Kerala

StateCommission

A/12/692

ABJ PROPERTIES - Complainant(s)

Versus

MERCY BISSY JOSEPH - Opp.Party(s)

GIGIMON ISSAC

30 Jul 2015

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

APPEAL NOS.692/12 & 48/13
COMMON JUDGMENT DATED :30.07.2015

 

(Appeals filed against the order in CC.No.556/2010 on the file of CDRF, Ernakulam order dated : 13.09.2012)

PRESENT

 

SRI.K.CHANDRADAS NADAR     : JUDICIAL MEMBER

SMT.A.RADHA                               : MEMBER

SMT.SANTHAMMA THOMAS      : MEMBER

 

APPEAL NO.692/12

 

APPELLANT

 

K.U.Aloysius,

S/o.Late John Alias Ulahannan,

Managing Director,

M/s.ABJ Properties Pvt Ltd,

29/983 B, Bank Road, Vyttila,

Cochin -1 9

 

(By Adv.Sri.G.S.Kalkura)

 

Vs

 

RESPONDENT

 

Smt.Mercy Bissy Joseph,

D/o.T.J.Joseph,

Thundiparambil House,

Ochenthuruthu.P.O

Cochin – 08

 

(By Adv.Sri.S.Reghu kumar &

By Adv.Sri.George Cherian Karippaparambil)

 

 

 

 

APPEAL NO.48/13

APPELLANT

 

K.U.Aloysius,

S/o.Late John Alias Ulahannan,

Managing Director,

M/s.ABJ Properties Pvt Ltd,

29/983 B, Bank Road, Vyttila,

Cochin -19

 

(By Adv.Sri.G.S.Kalkura)

 

VS

RESPONDENT

 

 

Smt.Mercy Bissy Joseph,

D/o.T.J.Joseph,

Thundiparambil House,

Ochenthuruthu.P.O

Cochin – 08

 

(By Adv.Sri.S.Reghu kumar &

By Adv.Sri.George Cherian Karippaparambil)

 

COMMON JUDGMENT

 

SRI.K.CHANDRADAS NADAR     : JUDICIAL MEMBER

          Appeal No.692/2012 is filed by the opposite party in CC.No.556/2010 in the CDRF, Ernakulam. Appeal No.48/13 is filed by the same party challenging the order in IA.No.378/2012 in the above complaint. The allegations in the complaint filed by the respondent in Appeal No.692/2012 were that attracted by the advertisement issued by the opposite party offering flats in the completed villas project at Aroor for 10.5 lakhs onwards, the complainant met the director of the opposite party at Vyttila. The opposite party promised the complainant to provide Apartment No.A in the ground floor of Riverin Apartments measuring 786 sq.ft with two bed rooms . At the request of the complainants the plan of the Apartment was agreed to be modified and a studio apartment approximately 532 sq.ft area with independent car park was offered at a price of Rs.10,50,000/-. On the basis of the oral agreement the complainant remitted Rs.150,000/- as advance. But the opposite party on the pretext of storing building materials in the area ear marked for the construction of apartment No.A had been protracting execution of the agreement and construction. The complainant is ready to pay the balance amount of Rs.9,00,000/- on short notice. The failure of the opposite party to provide the agreed Apartment amounts to deficiency in service and caused mental agony to the complainant. So the complainant sought direction to the opposite party to transfer the promised apartment on accepting Rs.9,00,000/-. Compensation for mental agony and cost of the proceedings were also sought.

          2.      In the version filed by the opposite party the contentions raised were that the complainant was not a consumer as defined in the Consumer Protection Act. The opposite party admitted receipt of Rs.1.5 lakhs from the complainant. But contended that the amount was paid as advance for booking apartment in the residential complex. No contractual relationship came into exisistence as agreement was not executed between the parties. When the complainant approached the opposite party in October 2010 90% of the construction was completed. Construction was under taken on the basis of approved plan and permit issued by the local authority namely the Arookutty Grama Panchayat. Apartment A in the ground floor is having super built up area of 786 sq.ft.  Completion plan is submitted before the local authority and ownership certificate has been issued to the opposite party . Had there been any deviation from the approved plan the local authority would not have granted ownership certificate. Hence there is no substance in the contention that the agreement was modified as regards Apartment A to 532 sq.ft. Apartment A was offered to the complainant after giving some discount in view of her peculiar position. After giving Rs.1.5 lakhs as advance the complainant did not turn up. Considering the fact that the complainant is a widow, the opposite party was prepared to sell Apartment A along with undivided share for Rs,15,00,000/-. The document produced by the complainant as plan of the Apartment is a fabricated document. There is no legal relationship between Mr. Sebastian and the opposite party. The advertisement produced by the complainant relates to some construction at Aroor and is not related to the construction of the opposite party. The complainant paid the advance on 07.07.2010 and the complaint is field on 18.10.2010.So she wants the sale deed to be executed within three months without paying the balance amount. The opposite party is ready to sell the Apartment to the complainant provided she pays the present price. The complainant suffered no mental agony. There was no deficiency in service on the part of the opposite party.

          3.      IA.No.378/2012 is a petition filed by the opposite party under section 340 of the Criminal Procedure Code to initiate prosecution for attempting  to use a forged document in evidence in the proceedings before the forum. That application was dismissed by the consumer forum by order dated 13.09.2012. In Appeal No.48/13, the correctness of the said order is challenged by the opposite party petitioner.

          4.      Before the consumer forum the complainant gave evidence as PW1. Exts. A1 to A6 were marked her side. The opposite party gave evidence as DW1. Exts.B1 to B6 (series) were marked on the side of the opposite party. The conclusions of the consumer forum are ambivalent. However, the consumer forum passed two sets of orders. As per A set of reliefs, the opposite party was directed to execute sale deed of Apartment No.A measuring 786 sq.ft along with car park in Riverin Apartment at Arookutty on remittance of 11.5 lakhs by the complainant. She was directed to bear the expenses and incidental charges, for registration of the property in her name. As per B set of reliefs opposite party was directed to refund to the complainant Rs.1.5 lakhs paid as advance along with interest at the rate of 12% per annum from the date of payment till date of realization. Rs.1000/- was allowed as cost of the proceedings. Liberty was granted to the complainant to choose any one of these sets of releifs. In appeal No.692/12 the challenge is specifically against A set of reliefs granted by the consumer forum. The appellant has no objection with regards to the B set of reliefs granted. So the questions that arise for consideration are firstly whether granting of A set of reliefs can be sustained and secondly the correctness of the order in IA.NO.378/2012.

          5.      Coming to the first question even as per the allegations in the complaint there was only oral agreement between the parties. The opposite party has contended that Rs.1.5 lakhs is paid by the complainant as advance when the Apartment was booked. The consumer forum itself found that there was dearth of material evidence to sustain the case of the complainant and observed that a quasi judicial authority cannot be carried away by sympathy and compassion. But at the end that is what happened in granting the A set of reliefs. Ext.A4 receipt for Rs.1.5 lakhs related to booking of Apartment No.A in the ground floor of Riverin Apartment, Aroookutty. The consumer forum rightly noted that Ext.A1 advertisement related to flats at Aroor. So the consumer forum found it difficult to accept the case of the complainant regarding the involvement of one Sebastian. So also the consumer forum found it difficult to accept the case of the complainant that the plinth area of Apartment No.A was reduced by mutual agreement. As rightly argued by the appellant, in that case, the agreement would have gone against the approved plan and the local authority would have never granted completion certificate. The complainant produced Ext.A3 plan which was a forged document according to the appellant. Ext.A3 is the subject matter of IA.No.378/12 and the subject matter in the other appeal. As indicated already an approved plan cannot be modified even by a valid agreement between the parties. Here, the oral agreement between the parties is never established by cogent evidence. Even the alleged promise to hand over possession of the Apartment was held unsubstantiated by the consumer forum. But the consumer forum observed " still we think the solitary piece of material evidence of Ext.A4 coupled with admissions made by the opposite party are potent enough to turn table on the opposite party in the given facts and circumstances of the case. Moreover, even if we discard the averments and pleadings of the complainant and rely only on what have been conceded by the opposite party, we think there are ample materials to tilt the balance in favour of the complainant ".

          6.      The above reasoning suffers from the following vices. Firstly, Ext.A4 is a receipt showing payment of advance amount of Rs.1.5 lakhs. At the most it can prove an agreement to enter into an agreement which is not enforceable. Secondly, no forum or court is entitled to discard the pleadings in the complaint particularly in this case where all the basic averments were mere allegations without proof. The consumer forum thought that as 90% of the construction was over when the complainant approached the appellant, there was no question of executing a formal agreement. The conclusion would have been acceptable had the complainant approached the opposite party for purchasing Apartment A after its construction was completed in all respects. Relying on Ext.A2 the forum reasoned that usually Rs.1.00,000 /was being received as advance for booking . As Rs.1.5 lakhs was received in this case, the complainant’s case stands out on a different footing. But failed to notice that Rs.100000/- was received as advance when the appellant was approached during the start or initial stages of construction. What the complainant sought was an Apartment having plinth area of 532 sq.ft. That too after accepting Rs.9,00,000/- . But as A set of reliefs Apartment of plinth area 786 sq.ft was directed to be sold that too after remitting.11.5 lakhs. In fixing the said price also the consumer forum went beyond its jurisdiction and reduced the price of the apartment fixed by the appellant. What the parties agreed by mutual agreement (to reduce the price) cannot be done by the consumer forum in exercise of its jurisdiction. No one knows whether the complainant is ready to pay 11.5 lakhs or wants more than 532 sq.ft. Under such circumstances, the A set of reliefs are granted to the complainant without any material evidence based on surmises and sympathy and therefore not sustainable. In view of the above conclusions Appeal NO.696/12 is only to be allowed.

          7.      Coming to the second question prosecution proceedings is sought to be initiated under section 340 Code of criminal procedure for production of Ext.A3 which is a forged document according to the appellant In fact, the consumer forum found that Ext.A3 is not an acceptable or proved document. It cannot be denied that Ext.A3 in the context in which it is produced appears to have been fabricated. The consumer forum reasoned that it did not rely on Ext.A3 for basing its conclusions. That apart there should be prima facie satisfaction on the part of the court that proceedings should be initiated in the interests of justice and there is prima facie evidence to come to the conclusion that false evidence has been tendered. The tendency to initiate prosecution at the slightest provocation and to wreak vengence against the opposite party cannot be encouraged. In the background of the circumstances available the consumer forum was justified in desisting from initiating prosecution under section 340 of the Criminal procedure code. Accordingly, we find that appeal no.48/13 is devoid of merit.

          In the result, Appeal No.48/13 is dismissed. Appeal 692/12 is allowed. A set of reliefs granted to the complainant as per order dated 31./05/2012 in CC.No.556/10 in the file of CDRF, Ernakulam is set aside. The option to avail the said set of reliefs is also cancelled. The appellant / opposite party shall comply with the order granting B set of reliefs within 30 days from the date of receipt of copy of this order. Parties shall bear their costs in these appeals. 

 

K.CHANDRADAS NADAR   : JUDICIAL MEMBER

 

 

A.RADHA                               : MEMBER

 

 

SANTHAMMA THOMAS      : MEMBER

 

BE/

 

 

 

 

 

 

 

 

 

 

 

 

 

 

KERALA STATE

CONSUMER DISPUTES

 REDRESSAL COMMISSION

 SISUVIHARLANE

 VAZHUTHACADU

 THIRUVANANTHAPURAM

 

APPEAL NOS.692/12 & 48/13
COMMON JUDGMENT

 DATED :30.07.2015

 

 

                                                                                                                                   Be/