BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 2nd day of January 2014
Filed on : 23/06/2012
PRESENT:
Shri. A. Rajesh, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member
CC.No. 381/2012 and CC No. 382/2012
Between
CC.No. 381/2012
Vinod Unnikrishnan, : Complainant
S/o. C.Unnikrishnan, (By Adv. Vivek Varghese P.J,
Geetanjali, Eroor South P.O., M/s. Varghese & Jacob, Puthoor,
Tripunithura-682 306. Near KSRTC Bus Stand,
Mahakavi Bharathiyar road,
Ernakulam.)
And
1. Alliance Habitat & Real Estate : Opposite parties
(India) Pvt. Ltd., rep. by its (1st O.P. absent)
Director, Mrs. Thankamma
Joseph, W/o. K.A. Joseph,
32/3007, Aysha road,
Anchumury, Vytilla-682 012.
2. Lawrence K.T., (O.Ps 2&3By Adv. Antony Mathew,
S/o. Thomas, Opp. Thankam Tourist Home,
Kalthiparambil house, St. Benedict Road, Cochin.
Chirakkam Kara, Varappuzha, Pin-682 018)
Varappuzha.683 517.
3. M/s. Mercy Lawrence,
W/o. Thomas,
Kalathiparambil house,
Chirakkakam kara,
Varappuzha,
Varappuzha -683 517.
CC No. 382/2012
Between
Jeevan Sasidharan, : Complainant
S/o. N. Sasidharan, ( By Adv. Vivek Varghese P.J)
Padma Nivas, Chathari,
Tripunithura,
Ernakulam-682 301.
Vs
1. Alliance Habitat & Real Estate : Opposite parties
(India) Pvt. Ltd., rep. by its (O.Ps 2&3 by Adv. Antony Mathew)
Director, Mrs. Thankamma (1st O.P. absent)
Joseph, W/o. K.A. Joseph,
32/3007, Aysha road,
Anchumury, Vytilla-682 012.
2. Mr. Lawrence K.T.,
S/o. Thomas,
Kalthiparambil house,
Chirakkam Kara, Varappuzha,
Varappuzha.683 517.
3. M/s. Mercy Lawrence,
W/o. Thomas,
Kalathiparambil house,
Chirakkakam kara,
Varappuzha,
Varappuzha -683 517.
COMMON O R D E R
A Rajesh, President.
The matters involved in these complaints are the same and since the opposite parties are the same we dispose off these complaints by this common order.
2. The case of the complainant in CC No. 381/2012 is as follows:
The opposite parties 2 & 3 are the owners in possession of 208.595 cents of land in Thrikkakara North village. The opposite parties 2 and 3 entered into an agreement with the 1st opposite party for a joint venture project for development of a building project named “Alliance world” in the above mentioned property and the 1st opposite party was appointed as the irrevocable agent of the 2nd and 3rd opposite parties for the development and sale of property in the joint venture project. The joint venture was created by the opposite parties 1 to 3 for sharing of profits and losses. Fascinated by the promises of the opposite parties the complainant agreed to purchase 1/250 undivided share in the property and right to contruct flat No. 604 in the complex and entered into an agreement for sale on 30-07-2007 for a consideration of Rs. 20,000/-. On the same day the 1st opposite party entered into an agreement with the complainant agreeing to construct a flat for a consideration of Rs.27,93,361/-. The 1st opposite party agreed that the building construction will be completed within 30 months from the date of agreement and the possession will be handed over by November 2009. The complainant paid the 1st opposite party through the bank a sum of Rs. 9,11,604/- by cheque dated 02-09-2008 and also paid Rs. 50,000/- by cash. The progress of construction was extremely slow and in December 2010 the opposite parties stopped the construction of the complex in violation of the agreements. At that juncture the complainant was forced to cancel the sale and demand return of the amounts. The 1st opposite party by e-mail dated 22-10-2009 agreed to cancel the sale and pay the amounts with interest. The complainant had to pay interest to the Bank without any benefit. Thus the complainant is before us seeking direction against the opposite parties to refund Rs. 13,42,493 together with a compensation of Rs. 4,00,000/-.This complaint hence.
3. The version of the 2nd and 3rd opposite parties in CC No. 381/2012 is as follows:
The 2nd and 3rd opposite parties are the owners of 208.595 cents of land. The 2nd and 3rd opposite parties have entered into an agreement with the 1st opposite party permitting the 1st opposite party to construct the building in a portion of the property. ‘Alliance World’ is purely a project of the 1st opposite party. The 2nd and 3rd opposite parties are entitled to get the value of the land from the 1st opposite party and they are also entitled to get the completed apartments from the 1st opposite party towards the part sale consideration of the value of the land. The agreement for construction entered into between the complainant and the 1st opposite party is not binding on the 2nd and 3rd opposite parties. The 2nd and 3rd opposite parties never received any amount from the complainant. The question of conveyance of the undivided share in the property will arise only after the completion of the building by the 1st opposite party and on receipt of the entire land value. The 2nd and 3rd opposite parties have no obligation to complete the construction of the flat. The complainant is not a consumer as defined in the Consumer Protection act. The complaint is barred for misjoinder of necessary parties since the opposite parties 2 and 3 are unnecessarily impleaded in the party array. The complainant is not entitled to get any of the reliefs sought for in the complaint. There is no deficiency in service on the part of the 2nd and 3rd opposite parties. The complaint deserves dismissal.
4. The complainant in CC No. 382/2012 filed a similar complaint claiming a sum of Rs. 10,07,653/- with the interest from the opposite parties together with a compensation of Rs. 2 lakhs and costs of the proceedings.
5. The opposite parties 2 and 3 filed a separate version in CC 382/2012 raising the similar contentions as in CC No. 381/2012.
6. In spite of receipt of notice from this Forum the 1st opposite party opted to remain absent for their own reasons in both the cases. The complainant in CC No. 381/2012 was examined as PW1 and Exts. A1 to A12 were marked on his side. Exts. A13 to 23 were marked on the part of the complainant in CC 382/2012. Neither oral nor documentary evidence was adduced by the 2nd and 3rd opposite parties. Heard the counsel for the contesting parties.
7. The common points that arose for consideration are
i. Whether the complainants are consumers within the purview of the
Consumer Protection Act?
ii. Whether the opposite parties are liable to refund the amount
collected by the 1st opposite party from the complainants with
interest?
iii. Whether the opposite parties are liable to pay compensation to the
complainants ?
8. Point No. i. The Hon’ble Apex Court in M/s. Narne Constructions Pvt. Ltd. Etc. Vs. Union of India & Ors Etc. 2013 (3) CPR 1 categorically held that building construction is a service as per Section 2 (1) (o) of the Consumer Protection Act. We are not to deviate from the same. So the contention of the 2nd and 3rd opposite parties can not be upheld. Rejected hence.
9. Point No. ii. Admittedly both the complainants entered into Exts. A4 and A16 agreements for construction with the 1st opposite party on 30-07-2007 to construct one apartment each at a total cost of Rs. 27,93,361/- and Rs. 21,17,031/- respectively. So also on the same day the opposite parties 2 and 3 entered into Ext. A5 and Ext. A15 agreements for sale of undivided share in the property with the complainants at a sale consideration of Rs. 20,000/- each and the opposite parties 2 and 3 received the consideration on 27-07-2007 and on 31-05-2007 respectively. As per Exts. A4 and A16 agreements the 1st opposite party agreed to complete the construction of the flats by November 2009. In furtherance of the construction agreements the complainant In CC No. 381/2012 paid a sum of Rs. 30,000/- to the 1st opposite party by cash and availed a loan of Rs. 9,11,664/- from State Bank of Travancore and paid the same to the 1st opposite party . In CC No. 382/2012 the complainant paid a sum of Rs. 30,000/- in cash and availed a loan of Rs. 6,61,664/- from HDFC Bank and paid the same to the 1st opposite party. Apart from the above amounts the complainants paid a sum of Rs. 20,000/- each to the opposite parties 2 and 3 towards consideration for the undivided share in the property evidenced by Exts. A5 and A15 agreements.
10. It is not in dispute that the 1st opposite party could not complete the construction of the apartments as per the agreements or even thereafter. The absence of the 1st opposite party in this Forum speaks volumes. In that case the complainants are entitled to get the paid amounts refunded. Clause 19 in Ext. A4 and A16 construction agreements reads as under.
“In case of any dispute the right of the second party is to receive back the instalments paid for the undivided share in the land and for construction of the building after deducting a penalty mentioned in clause No. 16 of the agreement and the second party of the agreement and the second party shall not interfere or obstruct the construction. But if the terms of the contract are not carried out by the first party on account of the default of the first party, the first party shall be liable to pay all the amounts received from the 2nd party together with interest at the rate of 18% p.a. from the respective dates of payment.”
11. In these cases the construction of the flats could not be completed only due to the fault on the part of the 1st opposite party and so clause No. 16 in Exbts. A4 and A16 is not applicable in these cases. In these cases clause 19 in Exbts. A4 and A16 is applicable and the complainants are entitled to get refund of the amounts with interest @ 18% p.a. from the date of respective payment till realization. According to the complainants the opposite parties are liable to refund the amounts jointly and severally . The opposite parties 2 and 3 contended that they have not received any amount from the complainants, if at all the complainants are entitled to get any amount that must be borne by the 1st opposite party alone. Though the complainants stated that there is joint venture agreement between the opposite parties nothing is before us to substantiate the same. However Exts. A5 and A15 go to show that the opposite parties 2 and 3 received a sum of Rs. 20,000/- each from the complainants towards the consideration for the undivided share in the property thereby binding themselves for execution or in continuance. It is to be noted that the opposite parties 2 and 3 failed to produce the agreement entered into between the opposite parties in this Forum to establish their contention in this Forum conspicuously. In view of the above the opposite parties are jointly and severally liable to refund the amounts to the complainants.
12. Point No. iii. The prayer of the complainants to refund the amounts paid to the 1st opposite party with 18% interest p.a. since being allowed we do not feel no way further compensation or costs of the proceedings are called for because the grievances of the complainants’ have been met squarely.
13. In the result, we partly allow the complaints and direct as follows:
i. The opposite parties shall jointly and severally refund all the
amounts received from the complainants with interest @ 18% p.a.
from the date of payment till realization.
ii. The 2nd and 3rd opposite parties shall jointly and severally pay Rs.
20,000/- each to the complainants with 12% p.a. from the date of
receipt till realization.
iii.The orders in I.A 422/2012 and I.A.423/2012 both dated
26-06-2012 are made absolute till the above payments are
made by the opposite parties fully.
The above said order shall be complied with within a period of 30 days from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 2nd day of December 2013
Sd/-A. Rajesh, President.
Sd/- Sheen Jose, Member.
Sd/-Beena Kumari V.K., Member.
Forwarded/By Order,
Senior superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Copy of statement of account
A2 : Copy of receipt dt. 22/05/2007
A3 : Copy of receipt dt. 02-09-2008
A4 : Copy of agreement dt. 12-04-2011
A5 : Copy of agreement
A6 : Copy of letter dt. 05-10-2012
A7 : Tripartite agreement
A8 : Copy of confirmation of loan settlement
dt. 30-07-2011
A9 : Copy of lawyer notice dt. 26-05-2012
A10 : A.D.card
A11 : Unserved cover
A12 : Copy of account details
A13 : Copy of letter dt. 09-05-2012
A14 : Copy of receipt dt. 21-05-2007
A15 : Copy of agreement
A16 : Copy of agreement
A17 : Copy of letter dt. 01-04-2011
A18 : Copy of A.D. Card
A19 : Copy of Home Loan agreement
A20 : Copy of statement of account
A21 : Copy of lawyer notice dt. 26-05-2012
A22 : A.D. Card
A23 : Two unclaimed cover.
Opposite party’s exhibits: Nil
Depositions
PW1 : Vinod Unnikrishnan
