BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 31st day of January 2014

Filed on : 13/09/2012

PRESENT:

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K. Member

CC.No.562/2012

Between

1. Alfred Mathulla Palakamannil : Complainant

48/2138 Moolan House, (By Adv. Jacob Mathew Manalil

Nerichatra Lane, Perandoor road, G-295, Panampilly Nagar,

Elamakkara-682 026. Cochin-36)

2. Digi George,

48/2138 Moolan House,

Nerichatra Lane,

Perandoor Road,

Elamakkara – 682 026.

Vs

1. Apple A Day Properties Pvt. Ltd., : Opposite parties

Apple Tower, (O.P1&2By Adv. Peeyus A Kottam,

Palarivattom-Edappally Sanish C.R., Door No. 40/9175,

Bye-pass Road, Chamber No. B-3, 1^st floor,

Edappally P.O., Kochi-682 024. Sayyed Complex, Doraiswamy

2. K.A. Saju, Managing Director, Iyer road, Cochin-35)

Poovathumoottil Kadavil,

Edappally P.O., Kochi-682 024.

3. Rajeev Kumar Cheruvara,

D.No.1/77, Chandra Nivas,

Kudiyirickkaqpallil house,

Edappally, Ernakulam.

O R D E R

Sheen Jose, Member.

The case of the complainants is as follows:

Lured by the advertisements of the opposite parties the complainants approached the office of the opposite parties in Dubai. The 1^st opposite party agreed to allot a plot of 5.05 cents, develop the same, construct compound wall and hand over the same to the complainant for a total cost of Rs. 8,17,500/-. The complainants paid initial booking amount of Rs. 10,000/-. Thereafter on 09-06-2008 the complainants paid Rs. 3,75,000/- and also issued cheque dated 30-12-2008 to the tune of Rs. 3,82,758/-. The 1^st opposite party arranged for the execution and registration of the sale deed transferring 4.3 cents of land along with 0.46% undivided share in 3.46% undivided share in 3.14 acres of land in Thaikkattussery village. The consideration for the plot and undivided share is Rs. 1,33,000/-. But the 1^st opposite party has not provided any of the amenities offered. The complainants paid a total sum of Rs. 7,67,500/-. The opposite parties are liable to refund Rs. 6,34,500/- the amount collected for common amenities The complainants are entitled to get refund of Rs. 7,67,500/- with interest. This complaint hence.

2. The version of the opposite parties is as follows:

The alleged transaction is on the basis of an agreement for joint venture development and the complainants are not entitled to get any relief from this Forum. There is no cause of action in India. As per the agreement the dispute if any arises between the parties must be referred for Arbitration.

3. The power of attorney of the complainants was examined as PW1 and Exbts A1 to A6 were marked on the side of the complainants. Neither oral nor documentary evidence was adduced by the opposite parties. Heard the learned counsel for the complainant.

4. The points that arose for consideration are as follows:

i. Whether the complaint is maintainable in this Forum?

ii. Whether the complaint is to be referred for arbitration?

iii. Whether the complainants are entitled to get refund of Rs.

7,67,500/- from the opposite parties?

5. Point No. i. According to the opposite parties the complainants and the opposite parties entered into a joint venture project which is outside the purview of the Consumer Protection Act. We are not to agree with the said contention. Since the same does not find a place in Exbts A1 and A2 agreements. Moreover according to the Hon’ble Supreme Court held in Lucknow Development Authority V. M.K. Gupta III (1994) CPJ 7 (SC) that housing construction is a service as defined in S. 2 (1) (o) of the Consumer Protection Act. The contention of the opposite parties goes.

6. Point No. ii. The Hon’ble Kerala State Consumer Disputes Redressal Commission in Awmen Capital Market (India) Ltd. Vs. Viswanathan III (2013) CPJ 4 A (N) (Ker) held that existence of arbitration clause in the agreement is no bar to entertain the complaint by Redress agency under the Consumer Protection Act. The findings of the Hon’ble State Commission applies the case at hand.

7. Point No. iii. On 20-10-2008 the complainants and the opposite parties entered into Exbt. A1 agreement for sale of plot and Ext. A2 agreement for development of plot and construction of compound wall and gate with an extent of 5.05 cents which is inclusive of 0.750 cents being the undivided share in the common amenities set apart from the project by name ‘Apple New Cochin’ for a total consideration of Rs. 8,07.500/- which in inclusive of Rs. 50,000/- being the charges for developing the plot and constructing compound wall and providing gate for the same. It is to be noted that the price of the plot is not stated in Ext. A1 and A2. Thereafter the opposite parties executed Exbt A4 sale deed in favour of the complainants in which the consideration for the plot is stated as

Rs. 1,33,000/-. As per Exbt. A9 the real consideration passed between the parties is Rs. 1,33,000/-. Indisputably the opposite parties failed to develop the property as promised by them in Exbt. A1 and A2, though the complainants paid a total sum of Rs. 7,67,500/- to the opposite parties. In that case the complainants are entitled to get refund of the balance amount after deducting the price of the property i.e. Rs. 1,33,000/-.

8. Accordingly, we partly allow the complaint and direct that the opposite parties shall jointly and severally refund Rs. 6,34,500/- (7,67,500-Rs.1,33,000 = Rs. 6,34,500) (Rupees six lakhs thirty four thousand and five hundred only) together with interest @ 12% from the date of complaint till realization.

The above order shall be complied with within 30 days from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 31^th day of January 2014.

Sd/-

Sheen Jose, Member.

Sd/- A. Rajesh, President.

Sd/-

Beena Kumari V.K., Member.

Forwarded/By Order,

Senior Superintendent.

Appendix

Complainant’s Exhibits:

Ext. A1 : Copy of agreement for sale of plot

A2 : Copy of agreement for development

of plot & Construction of compound

Wall & Gate.

A3 : Copy of letter dt.

A4 : Copy of sale deed

A5 : Copy of receipt

A6 : Copy of General Power of Attorney

Opposite party’s Exhibits: : Nil

Depositions:

PW1 : Dr. M.D. George