Kerala

StateCommission

CC/14/26

MRS. SUSAN BIJU ABRAHAM - Complainant(s)

Versus

M/S ALLIANCE HABITAT & REAL ESTATE PVT (1)LTD - Opp.Party(s)

GEORGE CHERIYAN KARIPPAPARAMBIL

29 Apr 2016

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM

 

C.C.NO.26/2014

JUDGMENT DATED 28/4/2016

  

PRESENT:

SMT. A. RADHA                                      :         MEMBER

SHRI. K. CHANDRADAS NADAR           :        JUDICIAL MEMBER

SMT. SANTHAMMA THOMAS              :        MEMBER

COMPLAINANT:

            Mrs. Susan Biju Abraham,

W/o Biju Pothen Abraham, G.V.F2, Assariathu,

Shaw Wallace Lane, Nalanchira P.O.,

Thiruvananthapuram-695 015.

(By Adv:  George Cherian Karippaparambil)                    

                        Vs

RESPONDENTS:

1.  M/s. Alliance Habit & Real Estate (1) Pvt. Ltd.32/3007,

 B2 Aysha Road, Anchumuri, Vytilla P.O., Chochin-682 019

 – Rep: by its Managing Director, Jitto Joseph.

 

2.  Mrs. Thankamma Joseph, Director, M/s. Alliance Habitat &

Real Estate(1) Pvt. Ltd., W/o. K.A. Joseph, Candles,

Vinobha Nagar, Chilavannoor, Kochi-682 020.

 

 

 

 

3.  Jitto Joseph, Managing Director,

M/s. Alliance Habitat & Real Estate (1) Pvt. Ltd.,

 Aysha Road, Anchumuri, Vytilla P.O., Cochin-682 019.

 

4.  Pareekutty, S/o. Aredath Ahammed,

Chelakavil Padinjare Purayidom,

Thengodu P.O., Pin-682 030.

 

5.  Aliyar, S/o. Aredath Ahammed,

Chelakavil Padinjare Purayidom,

Thengodu P.O., Pin-682 030.

 

6.  Kochunni, S/o. Aredath Ahammed,

Chelakavil Padinjare, Purayidom,

Thengodu P.O., Pin-682 030.

 

7.  Bavakunju, S/o Pariyathu, Residing at

Malayil House, Thengodu P.O., Pin-682 030.

 

8.  Ramlet, W/o Bavakunju, Chelakavil Padinjare

Purayidom, Thengodu P.O., Pin-682 030.

(By Op 4 to 8 Adv:  Babu Cherukara & P. Rajmohan)  

 

JUDGMENT

SMT. A. RADHA  :  MEMBER

          Complainant has filed this complaint under Section 17 of the Consumer Protection Act for getting relief.

          2.  The complainant is residing in Abu Dhabi with her husband who is employed in Abu Dhabi.  The complainant decided to settle in Ernakulam and attracted by the advertisements and business canvassing approached the opposite parties engaged in the construction complex namely “Alliance Smart Tower”.  1^st opposite party  is the company, 2^nd and 3^rd  opposite parties are Director and Managing Director of the company respectively.  Opposite parties 4 to 8 are the owners of the apartment complex.  The opposite parties 4 to 8 have 1.33 acres of land in Block No.9 in Kakkanadu Village which was obtained as per Sale Deed No.830/1992 of Sub Registrar Office, Edappaly.

          3.  The complainant has entered into an agreement dated 15/4/2008 with the opposite parties to purchase 1/100 undivided share in the 1 acre 33 cents for a total consideration of Rs.20,000/- and agreed for construction of apartment No.15C in the 15^th floor of “Alliance Smart Tower” with 1598 sq.ft built up area for a total cost of Rs.31,76,000/-.  The construction would be completed in January 2010.  Complainant paid Rs.12,30,047/- in 18 cheques from 25-11-2007 till 20-7-2009.  Despite repeated requests, the opposite parties failed to complete the construction of the apartment project.  At present, the project is in an abandoned state and only less than 5% of work is completed in the apartment project.   The opposite parties failed to complete and deliver the apartment project to the complainant.  On 11/5/2011 the complainant sent e-mail to opposite parties and cancelled the apartment.  The opposite parties by e-mail dated 7/6/2012 requested time for repayment of the remitted amount with interest till 31/7/2012 and another e-mail dated 26/9/2012 sent seeking time for payment.  The complainant alleges deficiency in service on the part of opposite parties 1 to 8.  The complainant suffered financial loss and mental agony and filed the complaint for the relief of Rs.30,00,000/- as compensation with future interest @ 12% interest till realization and      Rs.1 Lakh as cost of proceedings.

          4.  Though notice was served on the opposite parties, opposite parties 1 to 3 remained absent and were set ex-parte.

          5.  The opposite parties 4 to 8 appeared and filed version and admitted that they were the owners of the disputed landed property which is an acquired property.  The opposite parties 1 to 3 undertook the construction of multi-storied apartments to opposite parties 4 to 8  in their responsibility and was a joint venture and assured to pay 30% on completion of the construction of apartments.  Believing on the assurance made by the opposite parties 1 to 3 entered into the joint venture.  Though initial work of construction of the apartments started, the construction is yet to complete.  No consideration is accepted from the complainant and the complainant is a stranger to these opposite parties.  Opposite parties 4 to 8 have no liability to compensate the complainant and prayed to exempt from liability against the relief claimed by the complainant.

          6.  The complainant filed proof affidavit and documents were marked as Exbts: A1 to A16.  On the basis of the pleadings and the documents the question to be considered are: (1) Whether the opposite parties are liable for deficiency in service? (2)   If so, the reliefs and costs.

Point No.1:-  The complainant entered into an agreement to purchase 1/100 share in survey in 1.33 acres of land in Block No.9 in Kakkanadu Village of Sub Registrar Office, Edappally and paid an amount of Rs.20,000/-.  Opposite parties 4 to 8 are the owners of the apartment project.  Though sale deed executed, the proposed project has not come true and opposite parties are unable to complete the project.  As per the agreement entered into between the opposite parties the apartment No.15C in the 15^th floor of “Alliance Smart Tower” with a super built up area of 1598 sq.ft for a total cost of Rs.31,76,000/- was allotted and the complainant paid an amount of Rs.12,30,047/- during 25/11/2007 to 20/7/2009 in 18 instalments.  The apartment has to complete in January, 2010.  During this period it has come to know that the project is in an abandoned state and less than 5% of the work completed in the apartment project and opposite parties were unable to complete the project and deliver the apartment in the promised time.  Hence the complainant was constrained to cancel the agreement and informed through e-mail dated 11/5/2011.  Due to the deficiency in service and unfair trade practice the complainant had to suffer financial loss and mental agony and claimed Rs.30 Lakhs as compensation.

          7.  To substantiate the case of the complainant, the complainant produced Exbt: A1 & A2 the agreements dated 15/4/2008 with the opposite parties with regard to the purchase of undivided share of land and for the construction of apartment No.15C.  Exbt: A3 is the statement of account of the complainant showing the payment to opposite parties and Exbts.4 to 12 are receipts of the payment effected.  The cancellation letter dated 11/5/2011 is Exbt: A13 and Exbt: A14 to A16 are the copies of e-mails dated 7/6/2012, 26/9/2012 between the parties.

          8.  Heard the counsel in detail.  It is clear from the available documents that the opposite parties have not delivered or completed the construction of apartment as agreed upon.  The amount of Rs.12,30,047/- accepted by opposite parties was also not returned so far.  Moreover, the receipts and statement of account shows that the payment made by the complainant remains uncontroverted.  The complainant was constrained to cancel the agreement on 11/5/2011 as the opposite parties have only started only piling work in spite of payment of almost half the cost of apartment.  Thereafter the communications sent to the opposite parties were not properly responded or refund the amount already paid.  Hence it is evident and clear from documents that the complainant effected the payment and the construction of apartment was not even properly started and we find there is deficiency in service on the part of opposite parties and the complainant is entitled for compensation towards the financial loss and mental agony.  The opposite parties failed to complete the construction of the apartment in January 2010.  The agreement confirms that the opposite parties are liable to pay compensation.  The opposite parties 1 to 3 were exparte and the opposite parties 4 to 8 contended that the construction of apartment undertook as a joint venture.  Though the opposite parties 1 to 3 through e-mail informed further time for completion, they remained absent.  We are of the considered view that complainant is entitled for refund of amount with interest and cost.

          In the result, we partly allow the complaint as follows:-

1.  The opposite parties are directed to refund Rs.12,30,047/- (Rupees twelve lakhs thirty thousand and fortyseven only) to the complainant with interest @ 9% p.a from January 2010 till realization.
2.   An amount of Rs.1,00,000/- (Rupees One lakh only) as compensation;
3.   Rs.25,000/- as cost of proceedings.

The order shall be complied with, within a period of thirty days from the date of receipt of the copy of this order. Failure to comply this order, will entitle the complainant to recover interest @ 12% for the entire amount from the date of order till realization.

 

 

 A. RADHA          :         MEMBER

 

 

K. CHANDRADAS NADAR  :  JUDICIAL MEMBER

 

SANTHAMMA THOMAS     :    MEMBER

 

Sa.

 

 

 

 

APPENDIX

Complainant’s exhibits:

Exbt: A1 – Agreement dated, 15/4/2008 with the opposite parties for

                   purchase of undivided share of land.

Exbt:A2 - Agreement dated, 15/4/2008 with the opposite parties for

                   construction of apartment No.15C.

Exbt:A3 – Statement of Account of the complainant regarding payment

to the opposite parties apartment No.15C.

Exbt:A4 – Receipt No.1044 dated 19/4/2008 for Rs.50,907/- issued by

                   Opposite parties.

Exbt:A5 – Receipt No.1114 dated 15/5/2008 for Rs.50,907/- issued by

                   Opposite parties.

Exbt:A6 – Receipt No.1638 dated 26/12/2008 for Rs.72,750/- issued by

                   Opposite parties.

Exbt:A7 –Receipt No.1670 dated 15/1/2009 for Rs.72,750/- issued by

                   Opposite parties.

Exbt:A8 – Receipt No.1728 dated 20/2/2009 for Rs.48,500/- issued by

                   Opposite parties.

Exbt:A9 – Receipt No.1743 dated 11/3/2009 for Rs.48,500/- issued by

                   Opposite parties.

Exbt:A10 – Receipt No.1819 dt 17/4/2009 for Rs.48,500/- issued by

                   Opposite parties.

Exbt: A11 – Receipt nO.1861 dt 5/6/2009 for Rs.48,500/- issued by

                   Opposite parties.

 

Exbt:A12 – Receipt No.1877 dt 17/6/2009 for Rs.48,500/- issued by

                   Opposite parties.

Exbt: A13 – Cancellation letter dated 11/5/2011 by complainant addressed

                     to the opposite parties.

Exbt:A14 – E-mail dated 7/6/2012 by opposite parties to the complainant.

Exbt:A15 – E-mail dated 26/9/2012 by complainant to the opposite parties.

Exbt:A16 – E-mail dated 26/9/2012 by opposite parties to the complainant.

 

Opposite party’s exhibits:-

NIL

 

A. RADHA           :         MEMBER

 

 

K. CHANDRADAS NADAR  :  JUDICIAL MEMBER

 

SANTHAMMA THOMAS     :    MEMBER

 

Sa.

 

 

 

 

 

 

 

KERALA STATE CONSUMER                                                                                       DISPUTES REDRESSAL

COMMISSION,  

VAZHUTHACAUD, 

            THIRUVANANTHAPURAM.

 

 

 

 

C.C.NO.26/2014

JUDGMENT DATED 28/4/2016

 

 

 

 

 

Sa.