State Consumer Disputes Redressal Commission
K.V.Rathish, vs M/S Sai Homes And Resorts, on 2 August, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram Complaint Case No. CC/00/50 1. K.V.Rathish Athira,Thalap,Kannur BEFORE: SRI.K.CHANDRADAS NADAR PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM
COMMON JUDGMENT IN OP NOs.49/2000 AND 50/2000
JUDGMENT DATED: 2..8..2012
PRESENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
SMT.A.RADHA : MEMBER
OP.NO.49/2000
K.Ramesh, : COMPLAINANT
Sawen, Pallikunnu,
Chettamkunnu,
Tellichery - 670 101.
(By Adv.G.S.Kalkura)
Vs.
1. M/s Sai Homes and Resorts, : OPPOSITE PARTIES
N.C.C.Road, Ambalamukku,
Trivandrum, represented by
S.Srikant.
2. S.Srikant,
Sole Proprietor,
Sai Homes & Resorts,
N.C.C.Road, Ambalamukku,
Trivandrum.
3. S.Kasthuri, w/o S.Srikant,
Sai Homes and Resorts,
N.C.C.Road,
Ambalamukku, Trivandrum.
(By Adv.N.Padmini)
OP.NO.50/2000
K.V.Rathish, : COMPLAINANT
Athira, Thalap,
Kannur - 670 002.
(By Adv.G.S.Kalkura)
Vs.
1. M/s Sai Homes and Resorts, : OPPOSITE PARTIES
N.C.C.Road, Ambalamukku,
Trivandrum, represented by
S.Srikant.
2. S.Srikant,
Sole Proprietor,
Sai Homes & Resorts,
N.C.C.Road, Ambalamukku,
Trivandrum.
3. S.Kasthuri, w/o S.Srikant,
Sai Homes and Resorts,
N.C.C.Road,
Ambalamukku, Trivandrum.
(By Adv.N.Padmini)
JUDGMENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER These are complaints filed under section 17 of the Consumer Protection Act, 1986. The complainants are brothers. They were working abroad. The identical allegations in these complaints after amendment are that the 1st opposite party represented by the 2nd opposite party is specialised in construction of flats and condominiums. The 3rd opposite party is the wife of the 2nd opposite party and is the land owner of the property on which the condominiums were proposed to be constructed. When the complainants came to India in March 1994 the 2nd opposite party approached them with the brochure, sketch etc of the flats and condominiums they were constructing in different places in South India. The complainants agreed to purchase two condominiums each from those proposed to be constructed in Ooty (Ootacamund). Each of the complainants paid a total amount of Rs.10,50,000/- towards price of the condominiums and the last payment was made on 6.11.95. An articles of agreement was executed between the parties on 29.2.96 incorporating the terms and conditions of the purchase. A sale deed was executed by the 3rd opposite party in respect of the undivided and indivisible fractional property right on 1.8.96 in favour of the complainants. The sale deed was executed at the Sub Registrar's office at Kottaram in Kanyakumari district in the complainants absence. Two condominiums each were agreed to be constructed on the said property. An agreement of possession was entered into between the complainants and the 2nd opposite party on 11.10.97 by which only symbolic possession of property was given by the opposite parties. Actual possession was never given to the complainants. They were apprised that agreement of possession was necessary to obtain door number and assessment number to complete the documentation work with Municipality and also for the reason that the complainants were working abroad. It was impossible to give actual possession at that stage as construction was incomplete. Completion report was not submitted by the opposite parties before the municipal authorities. Repeated requests at various intervals by the complainants to complete the building and forward the completion report to the Udhagamandalam municipality were not complied with by the opposite parties. The complainants met the 2nd opposite party personally at Dubai and repeated the request. But nothing transpired. The complainant in OP.49/2000 was then constrained to send a reminder on 25.7.98 as instructed by the other complainant. There was no response to the said letter. In November 1998, the complainants visited the property in Ooty. The construction was found in an incomplete stage. Further cracks had developed in the building and it was in a state of collapse. The complainants were not in a position to identify the condominiums purchased by them. When they asked the 2nd opposite party over telephone to identify the condominiums he refused. He directed the staff present at the premises of the building to ask the complainants to leave the place. What was agreed was to handover two furnished condominiums each to the complainants. The so called condominiums were neither complete nor furnished and did not have the plinth area as agreed. The condominiums did not conform to the sketch shown in the brochure. Soon after the visit of the complainants the 2nd opposite party and his manager filed OP.No.23632/98 before the Hon'ble High Court of Kerala seeking police protection. The said petition was filed to cover up the deficiency in service on the part of the opposite parties. In August 1999 the complainants wrote a letter to the Municipal commissioner, Udhagamandalam municipality regarding transfer of ownership and to effect mutation of the condominiums purchased from the opposite parties. The Municipal Commissioner in his reply dated 10.12.99 informed the complainants that in the registered sale deed executed between 3rd opposite party and the complainants there was no reference to the assessment number and door number of the condominiums purchased and unless the said details are incorporated in the sale deed, transfer of ownership in the name of complainants could not be effected. The municipal Commissioner also sent another letter on 10.2.2000 to the 3rd opposite party stating that the applicants therein mentioned had requested to transfer four rooms in their respective names enclosing the sale deeds executed by her. However in no document the assessment or door number assigned by the municipality had been mentioned. It is stated by the municipal commissioner that the building in ward No.9 has 58 assessment numbers. All the assessments were taken in the name of 3rd opposite party and the complainants name did not figure in the assessment records maintained by the municipal authorities. The intention of the opposite parties was to deprive the complainants of the ownership of the condominiums purchased by them. This amounts to unfair trade practice. The 1st opposite party had entered into another agreement with SBT for the construction of flats in the very same property. The said agreement was entered into by the 3rd opposite party as the sole proprietress of 1st opposite party. Thus a deceptive practice was made by the opposite parties. The dispute between SBT and the 3rd opposite party is pending arbitration.
2. At this stage the complainants sought legal advice. Their advocate told them that the sale deed was void abinitio since it was registered at Kottaram in Kanyakumari district and not where the property was situated. On 30.10.94 and 18.4.95 notices were issued by the Commissioner, Ootacamund municipality and the District Collector, Nilgiri seeking demolition of all the structures and construction made in resurvey No.4205/IC-3E-IB.The condominiums to be constructed and delivered to the complainants are situated in the said survey number. The said material fact was also suppressed by the opposite parties. Opposite parties had filed writ petition before the Hon'ble High Court of Madras challenging the validity of the notices for demolition. It is also revealed that the opposite parties had obtained loans from various financial institutions by creating charge over the property in which the flats allegedly sold to the complainants are situated. The fact of having created charge over the property was not disclosed to the complainants by the opposite parties. That defect in title existed was disclosed only at a belated stage. The deficiency in service on the part of the opposite parties and their unfair trade practice are the causes of action for the complaint. They sought refund of Rs.10.5lakhs each, paid by them as price of the condominiums purchased with interest at the rate of 15% per annum from 6.11.95 till date. They also sought Rs.2lakhs each as compensation towards deficiency in service and unfair trade practice committed by the opposite parties. The costs of the complaint were also sought to be realized.
3. Opposite parties 1 to 3 filed joint version. They contend that none of the opposite parties is residing within the territorial jurisdiction of this Commission. The entire transaction took place within the state of Tamil Nadu and no part of cause of action arose within the territorial jurisdiction of this Commission. Further the complainants had dishonestly and illegally split up into two the alleged cause of action arising from the agreement so as to give pecuniary jurisdiction to this Commission. The complainant who filed OP.49/2000 has thus split up and filed another OP.65/2000 claiming Rs.1796250/-. Thus the total valuation comes to Rs.3791250/-. Therefore the matter would really come within the pecuniary jurisdiction of the National commission alone. Similarly the complainant in OP.50/2000 has also filed OP.64/2000 based on the same agreement claiming Rs.17,96250/-. Thus the total valuation would come to Rs.3791250/-. Therefore the matter comes within the pecuniary jurisdiction of the National Commission alone. The complainants have filed this complaint without resorting to and exhausting the effective alternative remedy of arbitration agreed to by the parties. The 3rd opposite party is an unnecessary party to the proceedings.
4. All negotiations, execution of documents and works pertaining to the agreement took place at Ootacamund and in Kanyakumari in TamilNadu. The brochure produced by the complainants is a concocted document. There is nothing in the brochure produced to connect the opposite parties with it or with the subject matter of the complaint. The agreement dated 29.2.96 is not an agreement of purchase but one for the construction of two numbers of condominiums in Ooty and one single bed room corner flat in Kanyakumari together valued at Rs.18lakhs. The facts regarding the flat at Kanyakuamri are suppressed with the malafide intention to illegally split up the cause of action pertaining to it and to bring within the pecuniary jurisdiction of this Commission. Complainants had paid Rs.18 lakhs each prior to the execution of the agreement dated 29.2.96. At no point of time the payments made stood at the figure of 10.5lakhs. The payments were made in instalments after being fully satisfied about the quality of the work executed by the opposite parties. The sale deed was executed at the Kottaram Sub Registrar office in Kanyakumari District in respect of the properties at Kanyakumari and Ootacamund on which the constructions were to be effected. Actual possession of the condominiums and flat covered by agreement was given to the complainant on 11.10.97 as evidenced by agreement of possession on 11.10.97 entered into between the complainants and the 1st opposite party. From the said agreement it can be seen that the complainants had taken possession of the keys of two condominiums at Ooty and one flat in Kanyakumari each in full satisfaction from the 1st opposite party. Applying for assessment, numbering, service connections etc was the duty and responsibility of the complainants. As per the terms of the agreement of possession the duty of opposite parties 1 and 2 was limited to construction activities alone. All other matters were extraneous to the agreement. The complainants have no room to complain against the opposite parties. It is incorrect to say that only symbolic possession was handed over to the complainants and the construction was not complete. No requests as claimed were made by the complainants to the opposite parties to complete the construction etc. Nor had they any right or reason to make any such request. After having taken possession of the condominiums and flat the complainants had no reason to send any letter as claimed by them. In fact the complainants had leased out the condominiums in Ootacamund and the flat in Kanyakumari taken possession of by them to many persons through brokers during the next three years and enjoyed the profits there from. The allegations that the construction was found incomplete, cracks had developed in the building and it is in a stage of collapse etc are false. It is not correct to say that the condominiums are not identifiable. All through out the construction was supervised by the brother of the complainants. The complainants had given part payment after being fully satisfied about the construction at each stage and took possession on 11.10.97 in full satisfaction and enjoyed it for three years before filing the complaints. If something had happened there after, it was due to lack of maintenance and misuse by the complainants and their tenants and the 1st opposite party as the contractor cannot be held responsible for the same. The complainants cannot in any way allege deficiency in service.
5. The real estate and tourism business in Ootty and Kanyakumari and other tourist centers became dull due to the bomb blasts and violence in Coimbatore and sporadic incidents of violence and communal tension. So there was no profit from the condominiums and flat purchased by the complainants as expected by them. There upon they approached the 2nd opposite party and requested to buy back the same or to arrange for resale. He could not comply with the request of the complainants. There upon they threatened to wreak vengeance. With that aim the complainants tried to obstruct and harass the 2nd opposite party by instituting false complaints and by enlisting political and police influence. It was there upon they filed OP.23595/98 before the Hon'ble High Court of Kerala. No door number could have been incorporated in the sale deed which was executed prior to the completion of the construction. The sale deed only conveyed indivisible and fractional right over the properties for the purpose of constructing the condominiums and flats. The numbering and assessment of the premises is a dispute involving, local bodies of Ooty and Kanyakumari in Tamil Nadu and in the event of any refusal on their part statutory remedies are available for the complainants. Instead of availing those remedies the complainants have rushed to this Commission. The opposite parties are ready and willing to render all possible assistance to the complainants to achieve their legitimate claim. It appears that misusing the sale deeds dated 1.8.96, the complainants attempted to transfer into their names four rooms numbered and assessed in the name of the 3rd opposite party and forming part of the building constructed in the balance property which was objected to by the Municipal authorities. The complainants should have applied for fresh numbering and assessment of the two condominiums each constructed for them and covered by the agreement of possession. The four rooms mentioned by the complainants are in a different building constructed in the balance property that is on the property that remains after deducting the extent mentioned in the sale deeds in favour of the complainants. There was no deceit or unfair trade practice on the part of the opposite parties. It is true that the construction establishment of the 3rd opposite party had entered into an agreement with the State Bank. In fact arbitration proceedings are pending in respect of the agreement with the State Bank of India and more than 1.5 crores of rupees is due from the bank to the 3rd opposite party. Registration of sale deeds at the Kottaram Sub Registrar office in Kanyakumari taluk was perfectly legal. Opposite parties had duly discharged all their obligations on the basis of the agreement and the sale deed executed between parties. The complainants never complained regarding the work in Ooty at any stage of the construction and within three years there after. There is no cause of action for the complainants.
6. After amendment of the complaint the opposite parties filed additional version and contended that the property which was sold to the complainants was not included in the mortgage deed executed by the opposite parties in favour of the bank for availing loan. The property sold to the complainants is excluded from any mortgage and from all encumbrances. SBT has obtained order of attachment in 2005 long after possession of the Flat was handed over to the complainants. The opposite parties have preferred appeal before the Hon'ble High Court of Kerala against the award of the arbitrator. The matter was pending at the time of executing conveyance in favour of the complainants. There was no defect in title for the properties conveyed to them. There was no litigation pending in respect of the properties at the time when conveyance was made to the complainants.
7. During joint trial the complainant in OP.49/2000 was examined as PW1. Three more witnesses were examined on the side of the complainants as PWs 2 to 4. Exts.P1 to P78 were marked on the side of the complainants. Exts.X1 to X5 were marked through PWs 3 and 4 on their side. The 2nd opposite party was examined as RW1. Exts.B1 to B16 were marked on the side of opposite parties. The arguments of the parties were heard in detail. The points that arise for consideration are the following:
1) Whether this Commission has pecuniary jurisdiction to entertain the complaints?
2) Whether any part of the cause of action for the complaint has arisen within the jurisdiction of this Commission? Whether this Commission has territorial jurisdiction to entertain the claims.
3)Whether clause 17 of Ext.P7 excludes the jurisdiction of this Commission to entertain such a claim?
4) Whether deficiency in service and/or unfair trade practice alleged by the complainants is established?
5) what are the reliefs if any to be granted?
8. Point No.1:- The complainants are brothers. They were working abroad and in one of their visits to the native place, the 2nd opposite party allegedly approached them showing Ext.P5 brochure. Admittedly the 1st opposite party is engaged in the construction of flats. It is a proprietary concern of the 2nd opposite party. The 3rd opposite party is his wife. It is sufficiently in evidence that Projects at Ooty and Kanyakumari were among the several projects undertaken by the opposite parties. Though disputed it is sufficiently in evidence that the opposite parties had a project at Ambalamukku in Thiruvananthapuram. It also appears that the opposite parties had projects at Bangalore. A Company originally registered at Bombay was later shifted to Kochi and still later to Thiruvananthapuram. These facts are in evidence from the several documents produced the complainants. They evinced interest in the condominiums proposed to be constructed at Ooty and flats proposed to be constructed at Kanyakumari. It is amply in evidence that the property on which flats were proposed to be constructed at Kanyakumari was owned by the 2nd opposite party and the property on which condominiums and flats were proposed to be constructed at Ooty was owned by the 3rd opposite party. It was accordingly identical agreements were entered into between the complainants and the 2nd opposite party whereby the complainants agreed to purchase two condominiums each at Ootty and one flat each at Kanyakumari. According to the complainants value of the condominiums at Ooty and the flats at Kanyakumari were separately fixed. According to them the value of condominiums at Ooty fixed was Rs.5.25 lakhs each and the value of the flats at Kanyakumari fixed was Rs.7.5lakhs each. Thus for the two condominiums at Ooty and one flat at Kanyakumari proposed to be constructed for a complainant a total sum of Rs.18lakhs was fixed to be paid . The opposite parties contend that no such separate value was fixed for the condominiums and the flats and the allegation in the complaint is a ploy to bring the complaint within the pecuniary jurisdiction of this Commission. It is contended that total value of Rs.18lakhs was fixed for two condominiums and one flat and there is only one cause of action for the complainants. They contend that the complainant in OP.49/2000 had also instituted OP.65/2000 claiming Rs.1796250/-. Thus as a single cause of action the claims in Op 49/2000 and OP.65/2000 would come to Rs.37,91,250/-, thus bringing the claims within the jurisdiction of the National Commission. Similar is the case with Ops 50/2000 and 64/2000 filed by the brother of the complainant in Ops 49/2000 and 65/2000. 9. Ext.P7 is the agreement entered into between the complainant in OP49/2000 and the 2nd opposite party. It is evident from Ext.P7 that the 2nd opposite party under took to construct for the complainant in OP.49/2000 two number of condominiums at Ooty and one single bed room corner flat at Kanyakumari for a sum of Rs.18 lakhs. The total amount was already paid when Ext.A7 was executed on 29.2.96. On 1.8.96 Ext.P10 sale deed was executed by opposite parties 2 and 3 jointly in favour of the complainant in OP 49/2000, conveying by way of sale 54 Sq.Ft. of undivided and indivisible fractional property right title interest and possession out of 1800 Sq. Feet of land in A schedule property situated at Kanyakumary. As per the same document the 3rd opposite party conveyed by way of sale undivided and indivisible fractional property right title interest and possession over 110 sq.ft. of property out of 3805 sq.ft. of land mentioned in B schedule Situated at Ootacamund. Thus single document of conveyance was executed with respect to the properties on which condominiums at Ooty and flat at Kanyakumari were to be constructed. Later on 11.10.97 agreements of possession were entered into between the complainants and opposite parties 1 and 2 with respect to the flats and the condominiums Ext.B2 is the copy of the agreement of possession entered into between the complainant in OP.49/2000 and opposite parties 1 and 2. It is mentioned that on the date of agreement the complainant has taken possession of two condominiums at Ooty and one single bed room corner flat at Kanyakumari and the keys with respect to the condominiums and flat in full satisfaction from the 2nd opposite party. These documents are relied on to contend that what transpired was a single transaction and the cause of action was one and the same.
10. In this context the oral evidence of RW1 and PW2 becomes relevant. RW1 admitted that the condominiums at Ootacamund were constructed on the property of his wife, the 3rd opposite party. RW1 further stated that he has no right over that property. At the same time flats at Kanyakumari were constructed on his property. As indicated earlier this fact is sufficiently in evidence from the sale deeds executed in favour of the complainants also. RW1 had admitted that for the flats and condominiums constructed at Ooty separate value was fixed. Value was fixed taking into account the importance and natural show provided by the condominiums and the flats. Quite obviously separate value ought to have been fixed for the flats at Kanyakumari and condominiums at Ooty. The importance of Kanyakumari and Ooty obviously was not the same. So the total value of Rs.18lakhs must have been the added value of the two condominiums at Ootacamund and one flat at Kanyakumari as contended by the complainants. The title of the two properties vested with different persons. The only common factor was that opposite parties 1 and 2 undertook the construction. Nature of the construction was different. Had a single complaint been filed for the condominiums at Ootacamund and flat at Kanyakumari, the contention of the misjondor of causes of action could have been taken. It is also obvious that even if there is deficiency in service with respect to construction at Ootacamund, there need not be any such deficiency in service regarding the construction at Kanyakumari and vice versa. So in all respects it is desirable that these causes of action be separated and separately tried.
12. The evidence of PW2 who worked as the Marketing Manager of the 1st opposite party is also relevant. According to him separate value was fixed for the condominiums and flats. He has issued Ext.P24 to the complainant in OP.49/2000 and similar letter in favour of the other complainant. As per these documents the price fixed for the two condominiums at Ooty was Rs.10,50,000/- (Rs.525000/- each) and the price fixed for the flat at Kanyakumari was Rs.7,50,000/-. In the box PW2 supported this document. The case of the opposite parties appears to be that due to certain charges against PW2 the opposite parties were forced to terminate his service by publication in a daily newspaper. So he is siding with the complainants. But we have referred to the circumstances and admission of RW1, the 2nd opposite party and in the light of the available evidence there is nothing to disbelieve PW2 in this regard. As mentioned already though single document happened to be executed with respect to the condominiums at Ooty and flat at Kanyakumari, two independent causes of action certainly arise and it is desirable that these causes of action are separately decided. Hence we find no merit in the contention that the complainants have split up causes of action to bring the same within the pecuniary limits of this Commission. The point is found accordingly.
13. Point No.2:- Ext.P7 agreement is seen executed at Ootacamund. Ext.P10 sale deed is seen executed at Kottaram Sub Registrar Office within Kanyakumari district. Ext.B2 (original agreement is Ext.B15) agreement of possession was executed at Kanyakumari. Thus according to the opposite parties no part of the cause of action arose within the territorial jurisdiction of this Commission. This is denied by the complainants. According to them the opposite parties had office at Ambalamukku, Thiruvananthapuram. It was 2nd opposite party who approached the complainants and offered the condominiums and flats. The purchase was finally settled at Thiruvananthapuram. In fact Ext.P7 was sent over to the complainants and it was signed at their residence. But as mentioned earlier Ext.P7 shows that it was executed at Ootacamund. But the opposite parties are not without any connection with Thiruvananthapuram. It is seen from the deposition of RW1 that the 2nd opposite party was born near Udiyankulangara in Thiruvananthapuram district. That the opposite parties had residence at Thiruvananthapuram and in fact they had a project at Thiruvananthapuram is also amply in evidence. OP.73/2000 was filed by one K.Jayakumar before this Commission and it admittedly related to the project at Ambalamukku. The address of the 1st opposite party is shown situated at Sai Home Lane, NCC Road, Ambalamukku, Thiruvananthapuram. PW2 is also an opposite party in the said case. RW1 admitted that he took no contention that he was not residing at Thiruvananthapuram in response to the said complaint. Ext.P25 is the copy of the order in OP.73/2000. Ext.P26 is the copy of the complaint filed by Mr.K.Jayakumar. e is the opposite party and PW2. RW1 further admitted that relating to the same project a suit as OS 428/2000 RW1 is the opposite party along with PW2. RW1 further admitted that relating to the same project a suit as OS 428/2000 was filed by one Gireesan before the sub court Thiruvananthapuram. RW1 admitted that no construction was made at Peroorkada though plan was obtained for the construction. The office at Thiruvananthapuram was closed and opposite parties 2 and 3 ceased to reside at Thiruvananthapuram. But this is a fact which is to be proved by the opposite parties. It is also in evidence that in 1998 the 2nd opposite party and one Muraleedharan Nair approached the Hon'ble High Court of Kerala by filing OP.23632/98-L seeking police protection against the complainants alleging atrocities on their part. In the said OP Thiruvananthapuram address of the 2nd opposite party is given. Ext.P 13 is the copy of the judgment in the said OP. The copy of the affidavit is Ext.P1. Ext.P2 contains the allegations. It is alleged that the 1st petitioner and his wife stayed at the Thiruvananthapuram residence. There was a telephone call to the 2nd opposite party from a stranger asking him to take back the buildings from the complainants. When he attempted to explain the true state of affairs, the stranger threatened him with ugly consequences. On 24.11.98 the Circle Inspector, Museum directed to meet him in connection with the complaint lodged by the complainants herein. The complainants accompanied by a group of able bodied persons went to their residence and created a scene there. They destroyed the car of 2nd opposite party parked there. In arbitration 30/98 also the address of the 3rd opposite party is shown as Saraswathy Nilayam, Jawahar Nagar, Thiruvananthapuram. Exts.P36 to 46 show that M/s Baba and Sai Hotels Pvt. Ltd. a company in which the 2nd opposite party was the Managing Director originally registered at Bombay was later shifted to Ernakulam and still later to Thiruvananthapuram. It was functioning as lately as 2008. Thus it cannot at all be contended that the opposite parties are not based at Thiruvananthapuram. True that they have projects at Kanyakumari, Ootacamund and Bangalore. RW1 stated that lately business is started even at Tansania in South Africa. But the main place of operation appears to be Thiruvananthapuram and even the suggestion to PW1 the complainant in OP.49/2000 would indicate that the opposite parties are mainly based at Thiruvananthapuram. It was suggested to PW1 that he and his brother tried to attack the 2nd opposite party and his Manager in 1998 and sent gundas for the purpose. Hence they filed writ petition before the Hon'ble High Court of Kerala seeking police protection. It is obvious that both the complainants and the opposite parties were in Thiruvananthapuram then. While examining PW2 who was the Marketing Manager of 2nd opposite party it was suggested that the 2nd opposite party and the complainants went to the office of PW2 where he was Manager and the 2nd opposite party introduced them to Pw2 and viceversa. This also shows that even at the initial stage the arrangements took place at Thiruvananthapuram. Then the fact that Ext.P7 agreement was purportedly executed at Ootacamund shows that from the very beginning it was the intention of the opposite parties to cheat the complainants and make unlawful gain from the agreement. It is also relevant to note the version of PW4 who was giving evidence representing the Municipal Commissioner, Ootacamund. According to him when notices were sent intimating the violations in the matter of construction, in the local address, it was returned stating that the addressee was not residing there. When the notices were sent in Kanyakumari address furnished also, same thing happened. So obviously for convenience and for reasons better known to the opposite parties, they are furnishing addresses at will with not so holy intention. In short atleast part of the cause of action certainly arose within Thiruvananthapuram district. Not only that the several payments towards contract were made at Thiurvananthapuram, It is sufficiently in evidence that payments of Rs.18 lakhs each were made by two demand drafts which were paid at Thiruvananthapuram, on cheque drawn at SBT, Thiruvananthpauram branch and another cheque drawn in Canara bank, Thiruvananthapuram. According to PW1 all the amounts were sent in the Thiruvananthapuram address of the opposite parties. The suggestion was that before the agreement, the property in which opposite party No.2 was residing was sold but no evidence is produced to prove the same. The payments were made even before the execution of Ext.P7 agreement. PW2 the Marketing Manager of the 2nd opposite party deposed that 1st opposite party had bank account with SBT, statue branch, Thiruvananthapuram. RW1 claimed that the address shown in the Thiruvananthapuram account was the address of his friend. Obviously the 2nd opposite party is lying. He admitted that he had account in the Thiruvananthapuram Co-operative Urban bank. Exts.P7,P8,P9 series and P20 series show that all the payments were received by the opposite parties within the State of Kerala. Thus payment of the consideration towards the agreement and subsequent purchase of the condominiums and flats, within the state of Kerala is an important part of the cause of action giving jurisdiction to this Commission. The contention to the contrary is only to be rejected. The point is found accordingly.
14. Point No.3:- Clause 17 in Ext.P7 reads: " All disputes and differences arising by and between the parties hereunder or with reference to or relating this agreement or matters pertaining thereto shall be referred to the Arbitrator appointed by the parties hereto and the provisions of the Arbitration Act, 1940 as amended from time to time shall be applicable to such arbitration". Based on the said provision the argument advanced is that the complaint before this Commission is not maintainable. But the Consumer Disputes Redressal Forums and Commissions are specially constituted to go into deficiency in services, unfair trade practice etc. The Consumer Protection Act itself is a special statute. A dispute or difference inorder to be adjudicated by arbitration must be one not covered by any other special law. For example if a criminal offence is committed in the course of execution of an agreement containing arbitration clause certainly the jurisdiction of the criminal court would not be ousted. Similarly whether there was deficiency in service rendered by the opposite parties or whether they had perpetrated unfair trade practice is a matter within the exclusive jurisdiction of this Commission and arbitration proceedings cannot be initiated to adjudicate such matters. Hence we are inclined to reject the said contention of the opposite parties also.
15. Point No. 4:- Some of the details of Ext.P7 agreement between the complainants and the opposite parties are already referred to. It is admitted that payment of the entire Rs.18 lakhs towards the price of the condominiums at Ooty and flat at Kanyakumary was made before the execution of Ext.B7. Clause 2 of Ext.P7 specifically recites how payments were made either as demand drafts or cheques prior to the execution of Ext.P7 on 29.2.96. It is also mentioned that Rs.18 lakhs paid was towards the total cost of the two condominiums at Ooty and one single bed room corner flat at Kanyakumary. May be if only extra amenities were provided, the complainants would incur extra expenditure. So at the stage of payments of the entire amount there was no question of the complainants being fully satisfied about the quality of the work executed by the opposite parties as contended. It is also interesting to notice that in para 13 of the version the opposite parties have contended that opposite parties 2 and 3 had only transferred the undivided and indivisible fractional interest in the property where condominiums and flat were to be constructed. Ext.P10 did not convey any right over any condominium or flat. The condominiums and flat were got constructed by the complainants themselves through the 1st opposite party on the basis of Ext.P7 agreement. But misusing the sale deeds the complainants had attempted to transfer into their names four rooms numbered and assessed in the name of the 3rd opposite party and forming part of the building constructed in the balance property which was objected to by the Municipal authorities. This contention it appears is taken to confuse matters. No doubt as per Ext.P10 sale deed only fractional right in undivided property was transferred. But Exts.P7,P10 and B15 leave no doubt that complainants sought to acquire right over two condominiums to be constructed at Ooty on the property of 3rd opposite party and one flat to be constructed at Kanyakumari over the property of the 2nd opposite party. Ext.B15 purported to hand over possession of these condominiums and flats. Ext.B15 refers to the conveyance of fractional right over the undivided and indivisible properties at Ooty and Kanyakumary to the complainants and then recites," "Clause 1 - The second part(builder) had completed and finished the construction of two condominiums in Ooty and one single bed room corner flat in Kanyakumary described in schedule A and B.
4. And this day 11th October 1997 the first part has taken possession and keys of two condominiums in Ooty and one single bed room corner flat in Kanyakumari described in A and B schedule in full satisfaction from the second part".
16. It was the obligation of the complainants to apply to the concerned authority for necessary tax assessment etc. Obligations arising out of, mostly common enjoyment of the flats are also incorporated. But while describing the flats and condominiums it is only mentioned that super built up area constructed over the indivisible fractional property conveyed as per sale deeds were handed over. There is absolutely no description to identify the flats and condominiums possession of which was allegedly conveyed on 11.10.97 as per Ext.B15. The complainants have taken the contention that in fact no possession of the flat and condominiums was given to them in the above background. It is true that the said contention is taken against the terms of Ext.B15 signed by them but having regard to the circumstances that came in evidence, the claim of the complainants cannot be brushed aside.
17. We have referred to the ambiguities in the version itself. It is also contended that in fact the complainants had taken possession of the condominiums in Ooty and the flat in Kanyakumari on 11.10.97 and had leased it out to many persons through brokers during the next 3 years and enjoyed the profits. While there is no evidence to substantiate the same, it is not stated what happened to the flat and condominiums after three years.
18. The several circumstances in support of the arguments that there was deficiency in service on the part of the opposite parties, they were guilty of unfair trade practice and in fact possession of the flat and condominiums was not given to the complainants, are the following. It is quite obvious from Ext.P10 sale deed that only the property over which flat at Kanyakumari was proposed to be constructed belonged to the 2nd opposite party. The property over which the condominiums were proposed to be constructed at Ooty belonged to the 3rd opposite party. Yet Ext.P7 agreement was executed by the 2nd opposite party stating that the builders, that is, the 1st opposite party represented by the sole proprietor, the 2nd opposite party had purchased and acquired both the properties. It is true that while executing the sale deeds the 3rd opposite party joined in the execution of the sale deeds as the owner of the property over which condominiums were proposed to be constructed at Ooty. So it appears that even at the stage of execution of Ext.P7 the true facts were not disclosed to the complainants. Actual possession of a flat or condominium can be given only if construction is completed. It is pertinent to notice that SBT has entered into agreement with the 3rd opposite party for construction of buildings over the remaining property of the 3rd opposite party. That agreement ended in arbitration proceedings No.30/98. It is seen from Ext.P50 that the arbitrator visited the property at Ooty before passing the award. It is sufficient to quote the concluding remarks of the arbitrator. It reads: "the entire area is in a stage of chaos. Flats have not been built or sought to be built as per specifications. There are indescribable acts of destruction and demolition that make no sense and it is not possible to accept the version of Sri.Srikant (opposite party No.2 herein) in this regard".
19. The observation of arbitrator that construction was made not as per the specifications is not without other evidence. PW3 the District Collector of Nilgiris produced Ext. X1. It shows that notice was issued to the 3rd opposite party under section 217J of the Tamil Nadu District, Municipalities Act, 1920 directing her not to proceed with the construction further and to stop construction on the land and to demolish the construction made in deviation to the sanctioned plan and to show cause within 7 days from the date of receipt of the notice as to why action should not be taken under the Rules for the construction made by her in deviation to the sanctioned plan. Details of the deviation in the construction from the plan have also been mentioned in the said notice. It is true that the notice was challenged by the 3rd opposite party before the Hon'ble High Court of Madras in appropriate writ proceedings and the District Collector was directed to consider her representation. But a final decision is yet to be taken as the notice to the 3rd opposite party could not be served in the local address and Kanyakumari address. This aspect is already referred to. But for the complainants the failure to construct the condominiums in accordance with the approved plan certainly is a deficiency in service and after paying the entire cost of construction it is their prime concern to get possession of the condominiums and flats. The proceedings clearly show that Ext.B15 agreement itself is a clear lie and there is truth in the case of the complainants. The evidence of PW4 who came to give evidence on behalf of the Municipal Commissioner Udhagamandalam as the Municipal Commissioner's post was lying vacant, also indicates that originally permit and licence to construct the condominiums at Ooty was given on 21.6.90. The permit was renewed till 20.6.92. There after no construction was possible. According to him the violation in the matter of construction was 50 to 60 percent. Further there were unauthorized constructions. Notice could not be served to the opposite parties in the local address as well as in the Kanyakumari address as no one was residing there.
20. It is also in evidence that the failure to complete projects undertaken by the opposite parties is not a solitary instance. We have referred to arbitration 30/98. It shows that the opposite parties did not honour the agreement with the SBT. Award was passed against the opposite parties. We have earlier referred to the admission of RW1 himself that the project undertaken at Ambalamukku in Thiruvananthapuram was also not completed. There is atleast one proceedings before this Commission and one civil suit before the sub Court , Thiruvananthapuram in connection with that project. There is also absolutely no evidence, apart from Ext.B15 that the project at Kanyakumari was completed. The several circumstances indicate that it is the habit of the opposite parties to leave projects undertaken by them incomplete.
21. The complainants have a case that the opposite parties had executed several lease deeds or sale deeds(vide Exts.P27 to P33, P68 and P69) conveying right over the flats and condominiums and that included the property conveyed to the complainants. The contention is that as per the said documents flats and condominiums constructed over the remaining property was sold. Even accepting the argument of the opposite parties it cannot be held that they had conveyed right or possession over identifiable property to the complainants which also amounts to clear deficiency in service.
22. It is pertinent to notice that as per Ext.P14 the Municipal Commissioner, Udhagamandalam informed one of the complainants that in the absence of mention of assessment number and door number his application to change the ownership in his name cannot be considered. He was requested to rectify the registered document mentioning the assessment number and door number. If as a matter of fact the opposite parties were honest, nothing prevented them from excluding a fresh sale deed incorporating the necessary details. Ext.P15 issued to the 3rd opposite party by the Municipal Commissioner Udhgamandalam also refers to the applications submitted by the complainants. It asks her to rectify the defects mentioned therein. Ext.P16 letter dated 11..5..2000 issued by the Municipal Commissioner, Udhagamandalam addressed to one of the complainants also shows that the building part of which was purchased by him has 58 assessments. Apart from that there was an individual house also. The same objection that the documents produced by him does not disclose proper door number is taken and he was requested to get the details incorporated inorder to transfer the property in his name. Ext.P76 memo issued from the Taluk office, Udhagamandalam in response to a proceedings issued from this Commission shows that the name of one of the complainants herein who was the applicant, does not find place in the revenue chitta kept in that office. A similar letter Ext.P77 issued from the Udhagamandalam Municipality shows that the permit granted to 3rd respondent to make construction in the property expired on 9.10.92(Also deposed to by PW4). Notice was issued to her on 30.5.94 regarding the unauthorized construction. The completed building was assessed by the municipality and the assessment stands in the name of the 3rd opposite party only. Assessment to no building stands in the name of the complainants. Ext.P78 similar letter from Asst. Engineer Ooty shows that electricity connection to the door numbers suggested to belong to the complainants was taken in the name of the third opposite party and not the complainants. Quite obviously the opposite parties had no intention to convey any right or possession over any specific condominium or flat to the complainants. If they were honest nothing prevented them from executing a document giving the correct details. This also amounted to clear deficiency in service as well as unfair trade practice.
23. The complainants have challenged the validity of the sale deeds on the ground that it was executed at Kottaram sub registrar office in Kanyakumari taluk whereas property was situated at Ooty. But the sale deeds are in respect of fractional interest over indivisible property situated at Kanyakumari also. Hence the sale deeds cannot be attacked merely because it was registered within Kanyakumari district. But other circumstances clearly indicate deficiency in service and unfair trade practice on the part of opposite parties.
24. The only contention that remains to be considered is the argument that the complaint is barred by limitation. Relying on the decision of the National Consumer Disputes Redressal Commission in T.Seshaiah and another vs. Standard Chartered Bank and another 2010 NCJ 267(NC) the learned counsel for the opposite parties contended that mere filing of repeated representations do not extend the period of limitation. The contention precisely is based on Ext.B15 agreement handing over possession of the flats and condominiums to the complainants. According to the opposite parties if as a matter of fact possession of the condominiums and flats was not given, the complaints ought to have filed their complaints within two years from the said date, that is, the complaint ought to have been filed on or before 11.10.99. The complaints are filed on 6.7.2000. So there is a delay of around 9 months in filing the complaints. But our conclusion earlier was that no actual possession of the flat and condominiums was given to the complainants. Then they cannot be found fault with for believing the opposite parties and attempting to get ownership of the flat and condominiums and the several applications before municipal authorities show that their attempts continued even in 2000. There was substantial delay of 5 years in approaching the Forum in Tehri Hydro Development Corporation vs. New India Assurance Co. 2003 NCJ 619. and in H.P.Roy vs Govt. of Bihar 2004 NCJ 300(NC) the delay was more than 17 years. It is pertinent to notice that if sufficient cause is shown delay in filing complaints can be condoned. In this case it cannot at all be said that there was delay in filing the complaints as the cause of action finally arose only when it became clear to the complainants that actual possession of the flat and condominiums purchased by them would not be given to them. Accordingly we find that the complainants are entitled to reliefs as claimed.
25. point No.5: It follows from the findings on Point numbers 1 to 4 that both the complainants are liable to be allowed.
26. In the result OP.49/2000 is allowed and opposite parties are directed to pay to the complainant an amount of Rs,17,85,000/- with future interest on Rs.10,50,000/- at the rate of 12% per annum from the date of complaint till date of payment. The opposite parties are directed to pay Rs.25,000/- as compensation for deficiency in service and unfair trade practice committed by them. They are also directed to pay to complainant Rs.5000/- as costs of the proceedings. All the payments shall be effected within 2 months from the date of receipt of copy of this order.
OP.50/2000 is also allowed and opposite parties are directed to pay to the complainant an amount of Rs,17,85,000/- with future interest on Rs.10,50,000/-at the rate of 12% per annum from the date of complaint till date of payment. The opposite parties are directed to pay Rs.25,000/- as compensation for deficiency in service and unfair trade practice committed by them. They are also directed to pay to the complainant Rs.5000/- as costs of the proceedings. All the payments shall be effected within 2 months from the date of receipt of copy of this order.
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER SMT.A.RADHA : MEMBER APPENDIX Witness for the complainantt PW1 : K.Ramesh PW2 : G.Ashok PW3 :K.Sellamuthu PW4 :M.Narayan Witness for the opposite parties RW1 : S.Srikant Exhibits from the complainant P1 : Certified copy of the affidavit filed by the 1st opposite party before Hon'ble High Court of Kerala in OP.23632/98 P2 : Certified copy of the representation submitted the DGP, Kerala by 2nd opposite party P3 : Notarised copy of authorization issued by the 2nd opposite party dtd. 15.5.91 P3(a) -do-do- P3(b) -do-do- P4 : Notarised copy of agreement executed by the wife of 2nd opposite party in the S.B.T P5 : Original of the brochure issued by 2nd opposite party to the complainant. P6 : Notarised copy of certificate issued by marketing Manager of the opposite party dtd. 20.5.97 P7 : Notarised copy of articles of agreement dtd. 29.2.96 P8 : Notarised copy of DD issued by the complainant to the opposite party dtd.7.9.99 P8(a) : the opposite party dtd.7.9.99 ite party dts. 20.5.97 : Notarised copy of the certificate issued by the SBT dtd.3.1.2001 P9 : Notarised copy of receipt dtd. 21.3.95 P9(a) :Notarised copy of the receipt issued by the opposite party to the complainant dtd 30.10.95 P10 : Notarised copy of the sale deed executed by the 3rd opposite party in favour of the complainant dtd.1.2.96 P11 : Notarised copy of the letter sent by the complainant to the 2nd opposite party dtd.16.1.98 P12 : Notarised copy of the letter sent by the complainant to the 2nd opposite party dtd. 25.7.98 P13 : Notarised copy of the order of Hon'ble High Court of Kerala in Op.No.23632/98 dtd.6.1.99 P14 : Certified copy of the letter issued by the Municipal Commissioner, Udayamandalam, Municipaliaty to the complainant's brother K.V.Rathish DTD.10.12.09 P15 : Certified copy of the letter of the Municipal Commissioner to the 3rd opposite party DTD.10.2.2000 P16 : Certified copy of the letter sent by the Municipal Commissioner, Udhagamandalam Municipality to Complainant in Tamil language dtd. 11.5.2000 P16(a) : Translated copy OF Ext.P16 P17 : Notarised copy of the claim statement before Arbitrator in A.R.No.30/98 by the SBT against the 3rd opposite party. P 17(a) : Notarised copy of the Award passed by Hon'ble Justice.B.M. Thulasidas in the matter of Arbitration REGISTER 30/98 of the Hon'ble High Court of Kerala P18 : Notarised copy of the writ petition No.799/96 filed by : S.Kasthuri, the 3rd opposite party before the Hon'ble High Court of Madras P18(a) : Notarised copy of the affidavit by S.Kasthuri 3rd opposite party in writ petition No.799/96 before the Hon'ble High Court of Kerala P18(b) : Notarised copy of the order of injunction of the Hon'ble High Court of Madras in petition No.799/96 P18(c) : Notarised copy of suit notice issued by the counsel for the petitioner in WP.No.799/96 P 19 : Authorisation of K.V.Rathish P20 : Notarised copy of receipt dtd. 21.3.95 P20(a) : Notarised copy of DD.559501015 P20(b) : Notarised copy of DD dtd.29.2.96 P21 :Notarised copy of receipt of DD issued by complainant Dtd.7.9.94 P22 : Notarised copy of sale deed executed by 2nd and 3rd opposite parties in favour of complaint dtd.1.8.96 P23 :Notarised copy of the articles of agreement dated 29.2.96 P24 : Certificate issued by PW2 Ashok to complainant dtd.20.5.97 P25 : Order in OP.73/2000 P26 :Certified copy of OP.73/00 filed by K.Jayakumar against opposite party. P27 : Certified copy of lease deed No.164/97 P28 : Lease deed to Shivashakthi Temple trust executed by Kasthuri. P29 : Lease deed No.778/99 P30 : Lease dded No.779/99 P31 : Certified copy of sale deed No.2336/96 P32 : sale deed No.2337/96 P33 : Sale deed No2338/96 P34 : Balance statement of Baba and Sai Homes(Pvt) P35 : Certified copy of Form No.2 dated 16.9.97 P36 : Form No.18 submitted before registered of Companies dtd.7.10.97 P37 :Certified copy of Form No.13 P38 : Certified copy of Form No.32 P39 : Copy of Balance sheet dtd. 31.3.99 P40 : Copy of Form No.13 dtd.11.397 P41 : Company compliance certificate dtd.31.3.01 P42 : Certified copy of annual Return of Baba and Sai Homes P43 : Certified copy of balance sheet P44 : Company compliance certificate dtd.31.3.03 P45 : Certified copy of Annual Return of the company dtd.30.9.03 P46 : Receipt issued to K.Jayakumar P47 : copy of order in OP.73/00 on the file of CDRC.Tvpm. dtd.16.8.02 P48 : Claim statement submitted by Kasthuri SBT, before Justice B.M.Thulasidas P49 : claim statement submitted by Kasthuri P50 : Certified copy of Note prepared by Justice B.M.Thulasidas P51 : Certified copy of reply statement filed by bank before the Arbitrator P52 : Certified copy of the application filed by bank in OP Arbitration 280/02 before Dist.Court, Ernakulam P53 : Order in the above mentioned application P54 : Certified copy of the writ petition No.23632/93 P55 : Certified copy of the OA/81/2000 P56 : Certified copy of written statement submitted by IDBI Bank 4th respondent in OA 81/00 P57 : Certified copy of order of DRT in OP.81/00 P58 : Certified copy of the petition filed by bank in OA.106/00 P59 : Final order of OA 106/00 P60 : Certified copy of the plan in OS.128/00 before the Sub Court, Thiruvananthpuram P61 : Cetified copy of Brochures submitted in OS.128/00 P62 : Certified copy of the Notice sent by the Plaintiff in OS.128/00 against the defendant P63 : certified copy of the written statement submitted by the defendant in OS.128/00 P64 : Certified copy of the certificate issued by British Bank Middle East P65 : Certified copy of the Receipt submitted by defendant in Os.128/00 P66 : Certified copy of the vakalath filed by 3rd defendant in OS.128/00 P67 : Certified copy of the certificated issued by British Bank of Middle East P68 : Certified copy of the lease deed P69 : Certified copy of the lease deed P70 : Copy of daily broucher from Ooty P71 : Copy of photographs P72 : Copy of Telephone Directory from Ooty P72(a) : Copy of page No.142of the Telephone Directory P73 : Negatives of P71 P74 : Bill for negative processing and CD P75 : Photocopy of TVM, SSI, Telephone Directory P76 : Certificate issued from Municipality, Ooty dtd. 25.11.00 P77 : Original of the certificate issued by Asst.Enigneer, Ooty Exhibits from the opposite parties B1 : Photocopy of the agreement dtd.16.10.91 B2 : Photocopy of the agreement dtd. 16.10.91 B3 : Memo issued by Ooty Municipality B3(a) : Postal receipt of B3 memo B4 : Order of Madras High Court in OP.709/01 B5 : Notice issued by Ooty Municipality B5(a) : Translation copy of B5 B6 : Notice issued for payment of tax in the name of Ratheesh B6(a) : Translation copy of B6 B7 : Certified copy of OP.Arbitration.202/02 B8 :Photocopy of the Encumberance certificate B9 : Attested copy of the news paper B10 : Certified copy of deposition of Ramesh in OP.64/00 B11 : Certified copy of deposition of Ashok in OP.64/00 B12 : True copy of B6 B13 : True copy of B6 B14 :Attested copy of B8 B15 : Original of B1 B16 : Original of B2 Court Exhibits X1 : Notice issued by Shashi Shellan, Dist.Collector to S.Kasthuri dtd.3.10.94 X2 : RC.A4.8770/99 letter issued by Thiru M.Kaliappan, Municipal Commissioner to S.Kasthuri dt.20.5.03 X3 : Change of name in property registration application dtd. 20.5.03 X4 : Proceedings of the Municipal Commissioner, Udhagamandalam dtd. 21.6.90 X5 : Approval of permission letter dtd. 10.10.90 SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER SMT.A.RADHA : MEMBER [ SRI.K.CHANDRADAS NADAR] PRESIDING MEMBER