Hello,
Following is the complaint prepared by me to submit in Consumer Disputes Redressal Commission. Kindly give your comment on this, especially about the cause of action at the coloured portion in paragraph 14(c) and the prayer in paragraph 15.
Thanks,
Nirmal
UNDER THE CONSUMER PROTECTION ACT, 1986
Before the Hon'ble State Consumer Disputes Redressal Commission at Chennai
Complainant:
xxxxxxxxxxxxxxxxxxxx
Opposite Parties:
Opposite Party No. 1
Xxxxxxxxxxxxxxxxxxxxx
Opposite Party No. 2
Xxxxxxxxxxxxxxxxxxxxx
Opposite Party No. 3
Xxxxxxxxxxxxxxxxxxxxx
1. The Complainant states that the larger extent of land measuring to 2940 square feet bearing plot No., Chennai originally belonged to Aaaaaaaa, he having purchased the same from Bbbbb by a Sale Deed dated 00.00.0000, registered as Document No.000 of 0000 in the office of the Sub-Registrar, xxxxx. Aaaaaaaa died on 00.00.0000 leaving behind him, his wife Ccccccccc. Ccccccccc, appointed xxxxxxxxxx (the 1st Opposite Party herein) as Power of Attorney agent to alienate the above said land of 2940 square feet by a deed of Power of Attorney dated 00.00.0000, registered as Document No.0000 of 0000 in the office of the Sub-Registrar, xxxxxxxxxx, Chennai.
2. On 23.07.2003 the 1st Opposite Party, entered a Sale Agreement with the Complainant for selling 438 square feet of undivided land out of the above said total area of 2940 sqft held by the 1st Opposite Party for a total consideration of Rs.4,25,298/- (Rupees Four Lacs Twenty Five Thousand Two Hundred and Ninety Eight only) by receiving an advance of Rs.25,000/- (Rupees Twenty Five Thousand only). The purpose for buying the land was to construct a flat for the Complainant along with other buyers of the land for his own use when he settles in Chennai in the year 2005.
3. One of the conditions imposed on the Complainant by the 1st Opposite Party in the Sale Agreement was that the Complainant should enter a Construction Agreement with the 3rd Opposite Party. So the Complainant entered a Construction Agreement with the 3rd Opposite Party on the very same date (23.07.2003).
4. On 13.08.2003 the Complainant by paying the balance money of Rs.4,00,298/- (Rupees Four Lacs Two Hundred and Ninety Eight only) to the 1st Opposite Party and spending for the stamp duty, registration fee, and other incidental expenditures pertaining to the registration of the Sale Deed got the Sale Deed executed in favor of the Complainant and fulfilled the conditions in the Sale Agreement.
5. The amount paid and spent mentioned in paragraph 4 above were met out of the first installment of loan amount drawn from the total sanctioned Housing Loan amount of Rs.14,00,000/- (Rupees Fourteen Lacs only) by the xxxx Bank, xxxxxx Branch.
6. As per the Construction Agreement the 3rd Opposite Party is expected to complete the construction of the apartment within a period of 18 months from the date of signing of the contract. But the construction did not start even after 12 months of signing the Construction Agreement. Because the construction did not start even after one year of signing the Construction Agreement the Complainant personally tried to contact the 3rd Opposite Party. But the 3rd Opposite Party could not be found in the address provided in the Construction Agreement. So the Complainant contacted the 1st Opposite Party and asked him to take back the land after completely paying the amount paid for the land along with the expenditures met by the Complainant and the interest payable to the bank. On 05.01.2005 the 1st Opposite Party expressed his inability to start the work and sent a letter to the 2nd Opposite Party (while providing a copy to the Complainant) asking him to settle the matter with the Complainant by paying back the money, but subsequently he ceased to act. There after the Complainant, being a resident of Trivandrum went back to Trivandrum but contacted the 1st Opposite Party several times regarding this matter. Subsequently in November 2006 when the Complainant went to visit the site in question, he saw a building being constructed on it. The Complainant tried to inspect the building but was prevented by the security on duty at the site. Immediately the Complainant initiated a suit against the other owners to get a stay against the construction. But the Complainant withdrew the suit when he understood from the commission report that the other owners are not the cause of the mischief. Only then the Complainant got alert that he had been misled and cheated by the Opposite Parties. Because the Complainant could find out the address of the 1st Opposite Party, the Complainant had sent his representatives several times during 2007-2009 to the 1st Opposite Party for negotiation of the deal in an amicable manner. But each time the 1st Opposite Party was evading by giving some sort of lame excuse. Meanwhile on 17.04.2008 the Complainant had sent an application U/s 6(1) of RTI Act, 2005 to the Corporation of Chennai and got the information enclosing a copy of the approved building plan of the said building and a copy of the notice issued u/s 236 of the Madras City Municipal Corporation Act IV of 1919 to the Opposite Parties for the violation of Building Rules and deviation from the approved plan in constructing the building in question.
7. As building promoters, the Opposite Parties have the obligation of constructing the building for the Complainant without violating the statutory requirements such as building rules in existence and adhering exactly to the approved plan. But the Opposite Parties did not satisfy the statutory requirements, which are under Section 2 (1) (g) of the Consumer Protection Act deficiency in service rendered to the Complainant.
8. As per the Construction Agreement the 3rd Opposite Party guaranteed to complete the construction of the apartment within a period of 18 months from the date of signing of the contract. They further affirmed the guarantee by saying that in lieu of default they would pay to the Complainant a reasonable prevailing rental value applicable for the said flat from the date of completion of the 18 months period till the date of settlement as compensation. They neither finished the construction in 18 month nor paid the compensation to the Complainant, which amounts to Unfair Trade Practice under Section 2 (1) (r) of the Consumer Protection Act.
9. The 3rd Opposite Party cannot even be traced by the Complainant. They have neither informed the Complainant of the status of the construction nor asked for the installments as in Construction Agreement. This again amounts to Unfair Trade Practice under Section 2 (1) (r) of the Consumer Protection Act.
10. Though in this regard the Complainant tried to contact the Opposite Party 1 and 2 (whose present address was traced) for personal negotiation, they were evading the Complainant’s representatives and the 3rd Opposite Party could not be contacted because they are not found in any known address. Likewise the opposite parties are not even willing to receive the written communications sent to them by the Complainant.
11. On 21.10.2009 the Complainant understood by the information dated 12.10.2009 provided by the corporation of Chennai under the RTI Act, 2005 that the 1st Opposite Party has taken possession and is enjoying the benefits of the flat promised to the Complainant.
GROUNDS
12. It is pertinent to note the following:
12.1. The 3rd Opposite Party is a partner ship firm owned by the family members of the 1st and 2nd Opposite Parties including the 2nd Opposite Party. The only known address for the 3rd Opposite Party is xxxxxx, Chennai – 600083. But they are not functional in this address at present.
12.2. The 1st and 2nd Opposite Parties are brothers.
12.3. The 1st Opposite Party while entering the Sale Agreement for the sale of the undivided land tactfully forced the Complainant to enter a Construction Agreement with the 3rd Opposite Party, which was represented by the 2nd Opposite Party. After few months of signing the Construction Agreement the 3rd Opposite Party vanished from the scene and was made impossible for the Complainant to communicate regarding the progress of the scheme and pay advance for the construction to them.
12.4. On 01.10.2003, the day of submission of the building plan, though the Complainant is one of the legal owners of the land by virtue of the above said (paragraph 3) sale deed dated 13.08.2003, without his signature and knowledge, the 1st Opposite Party submitted the Building Plan to the corporation.
12.5. That the 1st Opposite Party suppressed the fact of the presence of another rightful owner, the Complainant, from the Statutory Authorities while applying for the plan approval.
12.6. All these early days of the improvements of the project the Complainant was given an impression by the 1st Opposite Party that no development such as application for the approval of plan was done. Even on 05.01.2005 when the 1st Opposite Party agreed to pay back the value of the land the stage of the project was not revealed to the Complainant.
12.7. The 1st Opposite Party could not find purchasers for the rest of the land for his expected price after selling the portion to the Complainant till the end of the said 18 months in the Construction Agreement.
12.8. The Opposite Parties did not bother to inform the starting of the construction activity to the Complainant which is denial of the right to be informed of the consumer to protect the consumer against unfair trade practice. The Complainant came to know by himself on the day when he went to inspect his land of the erection of the building on the land for which he is also an owner.
12.9. The Opposite Parties are unwilling to resolve the issue even after several efforts by the Complainant as seen in paragraph 10 above.
12.10. The Complainant now understood by the information dated 12.10.2009 from the corporation of Chennai under the RTI Act, 2005 that the 1st Opposite Party has illegally taken possession and is enjoying the benefits of the flat promised to the Complainant.
12.11. The intention of formation of the 3rd Opposite Party by the Opposite Parties is to give a false impression to the law that the suit is between the Complainant and 3rd Opposite Party.
The Complainant humbly requests the Hon’ble commission to take note of the restrictive trade practice and the unfair trade practice applied by the 1st Opposite Party for his benefit as seen under. That the illegal action of restrictive trade practice started from the 1st Opposite Party on the day of signing the Sale Agreement, which only committed the unfair trade practice (u/s 2 (r)(1)(iv)) so that the Complainant entered a Construction Agreement with the 3rd Opposite Party and the 3rd Opposite Party became unavailable to the Complainant. After that without the knowledge of the Complainant the 1st Opposite Party applied for the building plan approval to the corporation and got it approved in his name (this again is a restrictive trade practice) and constructed the building in his way violating the building rules and dishonoring the approved plan. And now the 1st Opposite Party has illegally taken possession of the property (this also is an unfair trade practice). The Opposite Parties had systematically made a conspiracy by applying restrictive trade practice and cheated the Complainant by giving false promises and prolonging the time.
13. EVIDENCES IN SUPPORT OF THE COMPLAINT:
Following are the details of documents/witnesses relied upon to substantiate the complaint:
1. Sale Agreement dt: 23.07.2003
2. Construction Agreement dt: 23.07.2003
3. Sale Deed No. xxxxxxxxx dt: 13.08.2003
4. Copy of the Letter dt. 05.01.2005 written by the 1st Opposite Party to the 2nd Opposite Party
5. Information received (along with enclosures) on 29.05.2008 from the corporation of Chennai in response to my application under RTI Act 2005.
6. Information dt: 12.10.2009 received from the corporation of Chennai to my application under RTI Act 2005.
7. Copy of envelop with letter sent to the opposite party on 11.06.2008 showing that they left the original address.
8. Copy of envelop with letter sent to the 1st opposite party on 27.01.2009 showing that he did not claim the letter.
9. Copy of envelop with notice sent to the 1st opposite party on 19.10.2009 showing that he left the original address.
10. Copy of envelop with letter sent to the 2nd opposite party on 27.01.2009 showing that he did not claim the letter.
11. Copy of the notice dated 19.10.2009 sent to the opposite parties.
12. Approved building plan dt.27.08.2004 obtained by the 1st Opposite Party.
13. Notice U/S 236 of the MCMC Act IV of 1919 issued by Corporation of Madras to the Opposite Party.
14. Encomberance Certificate
14. The State Commission has jurisdiction to entertain the complaint in view of:
(a) Sec 17 of the Consumer Protection Act.
(b) The extent of amount involved being Rs: 49,00,000/- (Rupees Forty Nine Lakh only)
(c) The cause of action having occurred at Chennai, Tamil Nadu on 23.07.2003, when the Complainant entered a Sale Agreement with the 1st Opposite Party and a Construction Agreement with the 3rd Opposite Party to satisfy a condition in the Sale Agreement, on 13.08.2003 when the Complainant purchased the land from the 1st Opposite Party by the Sale Deed, on 06.01.2005, when the Complainant received a copy of a letter dated 05.01.2005 written by the 1st Opposite Party to the 2nd Opposite Party asking him to settle the matter with the Complainant, on 10.11.2006, when the Complainant came to know of the unlawful construction of flats, over the said land, on 29.05.2008, when the Complainant perused the approved plan ‘BA No.549/04’ and the notice No. 2080 dated 19.05.2005 (U/S 236 of the MCMC Act IV of 1919) issued by Corporation of Madras to the Opposite Parties, on subsequent dates when the offense is continued by not responding to the communications made by the Complainant to the Opposite Parties, on 12.10.2009, when the Complainant got the information under RTI Act 2005 from the corporation of Chennai that the flat is under the name of the 1st Opposite Party, and on subsequent dates when the offense is continued by not responding to the notice by the Complainant to the Opposite Parties.
PRAYER
15. The complainant therefore prays:-
I. Relief is to be granted to the complainant as demanded herein.
1. To direct the Opposite Parties either to provide the finished flat on the said land as per the Construction Agreement while not violating the statutory requirements on payment of the agreed amount as per the Construction Agreement without any penalty or return the sum of the total price paid for the land and the other expenditures incurred during the registration of the sale deed for the land by the Complainant along with 15% cumulative interest for the entire amount and get a cancellation deed executed at the expense of the Opposite Parties.
2. To direct the Opposite Parties to make a payment to the Complainant the rent arrears as per the Construction Agreement. This is because the flat was not finished within the stipulated time and the Complainant could not use the flat till this date. Hence, he is forced to stay in rented house till date. A flat of 1250 square feet at Vadapalani, Chennai would easily cost to the Complainant Rs. 20,000/- (Rupees Twenty Thousand per month.) as rent per month.
3. To direct the Opposite Parties to make a payment to the Complainant at the rate of 15% cumulative interest on the outstanding rent amount.
4. To direct the Opposite Parties to pay the penalties (as seen in the notice No. 2080 under section 236 of the Madras City Municipal Corporation Act IV of 1919 issued to the Opposite Party) to the Corporation of Chennai.
5. To direct the Opposite Parties to pay all other penalties imposed due to violation of any statutory condition to be followed related to the said property.
6. To direct the Opposite Parties to pay a compensation equal to the difference between the present market value including its registration charges plus stamp duty of the said land and the total consideration paid for the land and the registration charges plus stamp duty incurred in the year 2003 (in the event of not providing the guaranteed finished flat without any deficiency). This compensation is justified because today to purchase a land at that location the cost incurred would be the same as required.
7. To direct the Opposite Parties to pay an amount deemed fit for the damages, mental agony, and other strains encountered by the Complainant during these days due to this unwarranted situation caused by the Opposite Parties.
8. To direct the Opposite Parties to pay all the cost of the Suit.
9. To direct the Opposite Parties to pay cumulative interest at the rate of 15% on the total sum decided by the Hon’ble state commission till the same is paid to the Complainant.
II. That an order be passed to freeze the bank accounts and attach the immovable properties of the Opposite Parties till the relief is entirely honoured by the Opposite Parties.
III. That such orders be passed as the Hon'ble Consumer Forum may deem fit in the circumstances of the case.
IV. That the accused should be punished severely and a criminal action be taken against them so that culprits of similar kind would be afraid to indulge in such criminal activities.
V. That this be published in media so that the public also would be benefitted and be aware of such kind of cheating.
Chennai Signature
00.00.2009 xxxxxxxxxxxxxxxxxxxx
VERIFICATION
I, -------------------------------------- S/o ------------------------------------ resident of ------------------------------------------------ do solemnly declare and state that the particulars stated above are true to the best of my knowledge and belief and no part thereof is false and nothing material has been concealed therefrom. The annexures are exact copies of their originals.
Verified at --------------- this ------------ day of -------------- two thousand and ------------------
DEPONENT
