Sri. P. Satheesh Chandran Nair (President):
The complainants filed this complaint against the opposite parties for getting a relief u/s.12 of the C.P. Act 1986.
- The case of the complainant is stated as follows: The complainant of this complaint is a permanently resident of Pathanamthitta District. On 24/01/2009 the representative of 1st opposite party approach the complainant and informed that they are ready to deliver a Villa for an amount of Rs. 7,00,000/- within one year on the execution of the agreement. The complainants believed the offer of the representative and issued a cheque for an amount of Rs. 1,00,000/- in favour of the first opposite party as the advance for booking a Villa proposed to be constructed at Kaniyapuram in Thiruvananthapuram District. On the same day the second complainant also issued a cheque for an amount of Rs.1,00,000/- in favour of 1st opposite party for a Villa proposed to be constructed at Payad in Thiruvananthapuram. Subsequently, the complainants paid an amount of Rs. 5,00,000/- to 1st opposite party as the second advance to this two Villas. All these transactions and the payment of cheques are effected at the residence of complainants’ house which is situated at Kumbazha in Pathanamthitta District. It is contented that even though the complainant had gone 15 times to Payad and Kaniyapuram to assess the progress of the construction of the Villa, it was understood that the opposite parties were not capable to complete the construction within the stipulated time. It is further contented that the complainant asked to refund the advance amount from the opposite parties and they refunded the advance amount to the complainant. According to the complainant, they demanded the advance amount from the opposite party due to the non-completion of the construction of the building, slow movement of construction etc.etc.
- It is stated that on 16/07/2013 the opposite party return the advance amount Rs. 7,00,000/- to the complainant. The complainant further contented that the opposite parties are purposefully deceited and cheated by the opposite parties and they committed unfair trade practice and deficiency in service against the complainant. Hence, this complaint is for realizing the interest for the advance amount, other expense and cost of the case etc., etc. This Forum entertained the complaint and issued notice to opposite parties for their appearance. The opposite parties entered appearance and filed their version as (objection) follows.
4. The version of the opposite parties are as follows: According to the opposite parties the case of the complainant is not sustainable either by law or on facts. It is contented that, complainants are not comes under the purview of the Consumer Protection Act. Hence the complainants have any right to file this case against opposite parties. It is admitted that complainant No.1 & 2 are booked for 2 Villas and an amount of Rs. 7,00,000/- have been paid as advance for the same. It is contented that complainants informed the opposite parties that the complainants are in financial crisis hence they are not in a position to buy the Villa and they wanted the refund of the advance amount. According to the opposite parties, they have refund an amount of Rs.7,25,000/- to the complainant. It is further stated that as per the terms and conditions of the agreement between the parties the complainants are only eligible for Rs.6,30,000/- but at the same time the opposite parties paid an excess amount on the advance amount. According to the opposite parties they completed the construction of the Villa within the stipulated period, but due to the financial crisis the complainant failed to fulfill the terms and conditions between the complainants and opposite parties. It is further contented that the irresponsibility of the complainant was the reason for the non-performance of the agreement hence the complaint is liable to the opposite parties. Therefore, the opposite parties prayed to dismiss the complaint with cost to them.
5. The Forum perused the complaint, version and records before us and framed the following issues:
1. Whether this case is maintainable before this Forum?
2. Whether the opposite parties are committed any deficiency
in service against the complainant?
3. Regarding relief and costs?
6. In order to prove the case of the complainants, complainant No.2 filed a proof affidavit in lieu of chief examination and she was examined as PW1. The Ext A1 to A10 were also marked in her favour. At the time of cross-examination Ext.B1 to B4 were also marked through PW1. Ext.A1 is the Registration Form dated 25.01.2009 for Peyad Villa. Ext.A2 is the Registration form dated 24.01.2009 for Kaniyapuram villa. Ext.A3 is the copy of plan for Peyad Villa. Ext.A4 is the copy of plan for Kaniyapuram villa. Ext.A5 is the photocopy of Peyad Villa (photo). Ext.A6 is the copy of agreement confirmation letter dated 04.05.2009. Ext.A7 series are the photocopies of payment receipts (6 Nos.). Ext.A8 is the sealed copy of Federal Bank Passbook of complainant at Kidangannoor Branch. Ext.A9 is the copy of demand letter dated 31.03.2015 sent by the 2nd complainant to opposite parties. Ext.A10 is the postal receipt dated 31.03.2015. On the other side, opposite party’s Managing Director as DW1, he who filed a proof affidavit in lieu of the chief examination and marked Ext.B5 to B9 in their favour. Ext.B2, B4, B10 are marked subject to proof. Ext.B1 is the copy of agreement for sale and construction dated 03.06.2009. Ext.B2 is the copy of agreement for sale and construction dated 14.06.2009. Ext.B3 is the copy of letter dated 03.05.2012. Ext.B4 is the copy of building permit dated 13.07.2009. Ext.B5 is the copy of building application. Ext.B6 is the copy of description of prices for 2 cents. Ext.B7 is the copy of acknowledgment card. Ext.B8 is the copy of complaint sent by the Medical College C.I of Police to 1st opposite party. Ext.B9 is the copy of building application. Ext.B10 is the photocopy of villas photos. (Ext.B4 to B10 are the subject to proof). After the closure of evidence, we heard both sides. Apart from that the complainant’s counsel, filed an argument note in their favour.
7. Point No. 1: Opposite parties in this case through their version and at the time of taking evidence seriously taken a view to the effect that the case is not maintainable before the Forum. The opposite parties contented that the complainants in this case is not a consumer as per Consumer Protection Act. The case is bad by limitation and this Forum has no jurisdiction to try this case as per the provisions of Consumer Protection Act. When we evaluate the evidence before us, it can be seen that the complainants paid an amount of Rs.7,00,000/- as an advance to opposite parties by receipt. It is also prove that as per Ext. A1 and A2 complainant No.1 & 2 are booked two villas after paying Rs.1,00,000/-each on 24/01/2009 and 25/01/2009 consecutively. It is to be inferred that the complainant paid this amount as an advance for the constructions of two villas in their favour. As per Ext. A6 agreement conformation letter it also proves that opposite parties agreed to construct the villa as per the terms and conditions of the agreement. At the time of taking evidence, it is admitted that the complainant received an amount of Rs.7,25,000/- as refund of their advance to the villas. When consider the maintainability of the case it can be easily come to a conclusion to the effect that the complainants are consumers and the opposite parties are service providers as far as this case is concerned. Therefore, Point No.1 found in favour of the complainant.
8. The next question to be considered is whether the opposite parties are committed any deficiency in service or unfair trade practice against the complainant. It is come out the evidence to show that the complainant in this case paid an amount of Rs.7,00,000/- by this transaction. It is interested to note that the complainant started their advance payment to 25/01/2009 and ended on 10/01/2012. The case of the complainant is that the opposite parties purposefully delayed the construction work and the construction work was going very slowly etc.etc. If the contention of the complainant with regard to the construction of the building was true why the complainant is paid this much of amount within four years i.e., 2009 to 2012. If the complainant had any apprehension or dissatisfaction about the approach of the opposite parties or style of construction of villa we can reasonably think that what prevented the complainant to raise any objection against the opposite parties within that four years. On the basis of the evidence, it can be easily presumed that the opposite party has not committed any delay in construction of the villa as alleged by the complainant. It is true that the opposite party in this case pleaded that due to the financial crisis of the complainant she requested the 2nd opposite party to refund the advance amount. In order to substantiate their contention they raised this aspect at the time of cross-examine of PW1. But it is to see that at the time of cross-examination, the learned counsel appearing for the opposite parties showed photocopies to PW1 and the marking of all these documents were opposed by the complainant’s counsel. Hence all these records are marked subject to proof. Even though, all these records are marked subject to proof it is to see that the 2nd complainant (PW1) admitted the signature of her and her husband seen in that document. In the light of the admission on the part of PW1 with regard to the signature shown in Ext.B1, B2 it can be easily presume that the complainants and 1st and 2nd opposite party entered an agreement for the construction of villa and the said agreement which covers certain terms and conditions. As per Ext.B3, which is marked as subject to proof shows that it is a letter written by the complainant No.1 in favour of Managing Director of the opposite party on 03/05/2012. In that letter it is seen that complainant No.2 is signed for her and for and on behalf of the first complainant. The content of the letter is as follows: “Sir, I had booked one villa at techno village Kaniyapuram and deposited Rs. 1,00,000/- on 25/01/2009 vide receipt No.053. As the construction has been inordinately delayed, I wish to withdraw the booking. Kindly arrange to refund the amount within 30 days of receipt of this letter. The inconvenience caused is regretted”. Yours faithfully, (Sd/-), (Mercy John), for C.C. John. It is true that the letter is marked Ext.B3 as subject to proof. But at the time of trial the complainant has not been asked any question with regard to the relevancy of that letter its contents and other details in this Ext.B3. We do admit that Ext. B3 can be taken in evidence only on production of the original before the Forum. At the same time it can be assumed that the complainant might have written this letter for the refund of her advance amount. If the complainant has any complaint with regard to the construction work it would have been stated in that letter.
9. In the light of the above discussed evidence, it would be inferred that the complainants and the opposite parties are executed an agreement for the construction of the villa and for that purpose the complainant paid an amount of Rs.7,00,000/- to the complainant within a span of four years. It is true that the complainant argued that they are forced to receive the advance amount as refund because the opposite party failed to comply the terms and conditions of the agreement. It is to see that at the time of taking evidence of this case the complainant failed to prove that the opposite party did not complete the building construction within the stipulated time or even failed to prove that the complainant had sufficient money in hand for paying the balance amount to the opposite parties. In the absence of a conclusive evidence on this aspect we are constrained to believe the plea of the opposite parties with regard to financial position of the complainant. Anyway, in this case it is so clear to see that the complainant requested the opposite parties to refund the advance amount. At the time of cross-examination, this aspect is asked to PW1 and she answered in cross, “2009 ജൂണ് മൂന്നാം തീയതി കമ്പനിയുമായി കരാറിൽ ഏർപ്പെട്ടു എന്നത് ശരിയാണ്.'' and in another question PW1 answered, “ഇടപാടുകള് പൂർണ്ണമായും കൈപ്പറ്റിയ ശേഷം interest ലഭിക്കാൻ Forum മുമ്പാകെ വന്നതാണ് എന്നത് ശരിയാണ്v'' and in the re-examination of PW1 answered, ""എൻറെ principal amount opposite party തിരികെ തന്നു. Interest കിട്ടാൻ file ചെയ്ത case ആണ് Villa യഥാസമയം തരാതിരുന്നത് ആണ് case ൻറെ കാരണം. പേയാടിൽ ഞാൻ visit ചെയ്ത സമയം പണി നടന്നിരുന്നു. കണിയാപുരത്ത് പണി നടന്നില്ല'' and in the end of the re-examination she answered “opposite party Interest ആക്കി തരാമെന്ന് police station ൽ വെച്ച് പറഞ്ഞിരുന്നു Police station ൽ വെച്ച് പറഞ്ഞ തുക through bank ആണ് ലഭിച്ചത്''v.
10. In the light of the above answer in cross-examination, we would have to see that the complainants filed this case only for getting interest of the amount Rs.7,25,000/- which was already received by the complainant after the result of a negotiation conducted in police station. This fact is not denied by the complainant in this case. This Forum is bound to look into the deficiency in service or unfair trade practice of the opposite parties. As discussed above, it is so clear that the complainants are only responsible for the demand of the advance amount and opposite parties conceded this fact and paid the advance amount Rs. 7,00,000/- plus Rs.25,000/- to the complainant. We do admit that this Forum has no jurisdiction to consider the interest right of a consumer. That fact has to be agitated before a competent Civil Court. As discussed earlier, the complainant failed to prove any deficiency in service or unfair trade practice on the side of opposite parties. Hence this complaint failed. Hence point No.2 & 3 found against the complainant.
11. In the result, we pass the following orders:
The case is dismissed. No order of cost.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 31st day of December, 2016.
(Sd/-)
P. Satheesh Chandran Nair,
(President)
Smt. K.P. Padmasree (Member – I) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Mercy John
Exhibits marked on the side of the complainant:
A1 : Registration Form dated 25.01.2009 for Peyad Villa.
A2 : Registration form dated 24.01.2009 for Kaniyapuram villa.
A3 : Copy of plan for Peyad Villa.
A4 : Copy of plan for Kaniyapuram villa.
A5 : Photocopy of Peyad Villa’s photo.
A6 : Copy of agreement confirmation letter dated 04.05.2009.
A7 series : Photocopies of payment receipts (6 Nos.).
A8 : Sealed copy of Federal Bank Passbook of complainant at
Kidangannoor Branch.
A9 : Copy of demand letter dated 31.03.2015 sent by the 2nd complainant
to opposite parties.
A10 : Postal receipt dated 31.03.2015.
Witness examined on the side of the opposite parties:
DW1 : Salim M. Kabeer
Exhibits marked on the side of the opposite parties:
B1 : Copy of agreement for sale and construction dated 03.06.2009.
B2 : Copy of agreement for sale and construction dated 14.06.2009.
B3 : Copy of letter dated 03.05.2012.
B4 : Copy of building permit dated 13.07.2009.
B5 : Copy of building application.
B6 : Copy of description of prices for 2 cents.
B7 : Copy of acknowledgment card.
B8 : Copy of complaint sent by the Medical College C.I of Police to
1st opposite party.
B9 : Copy of building application.
B10 : Photocopy of villas photos.
(By Order)
Copy to:- (1) C.C.John, Prince Cottage, Kumbazha .P.O, Pathanamthitta.
(2) The Manager, Grantech Building and Developer Private Limited,
Kesavadasapuram.P.O, Thiruvananthapuram.
(3) The Managing Director, Grantech Building and Developer
Private Limited, Kesavadasapuram.P.O, Thiruvananthapuram.
(4) The Stock File.
