KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 261/2007
ORDER DATED: 31-03-2011
PRESENT:
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SHRI. M.K. ABDULLA SONA : MEMBER
K.A.George,
Flat No.29, Marvel Manson,
Kathrikkadavu, Kaloor.P.O, : APPELLANT
Kochi-17.
(By Adv:Sri.Liju.V.Stephen)
Vs.
1. M/s Jacobs Private Ltd.,
Chittoor Road, Ernakulam,
R/by its Director,
P.M.Thomas, Palathingal house,
Thrissur.
2. M/s Manuelsons Housing-
Development Co. (P) Ltd.,
M G Road, Thrissur, R/by its
Director, P.M. Manuel,
Palathingal House, Thrissur.
3. P.M.Thomas, Director,
Jacobs Private Ltd.,
Chittoor Road, Ernakulam.
: RESPONDENTS
4. Roshini Heorge,
Director, Jacobs Private Ltd.,
Chittoor Road, Ernakulam.
5. P.M.Manuel, Managing Director,
M/s Manuelsons Housing-
Development Co. (P) Ltd.,
M G Road, Thrissur,
Palathingal House, Thrissur.
6. P.M.George, Director,
M/s Manuelsons Housing-
Development Co. (P) Ltd.,
M G Road, Thrissur,
Palathingal House, Thrissur.
(R1 to R6 by Adv: Sri.George Cheriyan Karippaparambil)
JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
The appellant is the complainant and respondents 1 to 6 are the opposite parties in CC.470/06 on the file of CDRF, Ernakulam. The complaint therein was filed alleging deficiency of service on the part of opposite parties in causing delay of 12 years in delivering the flat (apartment) to the complainant and also for not providing the assured facilities and amenities for the said apartment and also for collecting additional amounts unnecessarily. Thus, the complainant prayed for refund of the additional amounts collected from the complainant and also for providing the assured amenities and facilities with compensation of Rs.2.lakhs for the delay in handing over possession of the apartment.
2. The opposite parties 1,2,4 & 6 entered appearance before the Forum below and filed written version denying the alleged deficiency of service. They contended that the complaint is not maintainable as it is barred by limitation; that the complainant is not entitled to get refund of the additional amounts which were paid by the complainant by fully satisfying with the additional area and services rendered. It was further contended that the delay in hading over possession of apartment occurred due to reasons beyond the control of the opposite parties as there were litigations pending before the Sub Court, High Court of Kerala and before the Hon’ble Supreme Court of India. Thus, the opposite parties prayed for dismissal of the complaint.
3. The opposite parties 3 and 5 remained absent.
4. Before the forum below PWs 1 to 3 were examined on the side of the complainant and DW1 from the side of opposite parties 1, 2, 4 and 6. Exts.A1 to A9 and B1 to B3 documents were also marked on their side. On an appreciation of the evidence on record, the Forum below passed the impugned order dated:18/5/2007 dismissing the complaint in OP.470/06. Hence, the present appeal by the complainant therein.
5. We heard the learned counsel for the appellant/complainant and the respondents/opposite parties. The counsel for the appellant/complainant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on the delay in handing over possession of the apartment by the opposite parties and requested for awarding compensation for the said delay of 12 years. He also relied on Ext.A5 common judgment of the Sub Court, Ernakulam in OS No.702/93, 680/93 and 1021/93 and argued for the position that the opposite parties executed the A2 agreement dated:20/3/1993 and the subsequent sale deed by making the complainant to believe that the 1st respondent is having absolute right and ownership over the property having an extent of 56 cents and that the litigations were filed and proceeded with the deliberate intention of causing delay in constructing the apartments and handing over possession of the same to the allottees including the complainant. He also submitted that there was deficiency of service on the part of the opposite parties in providing the amenities and facilities for the apartments and collecting additional amounts without any valid reason. Thus, the appellant prayed for setting aside the impugned order dated:18/5/2007 passed by CDRF, Ernakulam in CC.470/06 and to allow the complaint therein. On the other hand, the counsel for the respondents/opposite parties supported the impugned order passed by the Forum below. He argued for the position that the delay occurred due to the litigations pending with respect to the property where the apartments were to be constructed. He also relied on the commission report filed by the expert commissioner and submitted that all the assured facilities and amenities were provided and there was no deficiency of service on the part of the opposite parties. Thus, the respondents prayed for dismissal of the present appeal.
6. The points that arise for consideration are:-
1. Whether the appellant/complainant has succeeded in establishing his case that there occurred deliberate delay in constructing and handing over possession of the flat by the opposite parties to the complainant?
2. Whether there occurred any deficiency of service on the part of the respondents/opposite parties in providing the assured amenities and facilities to the appellant/complainant?
3. Whether any excess amount has been collected by way of additional amount from the appellant/complainant?
4. Is there any legally sustainable ground to interfere with the impugned order dated:18/5/2007 passed by CDRF, Ernakulam in CC.470/06?
7. Point No.1:-
There is no dispute that the appellant/complainant entered into an agreement with the opposite parties 1 and 2 for purchase of undivided interest in the proportionate share of the land having total extent of 56 cents and for getting a flat allotted to the complainant in the 2nd floor of the apartment known as Island castle. As per the said agreement the opposite parties 1 and 2 had also agreed to provide common area and other common facilities and amenities. Admittedly, A2 agreement was executed on 20/3/1993. There is no dispute that as per A2 agreement of the year 1993 opposite parties 1 and 2 agreed to hand over possession of the finished apartment to the complainant within 24 months of the A2 agreement. There is also no dispute that the appellant/complainant paid the entire consideration of Rs.10,23,000/- to opposite parties 1 and 2 within the stipulated time. There is no dispute that the opposite parties 1 and 2 could hand over possession of the finished flat only on 30/8/2006. Ext.A4 letter dated:30/8/2006 would also establish this fact regarding delay of about 12 years in handing over possession of the flat to the complainant. It is to be noted that opposite parties 3 to 6 are the directors of opposite parties 1 and 2 companies. It is further to be noted that the opposite parties have categorically admitted the aforesaid delay of 12 years in handing over possession of the flat to the appellant/complainant. Admittedly, the possession of the apartment was given to the complainant only on 30/8/2006. The Forum below has rightly held that the complaint in CC.470/06 is not barred by limitation.
8. The definite case of the respondents/opposite parties is that the delay of about 12 years occurred not due to their fault but the said delay occurred due to reasons beyond the control of the opposite parties. It is the case of the opposite parties that there were litigations pending before the Sub Court and subsequently before the Hon’ble High Court and the Hon’ble Supreme Court with respect to the right, ownership and possession of the property measuring 56 cents where the apartments viz, ‘Island Castle’ was to be constructed. The aforesaid case of the respondents/opposite parties cannot be believed or accepted. Ext.A2 agreement would make it clear that the 1st respondent/M/s Jacobs Private Limited claimed absolute right, title to and possession over the said land measuring 56 cents. Opposite parties 1 and 2 made the appellant/complainant to believe their absolute right and possession over the said 56 cents of land and it is based on the said representation made by the opposite parties, the appellant/complainant entered into A2 agreement with opposite parties. The recitals in A2 agreement dated:20/3/1993 would also make it abundantly clear that the opposite parties claimed absolute right, ownership and possession over the said property having an extent of 56 cents and they made the appellant/complainant to believe that the opposite parties have right, ownership and possession over the said property.
9. Ext.A5 common judgment passed by the Sub Court, Ernakulam in Original Suit Nos.702/93, 680/93 and 1021/93 would show that the opposite parties made false representation to the complainant. The aforesaid judgment would also make it clear that the directors of the opposite parties 1 and 2 companies were also partners of the partnership firm and that the said partnership firm filed the suit against the opposite parties claiming right over the aforesaid 56 cents of land. The admission made by the opposite parties in the aforesaid litigations would also make it clear that the opposite parties herein made false representations to the complainant. It would further show that the aforesaid litigations were initiated for the purpose of causing delay in constructing the apartments and thereby to divert the fund collected from the allottees, like the appellant/complainant. Ext.A5 judgment is sufficient enough to come to a definite conclusion that the aforesaid litigations are the creations of the opposite parties in collusion with there own partnership firm. At any rate, it can be concluded that the opposite parties are guilty of unfair trade practice and deficiency of service by misleading the appellant/complainant to enter into A2 agreement dated:20/3/1993. Thus, the delay of 12 years in handing over possession of the apartment to the appellant/complainant would amount to deficiency of service. It would also establish that the opposite parties exercised unfair trade practice in getting A2 agreement executed and in receiving the total consideration of Rs.10,23,000/- from the complainant.
10. The Forum below omitted to consider the fact that the respondents/opposite parties were enjoying a sum of Rs.10,23,000/- which was collected by them from the appellant/complainant and that they were bound to hand over possession of the apartment within 24 months from the date of A2 agreement. Thus, it can be concluded that the respondents/opposite parties were bound to hand over possession of the apartment before 20/3/1995; but the opposite parties could hand over possession of the apartment to the complainant only on 30/8/2006. The aforesaid delay of about 12 years was caused by the respondents/opposite parties and that there was no fault or lapse on the part of the appellant/complainant. So, the appellant/complainant is to be compensated for the inordinate delay of about 12 years in handing over possession of the apartment. The Forum below cannot be justified in finding that there was no deficiency of service on the part of the opposite parties in causing the said delay of 12 years. The aforesaid finding and conclusion made by the Forum below is liable to be set aside. Hence we do so.
11. Considering the inordinate delay of 12 years in handing over possession of the apartment to the complainant, this State Commission is of the view that the respondents/opposite parties are liable to pay interest at the rate of 9% per annum on the sum of Rs.10,23,000/- which the opposite parties had collected from the appellant/complainant. The aforesaid interest at the rate of 9% is to be paid to the complainant on the said sum of Rs.10,23,000/- from 20/3/1995 till 30/8/2006, the date on which the possession of the flat was given to the appellant/complainant. This point is answered accordingly.
12. Point No.2:-
An expert commissioner was appointed from the Forum below and thereby Mr.V.M.Joseph approved valuer was appointed as the expert commissioner. He submitted the report dated:26/2/2007. Ext.A9 is the inspection report submitted by the expert commissioner. A perusal of A9 inspection report dated:26/2/2007 would make it abundantly clear that the respondents/opposite parties have provided the assured amenities and facilities to the apartments known as “Island Castle”. The aforesaid report would also make it clear that common open area is also provided in the 2nd floor of the apartments by name Island Castle. The allegation regarding the failure to provide drinking water facility cannot be upheld. A9 report would also make it abundantly clear that well water is being supplied with water filtrations and that chlorination plant was also provided for availing water supply facilities. The further allegation levelled against the opposite parties regarding failure to provide lift facility is also belied by A9 report. Ext.A9 inspection report is sufficient enough to negative the aforesaid allegations levelled against the respondents/opposite parties. The Forum below has rightly held that there is no deficiency of service on the part of the respondents/opposite parties in providing the assured amenities and facilities to the apartments known as “Island Castle”. This issue is found in favour of the respondents/opposite parties.
13. Point No.3:-
Appellant/complainant has got a case that excess amounts were collected by the respondents/opposite parties for providing additional area and other facilities. The Forum below considered the payments effected by the complainant to the opposite parties and rightly appreciated the facts, circumstances and evidence available on record. The Forum below is justified in finding that there was no excess amount collected by the opposite parties. So, the case of the complainant regarding collection of excess amount has been rightly negatived by the Forum below. We do not find any sustainable ground to interfere with the aforesaid findings and conclusions arrived at by the Forum below regarding collection of additional amounts or excess amounts. This point is answered accordingly.
14. Point No.4:-
The foregoing discussions and the findings thereon would make it clear that the Forum below cannot be justified in negativing the case of the appellant/complainant regarding the inordinate delay of about 12 years in handing over possession of the Flat/Apartment to the complainant. The aforesaid finding of the Forum below is liable to be set aside. Hence we do so. In all other aspects, the impugned order passed by the Forum below can be upheld. Thus, the impugned order dated:18/5/2007 passed by CDRF, Ernakulam in CC.470/06 is partly set aside and thereby the finding of the Forum below that there was no deficiency of service on the part of the opposite parties in causing delay to hand over possession of the flat is set aside. This State Commission is pleased to hold that there was deficiency of service and unfair trade practice on the part of respondents/opposite parties in causing delay of about 12 years in handing over possession of the flat to the complainant. Therefore the respondents/opposite parties are made liable to pay compensation by way of interest at the rate of 9% per annum on the sum of Rs.10,23,000/- from 20/3/1995 till 30/8/2006. The appellant/complainant is also entitled to get his cost in the proceedings and the same is estimated at Rs.3000/-. Thus, the appeal is allowed to the extent as indicated above. This point is answered accordingly.
In the result the appeal is allowed partly. The impugned order dated:18/5/2007 passed by CDRF, Ernakulam in CC.470/06 is partly set aside/modified and thereby the respondents/opposite parties are directed to pay interest at the rate of 9% per annum on Rs.10,23,000/- from 20/3/1995 till 30/8/2006 with cost of Rs.3000/-. The respondents/opposite parties are directed to pay the aforesaid interest and cost within one month from the date of receipt of copy of this judgment, failing which the respondents/opposite parties will be liable to pay interest at the rate of 12% per annum on the decreed amount from the date of this judgment till realization. The respondents/opposite parties 1 to 6 are made jointly and severally liable to pay the decreed amount with cost to the appellant/complainant.
M.V. VISWANATHAN : JUDICIAL MEMBER
M.K. ABDULLA SONA : MEMBER
VL.
