Tamil Nadu

South Chennai

CC/70/2021

Bhupendra Makwana - Complainant(s)

Versus

VGP Agro Farms LTs, Rep by its Managing Director - Opp.Party(s)

M/s V.J.Arul Raj

07 Nov 2022

ORDER

                                            Date of Complaint Filed : 04.11.2020

                                            Date of Reservation      : 11.10.2022

                                            Date of Order               : 07.11.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                                 : PRESIDENT

                        THIRU. T.R. SIVAKUMHAR, B.A., B.L.,                :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,         : MEMBER II

 

CONSUMER COMPLAINT No.70 /2021

MONDAY, THE 7^th DAY OF NOVEMBER 2022

1.Bhupendra Makwana, M/Age 65 yrs,

   S/o. Jivan Jeram Makwana 

 

2.Harshida Bhupendra Makwana, F/Age 64 yrs,

   W/o Bhupendra Makwana

 

Both residents of No.9, Durell Close,

Loughborough LE 11 5FA, United Kingdom,

Duly represented by its Power of Attorney,

Mr.Tamilselvan Thangapandian,

Residing at No.26, F Block,

10^th Cross Street, Thanigachalam Nagar,

Ponniammanmedu,

Chennai – 600 110.                                                                                                          ...Complainants

 

-Vs-

 

1.VGP Agro Farms Pvt. Ltd,

   Represented by its Managing Director.

 

2.VGP Housing Pvt. Ltd,

   Represented by its Managing Director,

 

Both having Office at VGP Square,

No 6, Dharmaraja Koil Street,

Saidapet, Chennai - 600 015.

(Corporate office) & Victory House,

 39, Anna Salai Chennal - 600 002.

(Branch Office).                                                                                                                          ...Opposite Parties                             

 

******

Counsel for the Complainant            : M/s. V.J.Arul Raj

Counsel for the Opposite Parties       : Exparte

 

        On perusal of records and upon hearing the oral arguments of the  Counsel for the Complainant, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Parties under section 12 of the Consumer Protection Act, 1986 and prays to direct the Opposite Parties to refund a total sum of Rs.72,96,876/- paid by the Complainants plus Rs.57,24,504/- from the date of payment made by the Complainants to Opposite Parties @ 15% p.a from the date of filing the complaint till the date of realisation and direct the Opposite Party to pay compensation to recompense the Complainants for damages suffered on account of mental agony, stress, embarrassment and humiliation apart from financial loss which are being quantified as Rs.4,00,000/-.

2.     The averments of Complaint in brief are as follows:-

The Complainants being residents of United Kingdom (UK), were interested in investment opportunities, arising in India. The Complainants attended certain VGP property investment exhibitions held by the Opposite Parties in UK, where they were lured by representations made in the aforementioned exhibition about various property investment schemes being developed and promoted by Opposite Parties. The Opposite Parties failed to either maintain or develop the plots into Garden. Particularly Clause 16, 17, 18, 19, 20, 21, 28  of the terms and conditions relating to the costs of the plots, its development, crediting sale proceeds of yields, handing over of possession etc have been violated with impunity by the Opposite Parties, which is gross and serious negligence on their part as also total and complete deficiency in service of the Opposite Parties. Subsequently they purchased agricultural plots comprised in No. 33 and No. 34 in VGP CORNWEL (VGP AGRO FARM PVT LTD), and sale deed registered on 27.05.1996. The Complainants have paid a total amount of INR 10,18,322/- (inclusive of INR 71,000/-).

Although, the above said company had registered a Sale deed in the name of the Complainants for the above said agricultural plots and claims to have handed over the possession of the said plots to the Complainants, however, the physical possession of the said plots on ground has not been handed over to the Complainants by the above said company till date. Under these circumstances, the Complainants are entitled to get the refund of the said amount as the Opposite Parties has failed to deliver the possession of the said property to the Complainants. The Complainants made payments of Rs. 1,89,525/- (Receipt no.8512 dated 02.02.1997) and Rs 1,89,525/- (Receipt no.8513 dated 02.02 1997- (Total Rs.3,79.050/-), towards VGP green country plot no. 346 in VGP GREEN COUNTRY (VGP HOUSING PVT LTD). The Complainants have also entered into an agreement to sell dated 20-02-1999 attached herewith for plot no.44 in VGP VICTORIA GARDEN III (VGP FARM PVT LTD) at a cost of Rs. 1.75,000/-. They have been contacting the Opposite Parties time and again, seeking information to provide the status of the said projects to which Opposite Parties had always assured the timely completion of the same by the year 2015. In between, the Complainants have also timely paid the amounts as demanded by the Opposite Parties as stated above. There has been no communication from the Opposite Parties regarding the status and maintenance of any of the Complainants investments, despite repeated attempts to elicit information from the Opposite Parties. The Opposite Parties have not only let the Complainants suffer financial loss but have also caused mental agony, stress, embarrassment and humiliation. Except for one sale deed registered on 27-05-1996 of VGP Kodai Cornwell, no other Sale Deed has been executed, but Opposite Parties have collected Rs.10,18,322/- for VGP Cornwel, Rs.3,79,050/- for VGP Green Country and Rs 1,75,000/- for VGP Victoria Garden III.

Hence, a sum of Rs. 15,72,372 (Sl. No. a, b, & c) is due to the Complainants, with 15% interest per annum from the date of payment made by the Complainants to the Opposite Parties till date of repayment by the Opposite Parties. Since the Opposite Parties have not executed the sale deed, the cause of action continues till date. Therefore, the question of limitation does not arise. It is pertinent to state that the Complainants have been persuaded by the Opposite Parties into investing in the schemes purported. Thus, the Opposite Parties are jointly and severally liable to any loss suffered by the Complainants on account of due gross negligence and deficiency of service and due to the acts of omission and commission of the Opposite Parties. Hence the complaint.

3.      The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-26  were marked.  

4.    The Opposite Parties did not appear before this Commission even after sufficient notice on them. Hence the Opposite Parties were called absent and set exparte.

Points for Consideration

1.Whether the Complainant is a Consumer as defined under the Consumer Protection Act, 2019?

2.Whether the complaint is bad for misjoinder of parties and misjoinder of cause of action?

3.Whether there is deficiency in service on the part of the Opposite Parties?

4. Whether the Complainant is entitled for reliefs claimed?

5. To what other reliefs the Complainant is entitled?

Point No.1:

The Complainants being residents of the United Kingdom, were interested in purchasing lands in India. The Complainants lured by the various property invest schemes of the Opposite Parties had purchased agricultural plots comprised in No.33 and 34 in VGP CORNWEL (VGP AGRO FARM PVT LTD) from the 1^st Opposite Party by way of registered Sale Deed on 27.05.1996 and had paid a total sum of Rs.10,18,322/- vide the following

1. Bill dated 09.10.1995 for INR 3,38,774/-, Ex.A-3
2. Bill No.55 dated 01.04.1998 for INR 3,38,774/-, Ex.A-7
3. Receipt No.4854 dated 25.09.1995 for INR1.65,152/-, Ex-A-1
4. Receipt No.4855 dated 25.09.1995 for INR1,63,152/-, Ex.A-2
5. Receipt No.6424 dated 08.04.1996 for INR 12,470/-, Ex.A-10

However the physical possession of the land was not handed over to the Complainants.

Further contended that they had made payment of Rs.3,79,050/- to the 2^nd Opposite Party towards purchase of Plot No.346 in VGP Green Country (VGP Housing Pvt Ltd).

Further the Complainant had entered into an Agreement to Sell dated 20.02.1999 with the 1^st Opposite Party for Plot No.44 in VGP Victoria Garden III at a cost of Rs.1,75,000/-.

The Complainant contended that as per the terms and conditions of the Opposite Parties, the Opposite Parties had undertaken to develop Land into Garden Land and market the yield for the first six years and had undertaken to construct Garden House. The Complainant placed reliance on C.C.No.307 of 2002 passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Air Force Naval Zee Farms Welfare Association Vs Air Force Naval Housing Board and another wherein the Opposite Parties who agreed and failed to develop and hand over houses / flats / farm units were held liable. In the present case, the terms and conditions, marked as Ex.A-26 referred to by the Complainant was not executed by the parties to the Complaint, and hence cannot be relied upon. Further the alleged Sale Deed dated 27.05.1996 in respect of agricultural plots in No.33 and 34 in VGP Cornwel is not produced to elucidate as to whether any development of land and construction of Garden House was undertaken by the Opposite Parties.

The Agreement for Sale dated 20.02.1999, Ex.A-16 executed by the 1^st Opposite Party does not contain clauses for development of the agricultural land or for construction of Garden House in respect of the land mentioned therein i.e., Plot No.44 in VGP Victoria Garden III.

Hence the contention of the Complainant that the Opposite Parties had undertaken to construct Garden House and hence the Complainants falls under the definition of Consumer as per the Consumer Protection Act, fails in so far as there is no specific agreement between the Complainants and the Opposite Parties for development of the agricultural lands alleged to have been purchased by the Complainants from the Opposite Parties. Sale of immovable property is excluded under the purview of the Consumer Protection Act, unless the Seller is engaged in the construction or development of such immovable property. The Complaint does not fall under the purview of the Consumer Protection Act and hence the Complaint is not maintainable.

Point No.2:

The Complainant contended that the Opposite Parties failed to adhere the terms and conditions in Ex.A-26, more particularly relating to the development, crediting sale proceeds of yields and handing over of possession which amounts to negligence and deficiency of service by the Opposite Parties.

A Complaint may be filed by the Complainants as against more than one Opposite Party when the right to relief in respect of the same act or transaction is alleged to exist against such persons, whether jointly or severally. In this case the Opposite Parties are two different entities and the Complainants had alleged to have entered into transactions with the 1^st Opposite Party and 2^nd Opposite Party separately. The Complainant had contended to have purchased agricultural plots comprised in No.33 and 34 in VGP Cornwel by Sale Deed dated 27.05.1996 from the 1^st Opposite Party. Further contended to have entered into Agreement to Sell dated 20.02.1999 for Plot No.44, in VGP Victoria Garden III from the 1^st Opposite Party. And further contended to have made payments for Plot No.346 in VGP GREEN Country to  the 2^nd Opposite Party.  All these transactions are different giving rise to different causes of action.  Moreover there is no common question of law or fact had arisen to be decided between the Opposite Parties in a single Complaint. Hence the complaint is bad for misjoinder of parties and misjoinder of causes of action. Accordingly Point No.2 is answered.

Point Nos. 3, 4 and 5:

The Complaint contended that the Opposite Parties undertook to construct Garden House and failed to construct till date which amounts to unfair trade practice and deficiency in service and relied upon the Judgement of the National Commission reported in 2012(IV)CPJ 1 NC, wherein it was held that delay in construction and completion of developmental works amounts to unfair trade practice and deficiency of service, which case is not applicable at hand as there was no agreement between the Complainants and the Opposite Parties for construction of Garden House as alleged by the Complainants.

As discussed and decided above that the Complainants are not consumers under the Consumer Protection Act, deficiency or unfair trade practice could not be attributable to the Opposite Parties. Hence the Complainants are not entitled for the reliefs claimed in the Complaint or for any other reliefs. Accordingly Point Nos. 3, 4 and 5 are answered.

 

 

In the result the complaint is dismissed. No costs.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 7^th of November 2022.  

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

List of documents filed on the side of the Complainant:-

Ex.A1	25.09.1995	Receipt No.4854 & 4855
Ex.A2	30.09.1995	Copy of Cheque
Ex.A3	09.10.1995	Invoice
Ex.A4	13.10.1995	Letter of Opposite Parties
Ex.A5	15.10.1995	Cheque
Ex.A6	14.11.1995	Statement of account
Ex.A7	01.04.1996	Bill No.55
Ex.A8	12.03.1996	Letter of Opposite Parties
Ex.A9	13.03.1996	Letter of Opposite Parties
Ex.A10	08.04.1996	Receipt 6424
Ex.A11	19.06.1996	Letter of Opposite Parties
Ex.A12	02.02.1997	Receipt 8512 & 8513
Ex.A13	18.02.1997	Letter of Opposite Parties
Ex.A14	02.04.1997	Letter of Opposite Party
Ex.A15	04.02.1999	Letter of Opposite Parties
Ex.A16	20.02.1999	Agreement for sale
Ex.A17	02.03.1999	Letter of Opposite Party
Ex.A18	10.10.1999	Letter of understanding
Ex.A19	24.11.2003	Memorandum of understanding &Letter
Ex.A20	04.04.2017	Legal Notice
Ex.A21	06.02.2018	Complaint to police
Ex.A22	23.04.2018	RTI reply
Ex.A23		Email correspondence
Ex.A24	18.01.2020	Spl. Power of Attorney
Ex.A25	22.10.2020	Encumbrance certificate
Ex.A26		Terms and conditions

 

List of documents filed on the side of the Opposite Parties:-

NIL

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                   B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT