IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, the 5th day of December 2009 CC.209/2009 Mrs.O.K.Fathima by PA holder Smt.Ayisha Noor, Illiyyien House, Near SR Office, Complainant Kannur 2. (Rep. by Adv.T.V.Haridasan) The Managing Partner, Surya Builders, Behind KSRTC Kannur 2. Opposite party O R D E R Sri.K.Gopalan, President This is a complaint filed under section 12 of Consumer protection Act for an order directing the opposite party to effect the registration without delay and to pay a total sum of Rs.1,92,275/-. The brief facts of the complaint are as follows: The opposite party agreed to allot “3A1 flat to complainant for a consideration of Rs.21 lakhs. Complainant paid the amount in different dates and full payment completed on 9.9.08 fully. As against the terms of agreement opposite party collected one lakh rupees extra from the complainant on 3.2.09. Opposite party also demanding service tax of Rs.62,628/- Sales tax as Rs.54,450/- electricity deposit Rs.13,500/-, Municipality tax Rs.3,250/-,Maintenance deposit as Rs.20,000/- and additional interest as Rs.2,71,400/-. Moreover the cost of materials supplied by complainant for Rs.42, 275/- was not adjusted in the account. The flat was given possession to complainant on first week of March but the registration is still delayed and demanding the above said amount as extra which was not mentioned in the agreement. The illegal act of the opposite party is against the terms and conditions of the agreement which complainant is not liable to pay. Hence on 9.3.09 complainant sent lawyer notice demanding registration and refund of excess amount. Opposite party adopted unfair trade practice. This misfortune is caused due to deficiency in service rendered by opposite party. Hence this complaint to direct the opposite party to effect the registration and to return the excess amount together with cost and compensation. Forum sent notice to opposite party. Opposite party served properly and acknowlgement returned. But opposite party did not enter appearance. He was called absent and declared exparte. The main question to be decided is that whether there is any deficiency on the part of opposite party and whether the complainant is entitled for the relief as prayed in the complaint. Complainant adduced evidence by filing affidavit in tune with his pleadings and producing documents which are marked as ext.A1 to A12. The main case of the complaint is that he has booked a flat from the opposite party and opposite party agreed to allot “3 A1” flat for a total consideration of Rs.21 lakhs. Complaint paid entire amount and possession of the flat handed over on March 2009 but till this day opposite party failed to register the deed. Complainant further alleges that opposite party collected one lakh rupees extra from complainant. More over, the cost of materials supplied by complainant for Rs.42, 275/- was not adjusted towards the account. Ext.A1 to A7 cash bills reveals that the opposite party has received Rs.22 lakhs from the complainant in different days. Ext.A8 is the true copies of legal notice Ex.tA9 acknowledgement prove that the opposite party has received the notice. Since the opposite party received the entire amount there is no justification for non registration of the deed. The allegation of the complainant that he has paid rupees one lakh extra to opposite party and hence he is bound refund the amount is another point to be decided. This allegation has not been supported by any evidence. The complaint has stated in Ext.A8 that the opposite party had received an amount of Rs.1 lakh towards interest for delayed payment. What prompt complainant to give this amount in absence of such a specific agreement to that effect, has not been explained, which only leads to assume that the payment was made under an understanding, one way or the other. Another point to be discussed is upon the allegation of the complainant that opposite party did not adjust towards the account the cost of materials supplied by complainant for Rs.42,275/-. Absolutely there is no evidence to show that complainant had supplied such materials. It is difficult to understand what prevented the complainant to produce at least the purchase bill of the material. Mere pleading cannot be taken for granted to fix a liability. Taking in view the facts stated in the complaint supported by evidence and also keeping in view the conduct of the opposite party in not contesting the case we have no hesitation to hold that there is deficiency in service on the part of opposite party arising out of non registration of the deed. Opposite party is liable to register the deed without delay. Opposite party is also liable to pay an amount of Rs.50, 000/- as compensation and Rs.1000/- as cost of these proceedings. In the result, the complaint is allowed directing the opposite party to register the deed and to pay a sum of Rs.50, 000/- as compensation together with an amount of Rs.1000/- as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complaint is at liberty to execute the order against the opposite party under the provisions of the consumer protection act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1to A7 copy of the cash bills issued by OP A8.Copy of the lawyer notice sent to OP A9.Postal AD A10.Copy of agreement A11.Copy of sale deed A12.Copy of the power of attorney Exhibits for the opposite party: Nil; Witness examined for either side: Nil /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur.
......................GOPALAN.K
......................JESSY.M.D
......................PREETHAKUMARI.K.P | | 
