DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the  31^st day of  October, 2023 

Present      :    Sri. Vinay Menon V., President

                   :    Smt. Vidya A., Member

                  :   Sri. Krishnankutty N.K., Member                               Date of Filing:  17/09/2019 

                                                                                  CC/225/2019

R. Vaitheeswaran Iyer,

S/o. Ramalinga Iyer,

Vadakke Madom, Chelakode (PO),

Thrissur – 680 587                                                             -                     Complainant     

      (By Adv. C.G.Pramod)

                                                                                                Vs

1. Classic Builders,

7/118, 1^st Floor,

Krishnakanthi Road,

Puthur, Palakkad – 678 001

Rep. by R. Premalatha

2. N.K.Ramakrishnan,

S/o. Krishna Swamy,

NG 377, V.R. Puram Street,

Pirayiri, Nurani, Palakkad.

3. N.V.Hariharan (Died pendent lite),

S/o.Viswanatha Iyer,

Akshay, 21/580, Aiswarya Nagar,

Pirayiri, Nurani, Palakkad

4. V. Chandrasekharan,

S/o. Viswanatha Iyer,

2B, Capital Village Extension,

Pirayiri, Nurani, Palakkad

5. R. Premalatha,

W/o. K.V. Rajesh Subramanian,

4/483, Sree Ganesh,

Pirayiri, Nurani, Palakkad

Supplemental OPs (impleaded vide  order dated 13/3/2023 in IA 8/2022 as LRs of deceased 3^rd OP)

6. Vijayalakshmi,

W/o. Late N.V. Hariharan,

Akshay, 21/580, Aiswarya Nagar,

Pirayiri, Nurani, Palakkad

7. N.H. Venkitaraman,

S/o. Late N.V. Hariharan,

( do – do)

8. N.H. Anand,

S/o. Late N.V. Hariharan,

( do – do)                                 -                       Opposite parties 

  (OPs 1,2,4 & 5 by Adv. G.Ananthakrishnan

   OP 3 died pendent lite;    OPs 6, 7 & 8 no representation)

O R D E R

By  Sri. Vinay Menon V., President  

1.         Complainant is a vendee of an apartment in an apartment complex constructed by OPs   1 and 5 in a plot of land owned by OPs 2 to 4. During the pendency of this complaint   OP3 died and his legal heirs were impleaded as additional OPs 6 to 8.

2.         Delay in construction of the apartment complex and compensation for the delay marks the entire pleading matrix. Scouring through the pleadings, the essential materials that can be assimilated are that subsequent to execution of an agreement with the opposite party during 2014, the opposite party had inordinately delayed the construction of the building even though the complainant had been making prompt payments as and when demanded by the OPs.  The complainant also grieves that the apartment is of lesser area that the agreed extent. During the pendency of construction, the complainant apprehended that the opposite parties would resell the property to some other vendee and had filed an Original Suit before the Munsiff’s Court, Palakkad. Even if the construction was not completed, the complainant had to remit the loan amounts causing heavy loss.  Complainant has also pleaded that he is ready and willing to take possession of the apartment.

3.         The opposite parties contested complaint pleadings stating that they had acted in            accordance with the terms and conditions and it was the complainant who had failed to      effect payments in accordance with the terms and conditions.  They sought for          dismissal of the complaint.

 4.        Based on the pleadings and counter pleadings, the following issues were framed:

1. Whether there was delay in construction of the apartment?

2. Whether there is any reduction in area of the apartment from what was agreed    between the parties?

3.  Whether the complainant delayed his payments?

4. Whether the complainant has incurred any losses?

5. Whether the complainant is entitled to the reliefs sought for?

6.  Any other Reliefs?

5.         (i)         Complainant filed proof affidavit and marked Ext. A1 to  Ext. A8.   Marking of                   Exts. A2, 3 & 7 are objected on the ground they are photocopies. Marking of             Ext.A5 was objected to on the ground it is a photocopy of a commission report.                     Marking of Ext. A6 is objected to on  the  ground it does not accompany a               certificate as   contemplated under  Indian  Evidence  Act.

                                    Since this Commission  is not bound by Indian Evidence Act and as  the                  opposite parties have no case  that these documents are forged, the objections                   raised by the OPs are over-ruled.

            (ii)        Complainant was examined as PW1 and the Advocate Commissioner who                         prepared Ext.A5 was examined as PW2.

            (iii)       O.P. filed proof affidavit but they did not have any documents to mark.

            (iv)       OP5 was examined as DW1.

Issue No. 1

6.         One of the major contention of the complainant is that subsequent to execution of the    sale agreement in 2014, the opposite party had failed to hand over the property within          the stipulated time. The case of the OP is that they had completed construction in       accordance with the terms and conditions but it was only due to the delayed payments       effected by the complainant that possession could not be handed over.

7.         In order to ascertain whether there was timely completion we need to go through           schedule C of Ext.A1. Ext.A1 is the agreement for construction / sale.  Schedule C is the payment schedule. As per this Schedule, work is intended to start on June 2014 and   finishing woks are to be carried out by March 2016.

8.         The complainant had produced Ext.A8 which is an application seeking renewal of             permit by the deceased OP3 to the Secretary, Palakkad Municipality. The said     communication is dated 24/1/2017 evidencing the fact that the construction was      not completed during 24/1/2017 and a studied and fair presumption that it took more       time for completion.

            Thus we hold   that there was a delay in construction.

 Issue No. 2

9.         Another grievance of the complainant is that he was given a flat with lesser area than that was agreed upon by the parties.  He apprehends that there is a reduction of nearly 200 sq.ft. This apprehension was stoutly denied by the opposite parties. They maintained vehemently that the complainant was handed over an extent of property as was agreed upon in Ext.A2 agreement.

10.       Ext.A2 agreement, entered into between the complainant and O.P.5 acting for and on behalf of the 1^st O.P. states in its introductory paragraph in page 3 that the apartment purchased by the complainant is having a super built up area of 1240 sq.ft. Schedule B in Ext.A1 also shows that the extend is 1240 sq.ft. Therefore it was incumbent on the complainant to prove that the super built up area that was handed over to him was less than 1240 sq.ft. 

11.       Complainant’s case is that his flat area is less that 1240 sq. ft. During the proceedings, the complainant had not taken any independent steps to prove this allegation. Even though the complainant tried desperately to hang on to the report filed by the Advocate Commissioner in the Original Suit pending before the Munsiff’s Court, Palakkad (Ext.A5), said document and deposition of the Advocate commissioner was of no assistance what so ever to assist the case of the complainant as the evidence rendered by the Advocate Commissioner turned out to be based on conjectures and presumptions and not based on actual measurement.

12.          Relevant portion of Ext. A5 report  is as herein below:

                Para 3, page 7   “IqSmsX A\ymb]«nI hlIfpsS hnkvXoÀ®w ]cntim[n¨Xn Sn      hlIÄ¡v kpamÀ 750 sq.ft. F¶v a\Ênembn. F¶m Icmdn 1240 sq.ft. F¶v        tcJs¸Sp¯nbncn¡p¶p. Sn kwKXn A\ymb`mK¯nsâv Bhiy{]Imcw ]cntim[n¨Xn       \n¶v a\Ênem¡nbn«pÅXmWv. BbXv IrXyambn Af¶v Xn«s¸Sp¯phm³ FIvkvs]À«nsâ klmbw BhiyamWv.”

                                This Commissioner was examined as PW2 wherein she deposed that measurements     were based on guesswork. In Ext.A5 report as well as her deposition she has made it clear          that the extent                 had to be ascertained by an Expert Commissioner.

13.       After a lengthy conduct of the proceedings and after evidence was closed, the complainant came up with an application as IA 517/2023 seeking appointment of an expert commissioner when the matter was posted for argument notes and evidence. Since this application was grossly delayed owing to the negligence and laches on the part of the complainant and was only an attempt to bridge the gap in the lacunae of evidence, this I.A was dismissed.

14.       Therefore, we hold that the complainant had failed to prove that there was reduction in the super built up area.

            Issue No. 3

15.       O.P.s main contention is that the complainant failed to pay the installments in time, thereby delaying the work. Since this is the subject matter of a civil suit pending, we refrain from considering the matter herein.

            Issue No. 4

16.       Yet another grievance of the complainant is that even though construction did not  proceed according to plan, he was forced to remit installments due from him to the bank and therefore he had to incur loss.  We are unable to concur to this pleading.

17.       Even though there was a delay in handing over of the apartment, the installments that the complainant had to pay and the interest rate are not connected to construction of the apartment.  The complainant also has no case that the opposite  parties had sold the apartment to a 3^rd party rendering him homeless or led him to losses. Thus we hold that the contention merely because there was a delay, he incurred losses is unsubstantiated and unsustainable.  

            Issue Nos.5 & 6

18.       In the relief portion, the complainant has sought for 6 reliefs.

            A.         The first relief is for Rs.5,40,000/- for the shortage of approximate 200 sq.ft. in    the total 1240 sq.ft area of the flat. 

                                    As already decided in issue No.2 the complainant has failed to prove that             there is a reduction in area as pleaded by him. Hence this relief is disallowed.

            B.         The complainant has sought for Rs.4,26,082/- as repayment made by the complainant towards the loans availed from UCO bank for purchasing the flat           since one for 2016 to 31/3/2019. 

                                    In view of the finding in issue No.4 we hold   that the complainant is not    entitled to this relief.

            C.         The 3^rd relief pertains to compensation to a tune of Rs.5 lakhs for the inordinate delay caused on completion of the construction of the flat.  

                                    As already concluded in the discussion pertaining to issue No.1  we are of             the opinion that there is merit in seeking compensation for the delayed            constructions. The opposite parties have failed to prove that the delay             occurred due to any matters beyond their control. The             complainant is,           therefore entitled to compensation but we are also of the opinion that the             demand for Rs.5 lakhs is exorbitant.

                                    We hold that a compensation of Rs. 2 lakhs would suffice in the    facts    and circumstances of the case.

            D.         The complainant has sought for a further compensation of Rs.5 lakhs for mental agony and frustration sustained to unfair trade practice and deficiency in       service.

                                    In view of compensation of Rs.2 lakhs already granted we are refraining   from allowing this relief.

            E.         Reliefs E&F in the relief portion pertain to cost and incidental reliefs. 

                                    In the   facts and circumstances we are satisfied that the complainant is    justified in seeking a cost of Rs.25,000/-.  We are granting the cost as sought for.

            F.         This order is to be complied by OP 1 & its partners, present and past as in the      periods in dispute.

19.       For easy reference, we summarize the executable portion of the findings above as below:

            A.         The complainant is entitled to a compensation of Rs. 2 lakhs as compensation      for delay in construction of  the apartment.

            B.         Complainant is entitled to a cost of Rs. 25,000/-.

            C.         The above order shall be complied by effecting payment within 45 days from the             date of receipt of a copy of this order by the opposite parties, failing which the     opposite parties  shall pay a solatium of Rs. 500/- per month or    part thereof    from the date of this order till date of settlement of the amounts          payable as       per this order.

                        Pronounced in open court on this the  31^st  day of October,  2023.     

                                                                                                                                  Sd/-

                                                                                                            Vinay Menon V

                                                                President                                                                                                     Sd/-

                                                             Smt. Vidya A.

                                                                 Member

                        Sd/-

              Krishnankutty N.K.

                                                                                                                     Member

APPENDIX

Exhibits marked on the side of the complainant :

Ext.A1 –    Copy of agreement for construction / sale dated 31/3/2014

Ext.A2 –    Copy of communication dated 24/1/2018  

Ext.A3 –    Copy of communication dated 24/1/2019

Ext.A4 –   Copy of brochure      

Ext.A5 -    Copy of commission report  dated 19/5/2019      

Ext.A6 -    Copy of certificate dated 25/4/2019  

Ext.A7 -    Copy of Ext.A8

Ext.A8 -    True copy of application dated 24/1/2017   

 Exhibits marked on the side of the opposite party: Nil

 Court Exhibit:  Nil

Third party documents:  Nil

Witness examined on the side of the complainant:

PW1 – Vaitheeswaran Iyer (Complainant)

PW2 – Adv. Deepa (Advocate Commissioner)

Witness examined on the side of the opposite party:  

DW1 – Premalatha (OP5)

 Court Witness: Nil

NB : Parties are directed to take back all extra set of  documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.