Date of Filing     05.03.2024

                                                                                                             Date of Disposal: 25.07.2024

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                         …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL.,                                                                             ...….MEMBER-I

CC.No.129/2024

THIS THURSDAY, THE 25^th DAY OF JULY 2024

Shri.Augustine Roy Rozario (self),

                        &

Smt.Teresa Augustine (Wife),

No.6, Kamaraj Street,

(Nehru Street, 2^nd Left : Cross),

Cholan Nagar, Pattabiram,

Chennai 600 072                                                                                     ......Complainants.

                                                                            //Vs//

Smt.R.Seethalakshmi,

W/o.Shri P.K.Radhakrishnan,

No.14, 80^th Street, Dr.Natesan Salai,

Ashok Nagar, Chennai 600 083.                                                          .…..Opposite Party

Counsel for the complainants                                 :    Party in Person.

Counsel for the opposite party                               :   M/s. V.T.Narendiran , Advocate.

This complaint coming before us on various dates and finally on 08.07.2024 in the presence of complainant who appeared as party in person and   M/s. V.T.Narendiran, counsel for the opposite party and upon perusing the documents and evidences of both sides this Commission delivered the following

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite party along with a prayer to immediately arrange to construct a Large Size Septic Tank that can hold the sewerage of 5 approved flats in the first parking lot of F-2 in the one last un-allotted remaining parking slot, as the opposite party has already immersed/installed concrete rings in the centre parking lot, making the floor uneven and allotted to complainants, to get the Property Tax assessed by Tiruninravur Municipality for both the complainants Flats-G-1 & F-1 from the date of completion of constriction till it was sold and registered in complainants names in October 2022 as declared in the sale deed to order to opposite party to arrange for separate valves from overhead tank for supply of water to each of the complainants flats at the cost of the opposite party, to pay a sum of Rs.50,000/- as cost and another Rs.4,00,000/- as compensation for the mental agony and hardship caused to the 1^st complainant and to pay an amount of Rs.50,000/- as cost and another Rs.4,00,000/- as compensation for the mental agony and hardship caused to the 2^nd complainant.

Summary of facts culminating into complaint:-

2. Complainants had purchased two flats as investment for their children from their retirement benefits.   For Self:G-1 Ground Floor & For Wife: Smt.Teresa Augustine in F-1 First Floor, in a building constructed and sold by the opposite party consisting of 6 flats called “Rasee Homes” located in Plot No.21, Sivagami Nagar (Opp.to Jaya School), Tiruninravur 602 024 of Thiruvallur District. Flat G-1 in Ground floor measuring an extent of 350 square feet as undivided share of land (UDS) with building measuring 890 square feet for a Sale Consideration of Rs.14,16,000/- and the sale deed was registered by Sub-Registrar, Avadi vide document No.15391of date 12.10.2022. Flat F-1 in the first floor in the same building complex measuring an extent of 425 square feet undivided share of land (UDS) with building measuring 1085 square feet for a sale consideration of Rs.17,25,000/- and the sale deed was registered by Sub-Registrar, Avadi vide document No.15390 of dt.06.10.2022. Complainant prior to purchase on seeing an advertisement released by the opposite party regarding Sale of flats in a leading English Newspaper, approached the opposite party-Smt.R.Seethalakshmi and her husband Shri.P.K.Rdhakrishnan stating that they were interested in purchase and wanted to see the flats.  Opposite party came with her husband Shri. P.K.Radhakrishnan and showed them the flats but did not show them any papers.  They entered into an agreement on 17.08.2022 with the opposite party for purchase of two flats-G-1 in Ground floor & Flat –F1 in the First Floor, after a rough look at some of the documents, during which the opposite party did not give a copy of her documents with approved plan for going for legal advice. The opposite party along with her husband Shri.P.K.Radhakrishnan who was infact the benami owner having transferred the plot to his wife Smt.Seethalakshmi’s name stating that he would produce all the documents during the registration and asked the complainant to pay the advance as lots of buyers were pressurising him and thereby accepted as advance vide PNB cheque No.398701 dated 17.08.2022 for an amount of Rs.1,00,000/- from the complainant for Flats G-1 and for F-1 accepted an amount of Rs.50,000/- in cash and another Rs.50,000/- vide SBI cheque No.44912 dated 17.08.2022 from complainant No.2 and executed an agreement with the complainants. Complainants were forced to settle the balance of payment in five instalments for purchase of both flats in August 2022 and September 2022 and get their Sale Deed Registered. Only after they got their Sale Deed/Documents including Annexure a fortnight after the Registration, they noted that the Opposite Party had resorted to breach of trust and indulged in several unfair trade practices and committed the under-mentioned deficiencies in service in the Sale of Flats to the Complainants by hoodwinking the Government Authorities, and thereafter giving a copy of MOU and deed of cancellation after the registration process was completed. The Opposite Party had constructed a very small Septic Tank which is insufficient to hold the sewerage of even one Flat for a month, whereas Six Flats were constructed (including one unapproved Flat in Second Floor-S-2), resulting in the accumulated sewerage overflowing every week. Due to Non- construction of separate large size Septic Tanks to hold the sewerage of bathroom/kitchen and toilet waste separately and on account of the defects in construction, the Complainants after purchase of Flats are forced to bear the expenses of hiring Sewerage Tankers. As per Schedule C of the Property executed by M/s Vishwa Foundations (Builder of Rasee Homes) in the Memorandum of Understanding (MOU) dated 1st June' 2011 with the Opposite Party -Smt.R.Seethalakshmi, it is indicated that in Plot no.21,on which Rasee Homes is located that there are 3 Flats to possess bearing Flat Nos.F-1,F-2 &F-3 with Two Parking Slots/Areas constructed and UDS Area in Rasee Homes, whereas the Opposite Party has constructed Six (6 Flats) and numbered it as: G-1 &G-2(Ground Floor); F-1&F-2(First Floor) &S-1&S-2(Second Floor) and has also constructed 3 Parking Slots/spaces by arbitrarily not following any order by allotting the First Parking Space to F-2 and the second uneven one in the Centre to the two Complainants who purchased two G-1 &F-1 Flats, when the Car parking space allotted to Complainants is sufficient for only one Car Parking for Complainants(F-1 & G-1). Even after the construction of the 6 Flats(including an unapproved one), the Opposite Party failed to give a completion Report and get the Flats assessed for Property-Tax by the local body -Tiruninravur Municipality in her name from 2017 till date even after the sale of 4 Flats, including the 2 Flats sold to Complainants. It was only after the Complainants pressurized, the Opposite Party paid the pending Vacant Land Tax (VLT) amounting to Rs.15480/-vide Tiruninravur Municipality Receipt no.184/02/02/22-23/0006594 dt.9.12.2022 and making no attempt even after this payment to get the Flats assessed for Property Tax in her Name and paying the property tax till date of sale and giving it to the Complainants. This unfair trade practice of the Opposite Party has also resulted in delay in getting the Assessments done by Complainants as had it been done the Complainants could have just applied for Name Change/Transfer of Name of Property Owner from Opposite Party. The Opposite Party has declared in the Sale Deed executed with the Complainants in the Office of Sub-Registrar/Avadi, that as Vendor/Seller of the Flats, has declared that she at all times shall indemnify against all losses, damages, costs and expenses which the Purchaser/ Complainants may sustain or be put to any reason of any encumbrance or defect in the Title of the property conveyed including payment and discharge of duly paying all Taxes in the Property sold up to the date of sale. Thus aggrieved by the act of the opposite party the present complaint was filed for the reliefs as mentioned above.

The crux of the defence put forth by the opposite party:-

3. The opposite party filed version disputing the complaint allegations contending inter alia that the complainants had filed this complaint with the malafide intention to extract the money from the seller and they were not the consumers since they have rented out the 2 apartments purchased by them and do not live there and they earn from it and the complainant’s case was not even clear as to who owes a duty to him and they are not consumers as per the Act. Complainants came forward and bought the 2 flats, one in Ground floor –G1, 2 BHK flat with the (UDS) of 350 square feet with the building measuring to 890 square feet and one in first floor –F1, 3BHK flat with the (UDS) of 425 square feet with the building measuring to 1085 square feet, Sale Deed of which was registered vide document No.15391 dated 12.10.2022 and document No.15390 dated 06.10.2022 respectively, knowing all the facts and circumstances. There was a septic tank in the car park of the apartment complex, as was normal, but the complainants had chosen the said car park over it and even when he was offered a different car park, he choose not to do so, so as to usurp adjacent car park. The septic tanks constructed in the apartment complex adequately accommodates the current number of flats and occupants.  Any issues relates to its capacity are unfounded and do not reflect the acted situation. As on date one septic tank of 7500 litre capacity lies unused due to the complainant’s insistence, so as to use it as a sump for water storage, which they have suppressed.  There was an overhead tank with separate water connection and valves to all individual apartments.  Regarding the sale of the remaining flats on the second floor, it was the right of the opposite party as the owner to do so, the complainants have no legal say in the same and the real mischievous intention of the complainant was thereby revealed.  The opposite parties stated that the entire sale process has been conducted transparently and in accordance with applicable laws.  Any concerns regarding the approval status of one flat was misconceived, as it was between the opposite party and the intending purchaser and the complainant was not entitled to question the other apartments.  Only 3 bedroom apartments were entitled to cover car par and 2 bedroom apartment owners were only entitled to park their two wheelers in the passage of about 41/2 width, which was adequate for bike parking.  The issue of property tax assessment and payment has been handled with due diligence and in accordance with legal obligations.  There is no question of allegations of fraud or irregularity against the opposite party. Thus they sought for the dismissal of the complaint.

4. On the side of complainants proof affidavit was filed and submitted documents marked as Ex.A1 to A12. On the side of opposite party proof affidavit was filed and submitted documents marked as Ex.B1 to Ex.B5 on their side.

Points for consideration:-

1. Whether the complaint filed jointly by both complainants not maintainable as no permission petition U/S 35 (1) (c) was filed and allowed?
2. Whether the complaint allegations as to deficiency in service and unfair trade practice against the opposite party has been successfully proved by the complainant?
3. To what relief the complainant is entitled?

Point No.1:-

5. Heard both.

6. The opposite parties raised a preliminary issue as to maintainability of complaint stating that without filing section 35(1)(c) petition and obtaining permission the complaint is not maintainable.

7. However, when we perused the Apex court decision rendered in Brigade Enterprises Limited Vs Anil Kumar Virmani & ors in Civil Appeal No.1779 of 2021 dated 17.12.2021 it was held that when a complaint was filed by one or more consumers jointly seeking redressal of their own grievances it could not be a complaint filed u/s 35(1) (c) but u/s 35(1)(a) and hence the complaint was maintainable.  Applying the said ratio, we hold the present complaint is maintainable as the complaint was filed jointly by both husband and wife.

Point No.2:-

8. On merits the main grievances of the complainants is that no car parking was available and no proper sewage/septic tank was provided for all the flats.  Also it is alleged that the property tax was not paid properly and the VLT was paid after construction.

9. However, the opposite party with regard to car park not provided to complainants, contended that they informed the complainants even before purchase that car park was available only for 3 bedroom flats and not for 2 bedroom flats.  Even, when we perused the sale deed executed in favour of complainants, there was no mention about car park in the sale deed registered for 2 bedroom flats.  Therefore, it is clear that the complainant had knowledge about the non provision of car park for 2 bedroom flats.  Having acted on the said knowledge now cannot turn back and claim car park.

10. Also, with respect to septic tanks it was contended by opposite parties that there are 3 septic tanks available which could hold upto 2 months.  There was no denial from the complainants for the same.  If they wanted to disprove the same they ought to have filed an expert opinion after inspecting the same.

11. It is even admitted by complainants that the tax and Vacant Land tax was paid by opposite party but belatedly.  In what manner the same prejudiced the complainants was not proved by them.

12. No arguments was made by complainants that the opposite party misrepresented about certain facilities earlier but later failed to provide them. Also, there was no expert report filed by the complainants that opposite party violated the approval plan in the matter of construction.  In such circumstances we could not hold opposite party liable for deficiency in service when the complainants had knowingly purchased Flats about the available facilities in the property.

Point No.3:-

13. As we have held above that the complainants failed to prove that the opposite party had committed deficiency in service they are not entitled any reliefs from the opposite parties.

In the result, the complaint is dismissed.  No cost.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 25^th day of July 2024.

    -Sd-                                                                                                                       -Sd-

MEMBER-I                                                                                                          PRESIDENT

List of document filed by the complainants:-

List of documents filed by the opposite party:-

      -Sd-                                                                                                                 -Sd-

MEMBER-I                                                                                                       PRESIDENT