KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
CC NO.43/13
JUDGMENT DATED: 25/06/2014
PRESENT
JUSTICE SHRI.P.Q. BARKATH ALI: PRESIDENT
SHRI.V.V. JOSE: MEMBER
Mahaling Gangappa Shirol,
52/A, Suvarna,
Ruturaj Housing Society,
Pune – 411037 - COMPLAINANT
(By Adv. Sri. Prabhu Vijayakumar)
V/s.
Apple A Day Properties Pvt. Ltd.,
Apple Tower, Palarivattom,
N.H. Bye Pass, Edappally,
Ernakulam.
R/by its Managing Director,
Saju Kadavilan - RESPONDENT
JUDGMENT
SHRI.V.V. JOSE: MEMBER
This complaint is filed under section 12 of the Consumer Protection Act, 1986.
2. The case of the complainant narrated in the complaint is as follows.
Induced by the advertisements of the opposite party in print and visual media and on the assurance of the Managing Director of the opposite party, complainant booked two apartments No.B110 and B111 in the Apple I BHK Project of the opposite party. Managing Director assured of the quality, reliability and time bounded completion of the appartments. Complainant entered into an agreement with opposite party for the said apartment. Complainant paid Rs.1733930/- to the opposite party in various instalments. At the time of booking opposite party promised and assured to complete the appartments and to handover the same on 30/04/2009. Believing the assurance complainant paid the amount after availing a bank loan from HDFC bank. Opposite party failed to complete the construction till date. The opposite party has also sent a letter promising and assuring to handover the appartment on 30/04/2009, but in vain. The complainants are now convinced that the opposite party has no intention to complete the construction. Complainant prefered a registered legal notice asking to complete and handover the flat and to pay a compensation of Rs.15,00,000/-, opposite party not even replied though they have received the notice. Complainant was further assured of payment of rent also of Rs.9,000/-, which was paid upto August 2010, thereafter no payment. Hence this complaint for the folowing reliefs. Direct the opposite party to complete and handover the appartments No.B 110 and 111 in their Apple I BHK Project or in the alternative refund the amount of Rs.17,33,930/-. Direct the opposite party to give a compensation of Rs.15,00,000/- with 12% future interest. Direct the opposite party to pay interest @ 18% for the amount paid from the date of payment of the 1st instalement till date of realisation and also.
3. After admission of complainant notice was issued to the opposite party which was returned with endorsement “unclaimed”. So notice is deemed to have served on the opposite party. Opposite party was called absent and set ex-parte.
4. Chief affidavit in lieu of the chief examination was filed by the complainant and seven documents were marked Ext. A1 to A7.
5. According to the affidavit Ext.A1 is copy of an agrement with the opposite party for the said flat. Ext. A2 is the copy of details of payment. Ext. A3 is the copy of revised schedule. Ext. A4 is the copy of letter sent by the opposite party. Ext. A5 is the copy of compensation schedule. Ext. A6 is the copy of legal notice and Ext. A7 is the AD card for the legal notice.
6. Ext. A1 is actually copy of a sale deed No.4882/07 dated 2/11/2007 for a consideration of Rs.99,500/-
7. Ext. A2 is payment details. It includes three documents.
1, Receipt No.1103 dated 20/08/2007 Rs.165000/-
2, Receipt No 1658 dated 26/10/2007 Rs.165000/-
Rs.330000/-
3, Copy of a letter dated of instalment advice of HDFC Bank.
7. Ext.A3 is the schedule of Balance work. Ext. A4 is the copy of letter sent by the opposite party. Ext.A5 is the list of persons booked flats with their details of payment. Ext. A6 is the copy of legal notice. Ext. A7 is the AD card of the legal notice.
8. In the complaint the amount paid is shown as Rs.17,33,930/-. But the payment details enlised in Ext.A2 shows payment of Rs.3,30,000/- only. The copy of the letter produced from HDFC Bank cannot be taken as a receipt. It only shows an instalment advice of a loan of Rs.14,03,930/-. But nothing shows that the loan amount is paid to the opposite party and no receipt is produced. Ext. A1 will show a receipt of Rs.99,500/- as consideration by the opposite party which forms part of the total contract.
9. So according to us an amount of Rs.3,30,000/- alone was paid by the complainant to the opposite party for land and appartment as seen in the records and Exhibits.
10. It is also seen that as per Ext.A1 opposite party has conveyed 0.28% of undevided share each in name of the complainant for appartment No. B110 and B11 (81 square metre).
11. We have given ample opportunity to the complainant to clarify and confirm the details of payment by posting the case for several time for rehearing. Unfortunately the counsel for the complainant did not co-operated.
12. Another thing to be noted is that the complainant failed to submit the quantem of work done for the appartment. If any work is done it will be in the credit of the complainant.
13. Considering all the facts above we are of the opinion that the opposite party committed deficiency of service by receiving Rs.3,30,000/- and not completing and handing over the flats of the complainant, which entitle the complainant to get refund of amount paid and compensation and cost.
In the result, we partly allow the complaint directing the opposite party to refund Rs.3,30,000/- with 9% interest from 29/6/2007 till payment. We direct the complainant to reconvey the undivided share of land obtained by him as per Ext.A1 and all developments made therein to the opposite party on receipt of the said amount of Rs.3,30,000/- and interest, at the cost of the opposite party by appearing before the respective subregistry and admitting and executing the sale deed in favur of the opposite party. The stamp duty and other fees shall be paid by the opposite party for the said reconveyance. The complainant is also entitled to the cost of this proceedings amounting to Rs.5,000/-
V.V. JOSE: MEMBER
JUSTICE P.Q. BARKATH ALI: PRESIDENT
APPENDIX
Exhibits for the complainant:
1, Ext. A1: Copy of sale deed dated 2/11/07
2, Ext. A2: Payment details
5, Ext.A3: Schedule of balance work
6, Ext.A4: Copy of letter sent by the opposite party
7, Ext.A5: List of persons booked flats with their details of payment
8, Ext.A6: Copy of Legal Notice
9, Ext.A7: AD card of the legal notice.
V.V. JOSE: MEMBER
JUSTICE P.Q. BARKATH ALI: PRESIDENT
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