State Consumer Disputes Redressal Commission
The Special Officer, The Madras City ... vs . Mr. Parvez Zaheen Kokan, Represented ... on 8 June, 2012
THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI. Present: Honble Thiru Justice R.REGUPATHI, President Thiru.A.K.Annamalai, Judicial Member Thiru.S.Sambandam, Member. F.A.No.124/2010 [Against order in C.C.No.89/2007 on the file of the DCDRF, Chennai (North)] FRIDAY, THE 08th DAY OF JUNE 2012. The Special Officer, The Madras City Co-Operative Building Society Ltd., Registration No.G-523 No.101, Vellala Street, Purasalwakkam, Chennai 600 084. .. Appellant/1st opposite party /Vs/ 1. Mr. Parvez Zaheen Kokan, Represented by his Power Agent Dr.Md. Rahamathullah Kokan, No.52, Ground Floor, Casa Major Road, Egmore, Chennai 8. Respondent/Complainant 2. The Registrar of Co-operatives Societies, No.79, 4th Main Road, Gandhi Nagar, Adyar, Chennai 600 020. Respondent/2nd opposite party The appeal coming before us for hearing finally on 25.4.2012, upon hearing the arguments of both sides and perused the documents, written submissions as well as the order of the District Forum, this Commission made the following order :- Counsel for Appellant/1st opposite party : M/s. R.S. Anandan, Advocate. Counsel for 1st Respondent/ complainant : M/s.Syed Nurullah Sherif & K. Krishnamoorthy, Advocates. 2nd Respondent/2nd opposite party : Given up ORDER
A.K.ANNAMALAI, JUDICIAL MEMBER.
The complainant filed a complaint against the opposite parties claiming direction for registering the plot as per the advertisement made for the same and as per the allotment letter issued and to pay interest for the amount already paid because of the delay caused in executing the sale deed and also for compensation of Rs.3,00,000/- for mental agony and Rs.25,000/- as costs.
2. The opposite parties denied the allegations of the complainant and contended that due to various administrative reasons, delay was caused and as per the terms and conditions of the agreement, the purchaser is not entitled for any interest paid for the cost of the plots due to delay and the enhanced rate of price from Rs.147/- to Rs.167/- per sqft was agreed by the purchaser in view of the meeting already conducted and resolution passed by the Society and while obtaining CMDA approval and other approval there may be variation in the plot sizes and thereby the complainant cannot claim as a matter of right regarding the allotment of plot and the complainant cannot agitate. If any grievances regarding the purchase of plot only before the Regional Registrar of Co-operative Societies under section 19 of the Act alone to be made and thereby the complainant is liable to be dismissed.
3. On the basis of both side documents, and after enquiry the District Forum allowed the complaint and directed the 1st opposite party to register the plot No.84 as per the complaint in favour of the complainant within six weeks from the date of order and to pay 18% interest per annum of the interest for the amount of cost of price Rs.4.5 lakhs paid from 12.11.2003 till the date of registration and this interest to be adjusted towards the amount if any payable by the complainant towards the cost of plot.
Further, the 1st opposite party is directed to pay only a sum of Rs.25,000/- towards mental agony and due to delayed registration and further Rs.5000/- towards the costs to the complainant and in default , the amount shall carry interest at the rate of 9% per annum till the date of payment.
4. Aggrieved by the order of the District Forum, the 1st opposite party is preferred this appeal and in the grounds of appeal it is contended that that the District Forum erroneously allowed the complaint and the complainant was informed of the progress.
In the meanwhile, the process of land regarding the approval from CMDA and other authorities and as per the terms and condition agreed upon and by letter dated 06.09.2005, the enhanced rate of plot was also communicated and the plot cost was only tentative and not the final one at the time of advertisement. It is also informed that the variation in the plot site will be possible while allowing the final allotment of the plot. No interest will be paid in case of any other reason the refund was made and thereby without considering all those details, the District Forum erroneously allowed the complainant and Rs.25,000/- as compensation was awarded and Rs.5000/- and costs are erroneously and there was no deficiency in service and thereby the appeal to be allowed.
5. While considering all these arguments, averments and contention, it is the admitted case of both sides that the complainant was allotted and the plot bearing No.35 in the scheme for Rs.4.5 lakhs towards purchase money and it was also admittedly entire amount was paid by the complainant in the year 2003 itself and subsequently it is found that the complainant was allotted with varied size of plot and not as per the original allotment and for which the complainant claimed the actual size of the plot with the same area as per the allotment letter and thereby the claim is made for the same. The appellant contended that due to various constraints regarding to the approval and lay out by CMDA and subsequent approval and permission from the local body authorities regarding laying of roads, etc., the measurement available in the land after approval of CMDA found to be lesser then the actual area mentioned in the various sale deeds as purchased were made from various parties.
The revised plan regarding the size of the plot are made and thereby variations were made and also as per the terms and conditions agreed upon under Ex A2 by the purchasers for the same. Further, before this Commission, the appellant has filed additional documents which are allowed to be received and marked as Exhibits B1 to B8 containing the documents regarding the proceedings of the Registrar, advertisement given in the news paper for the sale of plots, planning permit issued by CMDA and notice relating to the Annual General Body Meeting in which the revised price of the plot to be decided and other matters to be discussed in the Annual General Body Meeting, resolution passed regarding the enhanced rate of price, and intimation letter sent to the purchasers regarding the allotments and their acknowledgment and lay out, sketch etc., on the basis of those documents the appellant contended that in view of the subsequent development and as the approval of CMDA for plots given only in 2005 and after other steps taken only in 2008, the local body has given permission regarding the provision of facilities like laying of the road, provision of water supply and payment of local body charges etc., delay was occurred in allotment of plots and thereby the opposite party was not in deficiency in service in either in the allotment of plots or any other manner. While considering those contentions of the appellant and as per the additional documents relied under Exhibits B1 to B8 even though the complainant had entered into the sale proceeds with the opposite party during the year 2003 and since the CMDA approved the lay out only in 2005 and after that in 2006 as per the resolution passed in the Annual General Body Meeting, the price of the plot was raised from Rs.147/- to Rs.167/- per sqft in which intended purchasers had attended the meeting and acknowledged the resolution and thereby after the process, the intimation letter with sketches for the allotment of plot with revised extent of area sent and in this case, as per the Ex A15, sent by intimating to the complainant regarding the plot size and the price of the plot and after receipt of the entire costs and SRO and registration fee etc., sale deed to be executed were all intimated. But, subsequently, when the complainant actually measured the plots, he found certain shortage and variation in the size of the plot for which when the clarification was made by as there was no proper response and legal notice was issued and for which replies were sent under Ex A30. The opposite parties/appellants filed the documents under Exhibits B1 to B8 as additional documents before this Commission in which the intimation letter dated 05.05.2007 which is marked as Ex B6 in which we find that showing the details of plot allotted along with the area of the plot and thereby they requesting the complainant to register the plot. But, these documents even though belatedly filed before this Commission by the appellant/1st opposite party did not file the same before the District Forum and since the opposite party filed the acknowledgement by the postal proof under Ex B7 for sending the same and the complainant cannot deny the knowledge of the same. On perusal of opposite partys those documents under Exhibits B1 to B8 and the contentions of the appellant in the appeal grounds and from the argument even though CMDA approved the lay out with the area as intended by the opposite party but subsequently in view of the various other reasons and administrative grounds and in view of the local bodys permission relating to the facilities to be provided the variation in the allotment of plot sizes were carried out in order to avoid any loss to the society and only from the sale proceeds of the plots from the purchaser, the building society has to run its establishments without suffering any loss in allotting the plots without any gain for the society and as per the application for the same made and submitted by the complainant under Ex A2 and in terms and conditions No.4, the society is not expected to pay any interest in case of refund of money paid for the plot and as per after condition No.5, the purchaser himself has to measure the plot to specify the extent of land and in case of excess or shortage in plot size to pay the amount according to the size and thereby agreed to register the same land as per the condition No.8 in any dispute or issue regarding the allotment of the decision by the society is the final one and thereby the purchaser agreed for all the conditions and on the basis of the conditions pay the amount for purchase of plot. In those circumstances, even though the prayer of the complainant allowed to direct the opposite party to execute the sale deed as per the earlier intended size of the plot but actually no such area is available subsequently due to revised plan prepared and intimated to the complainant under Ex B6, if such prayer is allowed, the complainant cannot execute the award which is not practicable and thereby no purpose could be served when there is no such actual extent of plot as early as intended now available since it is also not possible for the opposite parties to re-lay or modify the lay out for the purpose of satisfying the complainant for himself and for his family members to allot actually intended area of the plot as other purchasers plots and area of the allotted plot to be re-allotted in view of the re-arrangement of the lay out which could not be possible at this stage and the District Forum without considering those aspects allowed the complaint as prayed for and also directed to pay the interest for the amount already paid and as per the condition No.4 under Ex A2 the opposite party is not bound to pay any interest for the amount if any refunded or involved in the purchaser of the plot and in those circumstances the opposite party submitted a chart stating the details of the application Nos.57, 58, 59 and 60 originally submitted by the complainant and received through the relatives of the complainant which were allotted as plots numbering 34, 35, 36 and 84 respectively with the extent of 3666 sqft, 3262, 2850 sqft , 4448 sqft which are all approved by the CMDA as 3155.43 sqft 3017.32 sqft 2147.16 sqft, and 4440 sqft respectively and in which it is clear that the CMDA has not approved the layout with the same planning area of the plot as submitted by the opposite party and there are variations except in plot No.84 and thereby the opposite party offered as modified area of land as per the letter dated 05.05.2007 under Ex B6 intending to allot 2440 sqft, 2520 sqft, 1950 sqft, 3474 sqft respectively and these area of land actually available for registration to the complainant in such cases.
6. In these circumstances, even though the complainant prayed to register the plot No.35 for area of 3262 sqft. In view of the details it is clear that it could not be possible now. Accordingly, we are of the view that the opposite parties to be directed to register the plot as per the chart submitted to the complainant for the plot No. 35 an area of 2520 sqft on the basis of price Rs.167/- per sqft. In this circumstance, we are of the view that the District Forum order is liable to be set aside and accordingly by allowing the appeal, the District Forum order is setting aside and the following order is passed.
7. The opposite party is directed to register the plot No.35 with an area of 2520 sqft quantified as per the chart filed on payment of Rs.167/- per sqft towards the cost of the plot and the amount already paid by the complainant shall be adjusted towards the costs and in case of excess or shortage of money it should be settled accordingly between the parties and the complainant shall bear the costs of the registration charges and other charges applicable as per the terms and conditions of the opposite party in this regard. The opposite party shall register the plot within 2 months from the date of payment of entire payment towards the cost of the plot and on the receipt of necessary registration and other charges from the complainant. The appellant shall pay a sum of Rs.2000/- as costs to the respondent/complainant.
S.SAMBANDAM, A.K.ANNAMALAI, R.REGUPATHI MEMBER JUDICIAL MEMBER PRESIDENT Annexure List of Additional Documents filed by the Appellant before this Commission and marked as Ex B1 30.05.2003 Copy of Registrars Proceedings Ex B2 17.08.2003 Copy of Advertisement in Tamil Daily Thanthi Ex B3 19.08.2005 Copy of Planning Permit by the CMDA Ex B4 19.03.2006 Copy of Special General Body Meeting Notice in Malai Malar Ex B5 29.03.2006 Copy of Resolution passed in GB Meeting Ex B6 05.05.2007 Copy of intimation letters with sketches (four) Ex B7 07.05.2007 Copy of acknowledgements (three) Ex B8 Copy of lay out approved by CMDA, dated 19.08.2005.
S.SAMBANDAM, A.K.ANNAMALAI, R.REGUPATHI MEMBER JUDICIAL MEMBER PRESIDENT INDEX : YES / NO TC/B-I/June 12