1 and 2 had written the Ext.A2 sale deed against the conditions of Ext.A1. But we see that the opposite parties 1 and 2 are not at all parties to the A1 agreement. So the conditions of the agreement are not binding up on the opposite parties 1 and 2. Moreover, the complainant has failed to prove that opposite party 1 and 2 were entrusted to draft the sale deed according to the Ext.A1 agreement. So there is no deficiency of service is made out against the opposite parties 1 and 2. Though the complainants availed service from the opposite parties 1 and 2 paying consideration, no deficiency is seen in writing the sale deed. The opposite parties 1 and 2 would definitely have registered the documents after getting confirmation from both the parties as per the draft, so we see no deficiency on the part of opposite party 1 and 2. Hence the complaint is dismissed.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Commission on this the 17th day of January, 2022.
Smt. Bindhu R. Member Sd/-
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, MemberSd/-
Appendix
Witness from the side of complainant
Pw1 – Sanil V.M.
Witness from the side of opposite party
Dw1 – Raju S.
Dw2 – M.M. Babu
Exhibits marked on the side of the complainant
A1 – Copy of contract dtd.20-07-17
A2 – Copy of sale deed dtd.05-01-18
A3 – Copy of complaint dtd.16-05-18 by complainant before Chingavanam Police Station Inspector
A3(a) – Copy of acknowledgement receipt of petition dtd.18-05-18
Exhibits marked from the side of opposite party
B1 – Copy of complaint (O.S. No.305/18) filed before the Kottayam Munisifs
Court
B2 - Copy of complaint (O.S. No.195/19) filed before the Kottayam Munisifs
Court
By Order
j/8cs Senior Superintendent
