BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 21/06/2011

Date of Order : 31/05/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 323/2011

Between

And

O R D E R

Paul Gomez, Member.

1. The following facts prompted the complainant to approach the Forum :

The complainant made agreements on writing with the opposite party for the purchase of 0.18% of undivided share of land in Eloor Village and construction of the apartment No. E-115 on the 5^th floor in the multi-storied building complex under the name 'Apple Ice'. The total consideration for both was fixed as Rs. 24,50,250/- (Rupees twenty four lakhs fifty thousand tow hundred and fifty only). This agreement was entered into on the basis of the undertaking to deliver the apartment on completion within a time limit of 30 months. The construction has not yet been commenced. In that view, this complaint is filed demanding the following reliefs :-

1. To pay the complainant the sum of Rs. 19,15,825/- along with future interest at the rate of 18% p.a. on the principal sum of Rs. 12,44,042/- from this date upto date of payment, being refund of the consideration taken by the opposite party from the complainant along with interest.

2. To pay the complainant a sum of Rs. 75,000/- being compensation for the injury/loss along with future interest at the rate of 18% p.a. form the date of this complaint upto the date of payment.

3. To pay the complainant the costs of this proceedings.

4. To grant such other and further reliefs as this Forum deems fit to grant in the facts and circumstances of the case.

2. Notice of the opposite party was served, but they chose to remain absent. The complainant has no oral evidence. Exts. A1 to A7 were produced by the complainant which were marked on his side. I.A. 353/2011 was partly allowed. The counsel for the complainant was heard.

3. The outstanding points requiring settlement are :

1. Whether there is violation of the agreement entitling the complainant for the reliefs sought?

2. What are the reliefs in addition to the above, if any?

4. Point No. (i) :- This complaint is filed against a construction company, a pioneer in the field of construction according to their own estimation which is the claim made in Ext. A7 reply notice. In the said reply notice, it is admitted that there is delay in completion, but they attribute the cause for the same to reasons beyond their control. These mitigating circumstances are pleaded in Ext. A7 reply notice. Whereas the opposite party remained ex-parte in the proceedings, no such pleadings can be taken into account in the disposal of the complaint, that too without corroboration with cogent evidence. In that view of the matter, we find no reason to dismiss the complaint and hence we come to the conclusion that Ext. A1 and A2 agreements have been violated by the opposite party entailing the consequences of deficiency in service.

5. Point No. ii) :- The consequential remedy is refund of the sums paid by the complainant along with interest. The percentage of interest sought by the complainant is 18%, which we think is on the higher side. Taking into account, the global economic melt down, we think interest @ 12% p.a. will meet the ends of justice. It is also contended that in this case the complainant spent such amount towards rent for alternative accommodation. But there is want of materials to substantiate the above point. In that view, such a pleading cannot be upheld. Also, the complainant has sought payment of compensation on the ground of mental suffering and agony undergone by him by dint of failure on the part of the opposite party in executing the work in time. We think the said pleading looks sustainable, as it is quite imaginable, the heart burn and disappointment that would be brought about when the complainant realises that the project has ultimately fell through. Therefore on this score, the complainant deserves solace in the form of compensation. Lastly, the proceedings have been thrust upon the complainant by the opposite party for which they are accountable in terms of costs.

6. As a consequence, we allow the complaint as follows :-

1. The opposite party shall refund Rs. 12,44,042/- (Rupees Twelve lakhs forty four thousand and forty two only) to the complainant along with interest @ 12% p.a. from the date of receipt of this order till payment.

2. The opposite party shall also pay Rs. 50,000/- (Rupees Fifty thousand only) as compensation for mental agony suffered at the hands of the opposite party to the complainant.

3. Finally, the opposite party shall pay Rs. 1,000/- (Rupees one thousand only) towards costs of these proceedings.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 31^st day of May 2012.

Sd/- Paul Gomez, Member.

Sd/- A. Rajesh, President.

Sd/- C.K. Lekhamma, Member.

Forwarded/By order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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