State Consumer Disputes Redressal Commission
T. Sathya Narayana Prasad vs Noor Mohammed Syed on 23 March, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana Complaint Case No. CC/110/2015 1. T. Sathya Narayana Prasad S/o. Date Kishan Prasad, aged about 65 years, Occupation Business, R/o. H.No.1-2/2Old, H.No.1-63 New, Chandanagar, Serilingampally Mandal Ranga Reddy ...........Complainant(s) Versus 1. Noor Mohammed Syed S/o. Jaffer Sahab, Aged about 65 years, Occupation Business, R/o. Plot No.5, Annapurna Enclave, Behind Swagath Hotel, Chandanagar, Serilingampally Mandal Ranga Reddy Dist ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER For the Complainant: For the Opp. Party: Dated : 23 Mar 2017 Final Order / Judgement STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA : AT HYDERABAD CC NO.110 OF 2015 Between : T.Sathyanarayana Prasad S/o late Kishan Prasad, aged about 65 years, Occ: Business, R/o H.No.1-2/2 (Old), H.No.1-63 (new), Chandanagar, Serilingampally mandal, Ranga Reddy district. Complainant And Noor Mohammed Syed S/o Jaffer Sahab, aged about 65 years, Occ: Business, R/o Plot No.5, Annapurna Enclave, Behind Swagath Hotel, Chandanagar, Serilingampally mandal, Ranga Reddy district. Opposite party Counsel for the Complainant : Sri Md.Khasim Razee Counsel for the Opposite party : Sri M.Mittal Coram : Hon'ble Sri Justice B.N.Rao Nalla, President & Sri Patil Vithal Rao, Member
Thursday, the Twenty Third day of March Two thousand Seventeen Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, President) *** This is a complaint filed under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 by the Complainant complaining deficiency in service on the part of the Opposite party and seeking direction to the opposite party to pay the half share of the constructed building estimation 3000 sft monthly rent of Rs.50,000/- per month for 72 months amounting to Rs.36,00,000/-; to pay house rent of Rs.4,500/- p.m. for 72 months amounting to Rs.3,24,000/-; to pay the house maintenance expenses of Rs.5,000/- p.m. for 72 months amounting to Rs.3,60,000/-; to pay interest @ 2% p.a. for 72 months on Rs.42,84,000/- amounting to Rs.5,14,080/-; to pay compensation of Rs.10,000/- and to pay costs of Rs.20,000/-.
2. The case of the complainant, in brief, is that he is the absolute owner and possessor of residential house bearing No.1-2/2 (old), new No.1-63, in Sy.No.32 admeasuring 353 sq. yards of Chandanagar village, Serilingampally mandal, Rangareddy district by virtue of registered document which was purchased in the year 1974 and ever since then he is in peaceful possession, enjoyment and occupation. The OP approached the complainant along with one M.Manik Reddy in the year 2006 with a proposal to develop the property, to which, the complainant agreed and consented for the construction of ground + two floors and agreed to share the same in 50 : 50 ratio, which was reduced into writing as Development Agreement dated 19.12.2006 and got registered the same and again executed another development agreement-cum-general power of attorney on 11.04.2007 by incorporating Ops name during the subsistence of earlier agreement with Manikreddy and Noor Mohammed. The original of document dt.19.12.2006 is with the OP.
3. The Opposite party started digging pits on 23.11.2007 construction after obtaining necessary sanction and permission from the competent authorities. It was agreed to complete the construction within 12 months from the date of digging, with a grace period of three months which expired on 23.02.2009 but the OP failed to complete the construction and committed breach. The complainant also got issued notice dated 13.05.2009 calling upon the Opposite party to complete the construction as per the terms of the agreement. As such, the complainant invoked arbitration clause as provided under agreement for settlement of the issue but the OP failed to appear before the Arbitrator by name M.Somaiah of Nalagandla village, upon which, the Arbitrator passed an Award on 25.05.2009 cancelling the Development cum GPA and directing the OP to handover the original documents of the property to the complainant within three days, which was also not complied.
4. However, the Complainant cancelled the agreement dated 11.04.2007 by executing the cancellation of Development Agreement-cum-A.G.P.A. vide document No.2100/2009 on 15.10.2009 and also got published a notice in "Eenadu" telugu daily vide public notice. Upon which, the Opposite party filed a suit bearing OS No.2466/2009 on the file of VIII-Additional Senior Civil Judge, Rangareddy district and obtained injunction orders in IA No.2814/2009 on 12.11.2010. On account of failure to complete the project within time, the complainant sustained huge loss and damages to the tune of Rs.30,88,530/-. Hence the complaint with the reliefs stated at paragraph no.1, supra.
5. Opposite party filed written version admitting the ownership of the complainant over the subject premises but when the OP took the premises for development, the complainant was not the owner for the entire premises. At the time of dismantling old structure for construction of new building, one person by name Sumitra Devi obstructed the excavation works over the said premises on the pretext that she is owner for an extent of 116.67 sq. yards. The OP solved the dispute between Sumitra Devi and complainant by paying Rs.8,30,000/-. Apart from this, the OP also paid amount to the tune of Rs.12,00,000/- to the complainant as security deposit. OP denied to have entered into any agreement with Manik Reddy. The agreement dated 19.12.2006 is a false and fabricated document as the same is not filed.
6. As per the development agreement dated 23.11.2007, the complainant has to apportion the respective entitlements of built-up area between the parties by entering into a supplementary deed. In spite of raising semi-structures and inspite of demands to enter into supplementary agreement for allocation of respective shares, the complainant utterly failed to cooperate for the same and therefore the OP stopped further construction as he could not get the customers in the absence of allotment and exclusive share of OP, hence, question of breach does not arise. For breach of contract, the complainant ought to have availed remedies before civil court but not this Forum. There is no relationship of owner and consumer. The complaint is not maintainable on this ground. In fact, the OP had invested Rs.40,00,000/- by raising structures.
7. The Complainant failed to follow due procedure to invoke the arbitration clause, as such, the said proceedings are challenged by way of AOP No.997/15 on the file of V-Additional District Judge Rangareddy district. Apart from this, the OP also filed a suit bearing OS No.2466/2009 before the VIII Senior Civil Judge, Rangareddy district and the evidence is in progress. The said suit was filed for declaration declaring the unilateral cancellation of development agreement-cum-GPA as null and void, wherein, injunction orders are in force. As against the same, CMA is preferred which was also dismissed confirming the orders of lower court. Since the matter is under adjudication, the present complaint is not maintainable.
8. The alleged arbitrator M.Somaiah was not competent person to deal the matter. Even the said Arbitrator failed to give any notice to the OP to attend before him. The Arbitrator also gone to the extent of pre-decision in the matter unilaterally cancelling the development agreement-cum-GPA on 25.09.2009, which is under challenge before the civil court, hence, question of returning the documents in original does not arise. The cancellation of agreement vide document No.2100/2009 is unilateral and not binding on the OP. The failure on the part of the complainant to fulfil his part of obligation to execute supplementary agreement for allocation of respective shares in the building, the question of completing the construction does not arise.
9. It was the complainant who caused heavy loss to the OP having invested the amount to the tune of Rs.40,00,000/- thereby causing loss of interest on the same for all these years. Hence, question of payment of damages, etc., does not arise. There arose no cause of action and the same is created for the purpose of wrongful gain. This Commission has no jurisdiction to entertain the complaint. There is no deficiency in service on his part. Hence, prayed to dismiss the complaint with costs.
10. On his behalf, the Complainant filed his affidavit evidence and the documents Exs.A1 to A20. On his behalf, the Opposite party filed his affidavit evidence and the document Ex.B1.
11. The points that arise for consideration are :
i) Whether the Complainant is a 'consumer' as defined under the Act? ii) Whether there is any 'deficiency in service' on the part of the Opposite party and whether the Complainant is entitled for the reliefs as prayed for? iii) To what relief ?
12. POINTS No.1 AND 2: It is the case of complainant that he is owner of premises bearing No.1-2/2 (old) and its corresponding new No.1-63 admeasuring 353 sq. Yards, in Sy.No.32, situated at Chandanagar village, Serilingampally mandal of Rangareddy district and the same was given for development to the Opposite party along with one M.Manik Reddy for construction of a complex consisting of ground + two floors as per the terms reduced into writing in pursuance of Development Agreement dated 19.12.2006. Again, the complainant stated to have entered into a Development Agreement-cum-General Power of Attorney on 11.04.2007 registered as document No.5899/2007.
13. As per the terms of agreement dated 11.04.2007 (Ex.A1), the Opposite party agreed to complete the construction within a period of 12 months with a grace period of 3 months, but except digging pits, nothing is carried on by the OP. As such, the complainant invoked the provisions of arbitration clause under the agreement and appointed an Arbitrator by name M.Somaiah, who in turn, passed an award on 25.05.2009 cancelling the agreement dated 11.04.2007. As against the same, the Opposite party challenged the same by way of Arbitration OP No.997/2015 on the file of V-Additional District Judge, Ranga Reddy district and also filed a suit bearing OS No.2466/2009 on the file of VIII-Senior Civil Judge, Ranga Reddy district and obtained orders of interim injunction, which is in force.
14. While things stood so, the Complainant went further and cancelled the Development Agreement dated 11.04.2007 registered as document No.5899/2007 by way of Cancellation of Development Agreement on 05.10.2009 registered as document 2100/2009. And the present complaint is filed seeking payment of expected rents and also the current rent and interest thereon in the form of damages and also the interest thereon. Admittedly, it is the version of the Complainant that the very document entered into between the parties stood cancelled and the present complaint is filed claiming damages for the loss sustained by the complainant on account of non-performance of the contract. We may state that after cancellation of the Development Agreement, there is no contract between the parties at all and the damages which the Complainant claim is rent for the share of his property in the complex.
15. The Opposite party would contend that the Complainant is not the absolute owner of the subject property but in-fact, one Sumitra Devi is owner to the extent of 116.67 square yards and the same is evident from the sale deed 07.11.2007 registered as document No.312/2007 (Ex.A4). The opposite party would contend that to put a quietus to the dispute between Sumitra Devi and the Complainant, the Opposite party paid a sum of Rs.8,00,000/- and odd which the complainant suppressed. A perusal of the Development Agreement-cum-General Power of Attorney dated 11.04.2007 goes to show that the Complainant is absolute owner of the subject premises to the extent of 353 square yards. If this is believed to be true, the question of purchase of the property to the extent of 116.67 sq. Yards under sale deed dated 07.11.2007 would not arise. And if the document under Ex.A4 sale deed is believed to be true, the title and ownership of the complainant to the extent of 353 square yards would not arise at all. From the above two documents, it can be safely inferred that there were disputes between Sumitra Devi and the Complainant, as contended by the Opposite party.
16. We may state that upon cancellation of the Development Agreement-cum-General Power of Attorney, there remained none on record to claim that the Complainant is a consumer of Opposite party. The citations relied by the Complainant are of no avail to the facts of the case in hand. It is evident from the record that the matter which is in dispute is already pending adjudication before the civil court and hence, no claim can be entertained in the present complaint. Even otherwise, there is a dispute with respect to title over the property, possession of the property and sharing pattern of the property in between the parties which cannot be adjudicated by the fora constituted under the Consumer Protection Act. The alleged M.Manikya Reddy with whom the Development Agreement dated 19.12.2006 is entered into along with the Opposite party is not made as a party to the proceeding. There are several complicated questions involved in the matter which have to be decided which the Fora constituted under C.P. Act vested with summary procedure are not competent to decide the matter. In this regard, we place our reliance on the decisions rendered by Hon'ble Apex Court as also the National Commission in the matter of (1) Synco Vs. State Bank of Bikanoor and Jaipore & others, decided on 15.01.2002 by the Hon'ble Supreme Court of India, wherein it is observed as follows:
"Given the nature of the claim in the complaint and the prayer for damages in the sum of Rupees fifteen crores and for an additional sum of Rupees sixty lakhs for covering the cost of travelling and other expenses incurred by the appellant, is obvious that very detailed evidence would have to be led, both to prove the claim and thereafter to prove the damages and expenses. It is, therefore, in any event not an appropriate case to be heard and disposed of in a summary fashion. The National Commission was right in giving to the appellant liberty to move the Civil Court. This is on appropriate claim for a Civil Court to decide and, obviously, was not filed before a Civil Court to start with because, before the Consumer Forum, and figure in damages can be claimed without having to pay court fees. This, in that sense, is an abuse of the process of the Consumer Forum".
In the matter of Oriental Insurance Company Limited Vs. Muni Mahesh Patel, reported in 2006-2007 Supreme Court Cases 655 - wherein, it was held that "where there are real disputed questions of facts and law which require adjudication by civil court after recording the evidence and holding of a regular trial, the consumer Fora is not proper fora to determine such questions" and in the matter of Mohan Co., Pvt., Ltd., Vs. Santhosh Yadav, reported in 2012-I, CPJ-335 (NC), wherein it was held that "when complex issues of facts and law are involved, such cases must be relegated to civil court". Accordingly, we answer the points 1 and 2 framed for consideration at paragraph No.11, supra, against the Complainant and in favour of the Opposite party.
17. POINT No.3: In the result, the complaint fails and is accordingly dismissed with costs of Rs.5,000/- payable to the Opposite party. Time for compliance: four weeks.
PRESIDENT MEMBER Dated: 23.03.2017 APPENDIX OF EVIDENCE WITNESSES EXAMINED For Complainant : For Opposite party : Affidavit evidence of T.Satyanarayana Affidavit evidence of Noor Prasad, as PW1. Mohammed Syed, as RW1 EXHIBITS MARKED For Complainant :
Ex.A1 is the certified copy of Development Agreement-cum-General Power of Attorney, dated 11.04.2007 registered as document No.5899/2007.
Ex.A2 is the copy of Development Agreement dated 19.12.2006 executed by the Complainant in favour of M.Manikya Reddy and the Opposite party.
Ex.A3 is the certified copy of the Cancellation of Development Agreement, dated 05.10.2009 registered as document No.2100/2009 executed by the Complainant.
Ex.A4 is the certified copy of the sale deed dated 07.11.2007 registered as document No.312/2007 executed by Sumitra Devi infavour of T.Satyanarayana Prasad, in respect of the plot No.12 in Sy.No.12, admeasuring 116.67 square yards.
Ex.A5 is the certified copy of the sale deed dated 16.10.1974 registered as document No.863/1974.
Ex.A6 is the market value assistance certificate for Rs.51,22,500/- furnished by the Sub-Registrar, Serilingampally and the encumbrance certificate in respect of the subject property, for the period from 01.10.2007 to 12.07.2010.
Ex.A7 is the notice dated 13.05.2009 issued by the Complainant seeking appointment of arbitrator, to the Opposite party.
Ex.A8 is the Arbitration Award dated 25.05.2009 passed by M.Somaiah, Arbitrator.
Ex.A9 is the photograph of the subject property as on 27.05.2015.
Ex.A10 is the photograph of the subject property as on 27.05.2015.
Ex.A11 is the office copy of notice dated 17.09.2009 got issued by the Complainant to the Opposite party along with the copies of postal acknowledgement and the postal receipts.
Ex.A12 is the receipt for Rs.1,120/- showing publication of the notice in Eenadu.
Ex.A13 is the certified copy of the Order and Decree in IA No.2814/2009 in OS No.2466/2009 on the file of VIII-Additional Senior Civil Judge, Rangareddy district at L.B. Nagar, Hyderabad.
Ex.A14 is the attested copy of the Building Permit Order and plan, dated 30.11.2007.
Ex.A15 is the office copy of legal notice dated 11.04.2011 got issued by the Opposite party to the Complainant.
Ex.A16 is the office copy of reply dated 15.04.2011 got issued by the Complainant to the counsel for the Opposite party.
Ex.A17 is the notice dated 01.10.2011 got issued by the Complainant to the Opposite party, along with the postal receipt and acknowledgement.
Ex.A18 is the Reply notice dated 14.10.2011 got issued by the Opposite party to the counsel for the Complainant.
Ex.A19 is the certified copy of the orders dated 24.11.2011 passed in CCSR No.5881/2011 directing the complainant to seek remedy before civil court having jurisdiction in the matter.
Ex.A20 is the certified copy of the orders dated 25.06.2014 in IA No.882/2013 in OS No.2466/2009 on the file of VIII-Additional Senior Civil Judge, Rangareddy district at L.B. Nagar, Hyderabad.
For Opposite party :
Ex.B1 is the .
PRESIDENT MEMBER Dated: 23.03.2017 [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER