IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 24th day of August, 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M.Anto, Member
CC No.295/2021 (Filed on 15/12/2021)
Complainant : Jincy Mathew,
W/o Dr.Jojo.V.Joseph,
Vattappallil House,
Athirampuzha P.O,
Parolickal, Kottayam - 686 562.
(By Adv: M.C. Suresh)
Vs.
Opposite parties : 1. Mir Realtors Pvt. Limited,
Rep. by the Managing Director,
Arun Kumar.K, Deshabhimani Junction,
House No.2698, Chooreparambu Road,
Opp. Metro Pillar No.558A,
Near Stadium Metro Station,
Kaloor P.O, Ernakulam – 682 017.
(By Advs: Abraham Mathew &
Anil Aby Jose)
2. Ajai Kumar.N,
Chief Operating Officer,
Mir Realtors Pvt. Limited,
Deshabhimani Junction,
House No.2698, Chooreparambu Road,
Opp. Metro Pillar No.558A,
Near Stadium Metro Station,
Kaloor P.O, Ernakulam – 682 017.
3. Samson.T George S/o George,
Thanninilkunnathil House,
Edapariyaram, Elanthoor P.O,
Kozhencherry, Pathanamthitta – 689 643.
(By Adv: G.R. Panicker)
4. Babu Mathew,
S/o T.G. Mathew,
Thiyodickal House,
Velliyara Muri, Ayoor P.O,
Ranni, Pathanamthitta – 689 612.
(By Adv: G.R. Panicker)
O R D E R
Sri.Manulal.V.S, President
Brief of the complaint is as follows:
In the month of September 2012, a person named Arun Kumar claiming to be the Managing Director of the first opposite party contacted the complainant’s husband and informed about the Township project highlighting its commercial importance and facilities in Kakkanad in Ernakulam District near to Infopark. The complainant and her husband attracted by the offer made by the first opposite party and enquired about the details of the proposed project. The opposite parties told the complainant that the third and 4th opposite parties are the land owners and that it was a Joint Venture for constructing their third apartment block of township project named Jade Heights-II, a 32-floor residential apartment with facilities for vehicular parking and common amenities and offered its 19th floor on the north eastern side to the complainant for a consideration of Rs.60,50,588/- which include cost of construction and land value. They had made the complainant and her husband believe that the building apartments in the township would be completed expeditiously within 3 years.
On 6/11/2012 the complainant and the first opposite party had entered into an agreement whereby the first and second opposite parties agreed to construct a three-bedroom apartment having super built area of 1820 square feet with No.3191(Type-A) on the 19th floor for the complainant in 53 cents of property which belongs to 3rd and 4th opposite parties set apart for construction of Jade Heights-II in the township project named Mir Green Metropolis for a total consideration of Rs.60,50,588/-. On the very same day a separate agreement was entered between the complainant and the third and 4th opposite parties whereby the third and fourth opposite parties assured that they are the absolute owners of the property set apart for the project and the amount of consideration agreed between parties included the sale consideration for transferring the undivided share in their properties set apart to construct the apartment. As per the agreement the opposite parties agreed to finish all the construction of the 19th floor of the apartment within 40 months from the date of agreements and that possession would be handed over within 180 days after completion of works.
The complainant all together paid Rs.30,19,774/- towards consideration to the opposite parties on various dates. Since the opposite parties did not complete construction within the stipulated period, the complainant approached them and enquired about the reason for the delay. The opposite parties had expressed their regret for their inability to complete the work as agreed stating that it was due to poor market condition and difficulty in raising fund due to bad economic situation and expected to complete the work expeditiously and demanded for further payment. As per demand the complainant paid further amounts on various dates on the belief that they would complete the work as assured. On 1/07/2017 the husband of the complainant received an email from the first opposite party explaining the reason for delay in construction and assuring completion of work within 30 months and they had also assured to compensate the complainant for delay. The complainant waited for further 30 months to get possession of the apartment and the period within which they assured to complete the construction ended on January 2020. When the complainant enquired about the progress of construction did not get satisfactory explanation from the opposite parties for the delay in construction. The opposite parties hitherto completed construction of structure up to 5th floor and in the present situation there is no reason to expect completion of the construction in the nearby future. It is alleged in the complaint that the failure of the opposite parties to complete construction and hand over possession of the agreed apartment floor and transfer the undivided share in the properties after receiving an amount of Rs.30,19,774/- from the complainant amount to deceptive practice, deficiency in service and unfair trade practice on their part and caused undue hardship, mental agony and financial loss to the complainant. Hence this complaint is filed by the complainant praying for an order to direct the of opposite parties to pay an amount of Rs.30,19,774/- along with interest and to pay an amount of Rs.50 lakhs as compensation to the complainant along with Rs.10,000/- as cost of this litigation.
On admission of the complaint, notice was duly served to the opposite parties. On receiving notice opposite parties 1 to 4 and former Managing Director of M/s MIR Realtors Pvt. Ltd. entered appearance. But they failed to file version within the statutory time limit. Hence opposite parties were declared as ex-parte.
Complainant filed proof affidavit in lieu of chief examination and Exhibits A1 to A4 were marked from her side.
The following points arise for consideration:
(1) Whether there is unfair trade practice or deficiency in service on the part of opposite parties 1 and 2 ?
(2) Whether the complainant is entitled to any compensation? If so, what is the quantum?
Arun Kumar who was the former Managing Director of the first opposite party filed an affidavit stating that NCLT has imposed a moratorium with regard to the matters narrated in the order in IBA/11/KOB/2020 Kerala State Consumer Disputes Redressal Commission, in Radhakrishnan P.J and another Vs. M/s MIR Realtors Pvt. Ltd and another (C.C. No. 29/2019) judgment dated: 17.11.2022 has held as under :
“the order of moratorium passed by the NCLT is not binding to this Commission as per the law laid down by the Supreme Court in Pioneer Urban Land Infrastructure & another Vs. Union of India decided on 19.08.2019. Hence this Commission proceeded with the complaint.”
POINTS 1 & 2 :- The points 1 and 2 are considered jointly. The specific case of the complainant is that they have booked a three-bedroom apartment in the opposite parties’ apartment project named as Jade Heights-II in the township project named “Mir Green Metropolis’ at Kakkanad in Ernakulam. A three-bedroom apartment having super built area of 1820 square feet with No.3191( Type-A) on the 19th floor for the complainant in 53 cents of property belongs to 3rd and 4th opposite parties set apart for construction of Jade Heights- II in the township project named Mir Green Metropolis. They had entered into a sale agreement as well as a construction agreement on 6-11-2012. The total sale consideration for the apartment was Rs.60,50,588/-. The complainant has paid Rs.30,19,774/- out of the total sale consideration. The opposite parties as per Ext. A1 agreement had offered to complete the construction within 40 months from the date of agreement and to hand over the apartment within 180 days after the competition of works. Opposite parties have not handed over the possession of the apartment till date. Complainant’s documents Exts. A1 and A2 proves the agreement and Ext. A3 (series) prove that they have paid a total amount of Rs.30,19,774/- to the opposite parties. Thus, the complainant has proved her case.
Complainant cannot be made to wait indefinitely for the delivery of possession of the apartment. The act of the opposite parties by retaining the amounts deposited by the complainant, is not only an act of deficiency in service but also amounts to unfair trade practice.
The learned counsel for the complainant would contend that the complainant had waited patiently for more than 5 years to get possession of the flat, as agreed. Now she has lost interest in the project of the opposite party since she was prolonging the date of handing over of possession, without any valid reason. Hence, she has filed this complaint for refund of the amount already paid by them.
The complainant cannot be made to wait indefinitely for the delivery of the possession. The Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasi S Rudra reported in 2(2019) CPJ 29 SC has held that the complainant cannot be made to wait indefinitely for the delivery of the possession by observing as under:
“ It would manifestly unreasonable to construe the contract
between the parties as required in the buyer’s agreement
to wait indefinitely for possession”.
By 2021 nearly 5 years have elapsed from the agreed date of possession. The period of 5 years is beyond what is reasonable. The complainant cannot wait indefinitely for possession of the apartment as the apartment is not yet ready for possession. Keeping in view of the judgment passed by the National Commission in Emmar MGF Land Ltd. & ors. Vs. Amit Puri 2(2020) CPJ 568 (NC) wherein it has been laid down that after the promised date of delivery, it is the discretion of the complainant whether he wants to insist on handing over of possession or to seek refund of the amount paid with reasonable interest. It is held that it is well within the complainant’s rights to seek refund of the principal amount with interest and compensation as the apartment is still not ready for possession. Therefore, we are of the considered view that the complainant is entitled for refund of the full amount along with damages and compensation in the form of reasonable interest which we quantify at 9% per annum from the date of complaint till the date of actual refund.
In the result, the complaint is allowed as follows:
(1) Opposite parties are directed to refund Rs.30,19,774/- (Rupees Thirty Lakhs Ninteen Thousand Seven Hundred and Seventy Four only) to the complainant along with interest @ 9% per annum from the date of complaint till date of payment, within one month from the date of this order.
(2) Opposite parties are directed to pay to the complainant Rs.5,00,000/-(Rupees Five Lakhs only) as compensation for the deficiency in service and unfair trade practice on the part of the opposite parties.
(3) Opposite parties shall pay litigation cost of Rs. 5,000/-(Rupees Five Thousand only) to the complainant.
If the opposite parties do not comply with this order within one month from the date of receipt of a copy of this order the compensation amount will carry interest @ 9 % from the date of this order till the date of payment.
Pronounced in the Open Commission on this the 24th day of August, 2023
Sri.Manulal.V.S, President Sd/-
Smt.Bindhu.R, Member Sd/-
Sri.K.M.Anto, Member Sd/-
APPENDIX :
Exhibits from the side of the Complainant :
A1 - Copy of Agreement executed between the complainant
and the Ist opposite party
A2 - Copy of Agreement executed between the complainant
and 3rd & 4th opposite parties
A3(series) - Copies of payment receipts(15 Nos)
A4 - Copy of Ist opposite party’s E-mal communication
Exhibits from the side of Opposite parties :
Nil
By Order,
Sd/-
Assistant Registrar
