IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 27th day of February, 2013.
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member)
C.C.No. 108/2012 (Filed on 06.06.2012)
Between:
Ajith George,
S/o. K.S. George,
George Villa,
Mannam Nagar.P.O.,
Pandalam Thekkekara,
Adoor Taluk, rep. by his-
P/A holder K.S. George,
-do. –do.
(By Adv. S. Manoj) …. Complainant
And:
1. Apple A Day Properties (P) Ltd.,
Apple Tower, N.H. By-pass,
Edappally.P.O., Palarivattom,
Kochi – 24, rep. by its Managing-
Director, K.A. Saju @ Saju Kadavilan.
2. K.A. Saju @ Saju Kadavilan,
S/o. T.K. Abdul Khadar,
Managing Director, Apple A Day-
Properties (P) Ltd., residing at:
Poovathummoottil Kadavil,
Edappally.P.O., Kochi – 682 024.
3. Rajeev Cheruvara, Director,
Apple A Day Properties (P) Ltd.,
Apple Tower, N.H. By-pass,
Edappally.P.O., Palarivattom,
Kochi – 24.
(By Adv. Peeyus A. Kottam) …. Opposite parties.
O R D E R
Smt. K.P. Padmasree (Member):
Complainant filed this complaint against the opposite parties for getting a relief from the Forum.
2. Complaint is filed by Sri. K.S. George as the power of attorney holder of Sri. Ajith George. Brief fact of the case is as follows: The 1st opposite party is a private limited company having its registered office at Kochi. 2nd and 3rd opposite parties are the Managing Director and Director of the 1st opposite party. Complainant booked a residential plot in the project ‘Apple New Cochin’ of the 1st opposite party. The booking was made, when the 1st opposite party’s representative approached the complainant at his residence and discussed about the project and complainant agreed to book a plot in the 1st opposite party’s project and paid Rs. 10,000 as registration amount. Thereafter 2nd opposite party has sent an allotment letter to the complainant acknowledging the registration and allotting plot No.320 to the complainant. The said letter contained the details of cash payment for the plot and the details of 100 common facilities and amenities to be provided for the plot owners. As per the direction in the allotment letter, complainant paid an amount of Rs. 3,90,750 to the 1st opposite party.
3. Thereafter on 18.10.2008 complainant and the 2nd opposite party entered into an agreement for sale and an agreement for development of plot and construction of compound wall and gate. Complainant forwarded relevant documents sought by the opposite parties for registration of the plot in the name of the complainant. After sending of the relevant documents for registration, there was no proper communication or response from the opposite parties. Ultimately on 03.06.2010 2nd opposite party sent a letter to the complainant stating that the registration of the deed will be completed within 60 days. But on enquiry it was revealed that the 1st opposite party has no right and title over the properties in which plot No.330 situates. 1st opposite party has not purchased any transferable right from the owners of the properties which is the reason why the opposite parties are not in a position to execute the sale deed in favour of the complainant. Opposite parties are jointly and severally liable for the above mentioned acts. Hence this complaint for getting Rs. 5,99,407 with 12% interest along with compensation of Rs. 25,000.
4. Opposite parties entered appearance and filed version with the following contentions: According to the opposite parties, complaint is not maintainable either in law or facts and opposite parties also challenged the maintainability of this complaint before this Forum for want of territorial jurisdiction. Opposite parties denies the allegation that representative of the opposite parties approached the complainant in his house and received Rs. 10,000 as advance amount. In fact, the transactions had taken place at opposite parties’ office at Ernakulam. It is a fabricated story solely for the purpose of filing of this complaint before this Forum. There is no cause of action for this complaint as alleged by the complainant.
5. Opposite parties admitted the agreement between 2nd opposite party and complainant for the sale and for the development of a plot and the construction of compound wall and gate. According to the opposite parties, the complainant is not a consumer and the alleged dispute between the complainant and opposite parties is not a consumer dispute. If any dispute between the complainant and opposite parties exist the remedy is some where else and not before this Forum. Arbitration Clause also included in the agreement for joint venture development entered between the parties.
6. The allegation of the complainant that the opposite parties have no right and title over the properties in which plot No. 330 situates is false. In fact, the complainant had not complied the covenants of the joint venture development which causes the alleged delay to execute the sale deed in favour of the complainant. Opposite parties are ready to return the amount advanced by the complainant as per the terms of agreement. There is no unfair trade practice or deficiency of service from the part of the opposite parties. Hence the opposite parties prays for the dismissal of the complaint with cost.
7. On the basis of the pleadings of the parties, the following points are raised for consideration:
(1) Whether the complaint is maintainable before the
Forum?
(2) Whether the complainant is entitled to get a relief
as prayed for in the complaint?
(3) Reliefs & Costs?
8. Evidence of this complaint consists of the oral deposition of PW1 and Exts.A1 to A7. Opposite parties have not adduced any oral or documentary evidence. But they have cross-examined PW1. After closure of evidence, both sides were heard.
9. Point No.1:- For challenging the maintainability of the complaint, opposite parties filed a petition as I.A 11/2012. It is heard and dismissed by the Forum vide order dated 29.10.2012 on a finding that this Forum has territorial jurisdiction in entertaining this complaint.
10. Point Nos. 2 & 3:- Complainant’s allegation is that he had booked a residential plot in the project ‘Apple New Cochin’ of the 1st opposite party and paid an amount of Rs. 10,000 as registration amount. After obtaining an allotment letter from 2nd opposite party complainant has paid an amount of Rs. 3,90,750 to the opposite parties. Thereafter, the complainant and 2nd opposite party entered into an agreement for sale and an agreement for development of plot and construction of compound wall and gate. Complainant forwarded the relevant documents demanded by the opposite parties for the registration of plot. But the registration is not made within the stipulated time and on enquiry it was revealed that opposite parties has no right and title over the properties in which the allotted plot situates which is the reason why the opposite parties are not in a position to execute the sale deed in favour of the complainant. The act of the opposite parties is a clear deficiency of service, for which they are liable to the complainant.
11. In order to prove the complainant’s case, power of attorney holder of the complainant filed proof affidavit and adduced oral evidence as PW1 and the documents produced by him were marked as Exts.A1 to A7. Ext.A1 is the power of attorney executed by the complainant in favour of PW1. Ext.A2 is the bank receipt voucher dated 28.05.2008 issued by opposite parties. Ext.A3 is the allotment letter of opposite parties. Ext.A4 is the bank receipt voucher dated 30.06.2008. Ext.A5 is the agreement for sale of plot. Ext.A6 and A7 are the letters sent by Managing Director to the complainant.
12. On the other hand, the contention of the opposite party is as follows: They admit the booking of plot. The real fact of delay in registration is that the complainant had not complied the covenants of joint venture development. Opposite parties are ready to return the amount advanced by the complainant as per the terms of the agreement. There is no unfair trade practice or deficiency of service from the opposite parties. Hence the opposite parties prays for the dismissal of the complaint.
13. In order to prove their contentions, opposite parties neither produced any document nor examined any witness. But they cross-examined PW1.
14. On the basis of the contention and arguments of the parties, we have perused the entire materials on record and found that the parties have no dispute with regard to the execution of an agreement for executing a sale deed in favour of the complainant by the opposite parties in respect of the plot allotted to the complainant and for carrying out the developments in the allotted plot and for providing common facilities to the entire plots. It is also seen that, on the basis of the said agreement which is already marked as Ext.A5 and as per Ext.A2, Exts.A4 and A6 and A7, opposite parties collected Rs. 4,00,750 from the complainant. The complainant’s allegation is that, though the opposite parties have collected Rs. 4,00,750, they have not carried out any development works in the plot and they have not made anything for executing the sale deed in favour of the complainant, though the complainant had performed his part as per the terms of Ext.A5 agreement and as per the directions of opposite parties. It is also alleged that the execution of the sale deed was not executed by the opposite parties because of the reason that opposite parties has no title or saleable right over the allotted plot.
15. The said allegations of the complainant is not disproved by the opposite parties with cogent evidence. Opposite parties has not adduced any evidence to show that they have got title and saleable right over the plots including the plot allotted to the complainant and they have carried out the development works as assured in Ext.A5 agreement and the failures in this connection was due to the non-compliance of the opposite parties direction by the complainant. Instead of adducing proper evidence for substantiating their case, opposite parties attempt was to challenge the maintainability of this complaint even in the trial stage, which was already been decided by the Forum.
16. In the circumstances, we are constrained to accept the allegations of the complainant. Therefore and in the absence of any evidence in favour of the opposite parties, the complainant’s case stands proved as unchallenged and hence this complaint is allowable and the opposite parties are jointly and severally liable to the complainant for their deficiency in service.
17. In the result, this complaint is allowed, thereby opposite parties are directed to return Rs. 4,00,750 (Rupees Four Lakhs seven hundred and fifty only) along with 12% interest from 18.10.2008 till this day within 15 days from the date of receipt of this order. Complainant is also allowed to realize an amount of Rs. 10,000 (Rupees Ten thousand only) as compensation and Rs. 5,000 (Rupees Five thousand only) as cost from the opposite parties. In the event of non-compliance of this order by the opposite parties, the complainant is allowed to realize the whole amount ordered herein above from the opposite parties with 12% interest from today till the realization of the whole amount.
Declared in the Open Forum on this the 27th day of February, 2013.
(Sd/-)
K.P. Padmasree,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : K.S. George
Exhibits marked on the side of the complainant:
A1 : Power of attorney executed by Ajith George in favour of K.S.
George.
A2 : Bank receipt voucher dated 28.05.2008 issued by opposite
parties to the complainant.
A3 : Allotment letter sent by opposite parties in the name
of the complainant.
A4 : Bank receipt voucher dated 30.06.2008 issued by opposite
parties to the complainant.
A5 : Agreement for sale of plot.
A6 & A7: Letters sent by the opposite parties to the complainant.
Witness examined on the side of the opposite parties: Nil.
Exhibits marked on the side of the opposite parties: Nil.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) K.S. George, George Villa, Mannam Nagar.P.O.,
Pandalam Thekkekara, Adoor Taluk,
(2) K.A. Saju, Managing Director, Apple A Day Properties
(P) Ltd., Apple Tower, N.H. By-pass, Edappally.P.O.,
Palarivattom, Kochi – 24.
(3) K.A. Saju, Poovathummoottil Kadavil,
Edappally.P.O., Kochi – 682 024.
(4) Rajeev Cheruvara, Director,
Apple A Day Properties (P) Ltd., Apple Tower, N.H.
By-pass, Edappally.P.O., Palarivattom,
Kochi – 24.
(5) The Stock File.
