PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

                       Dated this the 31st day of January 2012

                                                                                 Filed on : 02-02-2011

Present :

          Shri. A  Rajesh,                                                     President.

Shri. Paul Gomez, Member.                                   Member.

Smt. C.K. Lekhamma,                                           Member

C.C. No. 65/11

     Between

Sreejith V.P.,                                               :        Complainant

Lakshmi Vilasam, Koothattukulam,            (By Adv. James Abraham

pin-686 662. rep. by  the power                  Manjooran Building,

 of attorney holder Mrs. Preeti Nair,            1.S.Press Road, Opp.

W/o.Sreejith.                                                Income Tax Office,

                                                                      Kochi)

                                                And

 1. Gireesakumar K,                                  :         Opposite parties

     Managing Director,                                 (1^st O.P. by adv. Denizen

     Parathasaradhy Properties Pvt. Ltd.,   Komath, M/s.Denizen

     35/3076A, 1^st floor, Madambil building, Komath & Sherry J,

    Thammanam main road,                          Thomas Associates,

     Palarivattom, Kochi-25.                          XL/5977, Infant Jesus

                                                                      Building, Banerji road,

2. Geevarghese (Father),                            Kochi-31)

    S/o. Thomas (late),

    Panickassry house,

    Karinilam P.O.,

    Mundakkayam,

    Erumely village,

    Kanjirapilly Taluk, Idukki.

    (2^nd O.P. deleted from the

    party array as per I.A. 204/11

    dt.02/04/2011)

3. Sam Thomas, S/o. Thomas,                (3^rd O.P absent)

    Panickassery house,

    Appolo road,

    Edapilly South village,

    Kanayannoor Taluk,

   Tammanam P.O., Kochi-32.

                                                O R D E R

C.K. Lekhamma, Member.

          The case of the complainant is as follows:

          The complainant booked an apartment bearing  no. F on 4^th floor having  an area of 1265 square feet with the 1^st opposite party in their  project at Puthiyakavu, Thripunithura named as “AGASTYA”.  At the time of booking  the complainant paid Rs. 50,000/- vide cheque dated 24-07-2008 to the 1^st opposite party.  The complainant had availed a loan for the purchase of the said apartment from Axis bank for Rs. 8,23,019/- on 21-08-2008 and on the same day an amount of Rs. 8,09,400/- was paid to the account of the 1^st opposite party.  Thus the 1^st opposite party had altogether received an amount of Rs. 8,59,400/-.  The agreement for sale and agreement for construction was signed by the 3^rd opposite party and 1^st opposite party respectively on 14-08-2008.   The 1^st opposite party  assured that the construction of the apartments will be completed on or before 31^st October 2009. From the very beginning itself, when the complainant enquired about the construction the 1^st opposite party had replied in an evasive manner.  In the year 2009 complainant  had gone to see the development of the building the complainant could not see even any structure of the building. The opposite parties obtained huge loan amount from banks and have disbursed that amount to some other projects promoted by them, and it was likely that the completion of this multistoried project is a distant possibility.  The complainant filed Criminal M.P. No. 1398/2010 before the Judicial 1^st Class Magistrate-1, at Ernakulam on 21-05-2010 against the opposite parties. The  Palarivattom  police has registered  Crime No. 909/10  and till this date  final report has not been filed.  The opposite parties have failed to complete the  construction of the apartments in time.  The act or omissions on the part of the opposite parties amounts to deficiency in service and  unfair trade practice. In the above circumstances the complainant approaches this Forum for the following reliefs:-

i.                    To direct the opposite parties to refund the entire amount paid by the complainant towards the price of the apartment with interest @ 12% p.a. from the respective date of payment till date of realization.

ii.                  To pay the expenses incurred by the complainant towards loan charges.

iii.                To pay the expenses towards the  rent paid  with interest  along with litigation costs and   other  expenses incurred by the complainant.

          2. The version  of the 1^st opposite party.

          The complainant would not come within the definition of consumer as defined under the Consumer Protection Act 1986.  When the complainant is bound by a separate procedure contemplated under a different  act,  this Forum lacks jurisdiction in trying the same and this complaint is therefore not maintainable.

There was an agreement in between the complainant and 1^st opposite party with  regard to the construction of flat.  As per the terms of the agreement, the complainant, was bound to pay the entire amount of the flat by instalments.  These instalments are to be paid on completion of each separate stages of the project.  The complainant herein never performed the terms of the agreement wholly.  The defaulted payment from the very beginning and for his default, he blamed the opposite parties. The delay in paying the  instalments, would delay the construction works.  Several times  the 1^st opposite party contacted the   complainant demanding the further payments.  But there was no response and till  date they did not issue a letter for cancellation of the agreement.  The project could not be completed within the specific time and the reason for this is the default in payments committed by the complainant himself.   Opposite parties are liable to  refund  the deposit amount in the event of cancellation only after the completion of project and  sale of the same to any third party.  There is no deficiency of service on the opposite parties .  The claim that the complainant had to spend Rs. 15,000/- as telephone charge is utterly false.  The opposite parties are not bound to pay the house rent of the complainant as per  the agreement.

          3. The complainant and the 1^st opposite party represented through counsel.  The second opposite party was  deleted from the party array.  The 3^rd opposite party remained absent.  The power of Attorney holder of the complainant was  examined as PW1.  Exts. A1 to A7 were marked.  Neither oral or documentary evidence was adduced by the 1^st opposite party.  We have heard the respective counsel.

          4. The points that arose for consideration are as follows:

          i. Whether the complainant is entitled to get refund of the   

            amounts from the opposite parties or not?

          ii. Costs of the proceedings and incidental charges if

             any?

          5. Points Nos.i&2.  The case of the complainant is that he had paid a total sum of Rs. 8,59,400/- to the opposite parties towards purchase price of the  apartment, in the project by name “AGASTYA” evidenced by Ext. A3 receipt and A6,  account statement of Axis bank. It is stated that though the 1^st the 1^st opposite party issued Ext. A4 undertaking letter to the complainant, the opposite parties failed to deliver the apartment  as agreed by them in Ext. A5 construction agreement in time.  According to the complainant opposite parties are liable to refund the amount to the complainant especially  so since the opposite parties violated the clause 4.1 in Ext. A5 construction agreement.

          The 1^st opposite party contended that the reason for non completion   of the project is  due to default in payment committed by the complainant.  They further contend that  the complainant was bound to pay the entire amount of the  flat  instalments, on completion of each separate stage of the project.

There  is no dispute with regard to the agreement between the parties. On 24-07-2008 the complainant has paid Rs. 50,000/- evident from   Ext. A3 receipt issued by the 1^st opposite party.  Ext. A6 bank statement  goes to show that the complainant paid Rs. 8,09,400/- to the opposite party on 21-08-2008.  On the same date  Rs. 13,619/- was adjusted to the sanctioned loan by the bank.  The same has mentioned in Ext. A6 statement. The 1^st  opposite party contented that he would not complete the work in time since the complainant defaulted payment of instalments.  But there is no evidence before us to show that the opposite parties have made any demand to the complainant  to pay the instalment due and the opposite parties failed to establish  that the complainant defaulted the  instalments.  Moreover 1^st opposite party failed to adduce any evidence to show  that they have actually started the construction of the apartment in time.  Clause 4.1 in Ext. A5 construction agreement dated 14/08/2008 reads as follows:

“The complete construction shall be carried out on or before 31^st October 2009 subject to prompt payments as per annexure 5.”

 As per clause 5.5 of the said agreement it is stated that 

“That if owing to any willful omission act and/or default of the 2^nd party, the B-schedule Building is not handed over within the stipulated time.  Save delays due to reasons specified elsewhere  in these presents), the 1^st Party shall be entitled to receive back the amount paid by him/her along with interest @ 12% per annum from the date of payment of such amount.”

Evidently  the complainant has filed this complaint after 15 months from the assured date of completion of construction of the flat.  It is pertinent to note that the opposite parties have not  adduced any evidence to substantiate their contention.  The non-delivery of the apartment to the complainant amounts not only deficiency in service but also to unfair trade practice on the part of the opposite parties.  Therefore complainant is entitled to get refund of the amount from the 1^st opposite party.  In this aspect it is worthwhile to quote a decision rendered by Hon’ble  National Commision in H.C. Malhotra & Ors Vs. Ansal Buildwell Ltd. (III (2008) CPJ 22 (NC).  In which the state commission directed the opposite party to refund the principal amount.  In appeal said order was modified and directed to pay interest of the deposit also.  Hence we have no hesitation to hold that the complainant is entitled to get refund of the amount Rs. 50,000/- as per Ext. A3 receipt dated 24-07-2008 and Rs. 8,09,400/-and Rs. 13,619/- as per Ext. A6 bank statement dated 21-08-2008 altogether Rs. 8,73,019/- from the opposite parties with 12% interest from the date of each deposit till payment.

Even though the complainant claims rent and other incidental charges from the opposite parties  no evidence is before us to substantiate the same.  Therefore we are not  to allow the said claim.

Seemingly the complainant had to suffer mental agony and unnecessary inconveniences for no fault of his own which goes to show that a customer has been wronged which calls for costs.  We fix at Rs. 10,000/-.  Accordingly we allow the complaint as follows:

i.                            The 1^st opposite party shall refund Rs. 8,73.019 as per Ext. A3 dated 24-07-2008  and Ext. A6 dated 21-08-2008  together with interest @ 12% p.a. from the date of each receipts till realization to the complainant.

ii.                          The 1^st opposite party shall pay costs of Rs. 10,000/- 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 31st day of January 2012

                                                                                            Sd/-

                                                                   C.K. Lekhamma, Member.

                                                                                       Sd/-

            A  Rajesh, President.

                             Sd/-

                                                                     Paul Gomez, Member.

                                                                   Forwarded/By Order,

                                                                   Senior Superintendent.

                                                            Appendix

Complainant’s exhibits :

                   Ext.   A1               :         Copy of special power of attorney                              A2               :         Copy of paper publication

                             A3              :         Copy of receipt dt. 24-07-2008

                             A4              :         Copy of letter dt. 19-09-2008

                             A5              :         Copy of agreement for sale.

                             A6              :         Copy of agreement statement from

                                                        26-07-2001 to 26-07-20-10

                             A7              :         Copy of cheque dt. 25/09/2008

 Opposite party’s Exhibits :        Nil

Depositions:       

            PW1                               :         Preeti Nair