Tamil Nadu

StateCommission

A/271/2017

The Secretary, Z-A,421,Kanchanam Primary Co-operative Credit Society Ltd., - Complainant(s)

Versus

T.Manivanan & anr - Opp.Party(s)

T.Ananthasekar-Applt.,

11 Apr 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI – 3.

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

                          Tmt. Dr. S.M. LATHA MAHESWARI                            ::      MEMBER

 

F.A. No.271/2014

  (Against the order in C.C. No. 50/2012, dated 5.6.2013   on the file of the D.C.D.R.C, Salem)

                                                          DATED THE 25^TH DAY OF FEBRUARY 2022

 

Velmurugan Real Estate,

A partnership Firm,

Rep.by its Managing Partner,

T.C.Eeswara Moorthy,

S/o Sendraya Chettiyar,

Having Business place @

Near Muniappan Koil  

Thondikaradu

Tiruchengodu Town & Taluk,

Namakkal District – 637 211.

Managing Partner residing @

9/27A, Vivekanantha Nagar,

Seelanaickenpatti,

Salem – 636 201                                                                ..Appellant/opposite party

                                            Vs

1.N.Murugesan,

S/o Natesan,

D.No. 25/58, Sankar Nagar

Salem – 636 007

 

2. M.Arivalagan,

S/o Muniandi,

D.No.104, Krishna Colony,

Sankar Nagar,

Salem – 636 007

 

3. E.Sivakumar,

S/o Ellappan,

D.No. 9E, Sankar Nagar Odai Area,

Salem 636 007

 

4. P.Boopathy,

S/o Perumal,

S.No.27D, Sankar Nagar Odai Area,

Salem 636 007

 

5. M.Babu

S/o Manickam,

D.No.3E, Sankar Nagar Odai Area,

Salem 636 007

 

6.A.Seenivasan,

S/o Annamalai,

D.No. 22E, Sankar Nagar Odai Area,

Salem 636 007

 

7. S.Venkatesh,

S/o Sundaram,

D.No. 39/1C, 59B-1, 2^nd cross Road,

Rajaram Nagar,

Chennai – 636 007.

 

8. M.Moganambal,

W/o Murugesan,

D.No. 25/58, Sankar Nagar,

Salem 636 007                                                                           ..Respondents/complainants

 

Counsel for the Appellant/opposite party                : M/s K.Srinivasan

Counsel for the Respondents/complainants            : M/s M.K. Manimaran

 

    This appeal was heard on various dates and finally on 20.1.2022 and on hearing the arguments of appellant and on perusing the material records, this Commission pronounced the following order today:-

ORDER

Tmt. Dr. S.M. LATHA MAHESWARI:

          This Appeal was preferred by the opposite party under section 15 of the Consumer Protection Act 1986 aggrieved against the order of the District Commission Nagapattinam made in C.C.No. 50/2012 allowing the complaint.

 

1.The factual background culminating  in to  appeal is as follows:-

                     The complaint was filed by 8 complainants alleging deficiency in service on the part of the opposite party who was a real Estate promoter to execute the sale deed by allotting the plots as mentioned in the sale agreement and to pay a compensation of Rs.4 lakhs for mental agony along with cost of the complaint.  

Complaint allegations:

2.         The opposite party was in possession of a real estate office at Tiruchengode and Mr. T.C.Easwara moorthy who was the managing partner had given vast advertisement regarding the sale of house plots in “Sri Velmurugan Nagar” on monthly installments. The complainants attracted by the advertisement decided to purchase plots joined in monthly installment plan by paying Rs.1000/- for purchase of a plot measuring 1200sq.ft respectively. The complainants regularly paid installments for 10 months and in the month of September 2007 the opposite parties executed the sale agreement on 1.9.2007 in favour of the complainants. The complainants continued payments till November 2009 and paid 26 monthly installments but as the opposite party did not conduct any draw for allotment of the house plots, the complainants approached the opposite parties for the same but they demanded Rs.14,750/- as additional amount for land development and registration expenses for executing the sale deed. Except one complainant all other 7 complainants paid the said amount however thereafter also the opposite party did not allot the plot nor execute the sale deed. Hence the complaint was filed by the complainant after sending legal notice to the opposite party to give effect to the sale agreement and to allot the vacant plots to the complainants with compensation and cost of the complaint as mentioned above.

Defense of the opposite party:

3.         The opposite party filed version stating that the firm is not a registered firm and therefore all the partners of the Firm are necessary and proper properties and since they were not added the complaint is bad for non-joinder of necessary parties. It was denied by the opposite party that the activity of allotment of plot was made by the Firm and not in the individual capacity of Mr. T.S.Easwara moorthy as alleged by the complaiants. The opposite party admitted the payments made by the complainants but they denied that the complainants had approached and requested the opposite party to allot the house sites and to execute the sale deed. The opposite party submitted that the sale agreement referred by the complainants clearly states that apart from the lands in the survey number mentioned in the sale agreement, the house plots would be allotted even in the lands that may be purchased by the Sri Velmurugan Real Estates. Thus they alleged that they did not commit any deficiency in service or unfair trade practice and sought for dismissal of the complaint.

4.         The complainant filed proof affidavit and submitted documents marked as Ex.A.1 to A.10. The opposite party filed proof affidavit and submitted documents marked as Ex.B.1 to B.12.

5.         The learned District Commission after perusing the pleadings and documents, submitted before it was pleased to allow the complaint with cost of Rs.2500/- directing the opposite party to execute the sale deed as contained in the agreement for sale in favour of the complainants  with Rs.10,000/- as compensation to all the 8 complainants.

6.                     Aggrieved by the same, the present appeal has been preferred by the opposite party before this Commission.

            Point for consideration :-

            1. Whether the order of the learned District Commission is sustainable?

            2. To what relief the complainants were entitled?

 

            Heard the arguments advanced by the learned Counsel for the appellant. The Counsel for the respondent did not appear and also did not file any written arguments.

            Submissions made by appellant:-

7.         The counsel for the appellant had raised a question with regard to the maintainability of the complaint alleging that the complainant is not a consumer and that the consumer commission has no jurisdiction to decide the issue based on the submissions and documents produced by both the parties.

8.          It was argued by the learned counsel that they have not entered into any service agreement with the complainant and hence the question of rendering any service did not arise. The agreement for sale relied upon is a notional one and not a specific agreement by metes and bounds of the plots and therefore the District Commission cannot direct the appellant to allot the house plots in a particular area as mentioned in the sale agreement. Further the District Commission, Salem has no territorial jurisdiction as the cause of action falls within the jurisdiction of Namakkal District. Further it is submitted that the District Commission had failed to see that the appellant neither sell any goods nor render any service to the complainant and in such circumstances, the question of deficiency in service does not arise. It is also submitted that the single complaint filed by all the 8 the complainants was not maintainable as no permission was obtained as mandated u/s 12(1) C of the Consumer Protection Act. 1986. The counsel further submitted that the District Forum was at fault in holding that the opposite party had committed deficiency in service in not allotting the plots as per the sale agreement entered between the parties.

9.           We heard the arguments of the counsel for the appellant. The maintainability of the complaint was not specifically raised before the learned District Commission and no materials or pleadings were placed before the District Commission with respect to the same. However being a question of law and as it can be raised at any stage of a proceeding we are inclined to entertain the said issue regarding the maintainability of the complaint. When we appraise the complaint allegations, we could infer that the complainants had decided to purchase plots from the opposite party by way of paying monthly installments and a sale agreement was entered between the parties and when the sale agreement was not acted upon the present complaint was filed by the parties. As rightly pointed out by the counsel for the appellant, the subject matter/the issue involved in the complaint is the sale of vacant sites/plots. The same issue came up for consideration recently in the Apex court vide judgment rendered in Estate officer Vs Charanjith Kaur dated 7th September 2021 in civil appeal No. 4965/2021 and Civil appeal No. 4966/2021. In the said judgment it has been elaborately discussed by the Apex Court as to whether allotment of vacant plots would attract the jurisdiction under Consumer Commission. It was also discussed therein as to whether auction of sites involve sale of goods or of rendering of service. The Apex court citing the judgment rendered in UT Chandigarh administration and another Vs Amarjeet Singh and others held that,

 “issue as to whether the auction of sites under the 1973 Rules involves sale of goods or of rendering of service came up for consideration in UT Chandigarh Administration and Another v. Amarjeet Singh and Others13. This Court considered the judgments of this Court in M.K. Gupta and Balbir Singh. One of the arguments raised was as under- 13 (2009) 4 SCC 660 “When the auction of sites (for grant of a lease for 99 years) was in exercise of the power of the Government (the UT Chandigarh Administration) under the provisions of the Development Act in accordance with the Leasehold Rules, it involves neither sale of goods nor rendering of any service. The act of leasing plots by auction by the appellants therefore did not result in the successful bidder becoming a “consumer” or the appellants becoming “service providers”. In the absence of hiring or availing of any service, the question of deficiency in service or unfair or restrictive trade practice with reference to a service, did not arise and the complaint under the Act was not maintainable.”

10.       When the legal principal is as above in the present case, the complaint was filed by the complainants who are parties to the sale agreement with a prayer to direct the other party to execute the sale deed in pursuance of the sale agreement is clearly not maintainable before the Consumer commission as there is no rendering of any service by the opposite party to the complainants and it purely involves contractual obligations between the parties. Thus, the complaint is clearly not maintainable for the reason that there is no consumer and service provider relationship exist between the parties as the agreement of sale relied upon for purchase of an immovable property does not come under the category of consumer transactions. Even if there is any fault on the opposite party in not executing the sale deeds and allotting the plots as per the sale agreement, the proper remedy for the complainants is only to approach the civil court by way of a suit for Specific Performance u/s 16(1) (c ) of Specific Relief Act 1963 where they can lead evidence. Thus we are of the view that the complaint is not maintainable before the District Commission and resultantly the finding rendered by the learned District Commission is liable to be set aside. Thus we answer point No.1 in favour of the appellant holding that the order of the learned District Commission is unsustainable and hence liable to be set aside.

Point No.2 :-

11.       In view of the finding rendered above, we hold that the complainants are not entitled to any relief.

            In the result, the appeal is allowed, consequently the complaint is dismissed.  In the facts and circumstances, no order to cost in the appeal.

 

 

S.M.LATHA MAHESWARI                                                                           R. SUBBIAH             

          MEMBER                                                                                               PRESIDENT