KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 649/2016
JUDGMENT DATED: 13.01.2023
(Against the Order in C.C. 191/2014 of CDRF, Ernakulam)
PRESENT:
HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT
SMT. BEENA KUMARY. A : MEMBER
APPELLANT:
Sivadasan P.K., 37/611 B, Illathuparambil, Ambadi Lane, S.A. Road, Kadavanthara, Kochi-682 020.
(By Advs. George Cherian Karipparambil & S. Reghukumar)
Vs.
RESPONDENTS:
- M/s Skyline Builders, C.C. 41/439 B, Skyline House, Rajaji Road, Kochi-682 035 represented by its Managing Partner K.V. Abdul Azeez.
- Abdul Azeez, Managing Partner, M/s Skyline Builders, C.C. 41/439 B, Skyline House, Rajaji Road, Kochi-682 035.
(By Adv. M. Unnikrishnan)
JUDGMENT
HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT
The complainant in C.C. No. 191/2014 of the Consumer Disputes Redressal Forum, Ernakulam (District Forum for short) is in appeal. He is aggrieved by the final order dated 05.05.2016 of the District Forum dismissing the complaint. The complaint has been dismissed without prejudice to the right of the appellant to file appropriate proceedings before a Civil Court for recovery of the excess amounts paid by him.
2. The complaint was filed by the appellant alleging that excess amounts had been charged from him by the respondent herein, over and above what was agreed upon between the parties as per an agreement executed among them. The respondents are builders who are engaged in the construction of building complexes and villas for residential and commercial purposes. As per an agreement dated 17.10.2007 the appellant had agreed to purchase and the respondents had agreed to construct and deliver an apartment for the purpose of his residence. However, the respondents delayed the construction by more than one year though the payments stipulated had been made promptly and without any delay. It was further alleged that an amount of Rs. 1,58,807/- had been extracted from the appellant as service tax at the time of registration and handing over of the apartment. The appellant had thereupon filed a complaint C.C. No. 675/2010 to cancel the unauthorized demand of service tax charged from him. According to him, the total sale consideration agreed upon was Rs. 38,00,000/- but, a total amount of Rs. 41,43,990/- had been recovered from him. The appellant also contends that the registration charges recovered from him was also excessive. Thus, an additional amount of Rs.1,79,760/- was recovered on 18.10.2013 for registration. For the purpose of documentation, an amount of Rs. 7,000/- had been collected at the time of agreement, but at the time of registration, the appellant was forced to pay a further amount of Rs. 12,500/- to the document writer directly. He was informed that the documentation charges collected was utilized for providing photocopies of prior documents.
3. Apart from the above, when the appellant approached the Corporation of Kochi for change of ownership, he found that there was a default of Rs. 36,516/- payable as property tax which included late fee also. The property tax represented the period prior to registration of the apartment in the name of the appellant which the builder had to pay. However, left with no other option, he paid the said amount also. In addition, an amount of Rs. 20,700/- had to be paid as maintenance charges of the apartment for the financial year 2011-12. A further amount of Rs. 20,700/- had to be paid towards maintenance charge for the year 2012-13. Rs. 31,113/- had to be paid towards electricity charges for the year 2011-12. According to the appellant, the maintenance and electricity charges extracted for the period prior to the handing over of the apartment comes to Rs. 44,513/-, which he was not liable to pay. He claimed that he was entitled to recover the said amount from the respondents. According to him, he had paid a further amount of Rs. 17,250/- as maintenance charges for the period from April 2013 to November 2013 which also was not liable to be paid by him. The appellant therefore sought for an order from the District Forum permitting the recovery of the excess amounts paid by the appellant as stated above.
4. The complaint was contested by the opposite parties. According to their version, as per the construction agreement the price of the apartment agreed upon, including land value was Rs. 38,00,000/-. But, by the time the apartment was ready for registration, the Govt. had introduced Fair Value System in property rates and that resulted in an increase in the valuation of the property. According to them, that was the reason for the increase in the total amount from what was agreed upon in the construction agreement. They pointed out that since no negligence, unfair trade practice or deficiency in service was attributed against them, there was no cause of action to file the complaint. All other statements in the complaint were denied by them. They prayed for dismissal of the complaint.
5. The complaint was tried by the District Forum on the above pleadings. The evidence in the case consists of the affidavit in lieu of chief examination filed by the appellant and Exts. A1 to A12 documents marked on his side. The respondents did not adduce any evidence. After close of evidence, the District Forum has, by the order appealed against, dismissed the complaint.
6. The order appealed against is a cryptic order which merely says that the complaint was dismissed with costs and without prejudice to the right of the appellant to file appropriate civil proceedings before a competent Civil Court to realize the excess amount if any paid to the respondents and to the Apartment Owners’ Association.
7. According to Adv. George Cherian Karippaparambil who appears for the appellant, the District Forum has failed to exercise the jurisdiction vested in it by the Consumer Protection Act, 1986 (the Act for short). The counsel points out that, having admitted the complaint finding that it was liable to be proceeded with, it was not open to the District Forum to dismiss the complaint summarily as done in the present case. Reliance is placed on Sec. 12(4) of the Act which provides that where a complaint is allowed to be proceeded with under sub -section (3), the same has to be disposed of on the merits. In the present case, not only was the complaint admitted, version had been filed and the trial had been conducted. Therefore, it was imperative that the complaint was disposed of on the merits, by a speaking order.
8. On receipt of notice, the respondents have entered appearance through lawyer. We have heard the counsel on both sides. We have given our anxious consideration to the contentions put forward before us. We have also perused the Lower Court Records called for by us.
9. It is true that, once a complaint is admitted under Sec. 12(3) of the Act, what has been mandated is for the District Forum to proceed with the complaint in the manner provided by the Act. Sec. 13(2) stipulates the time available to an opposite party to file version. Once version is filed, the complaint has to be disposed of in the manner stipulated by Sec. 13(2) of the Act.
Sec. 13(2) is reproduced hereunder for convenience of reference:
13(2): The District Forum shall, if [the complaint admitted] by it under Sec. 12 relates to goods in respect of which the procedure specified in sub-section (1) cannot be followed, or if the complaint relates to any services,
- refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;
- where the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute,
- on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint, or
- [ex parte on the basis of evidence] brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum.
[(c) where the complainant fails to appear on the date of hearing before the District Forum, the District Forum may either dismiss the complaint for default or decide it on merits.]
10. A perusal of the above provision leaves no doubt in our minds that the proper course to be adopted by the District Forum once a complaint has been admitted, is to proceed to settle the consumer dispute “on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaints”. Therefore, it was necessary for the District Forum to have supported its decision with proper reasons, after considering the contentions of the opposite party also. Since such an exercise was not done in the present case, we have carefully examined the pleadings of the parties in this case.
11. An examination of the complaint shows that, what the appellant has pleaded is that various amounts have been extracted from him by the respondents over and above what was agreed upon by the terms of the agreement entered into between the parties. He is also aggrieved by certain other payments made by him towards electricity charges, maintenance charges of the apartment and property tax with respect to periods prior to the date on which the apartment was registered in his name. Since the liability for payment of all amounts prior to the registration of the apartment in his name was on the builder, he had sought for recovery of the said amounts from the respondents. The version in this case has denied the allegations made in the complaint. It has also been pointed out that no allegations of deficiency in service or unfair trade practice have been made against the respondents in the complaint. Therefore, they had sought for dismissal of the complaint.
12. A perusal of the complaint filed by the appellant shows that no allegations have been made therein against the respondents herein of any unfair trade practice or deficiency in service. In the absence of even an allegation regarding deficiency in service or unfair trade practice against the respondents, it cannot be said that there was a consumer dispute in existence that required to be adjudicated by the District forum. The complaint is confined to allegations regarding recovery of excess amounts from the appellant/complainant, which he was not bound to pay. The relief sought for in the complaint is for recovery of the excess amounts so paid by the complainant towards fee for registration of the apartment, documentation charges, property tax, electricity charges and maintenance charges. No prayer for compensation for deficiency in service or unfair trade practice is also made. In short, the complaint is essentially one for the recovery of excess amounts paid. Therefore, the proper Forum for recovery of such excess amounts is the competent Civil Court. The appellant has therefore to put forward his claims in a properly framed suit before the competent Civil Court. In the above view of the matter, the District Forum was fully justified in relegating the appellant to his remedy before a competent Civil Court.
For the above reasons, we find no grounds to interfere with the order appealed against or to grant any of the reliefs sought for in this appeal.
In the result, this appeal is dismissed. No costs.
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JUSTICE K. SURENDRA MOHAN: PRESIDENT
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BEENA KUMARY. A : MEMBER
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