Kerala

StateCommission

CC/15/74

PRAVEEN KUMAR SUKUMARAN - Complainant(s)

Versus

MANAGING DIRECTOR MATHER PROJECTS PVT LTD - Opp.Party(s)

SHERIFF ASSOSIATES

30 Nov 2016

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

CC.NO.74/2015

JUDGMENT DATED : 30.11.2016

PRESENT

JUSTICE SRI.P.Q.BARKATH ALI      : PRESIDENT

SRI.V.V.JOSE                                  : MEMBER

 

COMPLAINANT

Praveen Kumar Sukumaran,

S/o.S.Sukumaran,

No.DM08-Millennium,

Habitat, ITPL Main Road,

Kundalahalli.P.O

Pin – 560 037, Mahadevapuram Taluk,

Bangalore, Presently having address

At 7-311, Block 401, Bedok North Ave 3,

Singapore – 460 401

 

(By Adv.Sri.Lal.K.Joseph & Adv.Smt.Suja Madhav)

Vs

OPPOSITE PARTIES

1.Mather Projects Pvt Ltd,

Kodiyatt Chambers,

Rajaji Road, Kochi – 682 035,

Rep.by its Managing Director

 

2.Mr.Jacob K Babu,

S/o.Kadakkethy Chandy Baby,

Kalluvila Galeelee,

Temple Road, Vengalom Desam,

West Hill.P.O, Thiruvanchoor,Koyilandy Taluk, Kozhikkode

 

3.K M I Mather , Chairman,

Mather Projects Pvt Ltd,Kodiyatt Chambers, Rajaji Road,

Kochi – 682 035

 

4.Rafi Mather,

Managing Director,

Mather Projects Pvt Ltd,

Kodiyatt Chambers, Rajaji Road,

Kochi – 682 035

 

5.K.A.Siraj Mather,

S/o.K.M.Abdul Rahman,

Director, Mather Projects Pvt Ltd,

Kodiyatt Chambers, Rajaji Road,

Kochi – 682 035

 

6.M.Venugopalan,

Director, Mather Projects Pvt Ltd,

Kodiyatt Chambers, Rajaji Road,

Kochi – 682 035

 

7. Navas Meeran,

Director, Mather Projects Pvt Ltd,

Kodiyatt Chambers, Rajaji Road,

Kochi – 682 035

 

8. Mathew Joseph,

Director,

Mather Projects Pvt Ltd,

Kodiyatt Chambers, Rajaji Road,

Kochi – 682 035

 

9.N.Asokan,

Executive Director,

Mather Projects Pvt Ltd,

Kodiyatt Chambers, Rajaji Road,

Kochi – 682 035

 

10.Aju Issac Varghese,

Senior Manager,

Mather Projects Pvt Ltd,

Kodiyatt Chambers, Rajaji Road,Kochi – 682 035

11. Anu Joseph,

Customer Care Manager,

Mather Projects Pvt Ltd,

Kodiyatt Chambers, Rajaji Road,

Kochi – 682 035

 

12.Rakesh Aikkara,

Home Care Division Manager,

Mather Projects Pvt Ltd,

Kodiyatt Chambers, Rajaji Road,

Kochi – 682 035

 

(Ops 1, 3,6,7,8,9,11 & 12 by Adv.Sri.George Abraham Pachayil)

(OP2 by Adv.Sri.Suresh Wilfred)

(OP4 & 5 by Adv.Sri.M.Unnikrishnan)

 

JUDGMENT

SRI.V.V.JOSE  : MEMBER

                  This complaint is filed under Section 17 of the Consumer Protection Act 1986.

                2.     The complainant is a non resident Keralite from Kottayam presently stationed at Singapore. The first respondent is a Private Limited Company and respondents 2 – 12 are directors and officials of first respondent. First respondent is engaged in the business of construction of flats and villas. The first respondent was actually a partnership firm, had been later constituted into a private limited company. First respondent is responsible to honour the commitments made by the partnership firm towards the complainant ie the deed of agreement dated 19.01.2007.                    
The first opposite party also communicated the same. The first respondent and its officials, through its advertisement in media and property expos conducted in Kerala had projected and canvassed their new project named “ High Lands “ at Kakkanadu village. On enquiry the first opposite party had approached the complainant and canvassed him to enter into an agreement to allow the opposite parties to construct an apartment and to purchase 343/100000 undivided share in the land together with Apartment No.5 c in the 5^th floor in Tower No.111 in “high lands” with garage. Complainant entered into a deed of agreement dated 19.01.2007 with the opposite parties to construct an apartment for Rs.27,21, 455/-. The fourth opposite party signed the deed of agreement in his capacity as the power of attorney of the second opposite party.

        3.     The second opposite party is the owner of the landed property having an extent of 105.11 Ares comprised in Re.Sy.No.570/21, 37.196 Ares comprised in Re.Sy.No.570/20, 7.806 and 14.993 Ares comprised in Re.Sy.No.570/164 all in block no.9 of Kakkanad village. He is a partner of the first opposite party. As per the deed of agreement first opposite party had undertook to complete the construction within 36 months from the date of agreement.

        4.     The complainant had taken a loan for an amount of Rs.2184000/- from State Bank of India, Kottayam with an interest of 11.20% from 23.04.2007. As on 15.06.2015 the complainant had repaid Rs.12,45,375/-. Even after 36 months, the construction was not completed as per agreement. The demand of the complainant to the opposite parties was unattended. As per the assurance of the opposite parties of speedy completion of the project, the complainant entered into a deed of sale agreement No.1072/12 of Thrikkakkara Sub Registrar Office dated 02.04.2012 with the first and second opposite parties for 343/100000 undivided share out of 105.11 ares made up of 3.978 ares comprised in Re.survey No.570/21, 37.195 ares comprised in Re.Survey No.570/20, 7.806 areas comprised in Re.Survey No.570/160, and 14.993 ares comprised in Re.Survey No.570/164 in Block No.9 of Kakkanad village under document nos 2584/2006, 2585/2006, 2588/2006, 2822/2007 and 2954/2007 along with a right of way to the public road on the western side through 7 meter wide road common passage available at the site along the southern side of the property lying on the west of the property and three bed room apartment no.5 c in the fifth floor, in Tower No.III having a super built up area of 144.05 sq.mr In “High Lands “ under construction together with the covered car parking area on payment of total sale consideration of Rs.1471650/- of which Rs.231650/- was paid towards land cost and rest for the construction of apartment. The fourth opposite party, as the power of attorney holder of second opposite party executed the sale deed. Complainant has also paid the stamp duty Rs.1,17,900/-. As on 02.04.2012 the complainant paid Rs.27,98,461/- but at the same time the construction was not going in a smooth and expected manner. When complainant approached the opposite parties, they have advised him to sell the apartment through their agents, claiming that the value of the property had increased. As per clause II of the construction agreement the complainant is entitled for damages Rs.21-50 sq.meter ie Rs.2/- per sq.feet. Even though things are becoming so, opposite parties are demanding compensation and interest charged on the delayed payment. It is an act of unfair trade practice and deficiency in service.

        5.     Hence this complaint for a refund of Rs.2798461/- with 12% from the date of payment and for a compensation of Rs.5,00,000/- and for cost of this proceedings also.

        6.     Notice was issued to all the twelve opposite parties and they were represented by counsels except opposite party No.6. They filed version separately. Opposite party four and five also filed separate version jointly. All other opposite parties filed version jointly including opposite parties 1 to 6.

        7.     The second opposite party in his version contends that he is not a partner of the first opposite party. He is only the owner of the land in which the first opposite party has constructed the buildings as per the transfer of the said properties to the first opposite party. It is submitted that the first and second opposite party have entered into an agreement for sale of the property in which the apartments to be constructed. In the circumstances the first opposite party has issued a letter to second opposite party stating that the entire liability regarding the construction in the property is of the first opposite party. To prove the contention of second opposite party he has produced the above letter dated 22.11.2014 and copy of the sale agreement entered between them.

        8.     Opposite parties four and five filed their version separately. They denied all the allegations and averments in the complaint. According to them the complaint is not maintainable either in law or in facts. The fourth opposite party had not signed any deed of agreement as the power of attorney holder of second opposite party. They ceased to have any association or business relation with first opposite party form 20.06.2012 as they have resigned from the first opposite party company.

        9.     The above opposite parties have not received any lawyer notice as averred in the complaint. It would have been received in the office of first opposite party.

        10.   Opposite party IX filed version for himself as opposite party no.9 and opposite parties 1,3,6,7,8,10,11 ad 12. The IX opposite party is the Chairman and 6-12 are directors and employees of the first opposite party. Opposite parties IV & V are two erstwhile directors, they resigned from the first opposite party company in the year 2012. Opposite parties 10, 11 & 12 are unnecessarily included, they are only the employees of the first opposite party. The agreement between the complainant and the first opposite party is admitted. The completion was delayed due to unforeseen circumstances. They alleged that the funds collected by opposite parties 4 & 5 were taken away, by them and criminal cases are pending against them. However the first opposite party is trying to complete the construction of various projects undertaken.

        11.   We have carefully gone through the complaint, affidavit, documents produced and version filed by opposite parties. Complainant filed proof affidavit in lieu of chief examination and marked Exts.A1 to A7. All the opposite parties appeared on notice except opposite party VI. He was called absent and set exparte. But opposite party No.1X filed version for opposite party VI also. Even though all the opposite parties filed version, they did not turned up. Complainant was not cross examined. The complainant and opposite parties not adduced any evidence.

        12.   The definite case of the complainant is as follows. He has entered into an agreement dated 19.01.2007 with the first opposite party to construct an apartment for the complainant and to purchase 343/100000 undivided share in the land together with apartment No.5 C in the 5^th floor in Tower No.111 in High Lands with garage in the landed property of second opposite party having an extent of 105.11 ares in block no.9 of Kakkanad village.  The period of completion was 36 months from the date of agreement. The complainant has paid Rs.27,98,461/ (Including Rs.117900/- for registration). Even after 36 months the construction was not completed. His request and representation was not cared by the opposite parties. So the complainant insisted for registration of sale deed. Sale deed was executed on 02.04.2012 with the first and second opposite parties by deed no.1072/12 of Thrikkakara Sub Registry 343/100000 undivided share out of 105.11 ares made up of 3.978 ares comprised in Re.Survey No.570/21, 37.195 ares comprised in Re.Survey No.570/20, 7.806 ares comprised in Res.Survey No.570/164 all in block no.9 of Kakkanad village covered under document no2584/2006, 2585/2006, 2822/2007 and 2954/2007 along with the right of way to the public road, common passage available at the site along with the Southern side of the property lying on the west of the property and three bed room apartment No.5 c in the fifth floor, in tower no.111 having a super built up area of 144-05 sq.me in ‘High Lands ‘ under construction together with the covered parking area. As on 26.03.2012 the complainant has paid a total amount of Rs.2680561/-. Complainant issued legal notice to all the opposite parties. All of them except 4 & 5 replied with false submissions.

13.   Complainant has filed proof affidavit and marked Exts.A1 to A7. Ext.A1 is the copy of deed of agreement dated 19.01.2007 between the complainant and opposite party. Ext,A2 is copy of a bank statement of the complainant from 23.04.2007 to 15.05.2015 issued by State bank of India, Kottayam. Ext.A3 is the copy of the sale deed no.1072/12 dated 02.04.2012. Ext.A4 copy of statement of accounts of Rs.2680567/- dated 13.05.2013 issued by first opposite party. Ext.A5 is the copy of interest / compensation calculation dated 17.06.2013.Ext.A6 copy of lawyer notice dated 22.01.2015. Ext.A6(a) Postal receipt of the notice. Ext.A7 copy of reply notice by opposite parties except 4 & 5 dated 23.02.2015.

        14.   Following issues arise for consideration.

1. Whether there is any deficiency in service on the part of the opposite parties.

2. Whether the complainant is entitled for any relief.

3. Reliefs and costs.

Issue no.1

15.   It is admitted and is proved by the documents produced by the complainant that complainant and opposite parties entered into an agreement dated 09.01.2007. Copy of which marked as Ext.A1 for the purchase of apartment no.5 C in the fifth floor in the third tower of the proposed building known as ‘HIGH LANDS’ with an undivided share of 343/100000 assuming an area of 1550 sq.ft and one covered car park in survey no.570/20, 21, & 22 in Kakkanad village in Kanayannur Taluk. It is evident from Ext.A4 that an amount of Rs.2680561/- is paid to the opposite parties by the complainant. Further to that he has paid Rs.117900/- for registration purpose Altogether Rs.27,98,461/- was paid by complainant. Ext.A3 proves that the opposite parties has conveyed the apartment and undivided share of land to the name of the complainant by deed no.1072/12 dated 02.04.2012. But it is seen from records that the opposite party has not completed the construction, even though it is transferred. The version field by opposite party IX for all opposite parties except 2,4,5 admits the non completion of construction. They alleges that it was due to reasons beyond their control. The allegation that their two directors, has misappropriated the funds collected from customers. There is a small mentioning of some civil and criminal cases pending against them. It is only a vague statement. No progress or current stage of the case is not reported.

16.   Opposite party no.2, the land owner filed version separately with two documents to prove his non responsibility. He is not a party to any agreement to the complainant. According to us he is not legally or morally responsible to fulfill the contractual obligation to the complainant. More over, he has already sold his land in favour of the complainant as per Ext.A3 document. In the circumstances opposite party no.2 is an necessary party and is exonerated from liability. Opposite party N.4 & 5 contents in their separate version that they are not partners in Op.1 Company. They have resigned their posts. OP1 also admits this in their version. We are not sure that whether it is a collusive admission and some cases of criminal and civil is pending against them. Further to that OP1 has stated that OP4 & OP5 has misappropriated the funds collected from customers and that too was the main reason for the present financial situation of OP1.  An order cannot be passed against a company without the junction of Managing Director. OP4 is arrayed as Managing Director of the OP1 company.

17.   All the above discussions shows that the OP1 company and its directors except OP2 has received Rs.27,98,461/- from the complainant and not completed the construction till now. Even though OP1 Company has transferred the apartment and undivided share to the complainant. Even though the agreement is partly executed, possibly the complainant apprehends that the non – construction and non – completion of the apartment in the land transferred are unfair trade practice and deficiency of service on the part of opposite parties. Both parties have not taken any pain to convince this commission the progress of construction. Having been received Rs.27,98,461/- and failed to discharge their bounden obligation as per the agreement, it amounts clear deficiency of service. We have no hesitation to find that the opposite party (except OP2) utterly failed in discharging the duties as per Ext.A1, agreement and has committed breach of contract and it amounts to unfair trade practice also. We find issue No.1 in favour of the complainant and against opposite parties.

 

 

Issue No.2

        18.   Having been found that the opposite parties has committed deficiency in service, thereby causing loss and mental agony to the complainant, they are liable to compensate the complainant for his money paid. It is found that opposite parties has already conveyed the agreed apartment in Kakkanad village. Both parties failed to drive home the progress of work in terms of construction, or in terms of money to this commission. Hence we find the complainant case of non construction and non completion is genuine and the case of the complainant is probable and hence as we found the complainant is entitled for relief. In the light of the above discussions the first opposite party company and its directors and officials except opposite party no.2 (the land owner) are totally responsible for the alleged and proved deficiency in service.

Issue No.3

        19.   Hence we direct the opposite parties except no.2 to refund the entire amount paid by the complainant amounting to Rs.27,98,461/- together with interest at 12% from, 02.04.2012 till realization. He is also entitled to get compensation for mental agony and loss etc to a tune of of Rs.1,00,000/-. The complainant is also entitled to the cost of proceedings amounting to Rs.10,000/-. Issue No.3 is answered accordingly.

        20.   At the same time, we direct the complainant, on receipt of the said amount, has to reconvey the land and apartment together with all developments made therein to the first opposite party at the cost of the opposite parties by appearing before the respective. Sub Registry and admitting and executing the sale deed in favour of the first opposite party. The stamp duty shall be paid by the opposite parties for the said reconveyance.

        In the result, complaint is allowed in part, directing the opposite parties, except no.2, to refund Rs.27,98,461/-together with interest at 12% from 02.04.2012 till realization. The complainant is also entitled to get a compensation of Rs.1,00,000/- for mental agony etc and a cost of Rs.10,000/- for this proceedings. We direct the complainant, on receipt of the said amount, should re convey the land and apartment together with all developments made therein to the first opposite party at the cost of first opposite party. The stamp duty shall be paid by the opposite parties for the said conveyance.

 

V.V.JOSE         : MEMBER

 

JUSTICE P.Q.BARKATH ALI    : PRESIDENT

APPENDIX

List of documents produced by the complainant

Ext.A1              - copy of deed of agreement dated 19.01.2007 between

                           the complainant and opposite party.

Ext.A2              - copy of a bank statement of the complainant from

                           23.04.2007 to 15.05.2015 issued by State bank of  

                           India, Kottayam.

Ext.A3              - copy of the sale deed no.1072/12 dated 02.04.2012.

 

Ext.A4              - copy of statement of accounts of Rs.2680567/- dated

                          13.05.2013 issued by first opposite party.

 

Ext.A5              - copy of interest / compensation calculation dated

                          17.06.2013.

 

Ext.A6              - copy of lawyer notice dated 22.01.2015. Ext.A6 (a)

                           Postal receipt of the notice.

 

Ext.A7              - copy of reply notice by opposite parties except 4 & 5

                          dated 23.02.2015.

 

 

V.V.JOSE         : MEMBER

 

JUSTICE P.Q.BARKATH ALI    : PRESIDENT

 

Be/

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

KERALA STATE

CONSUMER DISPUTES

REDRESSAL COMMISSION

SISUVIHARLANE

VAZHUTHACADU

THIRUVANANTHAPURAM

 

CC.NO.74/2015

JUDGMENT DATED : 30.11.2016

 

 

                                                                            Be/