State Consumer Disputes Redressal Commission
N. Mahaveerchand Dugar,151, Mount ... vs M/S. Coronet Construction (India) Pvt. ... on 27 April, 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
Thiru.S.Sambandam, B.Sc., MEMBER II F.A.174/2009 [Against order in C.C.No.19/2003 on the file of the DCDRF, Chennai (South)] DATED THIS THE 27th DAY OF APRIL 2011 N. Mahaveerchand Dugar, | C/o. B. Namichand Dugar, | Appellant / Complainant Managing Director, | M/s. Mahaveer Finance India Ltd., | 151, Mount Road, 1st Floor, | Chennai 600 002. | Vs. M/s. Coronet Construction ( India) Pvt. Ltd., | Respondent / OP Rep. by its Managing Director, | A.Mohamed Yaseen, HoH | 103, R.K.Mutt Road, Mandavelli, | Chennai 600 028. | The appellant as complainant filed a complaint before the District Forum against the respondent/opposite party praying for the direction to the opposite party to deliver the constructed flat as agreed in the agreement, to pay Rs.1,05,000/- towards the delay of 42 months as agreed in the agreement, to pay Rs.10,000/- towards mental agony and to pay Rs.15,000/- towards deficiency in service. 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.10.02.2009 in C.C.19/2003.
This appeal coming before us for hearing finally on 05.04.2011, upon hearing the arguments of the 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 : Mrs.Vyjayanthi Omprakash, Advocate.
For the Respondent / OP : Called Absent.
M. THANIKACHALAM J, PRESIDENT
1. The complainant having failed before the District Forum to get the desired order, has come to this Commission as appellant for redressal.
2. The complainant entered into a construction agreement, on 03.11.98 with the opposite party, who had agreed to construct and hand over a flat in the ground floor, measuring 900 sq.ft. in Survey No.255/2A in Plot No.65/2, for which, he had received consideration also, acknowledged in the construction agreement itself. As agreed, the opposite party had not handed over the constructed flat, within the stipulated time namely within three months from 18.11.98 on which date possession of the land was given after registration of the undivided share. It was also agreed that the opposite party shall pay to the complainant, a compensation of Rs.2,500/- per month in case of failure to deliver the possession, within the said time. Despite lawyers notice, repeated demands since the opposite party failed to deliver the constructed flat, he has committed deficiency, causing mental agony, for which, direction should be issued against them, to deliver the constructed flat as well directing them to pay compensation as catalogued, in Para 10 of the complaint.
3. The opposite party not admitting either the construction agreement or the payment of consideration, opposed the claim, contending that though there was a memorandum of agreement dated 03.1198, drafted, not agreed by the parties cannot be enforced, that the complainant has not paid a sum of Rs.6 lakhs as falsely alleged and recited in the incomplete document, that since there was no valid agreement between the parties for construction of the flat and handing over, supported by consideration the non-delivery of the flat, cannot be construed as negligent act or deficiency in service, praying for the dismissal of the complaint.
4. The opposite party in the additional Written Version, would contend that even as per the case of the complainant, the complainant will not come within the meaning of the consumer, that the claim is barred by limitation since the possession contemplated should be the cause of action and non-delivery of the possession will give cause of action namely 18.04.98 and that since the case is not filed within two years, the same is barred by limitation and this being the position, no order would be passed by the Consumer Forum.
5. The District Forum repelling the definition of the limitation, concluding the case is in time, has come to the conclusion that since there was no valid agreement signed by the parties, there is no question of enforcing the same, finding fault with the opposite party and in this view, the relief sought for by the complainant, cannot be granted. On that basis, the complaint came to be dismissed, as per the order dated 10.02.2009, which is impugned in this appeal, as said above.
6. The case is based upon the construction agreement dated 03.11.98, which is marked as Ex.A1. The preparation of this document is admitted by the opposite party, contending that was not acted upon or given up and that is why, the parties have not signed.
Admittedly, as seen from Ex.A1, neither the complainant nor the opposite party had signed in the agreement and therefore, this is a waste paper under law, cannot be enforced as rightly recorded by the District Forum, since the parties have not signed, in the agreement, there is absence of material evidencing the agreement and therefore not enforcing this, we cannot found out any deficiency, and in this view, the dismissal order of the District Forum, appears to be correct. Except Ex.A1 agreement, no other agreement is pleaded or proved. For the payment of consideration, for the construction of the house also, except Ex.A1, no other document was produced though some money transaction is pleaded, as seen from Para 3 of the complaint that we will discuss later.
If Ex.A1 goes as inadmissible, are not binding upon the parties since not concluded in the absence of acceptance of the agreement, we cannot enforce the terms of the contract, and so, the complainant is not entitled to deliver of possession of the flat, said to have been undertaken, to be constructed and handed over by the opposite party. Even assuming that there was an agreement, as rightly urged on behalf of the opposite party/respondent, the claim should be held, as barred by limitation though the District Forum had taken contra view.
7. In the property purchased under the sale deed dated 18.11.98, according to the complainant, the opposite party had agreed to construct the flat and undertook to hand over the possession within the period of 3 months from 18.11.98. Admittedly, within the said three months, that is, on or before 18.02.99, possession was not given and that must be the date of cause of action for enforcing the right for delivery of possession. The complainant has not filed the case within two years from the above said date, whereas, the complaint was filed only on 09.09.2002, that is beyond the period of limitation. The finding of the District Forum, giving notice, should be taken as cause of action cannot be correct, and if this kind of extended cause of action against the law is taken, then there is no purpose in prescribing the period of limitation under the Act. A person can wait, according to his choice from the date of contract and issue a notice after 10 years, if that is to be taken as saving point of limitation, there is no meaning in prescribing the limitation under the Act. In certain cases, the cause of action may arise, after the contractual period based upon deficiency, defects in the building etc., which is not the case. As pointed out by the learned counsel for the appellant, placing reliance upon certain decisions, in the case of insurance claim, after the claim lodged, if there was no reply, the waiting period can be excluded, as the continues cause of action since the repudiation has not taken place, which principle cannot be extended to this case, because of the fact, according to the complainant, possession should have been given, within three months from 18.11.98 and the end of three months period, should be taken as the date of cause of action. Since the case is not filed within two years as mandated under Section 24 (A) of the Consumer Protection Act, it is to be held as barred by limitation.
8. It is the case of the opposite party that the complainant is not a consumer, which cannot be easily brushed aside. We are not going to say that a private party, who have agreed to construct a building, failed to deliver within the specified period, will not come within the meaning of consumer and such person also will come within the meaning of consumer as rightly urged on behalf of the appellant, placing reliance upon of a decision of the National Commission in Dr.Rameshchandra Ramniklal Shah and Anr. Vs. M/s. Lata Construction & Ors. reported in 1996 (1) CPR 7. Therefore, accepting the complainant, as the consumer, provided there was an agreement we have to decide the case and the main question is whether the opposite party had agreed to construct a flat and hand over the possession to the complainant, is the only main point to be decided, for which, as adverted above, there is no document, and the document relied on is unenforceable for want of signatures, that is consent by the parties.
9. By going through the pleadings as well as the documents relied on by the complainant, we are of the considered opinion, that the transaction between the complainant and the opposite party must be the money transaction [loan], relating to Creditor and Debitor, which is sought to be converted as a consumer dispute, placing reliance upon an unaccepted document, by both the parties, for which, the Consumer Forum cannot be a party. As pleaded in Para 3 of the complaint, the opposite party had borrowed Rs.8 lakhs from the complainant, executing 8 promissory notes, each for Rs.1 lakh, adding interest, the total amount was arrived Rs.11,05,880/-. Only from this amount, it seems, a sum of Rs.6 lakhs sought to be deducted as consideration for construction of the flat, which is also proved to be false, even from the communication sent by the complainant. If really, the opposite party had agreed to construct a flat and hand over the same to the complainant, certainly that cannot be security for the debt incurred by the opposite party. Ex.A4 is the communication sent by the complainant to the opposite party dated 30.06.2000. There is no other money transaction except Rs.8 lakhs, and the construction agreement between the parties. In Ex.A4, the subject itself reads Settlement of loan account long pending. The complainant reiterating the non-payment of the amount, warned the opposite party if they have not received the balance loan amount of Rs.7,82,000/- including interest for the delayed payment, they will have no other option to bring the property for sale namely Plot No.65/2A, Kannappan Nagar, Kottivakkam, which is the subject matter of the consumer complaint. It is also further stated, the said property was assigned in their favour, as a security for the loan taken by the opposite party. After realizing the sale proceeds, debt is not discharged, the loan account will have to be paid by the opposite party. This document came into existence after the alleged agreement or after the alleged possession also. If really, as pleaded in the complaint, there was a construction agreement, under which, the opposite party agreed to construct a flat for consideration, failed to deliver the same, this kind of letter with respect to the said property, would not have emanated from the complaint. Because of this dispute alone, regarding the settlement of the account, when there was an attempt to have the flat, that was not materialized, resulting subsequent payment by the opposite party, a further sum of Rs.1 lakh, as seen from Ex.A6, seeking extension of time for making payment.
This is evident from the legal notice namely Ex.A7, wherein, it is sated on 25.05.2001 that the loan obtained by the opposite party namely Rs.8 lakhs was not repaid where we find some recitals that the opposite party had agreed and promised to sell a flat that is the subject matter of the consumer complaint, towards the payment due to the complainant, which is further strengthened from the averments available in Ex.A8 notice also. Thus, it is seen, the transaction between the complainant and the opposite party was only a money transaction, coming within the meaning of Debtor and Creditor relationship, not within the meaning of consumer and service provider, for which alone, the Consumer Forum is having jurisdiction. The complainant instead of working out his remedy approaching the proper Forum, probably to avoid payment of court fee and other expenses, had chosen the Consumer Forum, and it may not be improper on our part for helping the Forum misused by the complainant, for the recovery of the money, for which, the Forum was not established, under the Consumer Protection Act. Thus, viewing the case from all possible and proper angles, we are of the considered opinion, that the complainant is neither a consume,r nor the opposite party is the service provider, agreeing to construct a flat and hand over and this being the position, on this ground also, in addition to, question of limitation, the complaint is not maintainable and therefore, we are constrained, to confirm the dismissal of the complaint though on certain points, we disagree with the finding of the District Forum. Hence, the appeal is devoid of merits.
10. In the result, the appeal is dismissed, confirming the order passed by the District Consumer Disputes Redressal Forum, Chennai [South], in O.P.19/2003, dated 10.02.2009. No order as to cost in this appeal.
S. SAMBANDAM J. JAYARAM M.THANIKACHALAM MEMBER II JUDICIAL MEMBER PRESIDENT INDEX : YES / NO Ns/mtj/Builders