State Consumer Disputes Redressal Commission
S. Elavarasi,J-19, Gnana Olivu ... vs . M/S. King Makers Enterprises Pvt. Ltd. ... on 30 September, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.J.Jayaram, M.A., M.L., JUDICIAL MEMBER
Tmt.Vasugi Ramanan, M.A., B.L., MEMBER II F.A.828/2010 [Against order in C.C.No.251/2009 on the file of the DCDRF, Chennai (North)] DATED THIS THE 30th DAY OF SEPTEMBER 2011 S. Elavarasi, | W/o. M. Srinivasan, | Appellant / Complainant J-19, Gnana Olivu Street, | Thiru Nagar, Jaffarkhanpet, | Chennai 600 083. | Vs.
1. M/s. King Makers Enterprises Pvt. Ltd. City, | Rep. by S. Rajasekar, | Chairman and Managing Director, HoH | No.22-B & C, Balvadi Street, | Nerkundran, Koyambedu, | Chennai 600 107. | | |
2. S. Rajasekar, | Respondent/Ops.
Chairman and Managing Director, | M/s. King Makers Enterprises Pvt. Ltd., City,HoH | Rep. by S. Rajasekar, | No.22 B & C, Balvadi Street, | Nerkundran, Koyambedu, | Chennai 600 107. | |
3. S. Syed Ahmed Kabir, | No.4, Sowrashtra Nagar, | 2nd Cross Street, Choolaimedu, | Chennai 600 094. | The appellant as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to execute the Rectification Deed for the Three Plots No.379 and 382 in King Makers City Schemes in Molachoor Village, Tindivanam Taluk or to direct the opposite parties to pay a sum fo Rs.80,000/- paid by the complainant to the opposite parties towards consideration for the plots Nos.379 and 382 in King Makers City Scheme Layout in Molachoor Village, Tindivanam with interest at the rate of 2% from the date of sale deed till the date of payment, to pay Rs.2 lakhs towards compensation for deficiency in service and negligence and illegal trade practice on the part of the opposite parties and to pay Rs.10,000/- towards costs. The District Forum dismissed the complaint, against the said order, this appeal is preferred, praying to set aside the order of the District Forum dt.12.03.2010 in C.C.251/2009.
This appeal coming before us for hearing finally on 27.09.2011, upon hearing the arguments of either counsels, and perused the documents, as well as the order of the District Forum, this Commission made the following order:
Counsel for the Appellant / Complainant : Mr.V.Yuvakumar, Advocate.
For the Respondents/Ops : Served Absent.
M. THANIKACHALAM J, PRESIDENT
1. The unsuccessful complainant is the appellant.
2. The appellant/complainant had purchased Plot Nos.379 and 382 from the first opposite party, for the consideration of Rs.40,000/- per plot that is 1200 sq.ft., including stamp duty, registration, totaling a sum of Rs.80,000/-. After purchase, based upon the registered documents, when the complainant approached the Thasildhar for transfer of patta, it was refused on the ground of incorrect Survey number, resulting rectification deed has to be executed and registered, not only by the opposite parties, but also conveying the said property by the original owner Meenakshi. Despite repeated requests, the opposite parties failed to execute the rectification deed, thereby caused mental agony. Hence, a consumer complaint is filed, seeking direction against the opposite parties, to execute the Rectification Deed for the correct Survey Number including the conveyance deed by Meenakshi in favour of the third opposite party for transfer or to pay a sum of Rs.80,000/- paid as consideration with interest along with compensation of Rs.2 lakhs.
3. The District Forum despite the fact, the opposite parties have not contested the case, scanning the documents produced by the complainant, felt that the opposite parties had executed the Rectification Deed and the same was also informed to the complainant. Thus concluding, further observing, the complainant instead of not pressing the complaint, has unnecessarily prosecuted the case. In this view, the complaint itself was dismissed, as per the order dated 12.03.2010, which is impugned in this appeal, seeking the relief as prayed for.
4. Here also, the opposite parties/respondents have not come before us to contest the case. Therefore, by going through the materials relied on by the complainant, as well as giving the finding regarding the maintainability as well deficiency in service, which are essential, the case has to be disposed of on merit, not on the ground, the opposite parties have not contested the case, thereby allowing the appeal, automatically.
5. The learned counsel for the complainant/appellant would contend that the mistake in the Survey number is admitted, and therefore the non-execution of the Rectification Deed should be construed, as unfair trade practice, which was not properly considered by the District Forum with among other grounds as averred in the Memorandum of Appeal. By going through the pleadings as well as nature of the dispute, we are of the considered opinion, that the case itself is not maintainable before the Consumer Forum, for which, unfortunately no finding was given by the District Forum. It is the submission of the learned counsel for the appellant, that in a similar case of this nature, the District Forum granted an order in C.C.263/2009 and the same kind of order should be followed in this case, which submission is not acceptable to us, considering the admitted position.
6. In order to maintain the case before the Consumer Forum, one should be a consumer as defined under Section 2(1)(d) of the Consumer Protection Act. Section 2(1)(d)(i) deals regarding buying of any goods, which are covered under the Sale of Goods Act.
Here, though the complainant had purchased a property that is immovable property, whether with a correct survey number or not, that will not come within the meaning of goods and therefore, Section 2(1)(d)(i) is not applicable.
7. Section 2(1)(d)(ii) is made applicable to a person, who has hired or availed the service of other person, for consideration and the consideration mentioned therein must be with reference to the service, not with reference to the value of the immovable property. Our effort by going through the pleadings, ended in vain, to find out any consideration or availing or hiring the service of the opposite parties, for consideration and the consideration paid as pleaded in the complaint was in respect of two plots, totaling a sum of Rs.80,000/-, whether it includes stamp duty or not. Apart from this amount, no amount was paid for any act to be performed by the opposite parties or to perform any service as defined under the Consumer Protection Act, under Section 2(1)(o). Thus, it is seen, this case does not relates the goods or the service as the case may be, whereas, it relates to immovable property, defective title, in the sense not conveying the correct survey number, including transfer of the said property by its original owner. Because of this reason alone, the first prayer reads direct the opposite parties to execute the Rectification Deed for three plots Nos.379, 382. Giving new survey number, old survey number, then further paying, seeking direction to the opposite parties to obtain sale deed from the original owner Meenakshi, that too, in the absence of Meenakshi before us. This kind of reliefs in respect of the immovable property, where title is also more or less under dispute including defective survey number, cannot be granted by the Consumer Forum, to a person, who claims to have purchased the immovable property, who will not come within the definition of consumer under the above said categories. The District Forum without considering the fact, presuming that the complainant is a consumer, if it, if had decided in any other case, this Commission cannot help it.
8. As observed by the District Forum, when the mistake of survey number was pointed out, the opposite parties immediately rectified the survey number executed a Rectification Deed and a copy also sent with Ex.A7, thereby showing the seller/vendor was prompt in complying the deficiency committed while executing the original sale deed. If the complainant is unable to get the transfer of patta, base upon the Rectification Deed, the Consumer Forum cannot help for that in the absence of the alleged original owner Meenakshi and for the rectified survey number, no direction can be issued against the opposite parties, to get the sale deed from Meenakshi in the absence of Meenakshi, as if, this is a case for specific performs of a contract, which is not contemplated under the Consumer Protection Act. Thus, viewing the case from this angle also, we find no reason to interfere with the ultimate finding of the District Forum, and the appeal deserves to be dismissed.
9. In the result, the appeal is dismissed, confirming the order passed by the District Consumer Disputes Redressal Forum, Chennai [North], in C.C.251/2009, dated 12.03.2010. No order as to costs in this appeal.
VASUGI RAMANAN J. JAYARAM M.THANIKACHALAM MEMBER II JUDICIAL MEMBER PRESIDENT