BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 26/04/2011

Date of Order : 28/09/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 216/2011

Between

And

O R D E R

A. Rajesh, President.

1. The facts of the complainant's case are as follows :-

On 18-08-2006, the complainant entered into a construction agreement with the 1^st opposite party for the construction of flat No. 1104 on the 10^th floor with the parking space in the project called “Emerald Park”. The 1^st opposite party agreed to construct the flat by 31-10-2008 for a total consideration of Rs. 27,58,789/-. On 18-08-2007, the complainant entered into another agreement for sale of 1/86^th undivided share in the property with the 3^rd and 4^th opposite parties the land owners. As on 31-07-2008, the complainant paid a total sum of Rs. 25,17,032/- to the 1^st and 2^nd opposite parties as per the payment schedule in the agreement. As per the payment schedule, the last payment was needed to be paid at the time of handing over. The construction of the apartment was unnecessarily delayed though the apartment ought to have been completed by 31-10-2008. The apartment was completed to a habitable condition only on 24-07-2010. As per the agreement in the event of any delay in completion and handing over by 31-10-2008, the 1^st opposite party is liable to pay 12% interest on the amount paid by the complainant as on 31-10-2008. The complainant demanded interest by e-mail dated 12-03-2009 to which there was no response. In the meantime, the 1^st and 2^nd opposite parties started demanding amounts alleged to be due as balance from the complainant. The 1^st and 2^nd opposite parties demanded exorbitant amounts towards statutory charges. The possession of the apartment had been handed over to the complainant in order to permit interior works to be done and while interior work were being conducted, the 1^st and 2^nd opposite parties changed the lock and key of the complainant's apartment and denied possession of the same. The refusal of the opposite parties to hand over possession of the apartment amounts to deficiency in service. The complainant is entitled to get a sum of Rs. 6,54,582/- towards interest upto 31-12-2010 on the amount paid. The complainant is also entitled to get rental compensation from 01-11-2008 until handing over to the tune of Rs. 5,20,000/-. Further, the complainant is entitled to get a compensation of Rs. 3 lakhs each for the unfair trade practice and deficiency in service on the part of the opposite parties. The complainant is to pay a sum of Rs. 2,41,757/- to the opposite parties. So, the complainant is before us seeking direction against the opposite parties to execute the sale deed of the apartment and to pay the above compensation claimed on various heads.

2. The version of the 1^st and 2^nd opposite parties is as follows :-

The present complaint is beyond the jurisdiction of this Forum, since the complaint is filed for the enforcement of contractual obligation. The complainant had entered into a construction agreement dated 18-08-2006 for construction of an apartment as per which the initial payment of 20% had to be paid on the date of agreement itself. However, the complainant paid the amount only on 23-03-2007. The execution of the agreement for sale of undivided share in the land also happened to be delayed and it was executed only on 18-08-2007. The complainant has no locus-standi to allege that the construction of the apartment was unnecessarily delayed and he has no right for demanding interest on the accusation that there was delay in completion and handing over the apartment. Since he had paid the instalments with considerable delay. The apartment allotted to the complainant was offered to be delivered on 22-01-2009 requiring the complainant to take steps for completion of the registration of the apartment and the land. But the complainant was not prepared for the same under the expectation that stamp duties for registration would be reduced. The complainant by e-mail dated 19-12-2009 informed the opposite parties that he will be doing the registration only in March. The complainant did not take any interest in completing the registration and payment of the final instalment of Rs. 2,65,879/-. The complainant wanted to occupy the apartment without paying the balance sale consideration and land value. The complainant wanted to spoil the reputation of the 1^st opposite party who undertook huge construction projects. The opposite parties were fully prepared to put the complainant in possession during December 2008 or thereafter provided the complainant was prepared to clear the amounts payable by him. There is no deficiency in service or unfair trade practice on the part of the opposite parties as alleged by the complainant. The complainant is liable to pay the admitted balance amount of Rs. 2,65,879/- with interest @ 24% p.a.

3. The 3^rd and 4^th opposite parties duly accepted the notice issued from this Forum, but opted not to contest the matter for reasons of their own. The complainant was examined as PW1 and Exts. A1 to A10 were marked on his side. No oral evidence was adduced by the 1^st and 2^nd opposite parties. Exts. B1 to B12 were marked on their side. Heard the counsel for the contesting parties.

4. The points that arose for consideration are :-

1. Whether the complaint is maintainable in this Forum?

2. Whether the complainant is entitled to get the flat in question registered in his favour and to get the possession of the same?

3. Whether the opposite parties are liable to pay interest for the amount collected by them from the complainant on account of the price of the said apartment?

4. Whether the opposite parties are liable to pay rental compensation and compensation for deficiency in service and unfair trade practice to the complainant?

5. Point No. i. :- Section 2 (1) (o) of the Consumer Protection Act contemplates that 'housing construction' is a service under the purview of the Consumer Protection Act. The Hon'ble Apex Court in Lucknow Development Authority Vs. M.K. Gupta III (1994) CPJ 7 (SC) and in Ghaziabad Development Authority Vs. Balbir Singh (II (2004) CPJ 12 (SC), in a considered view has categorically sustained the contention that this is a case maintainable in this Forum.

6. Point No. ii. :- At the instance of the complainant vide order in I.A. 246/2011 dated 13-06-2011, we passed the following order :

1. “The petitioner shall deposit a sum of Rs. 2,41,757/- (Rupees two lakhs forty one thousand seven hundred and fifty seven only) in this Forum within 15 days from the date of receipt of this order.

    

2. The respondents shall deliver the possession of flat No. 1104 on the 10^th floor along with the parking space of apartment called Emerald Park to the petitioner after executing the sale deed at the expense of the petitioner immediately on production of the receipt showing the deposit of the above amount in this Forum.”

Aggrieved by the above order, the 1^st and 2^nd opposite parties filed Revision Petition No. 44/2011 before the Hon'ble Kerala State Consumer Disputes Redressal Commission. The Hon'ble State Commission dismissed the Revision Petition vide order dated 24-08-2011. Against which the opposite parties approached the Hon'ble High Court of Kerala by filing WP (c) No. 29135 of 2011 (N). The Hon'ble High Court of Kerala disposed off the writ petition vide order dated 02-11-2011 with certain observations in the case, which does not implicitly have a direct implication on the issue at hand.

7. Finally, the complainant and the opposite parties duly complied with the order of this Forum and further discussion in the point is not at all warranted, since the same has been fully settled.

8. Point Nos. iii. & iv :- The parties are in consensus on the following issues :

1. The complainant and the 1^st and 2^nd opposite parties entered into Ext. A1 agreement for construction of the apartment with car parking in the project of the opposite parties by name 'Emerald Park'.

2. The total construction cost agreed to between the parties as per Ext. A1 is Rs. 27,58,789/-.

3. The date of completion of the construction of the apartment as per Ext. A1 is 31-10-2008.

4. On 18-08-2007, the complainant and the opposite parties entered into Ext. A2 agreement for sale of undivided right in immovable property in which the apartment is constructed.

5. The complainant paid the following amounts to the opposite parties towards price of the apartment evidenced by Ext. A3 series.

    

Sl. No.	Date	Amount in Rs.
	08-06-2006	10,000
	15-09-2006	2,00,000
	20-10-2006	1,00,000
	22-12-2006	50,000
	22-12-2006	50,000
	23-01-2007	1,20,000
	20-02-2007	25,000
	23-03-2007	3,07,637
	19-06-2007	1,05,000
	12-10-2007	9,00,927
	26-02-2008	3,48,468
	22-07-2008	76,730
	31-07-2008	3,00,000
Total Rs. 25,17,032

9. The payment schedule as per Ext. A1 reads as follows :

At the time of booking	10,000
20% at the time of making agreement	5,51,758
10% at the time of completion of foundation	2,75,879
10% at the time of completion of 3rd floor slab	2,75,879
10% at the time of completion of 6th floor slab	2,75,879
10% at the time of completion of 9th floor slab	2,75,879
10% at the time of completion of 12th floor slab	2,75,879
10% at the time of completion of 15th floor slab	2,75,879
10% at the time of completion of 18th floor slab	2,75,879
Balance at the time of handing over	2,65,879
Total	27,58,789

9. Admittedly, there has been delay on the part of the complainant in making payments as per the payment schedule. In that case, as per clause 3 of Ext. A1 agreement, the complainant is liable to pay interest @ 24% p.a. for the delayed period. Indisputably, neither the opposite parties did demand the same nor did the complainant pay the same. The matter is conclusive hence.

10. The 1^st and 2^nd opposite parties admit that they could complete the construction of the apartment in January 2009 as per Ext. A1 agreement though not supported by any documentary evidence. Nothing is on record to show that on which date the apartment under dispute was ready for handing over for occupation. Such callousness on the part of the opposite parties and the indifferent attitude on the part of the complainant for obtaining the same finds no explanation before this Forum which to say at least is lamentable neither can raise a claim in their favour whatsoever since. The local authority would necessarily have issued occupancy certificate to the apartment complex on the basis of the plan approved by them, the same did not see the light of the day in this Forum for reasons of its own. Ext. A4 mail dated 07-08-2010 goes to show tat the apartment complex was energized by the K.S.E. Board only on 24-07-2010. So, occupancy starts only at that point of time.

11. In the above circumstances, the 1^st and 2^nd opposite parties are liable to pay compensation to the complainant as per Clause 5 in Ext. A1 agreement from the agreed date of completion of the apartment on 31-10-2008 to 24-07-2010, the date on which the apartment was energized. It is worthwhile to note that the Consumer Fora has no jurisdiction to entertain a complaint with regard to dispute regarding price of an apartment noting that the fixation of price of an apartment is extra judicata of this Forum, we do not go into the same. Admittedly, the last instalment of Rs. 2,65,879/- was the amount to be paid as per Ext. A1 agreement at the time of registration. At the outset, in consequence of order in I.A. No. 246/2011 dated 13-06-2011, the complainant had deposited the amount in this Forum. Thereafter, he had borne the entire expenses for registration of his own. So, the complainant is entitled to get refund of the amount in deposit as per the interim order.

12. If money is to be put before rule of law much more than what the complainant has prayed could have been granted. However, the larger majority portion of the complaint having been met squarely the frivolity of the other prayers are only to be turned down. We do so.

13. In the result, we partly allow the complaint and direct as follows :-

1. The 1^st and 2^nd opposite parties shall pay compensation to the complainant as per Clause 5 of Ext. A1 agreement for the period from 31-10-2008 to 24-07-2010.

2. The Registry is directed to release the amount of Rs. 2,41,757/- to the complainant which has been deposited by him in this Forum in furtherance of order in I.A. No. 246/2011 dated 13-06-2011.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 28^th day of September 2012

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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