Full Judgment
(Prayer: This complaint coming before us for hearing finally on 11.03.2011, upon perusing the material documents, and upon hearing the counsels for both the parties, and having stood over till this day for consideration, this Commission made the following order.
A.K.ANNAMALAI, PRESIDING MEMBER JUDICIAL
The complaint filed under Section 17 of the Consumer Protection Act 1986
1. The complainant filed a complaint against the opposite parties praying for the direction of jointly and severally convey 3/56 undivided share in the land in favour of complainant by the opposite parties, to pay a sum of Rs.4,00,000/- for the construction of extra two flats towards the loss suffered by the complainant, to construct compound wall staircase and complete the construction, wood work or in the alternative to pay a sum of Rs.2,00,000/- and direct the opposite parties to get the assessments in Corporation C.M.W.S.S.B., T.N.E.B. and other Government authorities and public records in the name of complainant, direct the opposite parties to register a society with the flat owners as members, direct the opposite parties to pay a sum of Rs.5,00,000/- towards mental agony and damages suffered by the complainant and for cost.
2. The complainant case in brief as per the complaint is as follows :- The complainant is one 4 co-owners of the property sold to the opposite parties and as per the agreement entered into with the opposite parties as have to develop the property with the construction of 12 flats and one flat to be allotted to the complainant with the undivided share of 1/12th share and accordingly the complainant was allotted one flat and instead of 12 flats, the opposite parties have constructed 14 flats in the property and thereby undivided share of the complainant was reduced. The complainant is entitled for 3/56 undivided shares in the land and the opposite parties have not constructed the flats as fully completed and various defects were pointed out by the complainant which were not rectified by the opposite parties and the complainant was made to run from pillar to post and suffered untold hardship and mental agony. The opposite parties also not registered the society which he has bound by law to do. Revenue records relating to the complainant not transferred in the name of respective allottees and completion work letter was not given till date. The banks are refusing to grant loan on the basis of documents of the flat as the opposite party has not issued letter of completion of work and thereby the opposite parties also not taken steps for the construction of compound wall staircase and to get assessments by various authorities like C.M.W.S.S.B., T.N.E.B. etc., and mutation and records etc., and thereby there was deficiency of service and the complainant claims the relief as prayed for.
3. On behalf of the opposite parties 1 to 4 written version was filed by the 1st opposite party in which they denied the allegations of the complainant and stated that all the co-owners of the flat have got registered for 1/14 undivided share of the property even though there was an initial proposal for construction of 12 flats the permission was obtained for the construction of 14 flats and the complainant was allotted a flat for the sale consideration and was put in possession also as per the terms and conditions the agreement and allottees have to pay for stamp duties, registration charges, applicable legal charges deposits to electricity board before taking delivery of the premises and the complainant for the reasons best known to them has not come forward to complete the registration formalities by paying those amounts. The opposite parties in all eagerness paid the charges for power water sewerage connection to the extent a sum of Rs.25,000/-. The claim for the share of the property to be decided only by a Civil Court and after taking possession for more than 9 years, the complainant has come forward with this allegations is barred by limitation. Since the complainant wanted the opposite parties to bear stamp duty charges which they h have not done for all other co-allottees and terms and conditions clearly bind the buyer to pay for registration and stamp duty and the complainant is not willing to comply the terms and conditions and facing her own consequences. Only when the undivided share is registered on the property as a good marketable title, the same is eligible for grant of loan. The complainant by virtue of her fault has placed herself in this situation for which the opposite party in no way responsible, the complaint to be dismissed as hopeless barred by limitation it is nearly 9 years since the complainant is put in possession plan and that is she has not come forward for registration. Compound wall exists and the front wall is fenced with chain for car parking. The complainant alone cannot agitate and other co-allottees have no complaints. It is the complainant to effect mutation of records. The opposite parties are not bound to register a society it is for the flat allottees to form a society.
4. After filing proof affidavit by the complainant in spite of chances given opposite parties have not come forward to file their proof affidavit and also not turned up for enquiry before this Commission on 28.1.2011 and earlier to the dates. Hence opposite parties 1 to 4 set exparte.
5. The complainant filed their written arguments and complainants side documents Exhibit A1 to A9 are marked. No documents filed by the opposite parties.
6. Points for determination are:-
1) Whether there is any deficiency of service on the part of the opposite parties?
2) Whether the complainant is entitled for the directions relating to the reliefs as prayed for?
3) Whether the complainant is entitled for any reliefs as prayed for?
7. Upon perusal of documents of the complainant and upon arguments submitted by the complainant it is seen that it is not in dispute that the complainant was allotted a flat by the opposite party on the property purchased from the complainant and other 3 co-owners as per agreement Exhibit A1 by the opposite party for full value of around Rs.63,00,000/- with absolute rights in which 14 flats have been constructed and all the 13 flat owners with undivided share of each 1/14 share in the land sale deed were executed. The complainant alone not got her sale deed executed regarding her share. As per the opposite parties contentions, she is entitled only for 1/14 of the share but she claimed earlier as agreed she is entitled for 1/12 share and by constructing 14 flats instead of 12 flats as undivided share become reduced by 2/56 and she is entitled for 3/56 shares. As pointed out by the opposite parties in their written version regarding the question of share this Forum has no jurisdiction to decide the same which is to be decided on the basis of elaborate evidence and the documents and this is not the forum for the same. Further it was not disputed that the complainant occupied a flat for more than 5 years before the filing of complaint and now she has not filed the agreement relating to her allotment and she has filed an allotment agreement as Exhibit A4 with relates to one Mr.N.Chandrasekaran and on perusal of Exhibit A4 also there is no specific mention about undivided share in the land to be registered for the allottee and only the plinth area of the flat alone it is mentioned. When the opposite parties purchased the lorry with full absolute rights as a sale from complaint and other co-owners and when the opposite parties developed the land with construction of 14 flats instead of 12 falts as agreed earlier without other 13 allottees consent and non joining them as parties she alone cannot claim 1/12 shares as the other co-allottees share to be varied on the basis of enquiry and these are all cannot be considered by this Commission. Regarding the other defects of the flats alleged by the complainant she has not filed any documents to prove the same either by way of Advocate Commissioner Report or by way of photographs etc., and the opposite parties alleged in their version that the compound wall is inexistence and the completion certificate could be issued only on registration of the undivided share by the complainant for her flat and only based on the same other documents relating to the revenue records to be obtained and this cannot be considered as false and the complainant has not come forward to register her undivided share regarding the flat allotted to her in view of the dispute relating to the share in the property which cannot be decided by this Forum and as far as the reliefs relating to the loss suffered to the extent of Rs.4,00,000/- because of alleged construction of two flats etc., by the opposite parties are all to be decided only by a Civil Court with reference to the agreement and other sale deeds terms and conditions between the parties etc., As per the complainant she had taken possession of the complaint on 5.2.1998 and this complaint was filed on 31.7.02 after more than 3 years thereby the complaint also becomes barred by limitation. In those circumstances while considering the nature of complaint and from the details of the complaint and the documents filed even though the opposite parties remained exparte, in this case there are no materials to allow the complaint and the complaint deserves to be dismissed.
8. In the result, the complaint is dismissed as not maintainable. No order as to cost.