PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 14th day of May 2012
Filed on : 01/03/2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member.
C.C. No. 123/2011
Between
E. Venkat Sai, : Complainant
94-C, IInd Cross Street, (By Adv. Lakshmi Narayan,
Venkatesa Nagar, Doraiswami Iyyer road,
Virugambakkam, Kochi-35)
Chennai-600 093.
And
Galaxy Homes Pvt. Ltd., : Opposite party
Door No. CC 44/464, (By Adv. M. Rishikesh Shenoy
Kaloor, Kochi-17, Associated chambers,
rep. by its executive Director Lawyers & Consultants, Ilam,
Thadevus V.C.) 209, Main Avenue,
Panampilly Nagar,
Cochin-36)
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant entered into an agreement for construction of a flat with the opposite party in their project Galaxy Winston having 72 flats. As per the agreement the complainant was allotted Flat C5 in the 5th floor for a total consideration of Rs. 18,03,799/-. The complainant was to pay the last 2 instalments of Rs. 63,000/- each to the opposite party. The opposite party agreed to hand over the possession of the flat on 30-06-2009. However the opposite party has failed to hand over the possession of the flat till date. The facts being so the opposite party demanded an exorbitant amount of Rs. 1,65,000/- towards water and electricity connection charges . On enquiry the KSEB officials intimated that the cost of erection of transfer for supplying electricity is only Rs. 6,17,145/- against the demand of Rs. 1,65,000/- each from the owners of the flats. On 01-07-2010 the complainant caused to issue a lawyer notice to the opposite party demanding possession of the flat or compensation for delay, though the opposite party received the notice there was no response. Complainant had availed a loan of Rs. 14 lakhs from the Union Bank of India to purchase the flat and he has been paying the instalments. The delay in handing over the possession of the flat amounts to deficiency in service on the part of the opposite party. Thus the complainant is before us seeking direction against the opposite party to handover the possession of the flat to the complainant with all amenities and to pay a sum of Rs. 20,000/- per month to the complainant from 30-06-2009 till the date of handing over the possession of the flat. This complaint hence.
2. The version of the opposite party
The complainant is not a consumer as per the provisions of S. 2 (1) (d) of the Consumer Protection Act. This is purely a contracted matter between the complainant and the opposite party. Complainant has not availed any service from the opposite party. As per clause 20 of the agreement Civil Courts in Ernakulam alone have jurisdiction to entertain the dispute between the parties. The complainant had entered into two agreements with the opposite party one is for sale of undivided share over the property and to construct apartment No. C-5 on the 5th floor of the project together with right to construct a covered car parking area on the ground floor of the project. A sale deed had been registered in the name of the complainant on 17-03-2007. As per clause 4 of the construction agreement the opposite party has tried the utmost possibility to finish the work by 30-06-2009 and to hand over the possession of the flat. But there was non payment of instalments in time and there is an amount of Rs. 99,799/-due as balance construction cost from the complainant. In spite of repeated demands the complainant failed to pay the amount. Further the complainant is liable to pay various statutory charges including the balance cost of construction and water/electricity connection charges total comes to Rs. 3,93,572/-. The water and electricity connection charges of Rs. 1,65,000/- is based on actual figures which includes amount towards cost of transformer cables, cable fittings, panel boards, panel switches deposits to Kerala State Electricity Board and Kerala Water Authority service charge payable to the sub contractor etc. As per clause 5 in the agreement the complainant agreed to pay the amounts. The complainant has filed this complaint to avoid the payment as per the payment schedule. Since the complainant has violated the terms and conditions of the agreement dated 11-10-2006, the complainant is not entitled to get any reliefs as sought for.
3. No oral evidence was adduced by the parties. Exts. A1 to A6 and Exts. B1 to B7 were marked on the side of the complainant and the opposite party respectively. The report of the Advocate Commissioner was marked As Ext. C1. Heard the counsel for the parties.
4. The points that arose for consideration are
i. Whether the complaint is maintainable in this Forum?
ii. Whether the complainant is entitled to get the possession of
the flat?
iii. Whether the complainant is entitled to get Rs. 20,000/- per
month from 30-06-2009 the agreed date of completion
of the flat till the date of delivery?
5. Point No. i. Section 2 (1) (o) of the Consumer Protection Act contemplates that '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), in a considered view has categorically sustained the contention that this is a case maintainable in this Forum.
6. Point No. ii. It is not in dispute that the complainant entered into Ext. A1/B1 agreement dated 11-10-2006 for the construction of a flat with the opposite party in their project byname ‘Galaxy Winston’. It is also not in dispute that the total sale consideration of the flat was Rs. 18,03,799/-.
7. According to the complainant the opposite party agreed to deliver the possession of the flat on 30-06-2009 in which the opposite party failed. It is stated that the complainant is only liable to pay the last two instalments of Rs. 63,000/- each however the opposite party is demanting an exorbitant amount of Rs. 1,65,000/- towards water and electricity connection charges.
8. The opposite party maintains that the delay in handing over the possession of the flat was due to the non-payment of the balance construction cost of Rs. 99,799/- and the statutory charges including the water and electricity connection charges totaling Rs. 3,93,572/-.
9. Admittedly the opposite party had transferred the ownership of the flat in favour of the complainant. Ext. A2/B2 is the final bill issued by the opposite party to the complainant which reads as follows:
Sl No. | Construction Cost Balance | Amount |
1. | Construction Cost Balance | 99,799.00 |
2 | Sales Tax | 16,596.00 |
3 | Service tax | 54,380.00 |
4. | Workers Welfare Fund | 18,037.00 |
5. | Water/Electricity Connection Charges | 1,65,000.00 |
6. | Flat Owners Association Deposit | 5,000.00 |
7. | One Time Tax to Village Office (Approx) | 18,000.00 |
8. | Building Tax –Service Charge for Change of Registry | 8,000.00 |
9. | Registration Expenses | 13,822.00 |
9. | Charges for Extra Work | 4,07,394.00 |
10 | Less: Registration expenses received | 13,822.00 |
| Total | 3,93,572.00 |
10. Clause 5 in Ext. A1 reads as follows:
“5. The First Party shall provide electric connection from the Electricity Board and Water connection from the Water authority to the Second Party subject to the condition that all the charges for the proportionate cost of transformer, cables, cable fittings, panel boards, panel switches, all deposits to electricity board and water authority and all the service charge playable to contractor and service charge of the first party for doing the said work as fixed by the First Party and all the deposits required for the same shall be paid by the Second Party to First Party and First Party will pay the amount to concerned authorities and all charges arising thereafter shall be paid by the Second Party shall not question the said charges fixed by First Party. “
11. The complainant is liable to pay the above charges to the opposite party which the opposite party had to pay to various statutory authorities indisputably. Ext. B6 letter issued from the KSE Board goes to show that the opposite party has to pay Rs. 6,17,145/- only towards electricity connection charges for the apartment complex Galaxy winston which would necessarily and legally amount to a due of Rs. 8,572/- from each flat owners. Instead the opposite party has demanded Rs. 1,65,000/- towards water/electricity connection charges an amount which is preposterous to say the least. Legally and contractually the opposite party is entitled to recover all the actual statutory charges from the complainant. A further addition over and above the statutory charges amounts to not only deficiency in service but also unfair trade practice on the part of the opposite party. Necessarily the opposite party is entitled to get interest @ 9% p.a for the balance outstanding in the cost of construction from the date of due till payment. The complainant has not raised any ground regarding the other heads in Ext. B2.
12. Point No. iii. Ext. C1 the report of the advocate commissioner evidences that the commissioner inspected the apartment complex on 05-07-2011. Ext. C1 was admitted in evidence without demur. As per ext. C1 report it is seen that any of the 72 flats in the opposite parties project are not fit for occupation and not in a habitable condition which goes to show that the opposite parties has not completed the construction of the flats on 05-07-2011 the date of inspection of the commissioner. So the contention of the opposite party that the delay for the completion of the flat was due to the delay in making 2 instalments by the complainant is untenable and unsustainable. In effect nothing is on record to show that the delay was caused due to the delay in making the payment on the part of the complainant especially so when a reputed builder does not necessarily have to depend on a consumer one out of 72 for the completion of his purse. A home is naturally the dream of every one and a house a means to it that for such shallow reasons should be shattered calls for a promise broken. Though this can not be compensated by any stretch a monitory compensation could abate the agony of the complainant to an extend. This Forum being a guardian of the consumer is at no go but to award a compensation of Rs. 12,000/- per month from the 30-06-2009 the agreed date of delivery till actual delivery.
13. In the result, we allow the complaint and direct as follows:
i. The opposite party shall forthwith deliver the possession of
the flat to the complainant with all amenities agreed as per
Ext. A1.
ii. The complainant shall pay the amounts to the opposite party
as observed in Paragraph 11 of this order at the time of
delivery of the promised flat.
iii. The opposite party shall pay Rs.12,000/- per month to the
complainant from 30-06-2009 till the date of delivery of the
flat to the complainant.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of the order.
Pronounced in the open Forum on this the 14th day of May 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 agreement
A2 : Copy of final bill dt. 09-10-2009
A3 : Copy of letter dt. 01-07-2010
A4 : Copy of A.D. card
A5 : Copy of receipt
A6 : Copy of receipt dt. 05-02-2011
Opposite party’s Exhibits : :
Ext. B1 : Copy of agreement
B2 : Copy of final bill
dt. 09/10/2009
B3 : Memo dt. 15-3-2011
B4 : Hereditary certificate
dt. 16-03-2011
B5 : Copy of e-mail
dt. 30-09-2009
B6 : Copy of e-mail
dt. 12-01-2010
B7 : Copy of letter dt. 16-03-2010
C1 : Commission Report
dt. 30-06-2011
Copy of order despatched on :
By Post : By Hand:
