Tamil Nadu

South Chennai

CC/444/2018

V Ganesh - Complainant(s)

Versus

M/s Heritage Property Development - Opp.Party(s)

M/s Poornima

30 Mar 2023

ORDER

Date of Complaint Filed : 18.07.2017

Date of Reservation      : 17.03.2023

Date of Order               : 30.03.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                                 : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,     : MEMBER II

 

CONSUMER COMPLAINT No.444/2018

THURSDAY, THE 30^th DAY OF MARCH 2023

Mr.V.Ganesh,

Son of Venkatraman,

Praveen Vibadana,

Flat No.A5, First Floor,

9, 7^th street, Ram Nagar,

Nanganallur, Chennai-61.                                                   ... Complainant                

..Vs..

1.M/s Heritage Property Development Company Pvt Ltd,

   Represented by

   The Chairman & Managing Director,

   Mehbubani Towers,

   Flat B1 Ground Floor,

   48, Dr Narasimhan Road,

   T. Nagar, Chennai 600 017.

 

2.Mr V. Krishanprasadh

   The Chairman & Managing Director,

   M/s Heritage Property Development,

   Company Pvt Ltd, Mehbubani Towers,

   Flat B1 Ground Floor,

   48 Dr Narasimhan Road,

   T. Nagar, Chennai 600 017.

 

  (Also at)

 

  Vishranti Apartment,

  Flat A1& A2 First Floor,

  66/6 Burkit Road,

  T.Nagar Chennai 600 017.

 

 

3.Mrs.Nirmala K. Prasadh,

   Director (Finanace),

   M/s Heritage Property Development,

   Company Pvt Ltd,

   Mehbubani Towers,

   Flat B1 Ground Floor,

   48 Dr Narasimhan Road,

   T. Nagar, Chennai 600 017.

 

(Also at)

 

  Vishranti Apartment,

  One such A1& A2 First Floor,

  66/6,Burkit Road,

  T.Nagar Chennai 600 017.

 

4.REPCO BANK,

   North Usman Road,

   T Nagar, Chennai-17.                                          ...  Opposite Parties

 

******

Counsel for the Complainant          : M/s. R. Poornima

Counsel for the Opposite Parties     : Exparte

 

On perusal of records and after having heard the oral arguments of the Counsel for the Complainant, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

(i).     The Complainant has filed this complaint as against the Opposite Parties under section 12 of the Consumer Protection Act, 1986 and prays to direct the Opposite Parties 1 to 3 to obtain “No objection certificate” from the 4^th Opposite Party after settling the dues to Repco without any excuses and further direct the Opposite Parties 1 to 3 to issue “ No Due Certificate” and also direct to pay a sum of Rs.20,00,000/- towards mental agony and trauma which the Complainant suffered on account of the deficiency caused by the Opposite Parties.

 

 

I.     The averments of Complaint in brief are as follows:-

1.     The Complainant was employed in the 1^st Opposite Party as General Manager (HR- Admin and Legal) during the period 03.01.2007 to 30.09.2015.  During his tenure of employment with the Opposite Party he had entered in to an Agreement of Sale of Land, Development and Construction dated 10.04.2008 for purchase of an independent house bearing Plot No.186, measuring a land area of 1445 sq.ft and super built up area of 1476 sq.ft at a price of Rs.24,95,995/-. The Complainant had paid booking advance of Rs.10,000/- on 06.04.2007 and an allotment letter dated 02.05.2007 was given to him for the said property. After allotment letter dated 02.05.2007 the Opposite Parties 1 to 3 had mortgaged the aforesaid property along with some other properties by creating an equitable mortgage by deposit of title deeds registered as document No,5178/2007, SRO Tambaram in favour of the 4^th Opposite Party, which fact was not disclosed by the Opposite Parties 1 to 3.  The Opposite Parties 1 to 3 had conveyed the land in favour of the 3^rd Party and the Complainant under the deed of absolute sale registered as document No.5882 of 2008, SRO, Tambaram. Suppressing the mortgage the Opposite Parties 1 to 3 have defrauded the innocent buyers including the Complainant. The Opposite Parties had arranged Home Loan from the HDFC Limited, ITC Branch declaring that there was no lien of encumbrance on the Complainant’s property.  The HDFC Limited had sanctioned a sum of Rs.20,00,000/- on 06.05.2009 based on the agreement of Sale of Land and Construction dated 10.04.2008 and the planning permit from the Sembakkam Town Panchat obtained by the Opposite Parties on 19.01.2009. The Complainant  had paid a sum of Rs.25,01,655/- to the Opposite Parties 1 to 3 and thereby discharged his obligation in full in December 2011.  The Opposite Parties committed deficiency by receiving the amount of Rs.10,10,000/- in the year 2007 and executed Sale Agreement only on 10.04.2008, by causing delay of more than one year. The Opposite Parties have committed breach of contract by not disclosing its subsisting mortgage with Repco Bank Limited while entering in to the Agreement with the Opposite Parties 1 to 3.  The Complainant had learnt the Repco Bank Limited had declared the loan account of the 1^st Opposite Party as a non performing asset as for back as June 2011. The Repco Bank had invoked SARFEASI proceedings against the Opposite Parties and its guarantors for bringing its properties for sale in public auction. The SARFEASI Notice was challenged by the Opposite Party in S.A No.477 of 2015 before DRT-III, Chennai. In the SA before the DRT the Opposite Parties 1 to 3 refused to release the mortgage of the Complainant’s property. The Opposite Parties 1 to 3 had paid dues of other customers who had purchased the property from the company and arranged to obtain release of mortage held by Repco Bank.  The Repco Bank had affixed a notice of mortgage on the wall of the Complainant’s property in January 2017. The Complainant had issued a legal notice on 06.03.2017 and the same was received by the Opposite Party on 09.03.2017. The Opposite Parties 1 to 3 gave reply dated 12.04.2017 containing falsehood. The Complainant had paid the entire amount by 09.12.2011 itself. The keys of the property which the Complainant purchased was handed over in 2012 along with a original agreement. Planning permit and building plan approval were formally handed over to the Complainant by the Opposite Party.  The Complainant had requested the Opposite Parties to clear the mortgage and obtain NOC from the Repco Bank. As the Opposite Parties 1 to 3 have been prolonging to get no due certificate from the Repco Bank this complaint is being filed.

II. The Opposite Parties set ex parte:

     Notice was sent to the Opposite Parties and was duly served to the Opposite Parties. Despite the notice being served to the Opposite Parties they failed to appear before this Commission either in person or by  Advocate on the hearing date and not filed any written version on their side.  Hence the 1^st Opposite Party was set ex-parte on 04.03.2020, the 2^nd and 3^rd Opposite Parties were set exparte on 29.07.2019, and the 4^th Opposite Party was set exparte on 12.09.2019. Subsequently, the case was proceeded to be heard on merits.      

III. The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents were marked as  Ex.A-1 to Ex.A-29.

IV.    Points for Consideration:-

1. Whether there is deficiency in service on the part of the Opposite Parties?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1:

2.      Upon perusal of Ex.A-3, it is seen that the Complainant had entered in to an Agreement of Sale of Land, Development and Construction dated 10.04.2008 with the 1^st and 2^nd Opposite Parties for purchase of vacant land bearing Plot No.186, measuring an extent of 1445 sq.ft and super built up area of 1476 sq.ft for a total sale consideration of Rs.24,95,995/-. The Opposite Parties 1 and 2 had conveyed the land in favour of the Complainant under the Deed of Absolute Sale registered as document No.5882 of 2008, SRO, Tambaram. According to the Complainant the sale consideration of Rs.24,95,995/- was paid by him to the Opposite Parties 1 to 3 out of his own source at Rs.13,60,000/- and by obtaining loan from HDFC Ltd., for a sum of Rs.11,41,655/- and had discharged his obligation in full. The contention of the Complainant is that the Opposite Parties 1 to 3 had not disclosed its subsisting mortgage with the 4^th Opposite Party while entering in to an Agreement of Sale of Land, Development and Construction dated 10.04.2008 or at the time of executing Deed of Absolute Sale registered as document No.5882 of 2008, SRO, Tambaram. Despite receiving the entire sale consideration the Opposite Parties 1 to 3 had committed breach of trust and failed to obtain release of mortgage of his property from the 4^th Opposite Party. Further contended that the 4^th Opposite Party had invoked SARFAESI proceedings against the Opposite Parties 1 to 3, which was challenged by the Opposite Parties 1 to 3 before DRT – III, Chennai in S.A.No. 477/2015 as seen in Ex.A-25.  The Complainant  further  contented

that Opposite Parties 1 to 3 though released the mortgage of the other customers who had purchased land from the Opposite Parties 1 to 3 had failed to release the mortgage of property belonging to the Complainant. As per Ex.A-27, the Complainant had issued legal notice to Opposite Parties 1 to 3 to obtain release of mortgage and for No due certificate from the 4^th Opposite Party. The Opposite Parties 1 to 3 in their reply notice among other claim from the Complainant had accepted that they had paid dues towards the sale of property to the 4^th Opposite party and NOC was sought for on 19.02.2009 itself.

3.       From the discussions made above and considering the facts and circumstances of the case, this Commission is of the considered view that the Complainant having purchased an independent house at Plot No.186, measuring an extent of 1445 sq.ft with super built up area of 1476 sq.ft  for a total sale consideration of Rs.24,95,995/- from the Opposite Parties 1 to 3 is entitled to enjoy the property free from encumbrances and the Opposite Parties having agreed that they had paid the entire dues in respect of the mortgage of the property belonging to the Complainant, to the 4^th Opposite Parties are liable to obtain No Objection Certificate from the 4^th Opposite Party. Failure to obtain NOC by the Opposite Parties 1 to 3 from the 4^th Opposite Party for the property purchased by the Complainant amounts to deficiency in service.  Accordingly Point No.1 is answered in favour of the Complainant.

 

Point No.2:

4.       As discussed and decided in Point No.1, that the Opposite Parties 1 to 3  had committed deficiency in service, the Opposite Parties 1 to 3 are liable to obtain No Objection Certificate in respect the property belonging to the Complainant from the 4^th Opposite Party and to issue the same to the Complainant and to pay a sum of Rs.20,000/- as compensation for the deficiency in service along with Rs.5000/- towards cost of the litigation.

In the result, the complaint is allowed in part. The Opposite Parties 1 to 3 are directed to obtain No Objection Certificate from the 4^th Opposite Party and to issue the same to the Complainant and to pay a sum of Rs.20,000/- (Rupees Twenty Thousand Only) towards deficiency in service along with cost of Rs.5,000/- (Rupees Five Thousand Only) towards cost of litigation to the Complainant, within 8 weeks  from the date of receipt of order.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 30^th of March 2023.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

Ex.A1	12.04.2007	Receipt from opposite parties 1-3
Ex.A2	17.05.2008	Letter from Opposite parties 1-3
Ex.A3	10.04.2008	Sale Agreement
Ex.A4	01.09.2008	Letter from the Opposite parties 1-3
Ex.A5	14.07.2008	Sale Deed
Ex.A6	20.01.2009	Letter of Handing over of approved   building plan
Ex.A7	18.05.2009	Letter by opposite parties 1-3 to HDFC
Ex.A8	26.05.2009	Receipt issued by Opposite parties 1-3
Ex.A9	14.06.2007	Receipt issued by Opposite parties 1-3
Ex.A10	14.06.2007	Receipt Issued by Opposite parties 1-3
Ex.A11	14.06.2007	Receipt Issued by Opposite parties 1
Ex.A12	18.06.2007	Receipt Issued by Opposite parties 1
Ex.A13	03.08.2009	Receipt Issued by Opposite parties 1
Ex.A14	22.05.2009	Letter addressed by the complainant
Ex.A15	01.08.2009	Letter addressed by opposite party to HDFC Bank
Ex.A16	03.08.2009	Letter submitted by the complainant
Ex.A17	21.07.2010	Receipt issued by Opposite parties 1-3
Ex.A18	14.06.2014	Note submitted to 2nd & 3rd opposite parties
Ex.A19	08.09.2015	Letter from Bank of India Letter from opposite parties 1-3
Ex.A20	01.11.2016	Letter from opposite parties 1-3
Ex.A21	09.11.2016	Reply by the Complainant
Ex.A22	25.04.2009	Various Price chart prepared by the opposite parties 1-3
Ex.A23	30.01.2017	Letter submitted by complainant
Ex.A24	15.07.2016	Letter by the complainant
Ex.A25		Application in SA 477/2015
Ex.A26		Patta in the name of complainant
Ex.A27	03.03.2017	Advocate Notice
Ex.A28	14.03.2017	Letter submitted by applicant with 4th opposite party
Ex.A29	12.04.2017	Reply Notice

 

List of documents filed on the side of the Opposite Parties:-

 

NIL

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT