Kerala

StateCommission

A/14/162

M/S DLF SOUTHERN TOWNS PVT LTD - Complainant(s)

Versus

C.R PARAMESHWARAN PILLAI - Opp.Party(s)

MENON & PAI

30 Jan 2016

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION  VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL NO.162/14

 

JUDGMENT DATED: 31.01.2016

 

PRESENT : 

JUSTICE SHRI. P.Q. BARKATHALI                         :  PRESIDENT

SHRI.V.V JOSE                                                           : MEMBER

 

1. M/s DLF Southern Towns Pvt. Ltd.,

B34, Inner Circle Canaught Place,

New Delhi-110 001.

 

2. M/s DLF Southern Towns Pvt. Ltd.,                              : APPELLANTS

P.D.R. Bhavan, Palliyil Lane,

Forshore Road, Cochin-682 016.

Now at:

Opposite Doordarshan Kendra,

Seaport Airport Road,

Kakkanad P.O, Cochin-682 030.

 

(By Adv: M/s Menon & Pai)

 

            Vs.

 

1. C.R. Parameswaran Pillai,

S/o P.S. Kumara Pillai,

Residing at Hari Om,

Iyyattil Junction,

Kochi-682 011.

                                                                                                : RESPONDENTS

2. Prema V. Nair,

W/o C.R. Parameswaran Pillai,

Residing at Hari Om,

Iyyattil Junction,

Kochi-682 011.

 

(By Adv: Sri. George Cheriyan)

JUDGMENT

 

JUSTICE SHRI. P.Q. BARKATHALI:  PRESIDENT

 

This is an appeal filed by the opposite parties in CC.129/2011 on the file of Consumer Disputes Redressal Forum, Ernakulam, challenging the order of the Forum dated December 21, 2013 directing the opposite parties to refund Rs.11,02,607/- paid by the complainant  with interest.

2.      The case of the complainant as testified by him as PW1 before the Forum and as detailed in the complaint in brief is this:-

Complainants are husband and wife.  They booked an apartment of the opposite parties in their project by name ‘new town height DLF Kakkanadu’ by paying Rs.4,00,000/-.  Opposite parties agreed to complete the construction before October, 2011.  On October 23, 2008 opposite parties issued an allotment letter allotting Flat No.23 for a total price of Rs.40,89,130/-.  Complainants executed an agreement and returned the same to the opposite parties on December 24, 2008.  On that day itself they paid Rs.4,01,896/-.  On January 29, 2009 complainants effected payment of 3^rd instalment of Rs.3,00,711/-.  The opposite parties did not complete the construction in time.  Therefore complainants filed this complaint claiming refund of the amount paid by them with interest.

3.      Opposite parties are M/s DLF Southern Town Private Limited, New Delhi and its Branch Manager at Kochi.  They in their version contended thus before the Forum.  The complaint is not maintainable.  The agreement sent to the complainants was not returned to the opposite parties.  Complainants failed to pay the instalments in due time.  Complainants have failed to make the payments of six instalments.  Therefore opposite parties cancelled two allotment and forfeited the earnest money.

4.      The first complainant was examined as PW1 and Exts.A1 to A16 were marked on his side and on the side of opposite parties DW1 was examined and Exts.B1 to B33 were marked before the Forum.  On an appreciation of evidence Forum found that complaint  is maintainable and that the complainant is entitled to refund of the amount paid to them and directed the opposite parties to pay Rs.11,02,607/- with interest at 12% per annum.  Opposite parties have now come up in appeal challenging the said order of the Forum.

5.      Heard both the counsels.

 

6.      The following points arise for consideration:-

1. Whether the complaint is maintainable?
2. Whether the complainants are entitled to refund of the amount paid by them?
3. Whether the impugned order of the Forum can be sustained?

 

7.      Under section 2(1)(O) of the Consumer Protection Act, housing construction is a service under the purview of the Consumer Protection Act.  The Hon’ble Apex Court in Lucknow Development Authority Vs. M.K.Gupta III (1994) CPJ 7 (SC) and in Ghaziabad Development Authority Vs. Balbir Singh II (2004) CPJ 12 (SC) has upheld the above view.  Therefore complaint is maintainable.  The finding of the Forum on this point is confirmed.

 8.     The complainants claimed refund of Rs.11,02,607/- paid by them for the construction of the apartment.  The specific case of the opposite parties is that as the complainants failed to pay few instalments allotment was cancelled and they have forfeited the earnest money.  There is no merit in the above contention of the opposite parties.  In Ext.B1 agreement complainants have not signed.  Therefore it is not binding on the complainants.  Even in Ext.B1 there is no specific clause to the effect that opposite parties can forfeit earnest money as the opposite parties have not completed the construction within time.  Complainants are entitled to refund of the amount paid by him.  The finding of the Forum on this point is confirmed.

9.      The Forum directed the opposite parties to refund Rs.11,02,607/- with interest at the rate of 12% per annum from the date of each payment till realization.  We find no ground to interfere with the said finding of the Forum.

In the result appeal is dismissed with a cost of Rs.5000/-.

 

 

JUSTICE P.Q. BARKATHALI:  PRESIDENT

 

 

V.V JOSE  : MEMBER

 

VL.