Kerala

Idukki

CC/112/2020

Rani TG - Complainant(s)

Versus

Sudha radhakrishnana - Opp.Party(s)

Adv: K R Jayakumar

22 Mar 2023

ORDER

DATE OF FILING : 7.9.2020 

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the   22^nd  day of   March, 2023

Present :

                   SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.112/2020

Between

Complainant                             :         Rani T.G., D/o. Gopalan,

                                                                    Kaniyil House,

                                                                    (Orchid Villa),

                                                                   Mattuppara, Madakkathanam P.O.,    

                                                                   Thodupuzha.

(By Adv: K.R. Jayakumar)

        And

Opposite Party                                   :        Sudha Radhakrishnan,

       W/o. Radhakrishnan,

                                                                     Parayil House,

                                                                   Edavetti, Karikkode.

                                                                   Now residing at C/o. Jayaraj,

                                                                   KSEB Pensioner, Kappu,

Madakkathanam P.O., Idukki.

 

O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This is a complaint filed under Section 35 of the Consumer Protection Act of 2019 (the Act, for short).  Case of complainant is briefly discussed hereunder :

 

          Complainant had entered into an agreement for sale with opposite party whereby opposite party had agreed to sell land having an extent of 2.61 ares, situated in Sy. No.8/10 of Kumaramangalam Village in Thodupuzha, along with residential building No.7/356 H situated therein, which has a water connection, cable, telephone, electric supply connection and a road having a width of 12 feet and length 25 metres for access.  Total consideration agreed upon was Rs.39 lakhs.  On 14.2.2020, complainant had transferred an amount of Rs.10 lakhs as advance to the bank account of the son of opposite party.  Remaining amount was to be paid within 30.4.2020, whereupon opposite party had agreed to execute and convey the sale deed of property mentioned above.  However, owing to Covid lockdown, sale deed could not be executed at the time agreed upon.  As requested by opposite party, Rs.20 lakhs was paid to her, by complainant in connection with wedding of daughter of opposite party.  Out of this,                                                                                                    (cont…..2)

• 2  -

Rs.10 lakhs was transferred to the bank account of son and husband of opposite party, transfer being of Rs.5 lakhs each.  After this, complainant had approached opposite party on 11.6.2020, for execution of sale deed.  Since opposite party had not vacated the residential building situated in the property, time limit for performance of agreement was extended till 19.6.2020.  Parties had agreed to execute sale deed on that date.  On 18.6.2020, complainant had approached opposite party for execution of sale deed.  At that time, opposite party had informed her that, there is a common well used by 12 households situated nearby in the property and  a common motor for taking water from the well.  This motor had burnt out and opposite party has requested the complainant to pay Rs.2500/- towards repair of the same.  She had also asked for current charges from 1.6.2020 till 19.6.2020, totalling toRs.798/-.  Complainant had paid this amount  on 19.6.2020, along with balance sale consideration.  Thereafter sale deed was executed in her favour.  Sale was of the property and immovables situated therein.  Despite this, there was an unreasonable demand for payment of Rs.2500/- towards  repairs of motor and current charges of Rs.798/-.  Complainant had no choice but to pay this amount to avoid non-execution of document by opposite party.  Besides, due to non-vacation of the house by opposite party, complainant had to extend her stay in rented premises, for which she had to pay Rs.7200/- towards monthly rent to the flat owner.  Complainant had also expended Rs.1500/- for meeting opposite party in person for getting the sale deed executed.  She had also suffered mental agony apart from physical discomfort and inconvenience.  As per information received from KSEB, complainant had come to know that opposite party had used 252 units of electricity for the period from 2.6.2020 till 19.6.2020.  Complainant had to pay this amount also.  Complainant therefore prays for reimbursement  of Rs.2500/- paid by her for repairing the motor, Rs.798/-  towards electricity charges,  Rs.7200/-  towards  rent,  Rs.1500/- expended by complainant towards her journey undertaken repeatedly to meet opposite party and also for Rs.10000/- towards damages for physical and mental agony suffered by her along with Rs.5000/- towards litigation costs.  She has also filed an affidavit and 4 documents along with the complaint in support of complaint averments.

 

          2.  Opposite party had appeared on notice and filed written version.  Her contentions are briefly narrated hereunder :

 

          According to her, agreement for sale was with regard to conveyance of immovable property and therefore complaint cannot be maintained before this Commission.  It is incorrect to say that the agreement was for sale of residential building which was inclusive of water connection, cable, telephone, electricity supply connection and an access having a length of 25 metres and width of 12 feet.  Sale deed could not be executed in time, since complainant did not have sufficient money with her.  Thereafter suddenly on 11.6.2020, complainant had appeared and had sought for performance of                                                                                                         (cont….3)

• 3  -

agreement.  Therefore, opposite party had requested for 8 days time to search out a new residential building for her use.  Complainant had agreed to this and both have executed a new agreement.  It is incorrect to say that opposite party had insisted for and obtained Rs.2500/- towards repair of motor and demanded Rs.798/- towards electricity charges, from complainant.  Complainant has not produced any document to prove that she had paid rent of Rs.7200/- as alleged in the complaint.  Opposite party had stayed in the building for extended time as agreed upon by complainant. She was not put to any physical inconvenience or mental agony.  Instead of showing the real consideration of Rs.39 lakhs in the title deed,   Rs.2 lakhs is shown as consideration for property and Rs.14 lakhs as consideration for the house, in the assignment deed.  Opposite party has not received copy of document along with the complaint and reserves her rights to file a detailed written version, if necessary.  She prays for dismissal of complaint on these premises. 

         

          3.  After filing of written version, case was posted for steps and then for evidence.  Though sufficient opportunity was given, complainant has not appeared to give evidence or rather for cross examination on the basis of the proof affidavit filed by her.  She has produced 4 documents out of which first one is a photocopy of agreement for sale, executed on 14.2.2020.  2^nd document is photocopy of agreement, the 2^ndone dated 11.6.2020.  3^rd document is copy of assignment deed executed by opposite party in favour of complainant and her son.  4^th document is photocopy of receipt indicating payment of Rs.2226/- towards electricity charges, issued in the name of opposite party.  These documents are marked as Exts.P1 to P4 respectively.  As per Ext.P1 agreement, total consideration fixed or rather agreed upon was Rs.39 lakhs.  This was for the property along with residential building in it, with a road to use as way having a length of 25 metres and width of 12 feet, extending to the main road from the property.  It is also mentioned in Ext.P1 that the assignee will have a right to draw electricity cable, water pipeline etc. through the way and will also have the right to use the existing water supply connection.  These are rights attached to the land and cannot be considered as a separate agreement for sale of movable as such.  Ext.P2 is agreement for sale whereby time was extended by both parties for execution of agreement executed by them.  As per 2^nd agreement, time is extended till 19.6.2020, for which both parties have consented.  It is mentioned in Ext.P2 that execution of sale deed was delayed due to lockdown and further since opposite party had not vacated the residential building situated therein.  Whatever may be,  extension of time was upon consent by complainant and therefore claim for one month rent which the complainant purportedly paid amounting to Rs.7200/- cannot be sustained upon facts.  Ext.P4 is only a photocopy of receipt issued by KSEB for payment of supply charges amount paid as Rs.2,226/-.  It has no bearing to the amount purportedly paid by complainant towards electricity charges mentioned in the complaint.  After closure of evidence, on 21.2.2023, we have heard the learned                                                                                                                  (cont….4)

-  4  -

counsel for opposite party only,as the complainant or her counsel were not  present.   Now the point which arise for consideration are :

1)  Whether complaint is maintainable ?

2)  Whether there is any deficiency in service ?

3)  Whether complainant is entitled for the reliefs prayed for ?

4)  Final Order and costs ?

 

4.  Point Nos.1 to 3 are considered together :

 

          First and foremost objection taken is with regard to maintainability of complaint.  As contended by opposite party, immovable property cannot be considered as goods in view of definition given for the term in Section 2 (21) which includes only movable property.  Similarly, duties of prospective seller under the Transfer of Property Act will not amount to offering to provide any service or provision of any service as per the definition of the term ‘service’ given in Section 2(42) of the Act.  There is no complaint as defined in the Act and consequentially, we find that there is no deficiency in service.  There is no sale of goods either.  Hence we find that the complainant is not entitled for the reliefs prayed for, by her.  Point Nos.1 to 3 are answered accordingly.

 

5.  Point No.4 :

 

          In the result, this complaint is dismissed, under the circumstances, without costs.  Parties shall take back extra sets of copies, without delay.

 

                    Pronounced by this Commission on this the  22^nd  day of March, 2023

 

      Sd/-

SRI. C. SURESHKUMAR, PRESIDENT

                          Sd/-

         SMT. ASAMOL P., MEMBER

                                Sd/-       

        SRI. AMPADY K.S., MEMBER

 

 

 

                                                                                Forwarded by Order,

 

 

 

                                                                           ASSISTANT REGISTRAR