Tamil Nadu

StateCommission

FA/189/2014

S. BHUVANESWARI AND V. LAKSHMANAN - Complainant(s)

Versus

S. BALASUBRAMANIAN - Opp.Party(s)

K.V. SHANMUGANATHAN

27 Aug 2022

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:   Hon’ble THIRU. JUSTICE R. SUBBIAH     :     PRESIDENT

                 Thiru R. VENKATESAPERUMAL              :      MEMBER

 

F.A. No. 189 of 2014

(Against the order passed in C.C. No.64 of 2012 dated 26.03.2014 on the file of the D.C.D.R.F., Chengalpattu.

 

Saturday, the 27^th day of August 2022

 

1. Mrs. S. Bhuvaneswari

     W/o. V. Lakshmanan

2. Mr.V.Lakshmanan

     S/o. Late Venkataraman

Both residing at

     Old No.15, New No.1,

     Ealumalai Street                 

     West Tambaram

     Chennai – 600 045.                              .. Appellants/ Complainants

 

Vs 

 

Mr. S. Balasubramanian

S/o. Late V.Srinivasan

Proprietor Sri Narayanan Builder

No.32/16 Flat ‘D’ Ground Floor

Ari Home, Anjaneyan Koil Street

East Tambaram

Chennai – 600 059.                                    .. Respondent/             

           Opposite Party

    

Counsel for Appellants /Complainants          : M/s.K.V.Shanmuganathan

Counsel for the Respondent/ Opposite Party : M/s.K. Gnanasundaram                                                           

                                                                                                       

        This appeal is coming before us for final hearing on 23.06.2022 and on hearing the arguments of the counsel for both parties and on perusing the materials on record, this Commission made the following :-

O R D E R

R.SUBBIAH J., PRESIDENT

  

                1.     This appeal has been filed under Section 15 of the Consumer Protection Act, 1986 as against the order dated 26.03.2014 passed in C.C. No.64 of 2012, by the District Consumer Disputes Redressal Forum, Chengalpattu, dismissing the complaint filed by the appellants herein. 

 

                2.  The factual background culminating this appeal is as follows:  Both the complainants had jointly purchased a total extent of 1170 sq.ft., vacant housing plot No.D, comprised in Survey No.3074/11 D, Patta No.340, situated at No.1 Mannivakkam Village, Chengalpet Taluk, Kancheepuram District for a valid sale consideration from the opposite party.  The sale deed was executed by the opposite party as in the capacity of a Power Agent of the vendor, by virtue of Document No.4702/2010 registered in the Sub Registrar office, Guduvancheri.  In the said plot, the complainants proposed to construct a residential building.  Hence, they approached the Indian Bank, Saidapet branch for availing loan.  They entered into an agreement for construction of building with the opposite party, on 25.05.2010.  As per the Agreement, the total plinth area to be constructed is 898 sq.ft., in the ground floor.  The cost of the building construction was fixed for a total sum of Rs.11,22,500/-.  As per the agreement dated 25.05.2010, the opposite party and the complainants mutually agreed and fixed the period of completion of construction and settlement of payments by end of June 2011.  Pursuant to the Agreement of construction, the 1^st complainant paid the entire amount of Rs.11,50,000/- as demanded by the opposite party, as detailed below:-

1. A sum of Rs.6,50,000/- by Cheque No.573646 dated 11.03.2011;
2. A sum of Rs.3,00,000/- by Cheque No.576340 dated 15.04.2011;
3. A sum of Rs.2,00,000/- paid on 04.06.2011 to the Account of Vasan Industries.

On payment of the above amount, the opposite party had also assured that they would hand over possession of the building and key on or before 31.07.2011, without fail. The complainants also made all arrangements to occupy possession of the house in the month of July 2011.  But, all of a sudden, the opposite party issued legal notices on 10.08.2011, 01.03.2012 and 15.05.2012 to the complainant demanding further payment of Rs.8,69,300/- as balance due towards construction of the above house building.  On receipt of the said legal notices, the complainant sent a reply on 06.04.2012.  On receipt of the reply notice, the opposite party went to the extent of alienating the subject property by misrepresenting, to third parties.  This intention of the opposite party was reflected in the legal notice dated 28.07.2012.  Further, the opposite party has not come forward to hand over the key of the constructed house to the complainants.  Hence, he has come forward with the present complaint, seeking the following directions to the opposite party:

1. To hand over the key of the constructed house building and possession to the complainants, failing which,
2. To pay a sum of Rs.3,00,000/- as compensation for the financial loss, mental and physical agony and hardship suffered by both the complainants, and
3.  To pay the cost of the proceedings.

 

                3.  The case of the complainant was resisted by the opposite party by filing a written version stating that the complaint is neither maintainable in law nor on facts.  Hence, the complaint is liable to be dismissed with costs.  Further, the complainants have failed to include the Builder i.e., Sri Narayanan Builder, as a party to the proceedings.  The Agreement of Sale dated 28.05.2010 and the Construction Agreement dated 29.05.2010 were entered between the complainants and M/s. Sri Narayanan Builders.  The complainants ought to have arrayed M/s.Sri Narayanan Builders as one of the opposite party.  The Agreement of Sale was entered between the Builder and the complainants on 28.05.2010 and the sale consideration was fixed at Rs.11,71,300/-, including the land cost of Rs.6,20,100/- and the development charges of Rs.5,51,200/-.   The complainants have paid only part of the sale consideration and a balance of Rs.5,51,200/- is due to be paid.  The entire sale consideration has not been paid by the complainant.  The total consideration of Agreement of Sale is Rs.11,71,300/- and the total cost of the Construction Agreement is Rs.11,22,500/- along with Rs.55,000/-.  Hence, the total amount payable by the complainants is Rs.23,48,800/- as per the amount stated in both the Agreements.  But the complainants had paid only Rs.17,00,000/- and the complainant has also agreed to pay Rs.6,48,800/-.  But, till date the complainants have not paid the balance amount.  Therefore, the complainants have no locus standi to file a complaint against the opposite party.  The complainants have conveniently suppressed that there is balance due to be paid by him to the opposite party.  The opposite party is a relative of the complainants.  Hence, taking advantage of the relationship, often the construction was demolished and the construction style and model was changed, as asked by the complainants.  The said changes are in deviation to the approved plan.  Therefore, it is submitted by the opposite party that there is no deficiency of service and sought to dismiss the complaint.

 

                4. In order to prove the case, on the side of the complainant, along with proof affidavit 7 documents were filed and the same marked as Exhibits A1 to A7.  On the side of the opposite party, along with proof affidavit, 11 documents were filed and marked as Ex.B1 and Ex.B11.

               

        5.  The District Forum after analysing the entire evidence on record, dismissed the complaint stating that there is no deficiency of service on the part of the opposite party.  Aggrieved over the same, the present Appeal has been filed by the complainant. 

 

         6.  It is the submission of the counsel for the appellant that the Agreement for Sale of the plot is an independent agreement from the Agreement for Construction.  As per the construction agreement, the appellant had paid the entire cost of construction on 11.03.2011, 15.04.2011 and on 04.06.2011, which has not been disputed by the respondent.  Therefore, the complainant sought to set aside the order of the District Forum and consequently allow the appeal.

 

                7.  Per contra, the learned counsel for the respondent submitted that the total consideration of Agreement of Sale is Rs.11,71,300/- and the total cost of the Construction Agreement is Rs.11,22,500/-.  Hence, the total amount payable by the complainants is Rs.23,48,800/-, of which the complainants had paid only Rs.17,00,000/- and hence the complainant has to pay balance sum of Rs.6,48,800/-.  Apart from that, the complainant has agreed to pay a sum of Rs.2,20,500/- towards the extra work done by the respondent.  Since the balance due was not settled by the complainant the opposite party issued legal notices.  Only to evade the payment of the balance due amount, the complainant had filed the present complaint.  Considering all these aspects, the District Forum had dismissed the complaint and hence sought for dismissal of the appeal.

 

                8.  Keeping in mind the submissions made by the appellants/ complainants and the counsel for the respondent/ opposite party, we have carefully gone through the material available on record.   At the outset we have to state that the averments made in the complainant are so vague and bald to draw any inference on the cause of action.

 

                9.   On merits of the case, it is the contention of the appellant/ complainant that the entire amount has been paid.  Whereas, according to the respondent/ opposite party, the complainant has to pay a balance of Rs.8,69,300/- and hence they have not completed the construction and handed over possession of the house building.  As such, there is a solid claim by the opposite party as against the complainants.  The above details would go to show that, in this case disputed question of facts are involved, which cannot be gone into or decided by this Commission in a summary manner.  The proper forum to decide the issue is only a Civil Court, particularly when these types of complicated issues need elaborate evidence, in the form of examination / cross examination of witnesses and marking of wholesome documents.  Therefore, we are of the opinion that the issue involved in this complaint cannot be decided by this Consumer Commission, by merely relying upon the pleadings made on either side. 

 

                10.  Therefore, the Appeal is dismissed and the order dated 26.03.2014 made in C.C. No.64 of 2012 by the District Consumer Disputes Redressal Forum, Chengalpattu, is confirmed.  Consequently, the Appeal is dismissed. However, the appellants/ complainants are at liberty to approach the appropriate forum, if they so desire. 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                

 

R. VENKATESAPERUMAL                                                                                                                             R.SUBBIAH

         MEMBER                                                                                                                                                   PRESIDENT

 

 

Index :  Yes/ No

 

AVR/SCDRC/Chennai/Orders/August/2022