KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD THIRUVANANTHAPURAM

CC NO.01/14

JUDGMENT DATED: 29/09/2014

PRESENT

JUSTICE SHRI.P.Q. BARKATH ALI:                        PRESIDENT

SHRI.V.V. JOSE:                                                          MEMBER

1. K. Mathai, S/o. Koshi,

Kurayil Plavila Ebeneser Cottage,

Near Railway Station, Thiruvalla,

Pathanamthitta, Kerala

1. Shibu K. Mathew,

S/o. Kunjappi

Kurayil Plavila Ebenezer Cottage,

Near Railway Station, Thiruvalla

Pathanamthitta, Kerala                                      -                COMPLAINANTS

(By Adv. Sri.C.S. Rajmohan & S. Sunil Narayanan)

V/s.

1. Mr. John. C.P.,

Chandraviruthil House,

Kulakkad, Thiruvalla, Pathanamthitta

CVP Realtors (P) Ltd.,

Chandraviruthil House, Kulakkadu,

Thiruvalla, Pathanamthitta

Kerala

1. Gracy George, W/o. George Varghese,

Kurisummoottil,

Kattookkara Muri,

Thiruvalla, Pathanamthitta                                -        RESPONDENTS

JUDGMENT

SHRI.V.V. JOSE:         MEMBER

          The opposite party i.e. M/s. CVP Realtors (P) Ltd., doing business of building construction entered into an agreement with the complainants to construct shopping space with super built up area of 596 sq. ft. on the basement floor numbered B/19, 20 in the proposed multistoried building complex by name and stryle CVP CITY CENTRE, Thiruvalla for a total consideration of Rs.7,09,316/-

          2.      The second opposite party is the provider of land to the 1^st opposite party, who owns the land in old Survey No.160/1, 126/1A, 130/3, 2 and Resurvey No.204/22 of Thiruvalla Village on the side of M.C. Road, Thiruvalla.

          3.      Term 5 of the agreement states that the promoter undertakes to handover possession of the premises within one month after completion or after receipt of the entire payments herein provided along with all statutory charges for extra works from the purchaser whichever is later.  The opposite party indefinetly lag  to handover the possession as the building is not completed, forgetting the fact that the entire amount was already received.

          4.      The act of the opposite parties are unfair trade practice and deficiency of service, which entitle the complainants for compensation.  Eventhough the complainants approached the 1^st opposite party in his office many times, he didn’t cared to handover the possession stating that the building is not completed.

          5.      Complainants preferred this complaint for a direction to handover the completed shopping space with built up area of 596 sq. ft. on the basement floor numbered as B/19, 20 of the CVP CITY CENTRE in property under old Survey No.160/1, 126/1A, 130/3, 2 and Resurvey No.204/22 of the Thiruvalla Village on the side of M.C. Road or in default direct the opposite party to pay the amount of Rs.7,09,316/- with 18% interest from 01/09/2005 till 1/11/2013 amounting to Rs.10,42,694/- and further interest till realisation.  The complainants furher sought for a compensation of Rs.5,00,000/- from opposite party for the agony and hardship suffered by the complainants and cost of this proceedings also.

          6.      After admission of complaint notice was sent to the opposite parties which were returned stating that the 1^st opposite party left and 2^nd opposite party as not known.  Commission ordered for substituted service of notice to the opposite parties.

          7.      Accordingly complainants produced the paper publication in Kerala Kaumudi daily only against 1^st opposite party dated 20/06/2014.  Opposite party was called but absent.  Hence opposite parties are set ex-parte.

          8.      The complainants filed proof affidavit in lieu of chief examination and marked copy of agreement with Ext.A1 and copy of agreement with Builder and land owners as Ext. A2.

          9.      The complainants are alleging unfair trade practice and seeking refund of the amount paid for purchase of shopping space as per agreement Ext.A1.  It appears that the complainant has paid Rs.7,09,316/- the entire amount at the time of execution of the agreement itself.  The shopping space is not seen handed over at the time fixed as per the agreement till now. The complainants filed affidavit in lieu of chief examination.

          10.    We have gone through the complaint, documents and proof affidavit  though the land lady (2^nd opposite party) agreed to sell land to the builder (1^st opposite party) and signed agreements to that effect, it has nothing to do with the complainant herein.  There is no privity of contract between the complainants and the 2^nd opposite party.  Though the Ext.A2 agreement shows two names namely K.George Varghese and Gracy George, complainants has chosen to implede only Gracy George as 2^nd opposite party.  Though the paper publication is made at the instruction of this Commission, complainant has chosen to publish notice only as against the 1^st opposite party.  Needless to say there is no any direct or proximate relation between the complainant and 2^nd opposite party and reliefs sought against her is not sustainable.  We also noticed that the claim of interest is made by the complainant at the rate of 18%, which has no nexus with the terms of the contract.  In fact clause 11 of A1 agreement stipulates that interest at the rate of 12% is payable by the purchaser to the promoter on all the amounts which fall in arrears, the same anology is to be applied in the case of payment by the promoter to the purchaser.  Consequently complainants are entitled to only 12% interest from the builder/promoter.  It appears that the complainants have inflated rate of interest and compensation claim is made to stretch the jurisdiction of this Commission.  We find that we cannot allow such high rate of interest in the absence of any contract to that extent.  We find, direction to refund the entire amount paid by the complainant together with interest at 12% from the date of such payments would meet the ends of justice.   Accordingly we direct the 1^st opposite party to refund the amount of Rs.7,09,316/- with 12% interest from 01/09/2005 (the date of agreement and date of payment) till realisation.  Complainants are entitled to the cost also.  Since interest is granted payment of compensation does not appears to be legal. 

          In the result, the 1^st opposite party is directed to refund Rs.7,09,316/- together with intertest at the rate of 12% per annum from 01/09/2005 till realisation.  1^st opposite party shall also pay Rs.5,000/- as cost of this proceedings.  Time of complaince is two months from the date of receipt of the order.

                                 V.V. JOSE         :  MEMBER               

JUSTICE P.Q. BARKATH ALI   :  PRESIDENT

APPENDIX

Exhibits  for the complainant:

1,  Ext. A1:         Marked copy of Agreement

2,  Ext. A2:         Copy of Agreement with builder and land owners

 V.V. JOSE    :  MEMBER             

JUSTICE P.Q. BARKATH ALI:  PRESIDENT

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