KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 83/2014

JUDGMENT DATED: 13.12.2023

PRESENT:

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

COMPLAINANT:

Jacob Marykutty Mathew, Financial Manager, M/s International Carpentry Co., P.B. No. 22039, Doha, Qatar, from Maryland, Meenkulam, Channapetta P.O., Kollam-691 311.

                              (By Adv. R. Ajay Kumar)

OPPOSITE PARTIES:

1. Hamnet Builders and Developers (P) Ltd., represented by its Managing Director, T.C. 9/1013, Sasthamangalam, Thiruvananthapuram -695010.

2. C.H. Naushad, Chairman, T.C. 9/1013, Sasthamangalam, Thiruvananthapuram -695010.

(By Adv. C.S. Rajmohan)

JUDGMENT

SRI. AJITH KUMAR D.: JUDICIAL MEMBER

This is a complaint filed by one Jacob Marykutty Mathew against Hamnet Builders & Developers seeking a direction to hand over the keys of the 4 bed room villa comprised in Survey Nos. 3730 and 3731 of Vattiyoorkavu Village with a direction to pay the complainant a sum of Rs. 18,07,747/- being the interest of the amount paid by the complainant to the bank loan.  A sum of Rs. 3,00,000/- is sought for from the opposite party regarding the wastage of time in view of the false assurance made.  Rs. 7,50,000/- is also sought to be realized as compensation with respect to the disappointment and depression caused to the complainant on account of deficiency in service on the part of the opposite parties.  The transaction between the complainant and the opposite parties as alleged in the complaint is stated hereunder:  On 01.08.2009 the complainant had entered into an agreement with the opposite party for the construction of a four bed room villa by fixing the total construction cost as Rs. 40,94,980/-.  The complainant had paid the entire amount by availing a loan from Axis Bank and he is effecting repayment of the said amount @ Rs. 53,145/- per month.  As per the agreement construction of the villa has to be completed within 18 months from the date of approval of the plan by the local authorities and keys of the same has to be handed over within 60 days after completion and 90% of the agreed amount was to be paid by the complainant.  Though the complainant had paid the entire amount the keys of the premises had not been handed over to the complainant.  On 29.05.2014 the complainant had caused issuance of a notice requesting the opposite parties to hand over the keys of the premises.  But the keys were not handed over.  The complainant is still effecting repayment of the bank loan.  There is deficiency in service and unfair trade practice by the opposite parties.  They had taken advantage by receiving a huge sum of Rs. 40,94,980/-.  The complainant had to pay            Rs. 18,07,747/- as interest to the bank loan.  The complainant would seek for a direction to the opposite parties to hand over the keys pertaining to the 4 bed room villa and realisation of the bank interest and compensation.

2.  On admitting the complaint notices were issued to the opposite parties.  They entered appearance and filed a joint version with the following contentions: The complainant has no locus standi to file the complaint.  There is no deficiency of service on the part of the opposite parties.  The opposite parties would concede that the complainant had booked a villa in plot No. U under the project Coconut Valley at Kulasekharam with a built up area of 2214 sq. ft. for a total consideration of Rs. 59,52,800/-.  On 01.08.2009 the 1^st opposite party and the complainant through his Power of Attorney holder had entered into an agreement by fixing the total consideration including the cost of the land as Rs. 59,52,800/-.  The amount required for the construction of the villa is fixed as Rs. 36,98,800/-.  Registration of the sale deed was done on 05.11.2009 with respect to the plot booked by the complainant.  As per the recitals in the agreement the complainant had to pay the entire amount.   Clause 4 of the agreement stipulates that the complainant shall pay all the taxes including building tax, property tax, sales tax, service tax, electricity, water charges and all the expenses for the installation of the transformer, stamp duty, registration fee for preparation and registration of deeds with respect to the villa in addition to the agreed amount.  The complainant had availed a loan of Rs. 50,00,000/- from the Axis bank and agreed to pay the balance amount directly.  The complainant had directly paid Rs. 2,00,000/- on 25.10.2012 and altogether a total sum of Rs. 52,00,000/- was paid.  The opposite parties had completed the entire construction of the villa within the stipulated time and some additions and variations were sought for by the complainant.  As per the instruction of the complainant the opposite parties had constructed an additional area of 84 sq. ft. for which they are entitled to get Rs. 1,26,000/- @ Rs. 1,500/- per sq. ft.  The opposite parties had incurred additional expenses for a sum of Rs. 1,26,000/-.  They had installed modular kitchen and wardrobes as per the instruction of the complainant and they are entitled to get an additional sum of Rs. 2,00,000/-.  So the cost of the villa is Rs. 62,78,800/- for which the complainant had paid only Rs. 52,00,000/- and a balance amount of Rs. 10,78,800/- has to be paid.  Further the complainant is bound to pay Rs. 42,000/- to the opposite parties as the opposite parties had paid the said amount as processing fees for the loan availed by the complainant.  In addition to that a sum of Rs. 1,75,547/- was also paid by the opposite parties to the Axis bank as EMI on behalf of the complainant.  An additional sum of Rs. 1,12,043/- is also to be realized from the complainant towards other expenses.  So the opposite parties would claim a sum of Rs. 14,08,390/-.  Since the complainant had defaulted in the payment of instalments, the opposite parties are entitled to get interest @ 24% per annum.  The opposite parties had sent a lawyer’s notice on 05.07.2013 to the complainant which was returned with the endorsement ‘unclaimed’.  There is no deficiency of service on the part of the opposite parties.  Hence they would seek for dismissal of the complaint. 

3.  The evidence consists of the testimony of the complainant as PW1 and Exts. A1 to A10 marked on his side.  On the side of the opposite parties DW1 was examined and Ext. B1 marked.

4.  Heard. Perused the records.

5.  The points that arise for determination are:

1. Is there any deficiency of service or unfair trade practice as alleged in the complaint?
2. Whether the complainant is entitled to get compensation or interest as claimed?
3. Reliefs and costs?

6.  Points (i) to (iii):-The complainant has given evidence as PW1 in support of the complaint.  Ext. A1 is the copy of the agreement for construction of the villa executed by the 1^st opposite party and the complainant on 01.08.2009.  Ext. A2 is the copy of the sale deed executed on 26.10.2009 in respect of the land in which the construction is sought to be made.  Ext. A3 is the copy of the receipts evidencing the payments made by the complainant, the covering letter and the No Objection Certificate issued by the opposite party to release the sanctioned loan amount to the borrower.  Ext. A4 is the account statement pertaining to the loan availed by the complainant from Axis Bank.  Ext. A5 is the copy of the registered notice issued to the opposite party on behalf of the complainant.  The acknowledgment cards are marked as Exts. A6 & A7.  Ext. A8 is the account statement of the loan account for the subsequent dates.  Ext. A9 is the statement of payment made by the complainant to the opposite party for a total sum of Rs. 65,88,180/-.  Ext. A10 is the photographs with respect to the proposed construction made by the opposite parties.  Admittedly execution of agreement and the remittance as recited in the complaint are not disputed.  The complainant has given convincing evidence in support of the pleadings contained in the complaint. 

7.  The Chairman of the opposite party, Sri. Noushad has given evidence as DW1 in support of the pleadings contained in their version.  Ext. B1 is the returned postal envelope in respect of a letter issued to the complainant.  Ext. B1 was returned with a postal endorsement ‘unclaimed’.  Though the opposite party had raised several contentions no documents were brought by them to substantiate their contention.  According to the complainant no additional works were carried out than that of the stipulated construction incorporated in the agreement.  Additional funds were claimed by the opposite party on the reason that additional construction, fixation of modular kitchen and other amenities were provided as requested by the complainant.  But no documentary proof was brought by the opposite party to prove their contentions.  The complainant had caused production of all the documentary evidence with respect to the agreement entered into between the complainant and opposite party and also in respect of the payments made.  The payment schedule was incorporated in the agreement.  The opposite parties had claimed default interest on the reason that the complainant had failed to effect payment as agreed.  But no materials were brought by the opposite parties to substantiate this contention.  As per the evidence let in by DW1 the opposite party is in possession of the documents evidencing the communications sent by them requesting the complainant to effect payment.  But none of those documents were brought before this Commission, whereas the complainant has caused production of the statement of account of the loan duly attested by the Manager.  DW1 had given evidence that he had caused production of the statement duly attested by the bank Manager regarding the dues on the part of the complainant.  But such an item of evidence is not brought before this Commission.  Admittedly, the complainant was staying abroad when the agreement was executed.  PW1 is the Power of Attorney holder of the complainant.  Though the original address of the complainant was noted in Ext. A1 the opposite party never sent a notice in his address.  The oral evidence let in by DW1 is contrary to the recitals contained in Ext. A1 regarding the rate and area.  The opposite party would claim an extra rate of area as 2214 sq. ft. but such a recital is not seen in Ext. A1.  Though opposite party would claim additional built up area which was allegedly built up as per the request of the complainant no materials were brought before this Court to substantiate this fact.  The complainant has got a specific case that flood occurred in the construction site and for proving the above aspect photographs of the same were brought before this Commission and marked as Ext. A10.  The reason for additional claim raised by the opposite parties as sworn in the affidavit and in the version is not substantiated with any acceptable evidence.  From the stand taken by the opposite parties before this Commission it is crystal clear that they have raised additional demands than that of the agreed amount quoted in the agreement. The refusal on the part of the opposite parties to hand over the flat by claiming additional amount without any tangible evidence that they had constructed additional built up area and provided additional amenities can only be construed as deficiency of service so as to deprive the complainant from getting possession of the premises though the complainant had paid the amount agreed upon within the stipulated period as recorded in the agreement.  The evidence let in by PW1 coupled with Exts. A1 and A2 would convince the deliberate act on the part of the opposite parties in declining to hand over the keys of the villa which is an unfair trade practice.  So the complainant is entitled to get an order directing the opposite parties to hand over the keys of the 4 bed room villa comprised in survey No. 37030 and 3731 of the Vattiyoorkavu village.  Though money was given as per the stipulation contained in Ext. A1 the opposite party had declined to hand over the keys. As a result of which the complainant had to remit Rs. 18,07,747/- as interest towards the loan account.  Complainant is entitled to get the said amount from the opposite parties as they had declined to hand over the keys of the villa as agreed in the karar.  So the Complainant is entitled to get interest.  The complainant has claimed Rs. 10,50,000/- as compensation regarding the inconvenience and mental agony caused on account of the deficiency in service on the part of the opposite parties.  The claim in this regard appears to be on a higher side.  Having due regard to the inconvenience caused to the complainant in not handing over the keys of the premises as stipulated in Ext. A1 even after receiving the entire payment it is found that the complainant is entitled to get a sum of Rs. 2,00,000/- as compensation.  Complainant is also entitled to get Rs. 10,000/- as costs of the proceedings.  Points are found accordingly. 

In the result, the complaint is allowed as follows:

1. Opposite parties are directed to hand over the keys of the 4 bed room villa comprised in Sy. No. 3730 and 3731 of Vattiyoorkavu Village within 30 days from the date of receipt of a copy of this judgment. 
2. Opposite parties are directed to pay the complainant Rs. 18,07,747/- (Rupees Eighteen Lakhs Seven Thousand Seven Hundred and Forty Seven only) being the interest paid by the complainant towards the loan availed from the Bank since the opposite parties had declined to hand over the keys of the apartment to the complainant.
3. Opposite parties are directed to pay the complainant Rs. 2,00,000/- (Rupees Two Lakhs only) as compensation for the mental agony and hardships caused .
4. Opposite parties are also directed to pay Rs. 10,000/- (Rupees Ten Thousand only) as costs of the proceedings.    
5. The opposite parties shall pay the entire amount awarded as per this order within 30 days from the date of receipt of the copy of this judgment failing which the opposite parties shall pay interest @ 9% per annum till the date of actual payment in respect of the entire amount.

      AJITH KUMAR D. : JUDICIAL MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

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APPENDIX

I         COMPLAINANT’S WITNESS :

 II      COMPLAINANT’S DOCUMENTS :

III      OPPOSITE PARTY’S WITNESS :

IV      OPPOSITE PARTY’S DOCUMENTS :

AJITH KUMAR  D. : JUDICIAL MEMBER

jb                                                                     RADHAKRISHNAN K.R.  : MEMBER