State Consumer Disputes Redressal Commission
T C Jacob vs Xavi Mano Mathew on 10 February, 2016
Daily Order KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM C.C.107/2015 JUDGMENT DATED 10/02/2016 PRESENT: SMT. A. RADHA : MEMBER SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER SMT. SANTHAMMA THOMAS : MEMBER COMPLAINANT: T.C. Jacob, S/o Chacko, BNRA 49, Benedict Nagar, Chencheri Muri, Ulloor Village, Nalanchira P.O., Thiruvananthapuram. (By Adv: A. Chandrasekharan Nair) Vs RESPONDENT: Xavi Mano Mathew S/o. John Mathew, Panachickal House, TND 10, Tagore Nagar, Vazhuthacaud, Thycaud P.O., Thiruvananthapuram, Pin-695 014, The Managing Director, Guardian Builders and Realtors Pvt. Ltd., Cotton Hill, Vazhuthacaud, Thiruvananthapuram-695 014. JUDGMENT
SMT. A. RADHA : MEMBER This complaint is filed under Section 17 of the Consumer Protection Act.
2. The case of the complainant is that the complainant entered into an Agreement for Sale of Apartment No.4(A) in the 4th Floor in the building known as "Guardian Nikkys Residency" in 12 cents in Survey No.1710/2-2-2 of Pattom Village which is constructed by opposite party as builder. The agreement was executed on 3/5/2012 and a set of 5 keys were entrusted to the complainant. The opposite party is the Managing Director of "Guardian Builders and Pvt. Ltd.
3. The Agreement for sale is signed by opposite party as vendor and the complainant as the purchaser. It is stated in the complaint that the price fixed for the Apartment was Rs.64,56,200/- and the Sale Deed would be executed on completion of the construction on 31-12- 2012. The complainant fully performed his part by paying the full amount on the date of agreement itself. As per the agreement the sale deed is to be executed within 31/12/2012. It is the allegation of the complainant that even after 3 years the opposite party is not prepared to execute the sale deed. It is alleged that the opposite party committed breach of agreement and breach of trust. It has come to the knowledge of the complainant that the 4th floor of the apartment is ready for sale and to occupy. The opposite party is postponing the execution of the sale deed and alleges deficiency in service on the part of opposite party. The complaint is filed to get executed the sale deed and also claims to get the interest @ 12% per annum for the paid amount from 01/01/2013 till the execution of sale deed. Further, the complainant claims that the apartment Is intended for the residential purpose of his son who is residing in Bombay in rental house and he could not occupy the apartment and claimed Rs.25,000/- p.m towards monthly rent which is estimated to Rs.8 Lakhs. The complainant caused an Advocate Notice dated 20/7/2015 demanding the execution of sale deed. Even though the opposite party accepted the notice he was reluctant to send reply or to perform the Sale Deed. Hence filed this complaint.
4. Though notice was served on the opposite party he remained absent and set-exparte.
5. The complainant filed affidavit in lieu of examination in chief along with Exbts. A1 to A3. Exbt. A1 is the Agreement for Sale, A2 is the copy of Advocate's Notice and A3 is the acknowledgment card.
6. Heard the counsel. The allegation made in the complaint is that even after full payment of Rs.64,56,200/- towards the cost of the apartment to the opposite party as per agreement executed on 3/5/2012 was not fulfilled till 31/12/2012. Besides, the opposite party has not performed their part to execute the Sale Deed or handover the possession of the apartment. We have gone through the Agreement for sale which is the basis for filing the complaint. As per the agreement executed on 3/5/12 the construction has to be completed by December, 2012. It is clearly pleaded in the complaint, that the opposite party has not executed the Sale Deed within the stipulated period. The agreement was extended by making recitals on 4 different dates in the reverse side of the agreement by stating "Cu F Kn-saânsâ Imem-h[n 3 amk-t¯-bv¡vIqSn \o«n-bn-cn-¡p-¶p". The cause of action of the complaint as per the Consumer Protection Act deals with the period of limitation under Section 24(A). A complaint is to be filed within 2 years from the date on which the cause of action has arisen. If the complainant is not filing the complaint within 2 years the complaint should accompany with a petition to condone the delay stating the reasons. The complaint has to be filed within 2 years ie. 31/12/2014, in the instant case the complaint is filed on15/9/2015. The extension of the period of limitation is to be explained with reason which is absent in this case. The extension of the agreement is shown by the writing on the reverse side of the agreement. An Advocate Notice was also issued on 20/7/2015 demanding the execution of Sale Deed, payment of interest and compensation which was not replied by the opposite party. With regard to the extension period of agreement written on the reverse side is dated 31/12/2013 thereafter extension for 3 months on 30/3/2013 and again extended for 9 months dated 1/7/2013 and further extended for one year on 6/8/2014. As per the document the first date of extension is 31/12/2013 and thereafter stated the date as 30/3/2013 which gives inconsistency in the extension of period. We would also like to point out that the complainant has placed these recitals on the reverse side of agreement to the effect of extension of limitation period. The document being an Agreement, only the signature of alleged vendor and the signature of the purchaser is absent. Admittedly the complaint is filed on 15/9/2015 ie. more than 2 years after the cause of auction arose and as such the complaint is barred by limitation.
7. On going through the merits this is an Agreement for Sale executed between the parties for Rs.64,56,200/-. It is pertinent to point out that the agreement is not a registered document and especially it relates to an immovable property. The basic fundamental of sale under Section 54 of Transfer of Property Act deals with sub section 17, 'Sale of property of value of Rs.100/- or more'; a sale of property of the value of Rs.100/- or more can be effected only by a registered instrument. In this case, the amount exceeds Rs.100/- and it is not a registered document produced in evidence. The object of registering is that such a document has been executed. An unregistered document in case of sale of immovable property of value of Rs.100/- or more conveys no title whatever. The complainant asserted in the complaint that he paid sale consideration in full and the possession of apartment would take place on 31/12/2012. It is pertinent to point out that the complainant has not produced any document to prove the receipt of payment. Further the opposite party is exparte. Assuming that the complainant paid the full consideration, the sale of immovable property above Rs.100/- has to be registered. No registered document under Registration Act is before us to consider the validity of agreement. We are of considered view that this complaint is of civil nature and does not amount to deficiency in service. Hence we find that the complaint is not entertainable.
In view of the discussions made above, we find that the complaint is only to be dismissed.
A. RADHA : MEMBER
K. CHANDRADAS NADAR : JUDICIAL MEMBER
SANTHAMMA THOMAS : MEMBER
Sa.
APPENDIX
Exbt.A1 - Agreement for sale.
Exbt. A2 - Copy of Advocate's Notice.
Exbt.A3 - Acknowledgment card.
A. RADHA : MEMBER
K. CHANDRADAS NADAR : JUDICIAL MEMBER
SANTHAMMA THOMAS : MEMBER
Sa.
KERALA STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION
THIRUVANANTHAPURAM
C.C.107/2015
JUDGMENT DATED 10/02/2016
Sa.