PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of November 2011
Filed on : 02/07/2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No. 354/2011
Between
1. Dr. Suresh Puthalath, : Complainants
S/o. P. Krishnan, (By Adv. Arundeep Mahesh)
Comtrust Eye Hospital,
Puthiyara, Kozhikode,
Palath House,
Medical College P.O., Kozhikode.
2. Mrs. Bala Guhan,
W/o. Dr. Suresh Puthalath,
Puthalath house,
Medcial College P.O., Kozhikode.
And
K.A. Saju, : Opposite party
Managing Director, (absent)
M/s. Apple A Day Properties,
S/o. T.K. Abdul Khadar
Poovathummattil Kodavil
Edappally P.O., Cochin-24.
O R D E R
A Rajesh, President.
The undisputed facts of the complainant’s case are as follows:
In October 2007 the complainant started to pay amounts to the opposite party to purchase flat bearing No. 114 in 14th floor of the opposite party’s project. Thereafter an agreement for the same was executed on 31-03-2008 between the complainants and the opposite party. The opposite party agreed to hand over the possession of the flat by the end of 2009. The complainant paid a total sum of Rs. 7,45,455/- to the opposite party towards advance sale consideration. In September 2010 the complainants came to know that the opposite party has not even started the construction of the flat. However the opposite party agreed to refund the amount with a compensation of Rs. 2 lakhs on or before 25-10-2010. Subsequently the complainant caused lawyer notice to the opposite party demanding a total sum of Rs. 9,45,455/- including the compensation. But there was no response. Complainant is entitled to get the amount from the opposite party. This complaint hence.
2. The notice issued to the opposite party was returned unaccepted the letter of caution too was ignored uncontrovertedly. The 1st complainant was examined as PW1, Exts. A1 to A6 were marked on the side of the complainants. Heard the counsel for the complainants.
3. The points that emanated for consideration are
i. Whether the complainant is entitled to get refund of the price
of the flat?
ii. Whether the opposite party is liable to pay a compensation of
Rs. 2 lakhs to the complainant ?
4. Point No. i. Ext. A1 client – Balance of confirmation dated 23-01-2010 issued by the opposite party to the complainant would go to show that the 1st complainant has paid the following amounts to the opposite party.
Date | Amount |
31/10/2007 | 10,000/- |
14/02/2008 | 2,20,500/- |
06/05/2008 | 3,70,289/- |
17/09/2009 | 1,44,666/- |
Total | 7,45,455/- |
5. Though the complainant contended that the complainants and the opposite party entered into an agreement on 31-03-2008 for the purchase of the flat the same has not been produced in this Forum. However Ext. A1 would go to affirm the same. Having received a considerable amount of Rs. 7,45,455/- the opposite party is contractually liable either to deliver the possession of the flat as agreed or to refund the same in which the opposite party failed. This act of non compliance of the contract calls for refund of the amount as claimed.
6. Point No. ii. For the unnecessary duress the complainant has been put to the opposite party is answerable in law. The prayer for compensation is for Rs. 2 lakhs we allow the same without demur.
7. Resultantly, we allow the complaint and direct as follows:
i. The opposite party shall refund the amounts as per Ext. A1 with interest @ 12% p.a. from the date of each payment till realization.
ii. The opposite party shall pay a compensation of Rs. 2 lakhs to the complainant for the aforesaid reasons.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of the order.
Pronounced in the open Forum on this the 30th day of November 2011.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits:
Ext. A1 : Copy of Client-Balance of Confirmation
A2 : Copy of letter
A3 : Copy of e-mail dt. 09-11-2007
A4 : Copy of letter dt. 29-10-2010
A5 : Copy of postal receipt (two numbers)
A6 : Copy of letter dt. 17-12-2010
Opposite party’s exhibits : Nil
Deposition
PW1 : Suresh Puthalath
