THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
I.A. 371/2017 IN C.C.244/2014
Dated this the 19th day of April, 2018
(Smt. Rose Jose, B.Sc, LLB. : President)
Smt.Beena Joseph, M.A : Member
Sri. Joseph Mathew, M.A., L.L.B. : Member
ORDER
Present: Rose Jose, President:
This petition is filed under Section 12 of Consumer Protection Act, 1986.
Petitioner’s case in brief is that, they entered into a joint venture agreement with M/s. Baby Builders, West hill, Calicut regarding construction of an Apartment complex in a portion of the property measuring 34.11 cents out of a total property measuring 46.55 cents owned by Baby Builders as per document No. 1282 of 2004 and 478 of 2000 which is situated in R.S. No.4-5-183 & 181/1 in Kasaba Village, Kozhikode. M/s. Baby Builders had already availed a loan from the 3rd opposite party after mortgaging a portion of the said property which comes to 12.44 cents and for that the original and prior title deeds and other documents related with the 46.55 cents of property were deposited with the 3rd opposite party bank. It is stated that the petitioner is a builder and so they are bound to keep the originals of all the documents including title deeds regarding the property where they are constructing the Apartment Complex. The 3rd opposite party through a letter No. Misc.93/09 dated 22/09/2009 clarified to the petitioner that they have created mortgage only over the portion of 12.44 cents and they have no lien over the remaining portion on the said 46.55 cents of property. M/s. Baby Builders had issued a letter to the 3rd opposite party on 22/09/2009 enlisting all the 18 documents they had deposited with the Bank and authorizing them to hand over all those documents to the petitioner on closure of the loan and in response to this letter the 3rd opposite party issued letter No. Misc. 93/09 dated 22/09/2009 t0o the petitioner assuring that these documents will be handed over to them after settlement of their dues by M/s. Baby Builders. Believing the said undertaking by the 3rd opposite party bank, they completed the project and the apartments were allotted to different parties.
It is further stated that when M/s. Baby Builders had closed their loan account with the bank, they approached the 3rd opposite party for receiving the said documents but to their utter shock the 3rd opposite party was reluctant to handover the documents to them. After repeated personal visits and contact over phone and through letters, the 3rd opposite party informed over phone that the documents are handed over to one Mr. Manoj. Since they have not authorized Mr. Manoj to collect these documents they immediately through a letter dated 15/07/2013 requested the 3rd opposite party to retrieve the documents and hand it over to them. As there was no response to that letter, they issued a lawyer notice dated 19/10/2013 to the 3rd opposite party again requesting them to hand over the documents to them immediately and to that notice the opposite party replied flatly denying the undertaking given by them that the documents will be handed over to them and stating that the documents were already handed over on closure of the loan.
The petitioner further stated that, they have spent huge amount believing the definite undertaking of the bank that they will hand over the documents to them on closure of the loan account by M/s. Baby Builders. Due to the said act of the opposite parties, they had sustained a loss to the tune of Rs.5,00,000/- and suffered much inconveniences. Even after all these, they again issued a legal notice to all the opposite parties reiterating their demand in order to avoid a litigation, but the reply was to the effect that, if at all they have suffered any loss, the bank is not responsible for the same and they have nothing to do with this issue. The said act of the opposite parties amounts to callous negligence and also deficiency in service on their side. Hence this petition is filed to direct the opposite parties to return all the documents to them immediately which was deposited with the 3rd opposite party bank by Ms/ Baby Builders and to pay Rs.5,00,000/- as compensation for the mental agony and other inconveniences suffered and also cost of the proceedings.
The opposite parties filed a combined version contending that this petition is untenable in law and hence it is to be dismissed. They admitted that M/s. Baby Builders had deposited with the 3rd opposite party the original title deed and other related documents pertaining to 46.55 cents of land as stated in the petition as a security for a loan availed by them. It is also admitted that they have lien only over 12.44 cents of property out of the total extent of 46.55 cents owned by M/s. Baby Builders. But they denied the statement of the petitioner that they have given an undertaking to the petitioner in their letter No. Misc.93/09 dated 22/09/2009 that they will hand over the documents to the petitioner after settlement of the dues by M/s. Baby Builders as false. They have not given any undertaking to the petitioner as alleged. M/s. Baby Builders has not issued any letter to the 3rd opposite party instructing to hand over the documents to the petitioner as stated by them. They have handed over the documents to Mr. Manoj on 29/11/2012 only under the clear instruction received from M/s. Baby Builders in this regard and they are bound by the instruction of the customer who had deposited the documents with them.
The opposite party further contended, on receiving letter from the petitioner they have discussed this matter with M/s. Baby Builders, but they told that the issues will be solved between them and the petitioner who are the joint developers of the flat project and this fact was informed to the petitioner also. They have acted only as per the instruction of M/s. Baby Builders who has the absolute title over the property and absolved from all liabilities over the title deeds on returning the same to the customer who had deposited the same with them. The issue of who should keep the originals of the titled deeds and other documents are a matter to be settled between the petitioner and M/s. Baby Builders and they have no role in these matters. They are not liable to hand over the documents to the petitioner as against the instruction of the customer who had deposited the deed with them. All other allegations of the petitioner was denied as not true or correct. They have acted in good faith, legally and in conformity with the guidelines of RBI. No loss or any mental agony or inconvenience had occurred to the petitioner due to any of their acts and so they are not liable to compensate the petitioner in any manner and hence prayed to dismiss the petition on accepting their version.
Both the parties filed affidavit in lieu of their averments and Ext.s A1 to A10 were marked on the side of the petitioner and B1 and B2 on the side of the opposite parties. After closing of evidence of both the parties, the case was posted for hearing. At this stage the opposite parties filed I.A.371/2017 challenging maintainability of this petition before this Forum with prayer to consider and decide this issue as a preliminary issue before going to the merits of this petition. Hence we decided to hear and decide this issues primarily before going to the merits of the original petition. No counter was filed by the petitioner to this I.A.
Heard the opposite parties/petitioner in the I.A.
According to the opposite parties this petition is not maintainable mainly on two grounds. First of all it is argued that the petitioner will not come under the category defined under the caption “Complainant” as envisaged under Section 2(1)b of Consumer Protection Act. Secondly he is also not a consumer as per Section 2(1)d of Consumer Protection Act. Since the petitioner does not come under any of the two Sections of Consumer Protection Act, they have no right to file a complaint before this Forum and hence this petition is not maintainable.
As per Section 2(1)b ‘Complainant” means (i) a consumer, or (ii) any voluntary consumer association registered under the Companies Act 1956 (1 of 1956) or under any other law for the time being in force, or (iii) the Central Government or any State Governments or (iv) one or more consumers, where there are numerous consumers having the same interest, or (v) in case of death of a consumer, his legal heir or representative who or which makes a complaint.
Section 2(1)d defines a consumer as any person who:- (1) buys any goods or ………………………hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration, when such services are availed of with the approval of first mentioned person, but does not include a person who avails of such services for any commercial purpose.
Here the complaint was filed by M/s. Crescent Builders alleging deficiency in service committed by the opposite parties in not handing over the documents to them which was deposited with the opposite parties by M/s. Baby Builders. According to the opposite parties their customer is M/s. Baby Builders and the petitioner is a stranger as far as they are concerned and the petitioner has not availed any service from them for consideration. They are bound by the instructions of their customer M/s. Baby Builders who has deposited the documents with them. They handed over the said documents to Mr. Manoj only as per Ext. B1 letter issued to them by Sri. Jacob K. Babu, Managing Partner of M/s. Baby Builders dated 26/11/2012 authorizing Mr. Manoj to collect the documents deposited with them. They have acted legally and in conformity with the guidelines of RBI. So no deficiency in service can be attributed on them.
Considering the facts of the case and as per the definitions given in Sections 2(1)b and 2(1)d of Consumer Protection Act, it is found that the petitioner has not availed any service from the opposite parties for consideration and so they are not a consumer of the opposite parties as alleged and they does not come under any of the definitions of Consumer Protection Act stated Supra and hence they have no right to file this complaint before this Fora. Hence we are also of the opinion that this petition is liable to be dismissed.
In the result I.A.371/2017 is allowed and the original petition is dismissed as not maintainable before this Forum. Parties will bear their costs.
Dated this the 19th day of April, 2018
Date of filing: 07/05/2014
SD/-MEMBER SD/-PRESIDENT SD/-MEMBER
APPENDIX
Documents exhibited for the complainant:
A1. Copy of letter received from 3rd opposite party dated 24/09/2009
A2. Copy of letter issued by Baby builders to 3rd opposite party dated 22/09/2009
A3. Copy of letter sent to 3rd opposite party dated 05/07/2013
A4. Copy of letter sent to 3rd opposite party dated 15/07/2013
A5. Copy of letter sent to 3rd opposite party dated 10/08/2013
A6. Copy of letter received from 3rd opposite party dated 14/08/2013
A7. Copy of lawyer notice sent to 3rd opposite party
A8. Copy of reply issued by 3rd opposite party dated 30/10/2013
A9. Copy of lawyer notice sent to the opposite parties dated 10/01/2014
A10. Copy of reply issued by opposite parties dated 29/01/2014
Documents exhibited for the opposite party:
B1. Authorization letter issued by Baby Builders
B2. Extract of Equitable Mortgage Register and acknowledgement of receipt of title deed
Witness examined for the complainant:
None
Witness examined for the opposite party:
None
Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
