State Consumer Disputes Redressal Commission
Karnail Singh vs Shalimar Estates on 1 January, 2013
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal Case No. : 412 of 2012 Date of Institution : 12.12.2012 Date of Decision : 01.01.2013 Karnail Singh, Joint Director (Retd.) son of Sh.Inder Singh, resident of House No.61 (MIG), Sector 41-A, Chandigarh. --Appellant Versus Shalimar Estates Private Limited, SCO No.110-111, Sector 8-C, Chandigarh, through its Managing Director. ....Respondent. Appeal U/s 15 of Consumer Protection Act, 1986 BEFORE: JUSTICE SHAM SUNDER(Retd), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Present: Sh.Mohit Jaggi, Advocate for the appellant.
PER JUSTICE SHAM SUNDER(Retd), PRESIDENT This appeal is directed against the order dated 21.11.2012, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it dismissed the complaint of the complainant(now appellant).
2. The facts, in brief, are that the complainant was allotted residential plot No.395-P (Preferential), measuring 6 marlas, by the Opposite Party, vide allotment letter dated 5.4.1997, copy whereof is Annexure C-1. Thereafter, the complainant entered into an agreement to sell with the Opposite Party, with regard to the said plot, copy whereof is Annexure C-2. The measurement of the said plot was given as 10x15 sq. yards in the agreement to sell. The total consideration of the said plot was fixed at Rs.98,010/-, out of which, the complainant paid a sum of Rs.24,502/- to the Opposite Party. The remaining payment was to be made in six installments, as per the schedule, given in the agreement to sell. A conveyance deed was executed in favour of the complainant, by the Opposite party, on 16.3.2007, copy whereof is Annexure C-3. An amount of Rs.10,300/- was paid towards registration charges vide receipt Annexure C-4. The remaining sale consideration was also paid. The dimensions of the plot were mentioned as 10 x 15 sq. yards in the said receipt. However, the Opposite Party, on its own, changed the dimensions of the plot to 18 x 8 sq. yards instead of 10 x 15 sq. yards, in the conveyance deed, and, in this manner, cheated the complainant. It was stated that after the execution of conveyance deed, the complainant visited the office of the Opposite Party, a number of times, to get the mutation effected, in his name, but to no avail. It was further stated that the Opposite Party did not come forward to get the mutation effected, in favour of the complainant, to which, he was legally entitled. The complainant made a representation dated 7.4.2011 Annexure C-5, to the Opposite Party, for getting the mutation effected. It was further stated that the complainant could not construct his house, due to the non-sanction of mutation. Thereafter, many representations were made by the complainant, to the Opposite Party, but no positive result came out. It was stated that the aforesaid acts, on the part of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed by him, directing the Opposite Party, to get the rectification of conveyance deed of Plot No.395 effected, as per the agreement to sell ; to get the mutation of the plot sanctioned in his favour ; to handover physical possession of the plot; and to make payment of compensation for harassment and litigation expenses.
3. The Opposite Party, in its written version, pleaded that the complaint was barred by time. It was further pleaded that the complicated questions were involved in the complaint, adjudication whereof required recording of extensive evidence, and, as such, the District Forum was not competent to decide the same. It was admitted that residential plot No.395/P of 6 marlas was allotted to the complainant. It was denied that measurements of the said plot were 15 x 10 sq. yards (150 sq.yds.). It was stated that the measurements were wrongly mentioned in the agreement to sell dated 16.6.1997, as 15 x 10 i.e. 150 sq. yds., whereas, the correct dimensions were intimated to the complainant vide letter dated 12.7.97 Annexure D-4. It was further stated that the conveyance deed was received by the complainant on 21.3.2007. After receipt of the same, he did not raise any objection, regarding the dimensions of the plot, mentioned therein. It was further stated that the dimensions of all the plots of 6 marlas were 18 x 8 = 150 sq. yds., but the same were wrongly mentioned, in the agreement to sell, and in the receipt of registration charges, due to a clerical mistake. It was further stated that the dimensions of 6 marla plots were also mentioned in the brochure Annexure D-5 as 18 x 8 = 150 sq. yds. It was further stated that the possession of plot was given to the complainant. It was further stated that the plot allotted to the complainant is residential in the approved township, as per Notification No.8/196/94/c1, copy whereof is Annexure D-6, and, as such, the mutation of the said plot, in the revenue records, was not required. It was denied that the Opposite Party was deficient, in rendering service, or indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. In the replication, filed by the complainant, it was stated by him that there was a continuing cause of action, surviving in his favour, to file the complaint, and, as such the same was not barred by time. It was denied that correct dimensions were ever intimated to the complainant by the Opposite Party. It was further stated that construction on the plot was delayed, on account of delay of mutation, because no bank gave loan without mutation of the property, in favour of the plot owner.
5. The parties led evidence, in support of their case.
6. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum dismissed the complaint, as stated above.
7. Feeling aggrieved, the instant appeal, was filed by the appellant/complainant.
8. We have heard the Counsel for the appellant, and, have gone through the evidence, and record of the case, carefully.
9. Undisputedly, a plot of 6 marlas, was allotted to the complainant, by the Opposite party. The conveyance deed, containing the measurements of plot as 18 X8 sq.yards, instead of 10x15 Sq.yards, was executed, in favour of the complainant, by the Opposite party, on 16.3.2007, copy whereof is Annexure C-3. The conveyance deed was received by the complainant on 21.3.2007. In case, the dimensions, mentioned therein, were not correct, or had been wrongly recorded by the Opposite Party, then he was required to agitate the matter, before the Opposite Party, immediately after the receipt of the said conveyance deed.
Had his alleged grievance been not redressed, by the Opposite Party, then the complainant was required to file the complaint within a period of two years, from the date of accrual of cause of action i.e. 21.3.2007. However, the complainant slept over the matter for a period of 5 years and, ultimately, filed the complaint on 18.4.2012. No continuing cause of action, survived in favour of the complainant. It was one time cause of action, which accrued, in favour of the complainant, on 21.3.2007. The District Forum, was, thus, right in holding that the complaint which had been filed after 5 years, from the date of accrual of cause of action, was palpably barred by time. The findings of the District Forum, in this regard, being correct, are affirmed.
10. A grievance was also raised by the complainant, that he was not delivered possession of the plot. He, thus, sought the relief with regard to delivery of possession of the plot. It is evident from Annexure C3, copy of the conveyance deed, that the possession of the plot, in question, was delivered to the complainant. When there was a specific recital in Annexure C3 that the possession of the plot had been delivered to the complainant, in case, he had not been delivered the same, then it was for him, to agitate the matter immediately thereafter. He, however, for the first time, on 4.6.2011 vide annexure C-7, made a representation that he had not been delivered the possession. It is settled principle of law, that when the documentary and oral evidence, with regard to the same issue, are contrary to each other, then the former will prevail, over the latter. The District Forum, was, thus, right in holding that the possession was delivered, to the complainant, as per the recitals, contained in the conveyance deed. The findings of the District Forum, in this regard, being correct, are affirmed.
11. With regard to the non-sanction of mutation, in respect of the plot, in favour of the complainant, in our considered opinion, the same (plot) was allotted to the complainant, in the approved residential colony. The nature of the plot, being residential, the District Forum was right, in holding, that there was no necessity of sanction of mutation in respect thereof. Even no document was produced by the complainant, to establish that he applied for sanction of mutation, on the basis of conveyance deed, executed in his favour, but the same was not sanctioned, by the competent authority, on the ground that the Opposite Party did not give consent to the same. There was also no agreement, between the parties, that the Opposite Party shall get the mutation sanctioned, in favour of the complainant. Even otherwise, mutation does not confer any right or title in respect of the property, on a person.
It was the conveyance deed, which conferred the title of the property, on the complainant. On the basis of conveyance deed, if the complainant completed other formalities, he could certainly get sanctioned loan, from the bank. Therefore, it could not be said that there was any deficiency, in rendering service, on the part of the Opposite Party, in not getting the mutation sanctioned, in favour of the complainant. The District Forum was also right, in holding so.
12. No other point, was urged, by the Counsel for the appellant.
13. In view of the above discussion, it is held that the order passed by the District Forum, being based, on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
14. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
15. Certified Copies of this order be sent to the parties, free of charge.
16. The file be consigned to the Record Room.
Sd/-
Pronounced. (Justice Sham Sunder)(Retd) January 1,2013 President.
Sd/- (Neena Sandhu) Member Js STATE COMMISSION (Appeal No.412 of 2012) Present:
Sh.Mohit Jaggi, Advocate for the appellant.
Dated :
ORDER Vide our detailed order of the even date, recorded separately, this appeal has been dismissed, at the preliminary stage, with no order as to costs.
(Neena Sandhu) (Justice Sham Sunder)(Retd) Member President