Kerala

StateCommission

CC/12/72

K.G.PREMANATHAN - Complainant(s)

Versus

M/S ALLIANCE HABITAT AND REAL ESTATE - Opp.Party(s)

P.PRAMOD

18 Aug 2015

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

CC.NO.72/12

JUDGMENT DATED : 18.08.2015

PRESENT

 

SRI.K.CHANDRADAS NADAR   : JUDICIAL MEMBER

SRI.V.V.JOSE                          : MEMBER

 

COMPLAINANT

 

K.G.Premanadan,

S/o.K.V.Gopalan,

Kolladikkal veedu,

Kanimangalam.P.O

Thrissur,

 

Presently working at Abudabi,

P.O.Box 2058 MUSSAFAH, Abudabi

 

(By Adv.Sri.P.Pramod & others)

 

Vs

OPPOSITE PARTIES

 

1.M/s.Alliance Habitat and Real Estate,

(India) Pvt Ltd ,

Rep.by Managing Director,

Jito Joseph,

S/o.Joseph,

Cantles  Vinoba Nagar,

Chilavannoor,

Kochi – 680 020

 

2.Thankamma Joseph,

W/o.Joseph,

Cantles  Vinoba Nagar,

Chilavannoor,Kochi – 680 020

3. Jito Joseph,

S/o.Joseph,

Cantles Vinoba Nagar,

Chilavannoor, Kochi – 680 020

 

4.Pareekutty,

S/o.Aredath Ahammed,

Chelakkavil,

Padinjare purayidam,

Thengodu.P.O – 682030

Thengodukara, Kakkanad village,

Kanayannoor Taluk

 

5.Aliyar,

S/o. Aredath Ahammed,

Padinjare purayidam,

Thengodu.P.O – 682030

Thengodukara, Kakkanad village,

Kanayannoor Taluk

 

6.Kochunni,

S/o. Aredath Ahammed,

Padinjare purayidam,

Thengodu.P.O – 682030

Thengodukara, Kakkanad village,

Kanayannoor Taluk

 

7.Bavakunju,

S/o.Pareeth,

Malayil veedu,

Thengodu.P.O – 682030

Thengodukara, Kakkanad village,

Kanayannoor Taluk

               

                8.Remlath,

                W/o.Bavakunju,

                Chelakkavil,

Padinjare purayidam,

Thengodu.P.O – 682030

Thengodukara, Kakkanad village,

Kanayannoor Taluk

 

                (R4, R5,R6, R7 & R8 by Adv.Sri.K.G.Premanathan)

 

JUDGMENT

 

SRI.K.CHANDRADAS NADAR   : JUDICIAL MEMBER

        This is a complaint filed under section 17 of the Consumer Protection Act. The allegations in the complaint in brief are the following. The complainant was a working abroad and had intended to settle in Kerala once his foreign job ended. While so, attracted by the publicity given by the opposite parties and due to the direct persuasion of the third opposite party,  the complainant decided to purchase a flat having super built up area of 1598 sq.ft in the 18th floor of the 20 floor flat complex proposed to be constructed by the opposite parties. The complainant entered into separate agreements with the first opposite party and opposite parties 4 to 8 on 09.04.2008. The complainant was made to believe that the proposed construction named “Alliance smart tower” was a joint venture of the opposite parties. As per the agreement the complainant paid a total amount of Rs.18,12,606/-to the opposite parties. The consideration to convey one by hundred undivided share in the property where the flats were proposed to be constructed is fixed as Rs.20,000/-. The said amount was paid on 10.01.2008.As per the agreement only when the construction of the building complex is completed, the complainant is entitled to get sale deed executed in this favour .The first opposite party has agreed to complete the construction of the building as per specifications by January 2010.

        2.     As per payment schedule annexed to the agreement the complainant had paid the amount up to the stage of piling for the construction of building. There after instalments are to be paid on construction of each floor slab of the building. The total amount to be paid as per agreement for the flat is Rs.40,08,011/-. The complainant has to pay a balance amount of Rs.21,95.405/-. He was always ready and willing to pay the amount. But he did not pay the instalments because of the failure of the opposite parties to proceed with the construction. Though the first opposite party has claimed that it is a private limited company really it is a partnership concern run by opposite parties 2 & 3. It is highly necessary that the opposite parties complete the construction and hand over possession of the flat to the complainant. But they are not doing anything to complete the construction. Though the complainant approached the Kerala state legal services authority with a complaint since the opposite parties failed to appear after receipt of notice, the authority had closed the complaint. The complainant opted to purchase the flat considering its convenience for residence and to engage in a job. As per the agreement the opposite parties are bound to complete the construction in a time bound manner. Otherwise, they are bound to pay compensation and refund the money received with interest at the rate of 18% per annum. The failure of the opposite parties to complete the construction as agreed is the cause of action for the complainant. The complainant seeks conveyance of one by hundred undivided share in the property over which the flats are constructed and sale of the flat agreed to be constructed for the complainant with completion certificate and incidental documents. An amount of Rs.14,00,000./- is claimed as compensation for the failure to complete the construction of the building as agreed. Cost of the proceedings is also sought to be recovered.

        3.     Opposite parties 1 to 3 remained exparte. The sixth opposite party filed version and opposite parties 4, 5, 7 & 8 filed joint version. The sixth opposite party has admitted that he is the co-owner of the property situate at Thengottukara in Kakkanad village along with opposite parties    4 ,5 ,7 & 8 . Opposite parties 1 to 3 agreed to construct multi storied flat building as joint venture. Further they agreed to undertake responsibility for all financial transactions. As consideration for the property over which flat building is proposed to be constructed, opposite parties 1 to 3 agreed to convey 30% of the multistoried building to be constructed. Accordingly, joint venture agreement was executed between opposite parties 1 to 3 on the one side and opposite parties 4 to 8 on the other side. Opposite parties 1 to 3 had assured that there will be no default in the construction of the building or handing over of 30% of the multi storied building to be constructed. The sixth opposite party is not educated. Making him believe that signed papers were necessary for the construction of the building, opposite parties 1 to 3 have got the signature of the sixth opposite party on several papers and agreements. The contents of those documents are not known to the sixth opposite party.

 

        4.     Opposite parties 1 to 3 started piling work for constructing the multi storied building, dug well obtained electricity connection and constructed sheds for housing the labour and keeping cement etc. Though after completing the piling work they started pillar work, later abandoned further construction. Opposite party No .6 has no further contact with opposite parties 1 to 3. As per the agreement the only duty on the part of the sixth opposite party was to make available the property for construction. He has discharged his part of duties to be performed as per the contract. He had not received any money from opposite parties 1 to 3. As opposite parties 1 to 3 failed to complete the construction the sixth opposite party is put to irreparable mental agony and loss. There is no  obligation on the part of the sixth opposite party to pay any compensation to the complainant. Until and unless the sixth opposite party is given 30% of the flat complex after construction, he has no liability to sell any undivided share to the complainant. The complaint is liable to be dismissed.

        Contentions identical to the contentions of OP6 are raised by opposite parties 4,5,7 & 8 .    On the above pleadings the points that arise for determination are

1. Whether there is any deficiency in service committed by opposite parties 4 to 8?
2. Whether the complainant is entitled to the reliefs claimed against all or any of the opposite parties?

        5.     The complainant is examined as PW1. Exts. A1 to A9 were marked on his side. The power of attorney holder of opposite parties 4 to 8 is examined as DW1. Exts. B1 & B2 are marked on the side of opposite parties 4 to 8.

        After the entire evidence is recorded arguments were heard.

Point No.1

        6.     Admittedly, Ext.B1 joint venture agreement dated 20.02.2008 was executed between opposite parties 4 to 8 on the one side and first opposite party represented by the second opposite party as promoter on the other side whereby opposite parties 4 to 8 agreed to make available their property described in Ext.B1 having total area of one acre 35 cents and 803 sq.links in Thengodukara in Kakkanad village, Ernakulam for the purpose of construction of a 20 storied flat building as a joint venture.  The parties mutually agreed that the promoter would construct flats for prospective buyers identified by them and the owners of the property ( opposite parties 4 to 8 ) would sell undivided shares in the land only to those buyers and the owners shall enter into agreement with those prospective buyers without raising any kind of objection. It was further agreed that on construction of the multi storied building utilizing  the total sale consideration receivable from the prospective purchasers towards construction cost and value of undivided share in the land, 30% of super built up area would be given to opposite parties 4 to 8 and the balance 70% of super built area would  be retained by promoter. As per Ext.B1 the promoter agreed to complete the entire construction within 36 months from the date of approval of the plan unless the promoter is prevented by any natural calamities and government proscriptions. It may be mentioned at once that complainant is not a party to Ext.B1 and as such the terms of Ext.B1 are as such not binding on the complainant.

        7.     The complainant himself entered into two agreements as Exts. A1 & A2 on 09.04.2008 Ext.A1 is an agreement for construction executed between the complainant and the first opposite party represented by its Director, the second opposite party. It is recited that opposite parties 1 & 2 intend to construct as building contractors blocks of multi storied building to be known as “Alliance smart tower” over the property made available by opposite parities 4 to 8 and second party (complainant) had agreed to purchase one flat to be marked as 18 B on the 18th floor of the building with three bed rooms and super built up area of 1598 sq.ft along with undivided share in common areas. The construction cost was fixed at Rs.35,75,500/-. A car park costing Rs.1,30,000/- was also agreed to be purchased. Together with other charges total consideration agreed was Rs.40,08,011/- . The builders agreed to finish the work within 30months and agreed to hand over possession of the flat by January 2010 provided the complainant paid the entire consideration. The exceptions justifying delay apparently did not happen in this case and the builder, even as admitted by opposite parties 4 to 8, abandoned construction works after starting construction of pillars. As per clause 19 of Ext.A1 right is provided to the complainant to claim back the amount paid in case the builder does not carry out the obligations on his part with interest at the rate of 18% per annum from the date of respective payments.

        8.     Ext.A2 is a separate agreement executed between opposite parties 4 to 8 on the one side on and the complainant on the other side on 09.04.2008. The agreement refers to the proposed project of opposite parties 1 to 3 and the fact that opposite parties 4 to 8 have made available one acre and 33 cents of property for the purpose of constructing apartments thereon. It is specifically recited that opposite parties 4 to 8 had made it clear to the complainant that they were not interested in selling the undivided share in the property if the complainant was not intending to entrust the construction work to the builder (Opposite parties 1 to 3) and that the complainant had agreed as per a separate agreement to entrust the construction of the flat to opposite parties 1 to 3. One by hundredth undivided share over the extent was agreed to be conveyed for a consideration of Rs.20,000/- . It was agreed that the complainant would get the apartment constructed through opposite parties 1 to 3 for his exclusive use. It was further agreed that the complainant would not demand registration of the sale deed for the undivided share before payment of the entire sale price property registration charges and settlement of the cost and charges of construction of the apartment were made and written consent from the builder was obtained. The right of the complainant to claim title, possession and interest on the property would be after the completion of the construction work. It is further agreed that if the complainant fails to pay full sale price he would be entitled to receive back only 90% of the sale price.

        9.     The allegation in the complaint is that the complainant had paid total amount of Rs.18,12,606/- including the price for the undivided share in the land that is Rs.20,000/- . These payments are evidenced by Exts.A3 to A6 marked on the side of the complainant and the payments are not disputed. It is the further case of the complainant that he stopped further payment as per the payment schedule given to him because opposite parties 1 to 3 failed to proceed with the construction. That opposite parties 1 to 3 did not proceed with the construction after completing the piling and starting to construct pillars is a fact admitted by opposite parties 4 to 8 also. So that there was failure on the part of opposite parties 1 to 3 to complete the construction in terms of the agreement is an establish fact. The only question that remains to be considered is whether opposite parties 4 to 8 are liable and if liable the extent of their liability.

        10.   Opposite parties 4 to 8 made available the property for construction of the apartment complex by opposite parties 1 to 3. The recitals in Ext.A2 entered into between ops 4 to 8 and the complainant are already referred to. Out of the amount already paid only Rs.20,000/- would go to opposite parties  4 to 8 as consideration for the property, they made available for construction. But the recitals show that the complainant happened to entrust the construction work to opposite parties 1 to 3 based on the compulsion of opposite party 4 to 8 also. This part of Ext.A2 makes opposite parties 4 to 8 jointly and severally liable with opposite parties 1 to 3 for the deficiency in service committed. It is true that any amount paid towards the actual construction of the building would be received by ops 1 to 3 and they alone would be accountable for the same. So in the light of the agreement between the parties the liability of opposite parties towards the complainant would be as indicated earlier.

 

Point No.2

        11.   The prayers in the complaint are firstly to direct the opposite parties to convey one by hundredth undivided share in the property over which apartment complex is to constructed and to issue a direction to complete the construction of the building within the time to be fixed by this commission and hand over the flat to the complainant as per the agreement along with completion certificate. The complainant has claimed Rs.14,00,000/- for the failure of the opposite parties to complete the construction as agreed along with cost of the proceedings. But it is an established fact that the construction work has not proceeded beyond completing the piling work. So it is unlikely that the complainant would get possession of the completed flat. So alternative relief of refund of the amount paid will have to be ordered. The complainant is also entitled to. Reasonable compensation for the deficiency in service committed by the opposite parties which we fix at Rs.5,00,000/-. Hence suitable orders are liable to be passed.

        In the result, the complaint is allowed as follows. Opposite parties 1 to 3 are directed to complete construction of flat 18 B as agreed in Ext.A1 within a period of six months from the date of order and on completion give notice to the complainant. There upon the complainant shall remit the entire balance consideration for construction within a month. On payment of the entire consideration, the opposite parties are directed to convey to him at his expenses one by hundredth undivided share in the property along with flat no.18 B and completion certificate.

 

        In case of failure to complete construction of the flat as directed opposite parties 4 to 8 shall pay  Rs.20,000/- and opposite parties 1 to 3 shall pay the balance,  Rs.17,92,606/- with interest at the rate of 18% per annum from the date of receipt of the amount till date of payment.

        In any event, opposite parties 1 to 8 jointly and severally shall pay a sum of Rs.5,00,000/- as compensation for the deficiency in service committed by them. They shall also pay Rs.10,000/- as cost of the proceedings to the complainant.

 

K.CHANDRADAS NADAR : JUDICIAL MEMBER

 

V.V.JOSE                         : MEMBER

APPENDIX

List of witness for the complainant

PW1                 - Premanadhan.K.G

List of documents for the complainant

Ext.A1              - Construction agreeement

Ext.A2              - Sale Agreement

Ext.A3              - Receipt dated 16.01.08

Ext.A4              - Receipt dated 02.12.2008

Ext.A5              - Receipt dated 02.12.2008

Ext.A6              - Receipt dated 10.02.2009

Ext.A7              - photograph

Ext.A8              - Advertisement

Ext.A9              - Copy of sketchs

List of witness for the opposite parties

Ext.DW1                  - Jamal

List of documents for the opposite parties

Ext.B1                             - Copy of joint venture agreement

Ext.B2                             - Copy of deed of power of attorney

 

K.CHANDRADAS NADAR : JUDICIAL MEMBER

 

V.V.JOSE                         : MEMBER

 

Be/

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

KERALA STATE

CONSUMER DISPUTES

REDRESSAL COMMISSION

 SISUVIHARLANE

 VAZHUTHACADU

 THIRUVANANTHAPURAM

CC.NO.72/12

JUDGMENT DATED : 18.08.2015

 

                                                                   Be/