Kerala

StateCommission

CC/14/80

POUL PRAKASH THOMAS - Complainant(s)

Versus

MANAGING PARTNER, M/S MATHER PROJECTS - Opp.Party(s)

T J LAKSHMANAN

15 Jul 2016

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

CC.NO.80/14

JUDGMENT DATED : 15.07.2016

PRESENT

JUSTICE SRI.P.Q.BARKATH ALI      : PRESIDENT

SRI.V.V.JOSE                                  : MEMBER

 

COMPLAINANT

Paul Prakash Thomas,

S/o.Late K.K.Thomas,

1201 TOPAZ, Sobha City,

Puzhakkal.P.O

 

(By Adv.Sri.SanthaRam.P & others)

 

Vs

OPPOSITE PARTIES

1.M/s.Mather Projects,

40/9143, Kodiyatt Chambers,

Rajaji Road, Kochi – 682 035

Rep.by its Managing Director

 

2.K.I.Muhammed Raffi Mather,

M/s.Mather Projects,

40/9143, Kodiyatt Chambers,

Rajaji Road, Kochi – 682 035

 

3. Siraj Mather,

M/s.Mather Projects,

40/9143, Kodiyatt Chambers,

Rajaji Road, Kochi – 682 035

 

4. N.Ashokan,

Executive Director,

M/s.Mather Projects,

40/9143, Kodiyatt Chambers,

Rajaji Road, Kochi – 682 035

 

(By Adv.Sri.George Abraham for OP1 & OP4)

(By Adv.Sri.M.Unnikrishnan for OP2 & OP3)

 

JUDGMENT

SRI.V.V.JOSE          : MEMBER

                This complaint is filed Under Section 17 of the Consumer Protection Act of 1986. The case of the complainant is as follows. Complainant is an NRI working in Quatar as Materials Master Controller in Maersis Oil. The first opposite party is a firm engaged in construction of flats and villas. The second opposite party is the erstwhile Managing Partner and the third opposite party is the erstwhile partner of the first opposite party. The fourth opposite party is the present executive Director of the first opposite party. Complainant has booked two residential apartments Nos. 3 B & 6 B in the project of the first opposite party named “Esperanza” at Kakkanad, Kochi. Complainant executed a construction agreement dated 28.04.2008 and an agreement of purchase of undivided share of land on the same date with first opposite party. The second opposite party has duly represented the firm ie, first opposite party in the above both agreements. It was agreed to hand over the apartment and execute the sale deed within thirty months from the date of agreement. But it was not completed. The opposite parties assured the completion at the earliest when represented, till now it is not completed.

        2.     The complainant is entitled to receive Rs.2/- per sq.feet per month for the area of the apartment if the opposite party fails to complete construction within the agreed time. This is as per clause II of the agreement. The opposite party after receiving the sale consideration of Rs.55,31,456/- at the time of execution of agreement, is doing an act of deficiency in service and unfair trade practice. Even though the opposite parties intimated the complainant in the year 2012 that they intend to start the registration process, nothing is assured regarding the improvement and completion of the project. The complainant issued a lawyer notice dated 13.06.2014 to the opposite parties for the completion of the construction and the delivery of the same and to execute the undivided sale deed within one month and for a compensation of Rs.5,00,000/- for delay in construction. The complainant further sought for a refund of Rs.55,31,456/- with 18% interest and also a compensation of Rs.5,00,000/- in the event, the opposite party fails to complete the construction and to hand over the apartment.

        3.     Second and third opposite parties issued a reply notice stating that they are no more part of first opposite party. The first and fourth opposite parties never cared to send a reply. The complainant understands that the opposite parties are not in a position to complete the construction of the apartment and to deliver the same. The change of management of the first opposite party is only a fabricated story from the part of the opposite parties to wriggle out of the liability that may be fastened upon them by court of Law. Hence this complaint for a direction to the opposite parties for a refund of an amount of Rs.55,31,456/- with 18% interest from March 2010 till realization. He further prayed for Rs.5,00,000/- for the deficiency in service and unfair trade practice and another Rs.5,00,000/- for mental agony and hardships suffered by the complaint. He further sought for Rs.1,33,300/- towards compensation as stipulated in clause II of the construction agreement.

        4.     After admission notice was served on all opposite parties. They entered appearance and filed version. Opposite parties one and four and two and three filed their version separately.

        5.     Complainant filed its proof affidavit in lieu of chief examination and marked 7 documents. As complainant has no oral evidence. Opposite parties two and three filed proof affidavit in lieu of chief examination and produced eight documents. Opposite parties one and four also filed proof affidavit.

        6.     Heard counsels of both parties. Counsel of the complainant submitted that he is satisfied with an order against opposite parties one and four only. Further both counsels agreed for of refund of the amount paid with reasonable interest and compensation.

        7.     We, therefore allowing the complaint in part and direct opposite parties one and four to refund of Rs.55,31,456/- along with interest of 12% from 01.03.2010 till realization. The complainant is entitled to have a compensation of Rs.2,00,000/- and a cost of Rs.10,000/- . The period of compliance will be six months from the date of receipt of this order.

        In the result, complaint is allowed in part directing the first and fourth opposite parties to refund of Rs.55,31,456/- along with 12% interest from 01.03.2010. The complainant is also entitled for a compensation of Rs.2,00,000/- and a cost of Rs.10,000/- .The date of compliance is six months from the date of receipt of this order.

 

V.V.JOSE : MEMBER

 

JUSTICE P.Q.BARKATH ALI     : PRESIDENT

 

 

BE/

APPENDIX

List of documents produced by the complainant

Ext.A1      - Sale agreement dated 28.04.2008 executed between the

                 first opp.party and the complainant pertaining to flat No.3B

 

Ext.A2   -  Sale agreement dated 28.04.2008 executed between the

                first opp.party and the complainant pertaining to flat No.6B

 

Ext.A3      - Construction agreement dated 28.04.2008 executed

                   between the first opp.party and the complainant

                   pertaining to flat No.3B

 

Ext.A4        - Construction agreement dated 28.04.2008 executed

                     between the first opp.party and the complainant

                     pertaining to flat No.6B

 

Ext.A5      - Advocate notice dated 13.06.2014 set at  the instance of

                   the complainant to the opp.parties.

 

EWxt.A6   - Copy of reply notice dated 20.06.2014 issued by the

                  opp.party nos.2 & 3 to the advocate notice issued by the

                  complainant’s counsel.

Ext.A7      - Postal A/D card evidencing receipt of the advocate notice

                 sent to the first opp.party .

 

List of documents produced by the opposite parties

Ext.B1     - Power of attorney dated 19.09.2015

Ext.B2     - Memorandum of Understanding dated 30.09.2006

Ext.B3     - Minutes of the meeting of space dated 28.02.2007

Ext.B4     - Certificate of incorporation and memorandum of

                  Association of space reality projects private limited

                 dated27.06.2007

Ext.B5     - Letter issued from space to Registrar of Companies

Ext.B6     - Minutes of the meeting of space reality projects pvt

                  ltd.dated 02.07.2007

Ext.B7     - Annual return of Mather Projects Pvt Ltd for the year

                    2012 dated:22.09.2012

Ext.B8     - Annual return of Mather projects Pvt Ltd for the year

                  2013

 

 

V.V.JOSE : MEMBER

 

JUSTICE P.Q.BARKATH ALI     : PRESIDENT

 

 

Be/

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

KERALA STATE

CONSUMER DISPUTES

REDRESSAL COMMISSION

SISUVIHARLANE

 VAZHUTHACADU

THIRUVANANTHAPURAM

 

CC.NO.80/14

JUDGMENT DATED : 15.07.2016

 

 

                                                                               Be/