KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
CC NO.42/13
JUDGMENT DATED: 24/06/2014
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 complainant 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 advertisemtns of the opposite party in print and visual media and on the assurance of the Managing Director of the opposite party, complainant booked one appartment No. C-117 in the Apple Suit Project of the opposite party. Managing Director assured of the quality, reliability and time bounded completion of the flat. Complainant entered into an greement with opposite party for the said flat. Complainant paid Rs.11,16,093/- to the opposite party in various instalments. At the time of booking opposite parties promised and assured to complete the apartment and handover the same on 30/04/2009.
3. 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 to the complainant promising and assuring to handover the apartment on 30/04/2009 but in vain. The complainants are now convinced that the opposite party has no intention to complete the flat. Complainant prefered a registered 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. Till the date of this complaint the construction of apartment was not completed. Hence this complaint for the following reliefs. Direct the opposite party to complete and handover the appartment C-117 in their Apple Suit Project or in alternative refund the amount of Rs.11,16,093/-. 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 instalment till date of realisation and costs.
4. After admission of complaint, 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.
5. Proof affidavit in lieu of the chief examination was filed by the complainant and seven documents were marked Ext. A1 – A7. According to the affidavit Ext. A1 is copy of an agreement with the opposite party for the said flat. Ext. A2 is the details of payment. Ext. A3 is the copy of the revised schedule. Ext. A4 is the copy letter sent by the opposite party. Ext. A5 is the copy of compensation schedule. Ext. A6 is the acknowledgement card of the legal notice. Due to discrepency in affidavit . We have gone through the documents produced.
6. Ext.A1 is actually the copy of sale deed No.6525 dated 5th October, 2007 for a consideration of Rs.51,600/-. Ext. A1(a) is the copy of agreement of sale of undevided share in land. Ext.A1(b) is an agreement for construction of appartment dated 29/06/2007 for Rs.10,00,000/- Ext.A2 is the payment details.
7. Ext.A2 series includes six documents.
1, Receipt No.205 dated 8/5/2007 Rs. 10000/-
2, Receipt No.279 dated 19/5/2007 Rs.140000/-
3, Receipt No.NIL dated 25/5/2007 Rs.190000/-
4, Receipt No.838 dated 17/7/2007 Rs. 6093/-
Rs.346093/-
5, A letter from HDFC addressed to M.G. Shirol which includes
the details of documents released on loan a/c No.3141442226
dated 23/2/2010.
6, A letter to whom it may concern to show that the loan No.314144226 is closed dated 23/3/2010 for Rs.7,70,000/-
8. Ext.A3 is the schedule of balance work. Ext. A4 copy of letter sent by the opposite party. Ext. A5 is a list of persons booked flats with their details of payment. Ext. A6 copy of legal notice. Ext. A7 is the AD card of the legal notice.
9. In the complaint the amount paid is shown as Rs.11,16,093/-. But the payment details enlisted in Ext.A2 shows payment of only Rs.346093/-.
10. The copy of letter produced from HDFC bank cannot be taken as a receipt. It only shows an amount of Rs.7,70,000/- was taken as loan by the complaint. But nothing shows that amount is paid to the opposite party and no receipt is produced.
11. Ext.A2 will show a receipt of Rs.51,600/- as consideration by the opposite party which forms part of the total contract. So according to us an amount of Rs.3,46,093/- alone was paid by the complainant to the opposite party for land and apartment as seen in the records and exhibits. It is also seen that as per Ext.A2 opposite party has conveyed 0.529% undevided share in the name of complainant for apartment No.C-117 (37.16 sq. Meter or 400 square feet)
12. We have given ample oppertunity 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 didn’t co-operated.
13. Another thing to be noted is that the complainant failed to submit the quantum of work done for the apartment. If any work is done it will be in the credit of the complainant.
14. Considering all the facts above we are of the opinion that the opposite party committed deficiency of service by receiving Rs.3,46,093/- and not completing and handing over the flat to 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.3,46,093/- with 9% interest from 29/6/2007 till payment. We direct the complainant to re-convey the undevided 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.346093 and interest at the cost of the opposite party by appearing before the respective subregistry and admitting and executing the sale deed in favour 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 proceedingsamounting to Rs.5,000/-
V.V. JOSE: MEMBER
JUSTICE P.Q. BARKATH ALI: PRESIDENT
APPENDIX
Exhibits for the complainant:
1, Ext. A1: Agreement of sale of plot No.135
2, Ext. A1(a): Agreement for sale of plot No.143
3, Ext.A1(b): Agreement for construction of appartment
4, 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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