Tamil Nadu

StateCommission

A/144/2018

The Joint Sub Register, District Registrar Office,Mayiladuthurai - Complainant(s)

Versus

U. Palanivel - Opp.Party(s)

M/s. T. M. Pappiah

10 Mar 2022

ORDER

 IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

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

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

 

F.A. No. 144 of 2018

(Against the order passed in C.C. No.9 of 2015 dated 24.04.2018 on the file of the D.C.D.R.F., Nagapattinam.

 

Thursday, the 10^th day of March 2022

 

1.  The Joint Sub Registrar

     District Registrar Office

     Mayiladuthurai.

2.  The District Registrar

     District Registrar Office

     State Bank Road

     Mayiladuthurai -609 001.

3.  The Deputy Inspector General of Registration

     Thanjavur

4.  The Inspector General of Registration,

Chennai.                                                                                                                                        .. Appellants/ Opposite Parties

                                                                                             - Vs –

V. Palanivelu     

S/o. S. Vadivelu

48, Thirumanjana Veethi

Koranad, Mayiladuthurai.                            .. Respondent/ Complainant

    Counsel for Appellants /Opposite Parties          : M/s.T.Ravikumar

    Counsel for the Respondent/Complainant         : Party-in-person

                                         

                                                                                                 

        This appeal is coming before us for final hearing on 10.03.2022 and on hearing the arguments of the counsel for the Appellant and on perusing the material records, this Commission made the following :-

O R D E R

R.SUBBIAH J., PRESIDENT  (Open Court)

                1.     This appeal has been filed by the opposite parties under Section 15 of the Consumer Protection Act, 1986 as against the order dated 24.04.2018 passed in C.C. No.9 of 2015, by the District Consumer Disputes Redressal Forum, Nagapattinam, allowing the complaint, in part. 

 

                2.  The factual background culminating in this appeal is as follows:  The case of the Complainant is that the complainant and his son along with his relatives had purchased properties in T.S. No.1009/2, 1002/2, 1003/2, Block No.29, Ward No.3 of Mayiladuthurai Town by way of registered sale deeds on 27.03.2013 vide Document Nos.621/2013 and 622/2013. The said properties are in exclusive possession and enjoyment of the purchasers including the complainant and they are paying property tax to the Mayiladuthurai Municipality.  Some of the local litigants are trying to grab the properties from the possession of the purchasers including the complainant and so the said litigants had formed a society namely Nachimuthu Nagar Resident Welfare Society, Mayiladuthurai and got it registered before the Registrar of Societies, Mayiladuthurai vide Regn. No.114/2013 dated 21.10.2013.  On 15.10.2013, before the registration of the society, one Thiru A.Rajendiran, S/o.Arul Anandhan of Mayiladuthurai alleged to be an office bearer of the society, applied for Encumbrance Certificate in respect of the properties of the complainant before the 1^st opposite party.  Though the application was signed by the said Rajendran, the name of the applicant was noted as Natchimuthu Mudaliar, who had expired long before, i.e., on 20.04.2004.  The 1^st opposite party had issued the Encumbrance certificate on the very same day vide E.C.No.3296 of 2013, in which it was certified that there were no encumbrances for the period from 01.01.1987 to 14.10.2013 i.e., no documents were registered during the above said period.  Thereafter, on 17.10.2013, another person by name D.Selvaraj, S/o.Thiru Rajamanickam, stated to be the Deputy Secretary of the said society, applied for encumbrance certificate for the properties purchased by the complainant, in the name of Natchimuthu Mudaliar, who is no more.  Again the 1^st opposite party issued the encumbrance certificate to the effect that there were no encumbrances in the said property for the period from 01.01.1987 to 16.10.2013.  Hence, the complainant through his agent Thiru Barathan submitted an application for encumbrance certificate to the 1^st opposite party.  The 1^st opposite party had issued the encumbrance certificate vide E.C.No.829 dated 07.03.2014 noting down the earlier transactions that took place with regard to the above properties, in the name of the complainant, his son and his close relative vide registered exchange deeds.  The boundaries of the above lands are the same in all the encumbrance certificates issued by the 1^st opposite party.  The primary duty of the 1^st opposite party is to verify the survey number for which the encumbrance certificate has been applied, in the records of the department.  But the applications of the above referred persons were entertained by the 1^st opposite party and he had issued encumbrance certificates as if no transactions had taken place in the said survey numbers.  Based on the false encumbrance certificates, one Karthikeyan, who is the President of Nachimuthu Nagar Residents Welfare Society filed Original Suit in O.S.No.265 of 2013 before the District Munsif Court, Mayiladuthurai seeking permanent injunction against the complainant, with regard to the properties purchased on 28.10.2013.  The said suit has been filed with an incomplete and false encumbrance certificate issued by the 1^st opposite party.  The 1^st opposite party along with the subordinate officers, colluded with the unscrupulous elements and issued the false encumbrance certificate without recording the twelve transactions which took place during the period 1988 to 2013.  The 1^st opposite party had issued false and incomplete encumbrance certificates without quoting the actual registered sale deeds.  Thus, the opposite parties had committed dereliction of duty and there is deficiency in service.  Hence, the complainant has come forward with the present complaint, seeking the following reliefs:-

1. to direct the opposite parties to pay a sum of Rs.2,00,000/- as compensation towards mental agony, physical sufferings and also financial loss.   
2. To cancel the incomplete, false and fabricated Encumbrance Certificate Nos.3296/2013 and 3319/2013 dated 15.10.2013 and 17.10.2013 respectively.
3. To direct the opposite parties to pay a sum of Rs.10,000/- as litigation expenses and costs.

 

                3.  The said complaint was opposed by filing a detailed written version of the 2^nd opposite party, adopted by the other opposite parties, denying all the allegations. The complaint will not fall within the purview of Consumer Act.  Therefore on this ground alone the complaint is liable to be dismissed. The encumbrance certificates bearing No.3296/13, 3319/13 and 829/2014 were issued only on the basis of the details available with the office and the 1^st opposite party had no bias or prejudice in issuing the encumbrance certificate against the interest of the complainant.  The said Rajendran and Selvaraj had written their names in the encumbrance application.  If those persons had written the name of Nachimuthu Mudaliar, who was no more, then only the question of prosecuting them for impersonation would arise.  But, said persons have put their signatures correctly in the application.  All the complaints sent by the complainant were properly responded by the office of the 1^st opposite party by sending reply                                                                                                                                                                                                                                                                                       letters dt. 12.01.2015 and 13.04.2015.  Another letter dated 15.07.2015 has also been sent to the counsel of the complainant with full and correct details informing the complainant that he had purchased the land intended for public purposes of Nachimuthu Nagar Welfare Society members.  Hence, they sought for dismissal of the complaint. 

                4. In order to prove the case, on the side of the complainants, along with proof affidavit 15 documents were filed, which were marked as Exhibits A1 to A15.  On the side of the opposite parties, 2^nd and 3^rd opposite parties have filed the proof affidavits along with 10 documents and the same were marked as Ex.B1 and Ex.B10.

 

                5.  The District Forum, after analyzing the entire evidence on records, has come to the conclusion that the consumer forum has no jurisdiction to cancel the entries in the encumbrance certificates and that the complainant has to approach the appropriate forum for the said relief.  The relief of cancellation of survey numbers in the encumbrance certificate namely, Ex.A1 to Ex.A4 relates to the question of right and title over immovable properties and therefore the relief of cancellation cannot be granted by the District Forum.  However, the opposite parties have committed deficiency of service by issuing defective encumbrance certificates and hence, the opposite parties       1 to 4 are directed to pay jointly and severally a sum of Rs.15,000/- towards compensation together with interest at the rate of 12% p.a. and a sum of Rs.5000/- as costs, to the complainant.   Aggrieved over the same, the present appeal has been filed by the opposite parties.

 

        6.  Heard the submissions of the counsel for the appellants/ opposite parties and perused the material on records.  No representation for the respondent/ complainant (party-in-person).

 

                7.  The only submission made by the counsel for the appellants/ opposite parties is that even for issuance of a defective or erroneous encumbrance certificate as alleged by the complainant, the remedy lies not before the Consumer Forum and he has to approach only the civil court.  Thus, he prays to set aside the order of the District Forum.

 

        8.  But, we are not inclined to accept the stand taken by the opposite parties, in view of the judgment passed by the National Consumer Disputes Redressal Commission in the case of the Joint Sub Registrar, DRO, Palani Vs. Tmt.Maragatham, wherein it has been held by the National Commission that,   “ ..... in case of deficiency in service in issuing erroneous and defective encumbrance certificate, the concerned officer including the Joint Sub-Registrar would be    liable for deficiency in service and could be proceeded under the Consumer Protection Act, 1986.”   Therefore, we are not accepting the submission of the learned counsel for the opposite parties that this Commission has no jurisdiction to deal with the defective encumbrance certificates issued by the opposite parties.

 

            9.  In the result, we are dismissing the Appeal and the order dated 24.04.2018 passed in C.C. No.9 of 2015, by the District Consumer Disputes Redressal Forum, Nagapattinam, is confirmed.  Consequently, the Appeal is dismissed. 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   

 

S.M. LATHA MAHESWARI                                   R.SUBBIAH

         MEMBER                                                  PRESIDENT

 

 

Index :  Yes/ No

 

AVR/SCDRC/Chennai/Orders/March/2022