BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the day of 30th day of April 2012 Filed on : 01/10/2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member
Smt. C.K. Lekhamma, Member
C.C. No.522/2010
Between
T.P. Balachandra Panicker, : Complainant
8F, JM CRESENT (party-in-person) P.J. Antony road,
Edappally P.O., Kochi-24.
And
DLF Southern Towns Pvt. Ltd., : Opposite party
Rep. by Chief Executive Officer, (By Adv. Nithin George,
PDR Bhavan, Palliyil Lane, M/s. Menon & Pai, I.S. Press road,
Foreshore road, Kochi-16. Ernakulam, Kochi-682 018)
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant had placed an order for apartment with the opposite party in project of the opposite party by name ‘New Town Hieghts DLF-Kakkanad’ for a total consideration of Rs. 33,72,020/-. The complainant had handed over a cheque to the tune of Rs. 3,00,000/- dated 30-08-2008 towards the 1st instalment which was realized by the opposite party. The opposite party had agreed to complete the construction of the apartment by the end of 2009 wherein they failed forfeiting their claim even for the advance amount let alone the agreed amount on completion. The opposite party intimated the complainant that they would allot the flat if the complainant pay additional amount of Rs. 2,39,515.74/-. In addition to the agreed price. The opposite party intimated that in case the complainant did not comply with the same. The initial instalment of Rs. 3,00,000/- would be forfeited. The above act of the opposite party is illegal and unfounded. The complainant is entitled to get the apartment for the price agreed between them or in the alternative he is entitled to get the advance amount refunded with interest. Thus the complainant is before us seeking direction against the opposite party either to provide him with the apartment agreed upon or in the alternative to refund of Rs. 3,00,000/- with interest together with costs of the proceedings.
2. The version of the opposite party is as follows.
This complaint is not maintainable in this Forum. The dispute involved in this complainant is to be adjudicated by a Civil Court or through arbitration. In accordance with the agreement between the parties there is no deficiency in service on the part of the opposite parties. The opposite party as seller of the opposite party is not a service provider and the complainant being buyer of the apartment is not a consumer. The complainant has filed the complaint with a view to derive wrongful gain on false and baseless contentions. The present complaint is outside the pecuniary jurisdiction of this Forum since the value of the services in question is much more than Rs. 2,00,000/-. The complainant had booked an apartment for a total sale price of Rs. 33,10,320/- + the IBMS charges of Rs. 67,100/-. The complainant has paid the booking amount which is treated as the earnest money amounting to Rs. 3,00,000/-. The opposite party agreed to deliver the possession of the flat within 36 months of the execution of the agreement. The complainant has not yet returned the signed agreement to the opposite party. The complainant failed to remit the further instalments. The complainant was given the option to make payment as per the construction linked payment schedule and asked to sent to the opposite party the signed supplementary agreement in which he failed. As per the agreement the opposite party is not required to sent reminders or notices to the complainant. In spite of repeated reminders the complainant failed to make any payment further. As per the agreement the opposite party is entitled to forfeit the advance amount. The present complaint is devoid of any merit and liable to be dismissed.
3. The power of attorney of the complainant was examined as PW1 and Exts. A1and A2 were marked on the side of the complainant. Neither oral nor documentary evidence was adduced on the part of the opposite party. Heard the counsel for the parties. 4. The points that came up for consideration are as follows:
i. Whether the complaint is maintainable in this Forum?
ii. Whether the complainant is entitled to get delivery of the flat
or in the alternative to get the advance money refunded?
iii. Whether the opposite party is liable to pay costs of the
proceedings to the complainant?
5. Point No.i. At the threshold the opposite party raised the question of maintainability of this complaint in this Forum. This Forum vide order in I.A. No. 440/2011 dated 24-10-2011 rejected the contention of the opposite party that the complaint is not maintainable by relying on the decision rendered by the Hon’ble Apex Court in Lucknow Development Authority V. M.K. Gupta III (1994) CPJ 7 (SC) and Ghaziabad Development Authority V. Balbur Singh II (2004) CPJ 12 (SC). The said order has not been challenged by the opposite party and the same has to be taken conceded and agreed though the agreements in this case for and against being so transparent especially in the light of the Apex Court’s decision no further interference is called for.
6. Point No. ii. The very fact that the complainant had bonafide paid an amount of Rs. 3,00,000/- can’t be challenged by the opposite party who has invariably failed in the contract. By the very face of facts the complainant has been put to irreparable injury for which the opposite party alone is answerable even though repudiations have been raised by the opposite party but legally unsustainable. This Forum is not to sustain the act of the opposite party in holding back the amount of Rs. 3 lakhs seemingly collected as earnest money though not mentioned so and unexplained otherwise. There is nothing before us from the opposite party to sustain that they had had a pecuniary loss due to the non-completion of the implied contract. For the grounds stated above we have no hesitation to hold that the complainant is entitled to get and the opposite party is liable to pay back the amount of Rs. 3 lakhs with interest.
7. Accordingly we allow the complaint in pat and direct that the opposite party shall pay Rs. 3 lakhs to the complainant for the reasons stated above.
The above said order shall be complied with within a period of 30 days from the date of receipt of a copy of this order, failing which the above amount shall carry interest @ 12% p.a. till payment.
Pronounced in the open Forum on this the 30th day of April 2012
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits:
Ext. A1 : Copy of cancellation letter
dt. 28.10/2010
A2 series : photographs
Opposite party’s exhibits: : Nil
Depositions:
PW1 : T.P.Balachandra Panicker,
Copy of order despatched on :
By Post : By Hand:
