PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of November 2011
Filed on :31/03/2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No.208/2010
Between
V.K. Khyrunneesa, : Complainant
W/o. Late S.A. Mohammed (By Adv. N.R. Rajesh,
Hussain, Swamimadathil house, Naduvileveedu, Thalakodu P.O.,
C.P. Ummar Road, Mulanthuruthy via, Ernakulam.)
Cochin-682 035.
And
1. M/s. George Mampilly, : Opposite parties
Proprietor, “The Group”, (1st O.P.By Adv. Manu Roy,
2nd Floor, Kaloor Towers, Opp. Lourde Matha Church,
Kaloor, Cochin-17. Near Thevara Junction,
Pandit Karuppan road,
Cochin-15.)
2. Mr. Mirza Aleem, (party-in-person)
S/o. P.M. Habeeb
Rawther, White Castle
Apartments, 3rd Floor,
IV/879 J, Edappally Toll,
Ernakulam.
3. Nisha Mirza, W/o. Mirza Aleem, (party-in-person)
White Castle Apartments,
3rd Floor, IV/876 J,
Edappally toll, Ernakulam.
O R D E R
A Rajesh, President.
The case of the complainant is as follows: The complainant is a widow. The 1st opposite party is a builder. 2nd and 3rd opposite parties entered into an agreement with the 1st opposite party for the construction of an apartment in their property as a joint venture. Lured by the advertisement of the opposite parties the complainant decided to purchase an apartment. The 1st opposite party as the power of attorney of the 2nd and 3rd opposite parties had executed an agreement with the complainant on 01-12-2006 to construct an apartment as flat No. Ground IV-879B having an extend of 1050 sq.ft. The 1st opposite party agreed to complete the construction before 15-01-2007 and the 2nd and 3rd opposite parties agreed to execute the sale deed with respect of the undivided share of the property. The 1st opposite party received a sum of Rs. 8 lakhs out of the total sale consideration of Rs. 11.5 lakhs on the date of agreement. The 1st opposite party completed the construction in time but the 2nd and 3rd opposite parties are purposefully delaying the execution of the sale deed in spite of repeated requests. Complainant was ready and willingness to pay the balance sale consideration. In the meantime the 2nd and 3rd opposite parties had demolished the completed apartment for their own reasons. Thus on 27-02-2010 the complainant caused to issue a lawyer notice to the opposite parties demanding to hand over the possession of the flat and execution of the sale deed. But it fell in deaf ears. Thus the complainant is before us seeking direction against the opposite parties either to hand over the possession of the flat and execution of the sale deed or to refund Rs.8 lakhs with interest together with compensation and costs of the proceedings.
2. The defense of the 1st opposite party.
The 1st opposite party had entered into an agreement with the other opposite parties for the construction of ‘white Castle ‘Apartment as a joint project. The complainant had availed the services of the opposite parties for buying the undivided share of the land and for the construction of an apartment therein. The 1st opposite party had paid Rs. 3 lakhs to the 3rd opposite party out of the advance sale consideration of Rs. 8 lakhs on the date of agreement itself. The 1st opposite party duly completed the flat and the same was numbered as IV-879 B by the Thrikkakara Grama Panchayath, but the 2nd and 3rd opposite parties did not execute the sale deed since certain disputes arose in between the opposite parties regarding parking area. The 3rd opposite party lodged a complaint with the Secretary, Thrikkakara Grama Panchayath on 29-10-2008 alleging that an unauthorized construction has been made by the 1st opposite party. The secretary in collusion with the other opposite parties issued an order directing the 2nd opposite party to demolish the apartment. Accordingly the 2nd and 3rd opposite parties demolished the same. Now vigilance enquiry is going on against the secretary and the 2nd and 3rd opposite parties. The complainant is not entitled to get any of the reliefs against the 1st opposite party.
3. The version of the 2nd and 3rd opposite parties.
The complainant has filed this complaint in collusion with the 1st opposite party. The 1st opposite party filed two suits against the 2nd and 3rd opposite parties before the Munsiff Court, Ernakulam and Sub Court, Ernakulam respectively. The 2nd opposite party entered into an agreement with the 1st opposite party for the construction of an apartment complex in the property which 2nd opposite party has only co-ownership. 3rd opposite party is not a party to the agreement. Opposite parties 2 and 3 never gave any publicity about the project white castle nor did they put forward any offer. Opposite parties 2 and 3 have never authorized the 1st opposite party authorizing him to enter into any agreement for the sale of undivided share in their land. Opposite parties 2 and 3 are not liable for the acts if any done by the 1st opposite party beyond the scope of the power of attorney executed by them in favour of the 1st opposite party. The 2nd and 3rd opposite parties are not aware of the agreement between the complainant and the 1st opposite party. As per the construction agreement between the 1st, 2nd and 3rd opposite parties the 1st opposite party was permitted to construct only an office space in the ground floor. In total violation of the plan approved by the Panchayath the 1st opposite party illegally constructed the flat in question. At the instance of the 2nd and 3rd opposite parties the Panchayath passed an order to remove the construction, and accordingly the 2nd and 3rd opposite parties are removed the illegal construction. The reliefs claimed by the complainant is specific performance of an alleged contract which can only be entertained by a civil court. The 2nd and 3rd opposite parties request to dismiss the complaint in this Forum.
4. Complainant was examined as PW1 and Exbts. A1 to A4 were marked on her side. The 2nd opposite party was examined as DW1, Exbts. B1 to B6 were marked on the side of the 2nd and 3rd opposite parties. No oral evidence was adduced by the 1st opposite party. Exbts. B7 to B13 were marked on the part of the 1st opposite party. The counsel for the complainant and 1st opposite party filed argument notes. Heard the counsel for the complainant and the opposite parties.
5. The points that emanated for consideration are
i. Whether the complaint is maintainable in this Forum?
ii. Whether the complainant is entered to get the possession
of the flat and undivided share in the property or to get
the advance sale consideration refunded from the
opposite parties?
iii. Compensation and costs of the proceedings.
6. Point No. i. Indisputably ‘housing construction’ is a service as per S.2(1) (0) of the Consumer Protection Act. The Appex Court has reiterated the same in Ghaziabad Development Authority V. Balbar Singh II (2004) CPJ 12 (SC) after Luckhow Development Authority V. M.K. Gupta III (1994) CPJ 7 (SC). There is nothing before us to hold that this complaint is not maintainable before this Forum.
7. Point No. ii. The parties are in consensus on the following issues.
i. The complainant and the 1st opposite party entered into Exbt.
A2 against on 01-12-2006 for the construction of flat No. IV
879B at a total consideration of Rs. 11.5 lakhs.
ii. The complainant paid a sum of Rs. 8 lakhs to the 1st opposite
party on the date of Ext. A2 agreement.
iii. The 1st and 2nd opposite parties entered into Exbt. B3
agreement dated 17-04-2006 for the construction of an
partment complex in the property of opposite parties 2 and 3
iv. The 2nd and 3rd opposite parties executed Exbt. B4 power of
attorney in favour of the 1st opposite party on 24-04-2004.
v. The 2nd and 3rd opposite parties revoked Exbt. B4 power of
attorney by executing Ext. B5 deed of revocation of Power of
attorney dated 30-10-2007.
vi. The 3rd opposite party submitted Ext. B7 complaint dated
29-10-2008 requesting the Secretary, Thrikkakara Grama
Panchayath to direct the 1st opposite party to remove the
unauthorized construction so as to get the parking area.
vii. The Secretary, Thrikkakara Grama Panchayath vide Exbt.
B6 notice dated 29-10-2008 directed the 2nd opposite party
to demolish the unauthorized construction done at the area
ear-marked for car parking.
viii. The Thrikkakara Grama Panchayath issued Exbt. B8 tax
receipt and Ext. B12 ownership certificate in the name of the 2nd opposite party for the flat bearing No IV. 879B.
xi. At the instance of the 1st opposite party the Tribunal for
Local self Government Institution had set aside Exbt. A6
notice issued by the Secretary Vide Exbt. A9 order
dated 11-02-2009.
8. The foremost question arises is which of the opposite parties are liable to refund the advance amount of Rs. 8 lakhs to the complainant. The 1st opposite party contented that the 2nd and 3rd opposite parties authorized him to execute Exbt. A2 agreement by Exbt. B4 power of Attorney. However the 2nd and 3rd opposite parties maintain that they have executed Exbt. B4 power of attorney for different purposes. The covenants in Exbt. B4 power of attorney executed by the 2nd and 3rd opposite parties in favour of the 1st opposite party is reads as follows:
1. To repair plans for construction of house and to submit the same before the Municipal Corporation and other concerned authorities for obtaining approval to the same and any amendments thereto.
2. To approach all concerned authorities related to the construction of the house and for that purpose to sign such application, papers, writings undertakings as may be required and to carryout correspondence with the authorities concerned, to appear before them and also to prefer appeals from any order of the competent authority.
3. To apply for and obtain electricity and water connection from KSEB and Kerala Water Authority and other local bodies and to execute the necessary documents for install separate meter for electricity and water connection.
4. To apply for and obtain from the Government Departments and Municipality, No objection certificate permission or sanction for carrying out the construction of the said house completion thereof, Completion certificate and Occupation certificate in respect of the said house.
5. To accept summons or other legal processes or notices, appear before any officer, authority Department Magistrate, Tribunal, Judicial or quasi judicial officer and represent us and in connection there with file appeals or revision or representation and appoint advocates, lawyers to appear and act in all matters connected with or in relation to or arising out of the said construction.
6. To sign and verify and execute all pleadings, affidavits, petitions, representations, applications, appeals, revision, review before any officer, Authority, Court, Tribunal Magistrate of any other person for and on our behalf for the construction of the said house.
7. Generally to do and perform all acts, deeds things matters necessary for all or any of the aforesaid purposes and to give full effect thereto. In relation to the construction of the said house.”
9. Evidently the 1st opposite party exceeded his power as per Ext. B4 power of attorney and executed Exbt. A2 agreement with the complainant and accepted Rs. 8,00,000/- offering to construct the flat and execute the sale deed for the undivided share in the property. In the above circumstances the 1st opposite party alone is liable for the consequences thereof as per Exbt. A2 agreement, since the 2nd and 3rd opposite parties are not a party to Ext.A2 agreement they are not liable to execute the undivided share in the property.
10. The opposite parties raised various contentions with regard to the construction and demolition of the disputed flat bearing No. IV879B. However we are not to entertain the contentions of the service providers. Since the remedy of theirs lies elsewhere, especially so the dispute between the opposite parties is pending before the Hon’ble Sub Court, Ernakulam. They are free to contest their issues if so advised.
11. Point No. iii. Since the primary grievance of the complainant having been met adequately and squarely we order no compensation and costs of the proceedings.
12. In the result, we partly allow the complaint and direct that the 1st opposite party shall refund Rs. 8,00,000/- (Rupees eight lakhs only) to the complainant with interest @ 12% p.a. from the date of Exbt. A2 agreement till realization.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 30th day of November 2011.
