C. Prakash vs R. Gunasekaran

R.K. Agrawal, J., President Member

This Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (hereinafter referred to the Act), has been filed by C. Prakash, the sole Opposite Party in the Complaint under the Act (hereinafter referred to as the Petitioner), against the Order dated 22.04.2015, passed by the Tamil Nadu State Consumer Disputes Redressal Commission at Chennai (hereinafter referred to as the State Commission) in First Appeal No. 211 of 2013, whereby the State Commission while setting aside the Order dated 22.01.2013, passed by the District Consumer Disputes Redressal Commission, Coimbatore (hereinafter referred to as the District Commission), partly allowed the Appeal, preferred by the Complainant, the Respondent herein, and directed the Petitioner herein to pay a sum of Rs.15,66,730/- with interest at the rate of 9% per annum from the date of filing of the Complaint (viz. 04.05.2010) till realization towards compensation for the defective construction of the building and the deficiency in service on the part of the Petitioner and to pay a sum of Rs.25,000/- as compensation for mental agony and Rs.5,000/- as litigation costs.  By its Order dated 22.01.2013, the District Commission had dismissed the Complaint, preferred by the Respondent, on the grounds that though the Respondent had entered into the Sale Agreement dated 06.02.2008 to purchase a house site, with a building being built on it, he had made the payment in three installments and, therefore, had every occasion to refuse to purchase the building if the same had been built with substandard materials and deviated from the approved plans; and the Sale Agreement cannot be treated as a construction agreement, containing terms and specifications, according to which the Petitioner had to construct the building.  The District Commission was of the opinion that the Petitioner had sold a fully constructed house to the Respondent and there was no agreement between the parties to construct a house according to the specifications given.  However, the State Commission in the Appeal, preferred by the Petitioner herein against the Order passed by the District Commission, held that the Respondent had purchased the property and only thereafter the building was constructed by the Petitioner and, therefore, the contention of the Petitioner that he had sold the fully constructed house was untenable.

The facts, in brief, are that the Petitioner was Owner of a vacant plot of land, admeasuring 2925 sq. ft. or 6 cents and 311 sq. ft., in Ondipoodur Cooperative Housing Society Ltd. No. CBE/HSG-17, under Survey/Site No. 52 in Village Singanalur, which he had purchased from V. Kalimuttu and his wife M. Santini on 25.10.2007 vide Sale Deed registered with the concerned Sub-Registrar.  The site plan for constructing a building on the said plot of land was obtained by the previous Owners from Coimbatore Corporation on 06.02.2007, which was valid for two years from 06.02.2007 till 06.02.2009.  While constructing the building, the Petitioner approached the Respondent for sale of the property after procuring water and electricity connection as per the permission obtained in the site plan.  The Respondent agreed to purchase the same for a consideration of Rs.35,00,000/- and accordingly both the Parties entered into a Sale Agreement on 06.02.2008. Though the Respondent had already paid a total sum of Rs.30,00,000/- on different occasions, the Sale Deed was not executed by the Petitioner and the amount paid by the Respondent was used by him in order to repay the loan taken by him.  The Petitioner requested the Respondent to accept the Sale Deed for vacant plot, stating that he would complete the building and give possession very soon. The Sale Deed was executed by the Petitioner on 05.06.2008.  Subsequently, the Respondent paid a sum of Rs.9,50,000/- to the Petitioner and on 10.07.2008 the possession was given, promising to complete the building later.  The Respondent found that the building was not constructed with standard material and the Petitioner did not pay the property tax and not obtained the water/electricity connections.  The Respondent engaged an Engineer to inspect the building and prepare an estimate therefor.  The said Engineer opined that the cost of the building would be Rs.15,01,971/-.  The Respondent also incurred some amount for paying the same to the Coimbatore Corporation and for obtaining water connection.  In the said background, alleging deficiency in service on the part of the Petitioner, the afore-noted Complaint came to be filed before the District Commission, praying for a direction to the Petitioner to pay the differential amount.

Heard the Respondent, who appeared in person, and perused the averments made in the Orders passed by the Fora below, the grounds taken in the Memo of Revision Petition and the documents filed along with it, including the Sale Agreement dated 06.02.2008 and the Sale Deed dated 05.06.2008.

In the Revision Petition, the Petitioner has stated that neither the Sale Deed nor the Sale Agreement disclose any agreement or clause that he was a “service provider” and the Respondent (the Complainant) was a “consumer” under the Act; the Sale Agreement denoted the property as site under construction and not as a vacant site and was an unregistered document; in order to avoid stamp duty and taxes the Respondent had relied upon the Sale Agreement and not the Sale Deed; the State Commission has accepted that the Respondent had made payment of Rs.39,50,000/- but it did not consider that the government record showed that the transaction was of Rs.9,50,000/-; the State Commission failed to consider that there was no evidentiary value of the unregistered Sale Agreement and, therefore, no reliance could have been placed on it; and the estimate given by the Commissioner was without admissible proof as per engineering standards.

The foremost question to be considered in this case is whether the Respondent had purchased a vacant plot of land and thereafter the Petitioner had constructed the house/building on the same using substandard material or the Respondent had purchased the said property with a house/building constructed on it, fully knowing about the material used for the same.

It is evident from the record that on 25.10.2007 the Petitioner had purchased the plot of land in question from V. Kalimuttu and his wife M. Santini.  The site plan for constructing a building on the said plot of land, duly approved by the Coimbatore Corporation on 06.02.2007, had been obtained by the earlier Owners of the property and the said approved plan was valid for two years from 06.02.2007 to 06.02.2009.  In the Sale Agreement dated 06.02.2008, entered into between the Petitioner and the Respondent, there is a mention that VLT (Vacant Land Tax) Fee is to be paid by the Petitioner for the land in question and the receipt is to be handed over to the Respondent.  Further, the Sale Deed dated 05.06.2008, executed by the Petitioner in favour of the Respondent, also describes the property in question as “vacant land” in the Schedule of Property.  The said averments in the Sale Agreement and the Sale Deed, coupled with the facts that the site plan was obtained by the previous Owners for constructing a building and it was not possible to erect/construct a building/house within a short period of 104 days falling between purchase of the property in question by the Petitioner from the previous Owners on 25.10.2007 and execution of the Sale Agreement between the Petitioner and the Respondent on 06.02.008, lead to the conclusion that the building/house was constructed on the plot of land after the property was sold to the Respondent. In all probabilities, it seems that initially there was no building/house constructed on the said plot of land and by the time the Petitioner had sold the property to the Respondent, construction had started but it was not complete.  Subsequently, after construction of the building by the Petitioner, the possession of the property was handed over to the Respondent on 10.07.2008 and then the Respondent found that the building was constructed using substandard materials.  In this view of the matter, the pleas taken by the Petitioner that he had sold the fully constructed house to the Respondent and that the Sale Agreement denoted the property as site under construction and not as a vacant land, are misconceived and cannot be accepted.

The submission of the Petitioner that there was no relationship of “service provider” and “consumer” between the Parties is also misplaced.  Clearly, in the facts and circumstances of the case at hand, a Complaint was maintainable before the Consumer Fora and the Respondent was a “consumer” under the Act.  The State Commission is justified in holding so.

Even if the submission of the Petitioner that the Sale Agreement was unregistered one, having no evidentiary value in terms of Section 17 of the Registration Act 1908, and the State Commission could not have placed any reliance upon the same is accepted, we find that the Petitioner has not denied about execution of the Sale Agreement and the Sale Deed dated 05.06.2008, which had been executed between the Parties in furtherance to the said Sale Agreement, was duly registered before the Sub-Registrar concerned.  Further, a perusal of the Impugned Order shows that before passing it the State Commission had considered various documents, including both the said documents and, therefore, even if the Sale Agreement was an unregistered document and had no evidentiary it value would make no difference.

As far as the plea of the Petitioner relating to stamp duty/tax evasion is concerned, in our considered view, the Consumer Fora is not supposed to go into the said question and, therefore, the stated plea is not relevant in the present proceedings.  The fact remains that there is no denial on the part of the Petitioner about receipt of sale consideration of Rs.38,50,000/- and, therefore, if the State Commission in contrast to the sale consideration of Rs.9,50,000/-, as stated in the Sale Deed executed by the Petitioner in favour of the Respondent, has accepted that the Respondent had paid to the Petitioner the aforesaid sale consideration of Rs.38,50,000/-, it cannot be said that there was anything wrong.

Finally, coming to the submission of the Petitioner that the estimate given by the Advocate Commissioner was without admissible proof as per engineering standards, we find that as per the directions given by the District Commission the Advocate Commissioner had inspected the property in question along with Chartered Qualified Civil Engineer and Approved Valuer Mr. S. Dhanasekaran on 26.02.2011 and thereafter the said estimate had been prepared, stating that the value of the property was Rs.22,83,270/- (see Pages 29-34 of the Paper-book, Volume-II).  The said report narrates the reasons for arriving at the said value.  After going through the reports submitted by the Engineer appointed by the Respondent, Engineer appointed by the Petitioner and the said Advocate Commissioner appointed by the District Commission, the State Commission for the reasons given in the Impugned Order has rightly accepted the report of the Advocate Commissioner and, therefore, this submission of the Petitioner cannot be accepted.

In view of the foregoing discussion, we do not find any illegality or perversity in the Order passed by the State Commission insofar as it relates to the setting aside of the Order passed by the District Commission and the resultant directions to the Petitioner to return the amount with interest towards defective construction of the building and payment of costs are concerned.  However, in view of the said directions, the State Commission was not justified in further awarding a sum of Rs.25,000/- as compensation for mental agony.  The said direction, therefore, stands deleted.

The Revision Petition is partly allowed in the above terms.  Pending Application, if any, also stands disposed of.