BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 31st May 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
ORDERS IN
C.C.No.49/2017
(Admitted on 21.2.2017)
Mr. Mani Kochivalappil . Maniraj. K.V,
S/o Raman Kochirevalappil,
Aged 44 years,
R/at Sneha Bejai Kapikad, 7th cross,
Bejai P.O, Mangalore 4.
……… Complainant
(Advocate for Complainant by Smt. SR)
VERSUS
- M/S S.L. Industries,
A registered partnership firm having
Its office at plot No.176,
Baikampady Industrial Area,
Mangalore
Represented by its partner.
- Mr. Vivek Pius Fernandes,
Aged about 40 years,
S/o mr. Vincent Fernandes,
Vishal enterprises, Assisi Complex,
2nd floor, Bejai church road,
Mangalore 575004,
Proprietor, M/s Vishal Enterprises,
Builders and Developers,
Assissi Complex, 2nd floor,
Bejai Church Road, Mangalore 575004.
…. Opposite Parties
(Opposite Party No.1 and 2 Ex parte)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI VISHWESHWARA BHAT D
This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service against the opposite party claiming certain reliefs.
The brief facts of the case are as under:
The complainant claims Opposite Party No.1 owner of the land and the Opposite Party 2 is builder entered into a joint development agreement to developed the land and put a multistory building of having 9 blocks A to H in the project name Vailankannis Heights. Complainant entered into an agreement with the Opposite Parties for purchase of the flat described in schedule on 20.9.2013 for total sale consideration of Rs.14,00,000/ with assurance of Opposite Parties to deliver the apartment duly completed in all respects within 30.4.2014. The complainant made the payments of amounts on various dates way cheque and RTGS in all of Rs.12,18,500/ as per the agreement. Complainant had availed loan of Rs.7,00,000/ for making the payment with interest at 10.5% p.a from corporation Bank Jeppu branch, Mangalore, recovered as already commence by the bank. However under clause 1 of the said agreement Opposite Parties are is bound to deliver duly flat completed owner before April 2014 and under clause no.11 of the agreed to pay damages at the rate of Rs.250/ per day for every days delay if the building is not completed within stipulated time. It is learned by complainant that Opposite Parties have mortgaged the property to a firm by name M/s Magma Housing Finance for total sum of Rs.6.75 crores, without informing the complainant with shows dishonest intention of Opposite Parties construction work is also not completed as per the terms of the agreement. The notice sent to this on 30.1.2017 duly served was not reply by Opposite Parties. Heading deficiency in service on the part of the Opposite Parties seeks refund of the advance amount with interest and other reliefs as claimed.
2. Opposite Parties despite of service of notice in need absent and there is placed exparte.
3. In support of the above complaint the complainant Mr. Mani Kochivalappil . Maniraj. K.V, filed affidavit evidence as (CW1) and and produced documents got marked at Ex.C1 to C18 as detailed in the annexure here below. Since the Opposite Party is exparte not lead evidence nor placed any documents before the fora.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
We have considered entire case file on record including evidence tendered by the parties and notes of argument of the parties. Our findings on the points are as under are as follows:
Point No. (i) : Affirmative
Point No. (ii) :
Point No. (iii): As per the final order.
REASONS
4. POINTS No. (i)and (ii): As seen from the affidavit evidence of complainant and the documents produced by complainant. Ex.C1 is the agreement the complainant proved the allegation made in the complainant, Ex.C2 is the letter sent to complainant by Opposite Party No.2 for payment of the consideration amount for Rs.91,000/ its dated 4.7.2014. Hence there is relationship of consumer and service provider between the parties as established.
5. Ex.C6 is notice issued by complainant to Opposite Party no.2 proprietor of Vishal enterprises in seeking and deliver completed apartment on 30.4.2014 or else Opposite Parties liable to pay a damage at Rs.250/ per day. Ex.C7 is the notice issued by complainant to Opposite Party demanding re payment of the amount paid by complainant to opposite parties for failure to give the completed apartment to complainants possession, it is dated 30.1.2017. Ex.C8 and C9 are postal acknowledgments. Ex.C11,12,13,14 and 15 are receipts for payment of the amounts by the complainant to opposite parties. Ex.C16 is the copy of the deed of mortgage by Opposite Party in favour of One Magma Housing Finance (MHF) mortgaging the proprietaries for Rs.6,75,00,000/ as claimed by complainant. Ex.C17 is the notice issued by complainant to Opposite Party dated 10.6.2015 which is served. Thus it is clear there is violation of terms and condition by opposite parties and there by deficiency in service on the part of Opposite Parties.
6. Hence the complainant when the completed flat is agreed not deliver to complainant is justified in re calling the amount seeking refund of the amount as prayed for especially when without consent of complainant Opposite Parties mortgaged this very properties being developed by them to 3rd parties. Hence we are point no. 1 and 2 answer in the affirmative.
7. POINTS No. (iii): The question to extent complainant is entitled for relief claimed there is No doubt that complainant is entitled for refund of Rs.12,18,500/ total amount by paid by opposite parties as per the terms agreement. He has mentioned of borrowing loan of Rs.7,00,000/ with interest at 10.5% to the bank. Hence the claim of interest on this amount for failure to deliver possession at opposite parties Rs.4,42,275/ as claimed in para schedule B of para 7 of complainant the ready interest is justified. As to the claim of compensation at Rs.250/ per day from 1.5.2014 as per clause 11 of the agreement in these between the parties as complainant is seeking refund of the amount the complainant cannot, in our considered view, seek compensation as per clause 11 of the agreement that too when he claims interest at 12% against opposite parties on the amounts advanced is allowed.
8. As regards cost of the complainant for Rs.10,000/ is justified.
Wherefore the following order
ORDER
The complaint is allowed with cost. Opposite parties are directed to pay jointly and severally a sum of Rs.12,18,500/ to complainant with interest at 12% from the date of 1.5.2014 till the date of payment.
2. opposite parties shall also pay Rs.4,42,275/ to complainant with interest.
3. Opposite parties shall also pay cost of the complainant at Rs.10,000/
4. Opposite parties granted 30 days time for making payment.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 6 dictated by President to the Stenographer typed by him, revised and pronounced in the open court on this the 31st May 2017)
MEMBER PRESIDENT
(LAVANYA M RAI) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Mani Kochivalappil @ Maniraj. K.V,
Documents marked on behalf of the Complainant:
Ex.C1: 20.9.2013: Agreement for sale true copy
Ex.C2: 4.7.2014: Letter issued by Opposite Party No.1
Ex.C3: 14.7.2014: Receipt issued by Opposite Party No.1
Ex.C4: 14.7.2014: Receipt issued by Opposite Party No.1.
Ex.C5: 13.6.2015: Receipt issued by Opposite Party No.1.
Ex.C6: 5.7.2014: Letter issued by complainant.
Ex.C7: 30.1.2017: Letter issued by complainant.
Ex.C8: Ad card of Opposite Party No.1
Ex.C9: Ad card of Opposite Party No.2.
Ex.C10: Bank statement.
Ex.C11:23.9.2013: Receipt issued by Opposite Party No.1.
Ex.C12: 8.11.2013: Receipt issued by Opposite Party No.1.
Ex.C13: 3.1.2014: Receipt issued by Opposite Party No.1.
Ex.C14: 15.2.2014: Receipt issued by Opposite Party No.1.
Ex.C15: 24.3.2014: Receipt issued by Opposite Party No.1.
Ex.C16: 16.4.2016: Mortgage deed
Ex.C17: 10.6.2015: Registered letter issued to the Opposite Party.
Ex.C18: Acknowledgment card.
Witnesses examined on behalf of the Opposite Parties:
Nil
Documents marked on behalf of the Opposite Parties:
Nil
Dated: 31.5.2017 PRESIDENT
