KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

CC.NO.67/2012

JUDGMENT DTD : 25.03.2014

PRESENT

SRI.K.CHANDRADAS NADAR     : JUDICIAL MEMBER

SMT.A.RADHA                               : MEMBER

SMT.SANTHAMMA THOMAS      : MEMBER

1.K.S.R.Menon,

Kottackal,

Sasthamangalam,

Thiruvananthapuram

                                                                        COMPLAINANTS

2. Radhika Menon,

Kottackal,

Sasthamangalam,

Thiruvananthapuram

(By Adv.Prabhu Vijayakumar, TVPM)

Vs.

Apple A Day Properties Pvt Ltd,

Apple Tower,

Palarivattom,                                                       OPPOSITE PARTY

N.H.Bye Pass,

Edappally,

Ernakulam Represented by

Its Managing Director,

Saju Kadavilam

JUDGMENT

SRI.K.CHANDRADAS NADAR     : JUDICIAL MEMBER

This is a complaint filed Under Section 17 Consumer Protection Act. The opposite party, Apple A Day Properties Pvt.Ltd represented by its Managing Director is a builder. The allegations in the complaint are that, believing the promises and assurances in the advertisements and also the personal promises and assurances of the Managing Director of the opposite party, the complainants booked apartment nos.D135 & D 137 in the Apple Suite Project of the opposite party. The complainants entered into agreement with the opposite party for purchasing the said flats and authorizing the opposite parties to effect construction on their behalf. Till the date of complaint the complainants had paid an amount of Rs.13,22,689/- towards the value of the apartments and the undivided share in the property. The opposite party assured that the apartments would be completed and handed over to the complainants on or before 30.03.2010. The payments were made believing the above assurance.

          2.      But inspite of repeated requests, the opposite party failed to complete construction as agreed. They went on delaying the construction under one pretext or another. The opposite party had sent letter to the complainant assuring that the apartments would be completed and handed over to the complainants by 30.06.2010. The opposite party had acknowledged the delay and that the delay occurred due to their fault and had promised to provide amenities like wooden flooring etc free of costs as token of their appreciation. Despite the above letter the opposite party failed to complete construction of the apartments. Even half of the work has not been done by the opposite party. They failed to complete construction as per the revised schedule also. The complainants are convinced that the opposite party has no intention to complete and hand over the apartments to the complainants. Hence they sent notice through their lawyer seeking the opposite party to complete construction and hand over possession of the apartments and pay compensation of Rs.15 lakhs. The opposite party failed to respond though notice was received by them. The complainants have lost interest on the invested amount of Rs.13, 22,689/-. The opposite party thus has committed unfair trade practice and deficiency in service. Hence the complaint for direction to the opposite party to complete and hand over apartment nos. D 134 & D 137 in their Apple Suite Project to the complainants within a period to be fixed by this commission and to direct the opposite party to pay compensation of Rs.15,00,000/- with interest. Interest at the rate of 18% per annum is claimed for the invested amount of Rs.13,22,689/- from the date of payment of the first instalment till date of realization.

          3.      Notice was served on the opposite party but the opposite party remained exparte. The first complainant filed proof affidavit and tendered for cross-examination as PW1. Exts.A1 to A10 were marked on the side of the complainants. Two documents subsequently produced were marked as Exts.A11 and A12.

          4.      The opposite party neither appeared before this commission to answer the allegations nor participated in the proceedings. Hence the factual allegations are undisputed. Ext.A1 is the photocopy of the sale deed executed between the parties. As per Ext.A1 undivided share in the property where the apartments were proposed to be constructed together with the right to construct apartment No.D 134 in the third floor with superbuilt up area of 27.87 sq.mtrs in the proposed building by the name Apple Suite including undivided share in common areas, was sold to the complainants for a consideration of Rs.11,600/- . It is pertinent to notice that Ext.A1 relates to apartment No. D 134 only. But Ext.A11 document is produced subsequently to show that the complainants have entered into an agreement for construction of apartment No.D 137 with the opposite party as per which they agreed to complete the construction for Rs. 9 lakhs. There are unmarked photocopies of agreement for construction of apartment No.D 134 and a tripate agreement between the builder complainants and the Federal Bank Limited for financing the purchase. But the bank has not affixed its signature. As per the agreement for construction of apartment No.D 134 the builder agreed to effect construction of the said flat for a total construction cost of of Rs.9 lakhs inclusive of land value of Rs.14,500/- (in this regard the amount varies with the amount mentioned in Ext.A1.) Payment schedule is given in the agreement itself. The builder agreed to complete construction on or before 30.04.2009. Ext.A2 series are photocopies of receipt vouchers issued through Federal Bankand UTI Bank for various amounts.

          5.      The complainants subsequently produced Ext.A12 issued from the Federal Bank, Pachalam branch which confirms that two housing loans with limits of Rs.8,45,000/- each were sanctioned to the complainants and respectively Rs.43229/- and 447312 were disbursed. Further one loan is already closed by the complainants.

          6.      Thus the available evidence shows that there was agreement to build and sell apartment nos D 134 and D 137 in the project of the opposite parties Apple Suite.

          7.      Obviously, the opposite party failed to effect construction even within the revised time schedule which is deficiency in service on their part. Therefore the complainants are entitled to reasonable compensation on this account.

          In the result, the complaint is allowed and opposite party is directed to complete and hand over possession of apartment nos. D 134 and D 137 in their Apple Suite Project to the complainants within 6 months from the date of order, failing which they are directed to pay to the complainants Rs.13,22,689/- with interest at the rate of 9% per annum from the date of complaint till date of payment. The opposite parties are also directed to pay compensation of Rs.1 lakh to the complainants for their deficiency in service and costs of Rs.5000/-.

K.CHANDRADAS NADAR   : JUDICIAL MEMBER

A.RADHA                               : MEMBER

SANTHAMMA THOMAS      : MEMBER

APPENDIX

List of witness for the complainant

PW1                    -        K.S.Ramachandra Menon

Exts. for the complainant

 Ext.A1                          -  Photocopy of the sale deed

Ext.A2                           -  Photocopies of receipt vouchers

Ext.A3                           - Revised balance works schedule Apple Suite

Ext.A4                           - Copy of letter

Ext.A5                           - Copy of compensation schedule

Ext.A6                           - Copy of letter promising compensation

Ext.A7                           - Copy of Lawyers Notice

Ext.A8                           - Copy of postal receipt

Ext.A9                           - Copy of acknowledgment card

Ext.A10                         - Letter from Federal Bank dated :17.07.2013

Ext.A11                         - Agreement for construction of apartment

Ext.A12                         - Two housing loans details statement

K.CHANDRADAS NADAR   : JUDICIAL MEMBER

A.RADHA                               : MEMBER

SANTHAMMA THOMAS      : MEMBER

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