Kerala

StateCommission

CC/14/72

P.K THANKAPPAN - Complainant(s)

Versus

DOCTOR SHANTHIMADOM RADHAKRISHNAN - Opp.Party(s)

MATHAI T M

31 Mar 2015

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD THIRUVANANTHAPURAM

CC 72/14

JUDGMENT DTD: 31/03/15

PRESENT

JUSTICE SHRI.P.Q. BARKATH ALI, PRESIDENT 

 

SHRI.V.V. JOSE, MEMBER

                            

COMPLAINANT

 

          P.K. Thankappan,

          S/o. P.V.K. Kunju,

          House No.172, Parvathy Bhavan,

          Santhi Nagar, No.5 A Street,

          Supela P.O., Bhilai,

          Chhattisgarh – State, Pin-493338

 

(By Adv. Sri.T.M. Mathai & Adv. Sri. Joy Joseph)

 

                   Vs.

 

RESPONDENT

 

          Doctor Santhimadom Radhakrishnan,

          S/o. Narayanan, Chairman,

          Santhimadom Builders & Developers Trust,

          Santhimadom, Thekke Naluvazhi,

          Nanthyattukunnam P.O.,

          Paravoor, Ernakulam

 

JUDGMENT

 

SHRI.V.V. JOSE, MEMBER

 

          This complaint is filed under Section 17 of the Consumer Protection Act, 1986.

          2.      The complainant is a Senior Citizen and businessman by profession.  The opposite party is the Chairman of M/s. Santhimadom Builders and Developers Trust, engaged in construction work.  The complainant entered into an agreement with the opposite party for purchase of a plot and villa on 19/08/2008 in their developing site at Munimada, Guruvayoor.  This was done due to the attraction of the advertisements of the opposite party.  As per the agreement the proposed construction is in Survey No.1040 of Kandanassery village in Thalapally Taluk in Trichur District.  The cost of five cents of land and villa is Rs.35,00,000/- and to be paid in installments within one year.  The opposite party agreed to construct and handover the fully furnished villa before 18/08/2009.  Opposite party agreed to provide three acres of land to the complainant as an additional benefit in Madurai in Tamilnadu.  The complainant paid Rs.15,00,000/- on 19/08/2008, Rs.10,00,000/- on 12/11/2008, Rs.10,00,000/- on 14/05/2009 and 15/05/2009.  Altogether he paid Rs.35,00,000/-.  On 19/08/2008 the opposite party executed a sale deed No.2989/2008 of Kunnamkulam SRO for five cents of land, which was entrusted to them for construction.  Opposite party had not completed the villa though they started the construction in the year 2009.  The construction of the villa still remains unfinished and not fit for dwelling.  Opposite party is not willing to complete the construction in spite of repeated requests of the complainant.  On enquiry it was known that the required sanction for construction was not obtained from the concerned Grama Panchayath.  Again it is also understood that the proposed area of construction is under the authority of Archeological Department and construction is prohibited by them also.  Fully knowing the above facts the opposite party was misleading the complainant.

          3.      Hence this complaint for a relief of Rs.35,00,000/- with 18% interest from 15/09/2009 till the realization along with a compensation of Rs.5,00,000/- and for cost of the proceedings.  After admitting the complaint notice was ordered, but the notice was returned unserved.  Again notice was repeated. The same was also returned unserved. Commission ordered for substitute notice in news paper against opposite party.  Accordingly notice against the opposite party was published in “Kerala Kaumudy” daily on 21/01/2015.

          4.      Opposite party was called absent and set exparte on 04/02/2015.

          5.      Complainant filed proof affidavit in lieu of chief examination and marked Ext. A1 to A5.  According to proof affidavit Ext. A1 is copy of agreement for sale of plot with opposite party dated 19/08/2008.  Exts.A2 to A4 are copies of receipts.  Ext.A5 is sale deed No.2989/2008 dated 19/08/2008. 

          6.      On perusal of documents we found that, Ext.A1 is actually copy of a rental agreement along with copy of a power of attorney executed by the complainant authorising Sri.Ragesh Manu son of the opposite party.

          7.      On further perusal of records we found that the alleged copy of agreement of sale was seen as annexure 1 field along with the complaint.  It shows that complainant entered into an agreement with the opposite party for purchase of a villa in five cents of land for Rs.35,00,000/- on 19/08/2008.

          8.      Clause No.3 of the agreement shows that the completion date is 18/08/2009.  Clause No.9 provides that the opposite party will provide three acres of agricultural land in Madurai as an additional benefit.  Ext. A2 is copies of three multi – city cheques of Andhra bank for Rs.15,00,000/- .  Cheque No.210641 favoring Santhimadom builders and developers for Rs.7,50,000/- dated 19/08/2008, Cheque No.210652 favouring V.N.Radhakrishnan for Rs.3,75,000/- dated 19/08/2008.  Cheque No.210651 favouring V.N.Radhakrishnan for Rs.3,75,000/- dated 19/08/2008.  Ext. A3 is a copy of a letter of receipt for Rs.10,00,000/- dated 12/11/2008 issued by the opposite party.  Ext. A4 is a copy of letter of cash receipt for Rs.10,00,000/- issued by the opposite party.  Ext.A5 is the copy of sale deed of five cents of land in Survey No.1040 of Kandanassery Village in Thalapally Taluk in Trichur District dated 19/08/2008 executed by the opposite party in favour of the complainant along with a copy of land tax receipt and a possession certificate issued by the village office Kandanassery in the name of complainant.  The case of the complainant is that he was induced by the advertisements of the opposite party and entered into an agreement for purchase of a villa in five cents of land in Survey No.1040 in Kandanassery Village in Talapally Taluk in Thrissur District on 19/08/2008 for Rs.35,00,000/-.  The period agreed for completion of construction was one year.  Opposite party agreed to give three acres of agricultural land in Madurai as an additional benefit to the complainant.  The complainant has paid the whole amount of consideration Rs.35,00,000/- in installments.  Even though the opposite party started the construction of the villa by 2009, they have not completed and handed over the villa till now.

          9.      The evidence consists of proof affidavit, of complainant, and Ext. A1 to A5 marked by the complainant.  As the proceedings was exparte, there is no contrary evidence.

          10.    The relief sought in the complaint is to pay back Rs.35,00,000/- together with 18% interest per annum from 15/09/2009 along with Rs.5,00,000/- for mental agony and harassment for the negligence of service.

          11.    It appears true that complainant entered into an  agreement with opposite party to purchase a villa in five cents of land in Survey No.1040 in Kandanassery Village Talapally Taluk in Trichur District for Rs.35,00,000/-   This is evident from the annexure 1^st  filed along with the complaint.  Payment of Rs.35,00,000/- is evident from Ext. A2 to A4.

          12.    Ext.A5 is the copy of sale deed of five cents of land as per the agreement.

          13.    The agreement is admittedly signed on 19/08/2008.  As per the terms of agreement the opposite parties agreed to complete the villa on or before 18/08/2009.

          14.    It is true that land is conveyed in favour complainant in Kandanassery Village, but they have failed to transfer the land agreed to be conveyed in Madurai.  We do not know the details of civil work carried out in the land sold to the complainant and ear marked for construction.  But there is a mention that construction concerned in the year 2009. 

          15.    Hence we find that complainant’s case of non construction and non completion and non conveyance of the land in Madurai is genuine.  The case of the complainant is probable and hence he is entitled for relief.  At the same time since the land is already conveyed in the name of complainant and some construction is done in that site, as admitted by complainant it will be injustice to the opposite party if the complainant is granted the relief as prayed.

          16.    We feel that by directing the opposite party to refund the entire amount received from the complainant with 12% interest from the date of respective payments will render justice to the complaint.    Therefore we direct the opposite parties to refund the amount received by them as covered by Ext.A2to A4 amounting to Rs.35,00,000/-

          Ext.A2        -        19/08/2008                   -        Rs.15,00,000/-

          Ext.A3        -        12/11/2008                   -        Rs.10,00,000/-

          Ext.A4        -        15/05/2009                   -        Rs.10,00,000/-

                                                                             Rs.35,00,000/-

                                                                             ===========

 

as claimed by the complainant to the opposite party together with interest at 12% from the date of respective payments till the date of realization as above within three months.  He is also entitled to get compensation for mental agony etc. to a tune of Rs.1,00,000/-.

          17.    We direct the complainant, on receipt of the said amount he has to recovery, the five cents of land together with all developments made therein to the opposite parties at the cost of the opposite parties by appearing before the respective sub registrar and admitting and executing the sale deed in favour of the opposite party.    The stamp duty shall be paid by the opposite party for the said reconveyance. 

          18.    The complainant is entitled to the cost of this proceedings amounting to Rs.5,000/-.

          In the result, complaint is partly allowed directing the opposite party to refund the entire amount received by them amounting to Rs.35,00,000/- as detailed above with 12% interest from the date of respective payments till the realization with a compensation of Rs.1,00,000/- together with a cost of Rs.5,000/- within three months from the date of receipt of this order. We at the same time direct the complainant, on receipt of the said amount, he should reconvey the five cents of land together with all developments made therein to the opposite party at their cost by appearing before the respective sub registry and admitting and executing the sale deed in favour of opposite party.  The stamp duty shall be paid by the opposite party for the said reconveyance.

 

V.V.JOSE       : MEMBER

 

JUSTICE P.Q. BARKATH ALI   : PRESIDENT

APPENDIX

Exhibits  for the complainant:

Ext. A1: Copy of agreement for sale of plot with opposite party dated  

               19/08/2008.   

Ext.A2: Copies of three multi – city cheques of Andhra bank for  

              Rs.15,00,000/-, Cheque No.210641 favoring Santhimadom

               builders and developers for Rs.7,50,000/- dated 19/08/2008,

     ChequeNo.210652  favouring V.N. Radhakrishnan for Rs.3,75,000  

              Dated 19/08/2008.  Cheque No.210651 favouring    

              V.N.Radhakrishnan for Rs.3,75,000/- dated 19/08/2008.

Ext.A3:  Copy of a letter of receipt for Rs.10,00,000/- dated 12.11.2008 

               Issued by opposite party.

Ext.A4:   Copy of letter of cash receipt for Rs.10,00,000/- issued by the

               Opposite party.

Ext.A5:    Copy of sale deed of five cents of land in Survey No.1040 of

                 Kandanassery Village In Talappally Taluk, dated 19/08/2008.

Exhibits for the Opposite Parties:

Nil

Opposite parties witness:

Nil

 

V.V.JOSE       : MEMBER

 

JUSTICE P.Q. BARKATH ALI   : PRESIDENT

 

 

 

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