DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 30^th day of October 2020

Present: Sri.V.P.Anantha Narayanan, Member(President I/c)  

              : Smt.Vidya.A, Member                                            Date of Filing: 11/04/2019

CC /112/2019

1. Vinod Gopalakrishnan,

     Shreyas,

     Thenidukku,

     Paruvaserry,

     Palakkad – 678 686.

2. Sreeja Vinod,                                                                       -           Complainants

     Shreyas,

     Thenidukku,

     Paruvaserry,

     Palakkad – 678 686.

    (By Party in Person only)                                       

V/s

Manjooran Housing Development Co. Pvt. Ltd.,

J&R Complex, First Floor,- Opposite party

Adjusent to Muthoot Honda,

N.H.Road, Mamangalam,

Palarivattom, Cochin – 25.

Represented by Managing Director

Joy Jo Manjooran.

O R D E R

By Sri.V.P.Anantha Narayanan, Member

The complaint is briefly stated as follows:

            The complainants 1 & 2 jointly entered into an agreement with the opposite party on  1^st September 2010 for purchase of a residential apartment described as 4 A3 having built up area of 820sq.ft. in the 4^th floor of building named as “Roven Park” along with a covered car park and rights to use of common amenities provided in the tower and 1/220 undivided rights of the land extant of 115cents in survey number 399/7 part 401 in Kakkanad Village(page No.12 of contract agreement) for a consolidated price of Rs.20,50,000/- (page 3 of the agreement) payable in 10 installments linked to the progress of construction as specified in page 13 of contract agreement. This was confirmed by the opposite party(the builder) as per agreement dated 1^st September 2010 vide their letter dated 4^th February 2011.  According to the complainant Rs.4,10,000/- representing 20% of total cost for the above mentioned apartment was paid by cheque No:050341(Bank of India) and cheque No:449841(South Malabar Gramin Bank), both dated 27/08/2010 and confirmed by the builder on 13^th May 2011.  A housing loan of Rs.19,60,000/- was negotiated and sanctioned by State Bank of India Vadakkenchery Branch on 8^th March 2011.  Incidental expenses were incurred at various stages for finalization of the bank loan amounting to nearly Rs.50,000/-.  A tripartite agreement between the builder, bank and bank loan holder was completed on 5^th February 2011 for payment of installments to the builder, when the construction advances.  Accordingly, 1^st installment of Rs.2,05,000/- was paid by the bank directly to the builder on 8^th February 2011 as per the tripartite agreement.  This was repaid by the complainants to the bank through EMIs in full with interest of Rs.16,794/- totaling Rs.2,21,794/- as on 10^th December 2013 as per copy of bank letter of 3^rd August 2015 as per housing loan pass book a/c No.31739813440.  Complainant further pleads that due to the deficiency in service on the part of the builder to complete the construction as stipulated in the contract agreement ie. 36 months from the date of agreement and hand over possession in further 30 days ie. latest by September 2013(page 6 of the agreement), the bank has arbitrarily closed the loan account on 3^rd December 2013 vide letter of 3^rd August 2015 from the bank.  Since then various actions were taken telephonically ie. by email with the builder, but it was futile, no reply was provided or different target dates were fixed by the builders to complete the project was adhered to. 

According to the complainants in all the cases the target dates fixed by the builder were deviated and broken.  The level of communication was then raised and when asked for name and number of Managing Director of the builder, the name of Paul Manjooran was provided.  Here again the telephonic contacts were either not attended to or transferred to the junior staff.  The only tangible reply after long negotiations was the email dated 25/10/2018 stating “dues will be cleared by 31^st January 2019”.  Hence the complainants have no way other than to approach this Forum for favorable orders.  Complainants also plead that they are not interested in the apartment as the builder has very clearly violated all the agreements and cannot be relied upon and gross deficiencies of service occurred on the part of the builder.  Hence the complainants pray to this Forum to order the following reliefs:

1. Money paid from date of payment to be returned with 10% interest till the date of refund, Rs.4,10,000/- from 1^st September 2010 plus interest of Rs.3,48,000/-, Rs.2,05,000/- from 8^th December 2011 plus interest Rs.1,48,625/-, interest paid to this amount to the bank,  Rs.16,794/- plus interest Rs.8,682/-, incidental expenses of Rs.50,000/- and 
2. Suitable amount towards deficiencies in services, compensation for delay, non fulfillment of the terms of agreement, incidental expenses, cost of proceedings etc. as considered as appropriate by this Forum.

Complaint was admitted and notice was sent to the opposite party to enter appearance and file version.  Notice to opposite parties served, name called absent and they were set          ex-parte.

The complainant filed chief affidavit.  Exts.A1 to A5 were marked from the side of complainant, Ext.A2 in series.  Complainant was also heard.

Following issues are considered in this case:

1. Whether there is any deficiency in service and unfair trade practice on the part of the opposite party?
2. If so, the relief and cost available to the complainants.

Issues 1&2 in detail.

Ext.A1 is the original agreement between the complainants and the opposite party builder which shows promoters commitments, maintenance liability period, description of scheme of the apartment,  land description and boundaries, description of apartments common amenities, description of payments made etc.  Ext.A2 series prove that the opposite parties have received Rs.3,10,000/- on 27/08/2010 which is clear from receipt No.2297 dated 27/08/2010, Rs.1,00,000/- on 27/08/2010 vide receipt No.2298 dated 27/08/2010.  From this Ext. it is clear that Rs.4,10,000/- was received by the builder from the complainants on 27/08/2010. Ext.A3 is an arrangement letter – housing loan issued by SBI Chief Manager RCPC, RBO Palakkad which proves that term loan of Rs.19,60,000/- was sanctioned to the complainants and the terms and conditions of the term loan.  Ext.A4 is a copy of tripartite agreement which shows the parties to the agreement are the complainants, the opposite parties and State Bank of India Nariman Point, Mumbai.  Ext.A5 is statement of account of the 1^st complainant’s loan account No.31739813440 issued by State Bank of India Vadakkanchery town branch for the period from 09/05/2011 to 23/05/2019.

We have perused the affidavit and documentary evidences submitted by the complainants before this Forum and observed that complainants 1 and 2 had jointly entered into an agreement with the opposite party on 01/09/2010 for purchase of a residential apartment for a consolidated price of Rs.20,50,000/- payable in 10 installments.  It is also observed that a sum of Rs.4,10,000/- representing 20% of total cost for the said apartment was paid on 27^th August 2010 by the complainant to the opposite party which is clear from receipt Nos.2297 and 2298 both dated 27/08/2010 issued by the opposite party to the complainants.  We also observe that a housing loan of Rs.19,60,000/- was negotiated and sanctioned by State Bank of India Vadakkenchery branch on 8^th March 2011.  A tripartite agreement was entered among the opposite party, State Bank of India Vadakkenchery branch and the complainants on 5^th February 2011 for payment of installments to the opposite party builders.  Accordingly,       1^st installment of Rs.2,05,000/- was paid by the bank directly to the opposite party on                  8^th December 2011 as per the tripartite agreement which was seen repaid by the 1^st complainant through EMIs on 10^th December 2013 along with interest of Rs.16,794/- as is clear from Ext.A5.  We also understand that due to deficiency in service of the opposite party builder to complete the flat construction within 36 months from the date of agreement and hand over the apartment’s possession in further 30 days ie. latest by September 2013, the bank has closed the loan account on 10^th December 2013.  Thus we observe that the opposite party builder has committed serious deficiency in service and unfair trade practice by failing to complete the apartment construction within the agreed period of 36 months from the date of building agreement, thereby causing immense mental agony and financial loss to the complainants.  Further the opposite party is also seen to have flouted the Ext.A1 agreement entered into between the complainants and the opposite party builder.  As a result of the deficiency in service and unfair trade practice committed by the opposite party, the complainants are put to a lot of difficulties and miseries apart from much mental agony which had to be suffered by the complainants.  Further we also observe that, although the complainants contacted the opposite party several times and flat construction was not completed by the opposite party in time and its possession was not seen given to the complainants.  Further the opposite parties have not filed their version and documents to prove that they have committed no deficiency in service in not completing in time apartment construction and its not handing over possession.  They were also set ex-parte, which enough proves that their deficiency in service and unfair trade practice are well established.   

Under these circumstances, we decide to allow the complaint.

We order the opposite party builder to refund Rs.4,10,000/-(Rupees Four Lakh Ten thousand only) to the complainants, which was collected from them on 27^th August 2010 along with 10% interest from 27^th August 2010 till realization.  We also direct the opposite party to pay Rs.2,05,000/-(Rupees Two Lakh Five thousand only) with  interest of Rs.16,794/-(Rupees Sixteen thousand Seven hundred and Ninety Four only) paid by the complainants to State Bank of India Vadakkenchery branch, which was the amount directly paid by the bank to the opposite party which was subsequently recovered from the complainants by the bank.  We also order the opposite parties to pay a compensation of Rs.15,000/-(Rupees Fifteen Thousand only) for deficiency in service and unfair trade practice committed by the opposite parties and for mental agony and miseries suffered by the complainants due to the failure of the opposite party to complete the construction of apartment in time and to hand over possession of the same by September 2013.  Also opposite party is ordered to pay Rs.5,000/-(Rupees Five Thousand only) by way of incidental expenses and cost of proceedings incurred by the complainants. 

The order shall be executed within 30 days from the date of receipt of this order; otherwise complainants are also entitled to get interest @ 9% per annum on the total amount due to them from the date of this order till realization.

Pronounced in the open court on this the 30^th day of October 2020.       

                                                                                                                                Sd/-

                 V.P.Anantha Narayanan

                 Member(President I/c)  

                                                                                             Sd/-       

                                                                                                     Vidya.A

                                Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 – Original agreement between the complainants and the opposite party.

Ext.A2(series) – Original receipt No.2297 and 2298 dated 22/08/2010 issued by the opposite party.

Ext.A3 – Arrangement letter - home loan issued by SBI Chief Manage (RCPC), RCPC, RBO, Palakkad.

Ext.A4 – Copy of tripartite agreement which shows the parties to the agreement are the  

              complainants, the opposite party builder and SBI Nariman Point, Mumbai.

Ext.A5 – Copy of statement of account of the 1^st complainant’s loan account issued by SBI

 Vadakkenchery town branch.

Exhibits marked on the side of Opposite parties

NIL

Witness examined on the side of complainants

NIL

Witness examined on the side of opposite parties

NIL

Cost :   Cost + incidental expenses - Rs.5,000/-