BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of September 2011 Filed on : 28/09/2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No.517/2010
Between
1. V.A. Nassar, : Complainant
Rep. by power of attorney (By Adv. K.P. Suresh Kumar,
holder Anitha Nassar, T-17, Empire Building, Old
Panthaloon, Flat No. 7B., Railway Station road, Near
Edappally P.O., Marottichodu, High Court of Kerala, Ernakulam
Kochi. Kochi-18)
2. Anitha Nassar, Flat No. 7B,
Edappally P.O., Marottichodu,
Kochi.
And
M/s. Apple A Day Properties : Opposite party
Pvt. Ltd., Rep. by its Managing (By Adv. S. Sreekumar,
Director, Palarivattom, Chittoor road, Cochin-18)
Edappally Byepass,
Edappally P.O., Kochi.
O R D E R
A Rajesh, President.
Case of the complainant is as follows:
The 1st complainant is working abroad. The 2nd complainant, wife of the 1st complainant is residing in Ernakulam in a rental building along with their children. Lured by the advertisements of the opposite party, the opposite party sold and the complainants purchased 0.31% undivided share in the property as per sale deed No. 1441/2007 of SRO Edappally dated 22-03-2007. Thereafter as per agreement dated 31-05-2007 the opposite party agreed to construct apartment No. A in the 11th floor and to hand over the possession by December 2008. The complainants had paid the entire amount except the amount to be paid at the time of handing over the apartment. But the construction of the apartment was neither completed nor was it handed over to them as agreed. The opposite party as per letter dated 07-06-2010 offered a compensation of Rs. 6,000/- per month from June 2010 and also promised to refund Rs. 75,000/-. The complainants were not agreeable to the proposal. Due to the delay in delivery of the flat the complainant had to pay a total sum of Rs. 1,27,500/- towards rent from the period from December 2008 to June 2010. On several occasions the complainants demanded the possession of the flat and to pay the above amount. But there was no response. The complainants are entitled to get possession of the flat together with Rs. 1,27,500/- as compensation for the loss by way of rent, Rs. 1,00,000/- for mental agony and costs of the proceedings. This complaint hence.
2. Version of the opposite party.
The complainants entered into an agreement for sale on 02-03-2007 and another against on 31-05-2007 for construction of apartment. The delay in completion of the project was not willful but was due to the reasons beyond the control of the opposite party. It was assured to the complainant that the project would be completed by August 2011. The complainants are not entitled to get any of the amounts as claimed for.
3. The 2nd complainant was examined as PW1. Exts. A1 to A5 were marked on the side of the complainants. Neither oral nor documentary evidence was adduced by the opposite party. Heard the counsel for the complainant.
4. The points that arose for consideration are
i. Whether the complainants are entitled to get possession of the flat.?
ii. Whether the complainants are entitled to get Rs.1,27,500/- as compensation for the loss by way of rent?
iii. Compensation and costs of the proceedings
5. Point No. i. Indisputably the 1st complainant is entitled to get possession of the flat No. A in 11th floor in the project Big Apple. The complainants’ are ready to pay the balance amount to be paid at the time of handing over the possession of the flat. According to the opposite party construction of the flat would be completed by April 2011. In the above circumstances the complainants are entitled to get possession of the above flat provided the complainants pay the balance amount if any.
6. Point No. ii.As per Ext. A3 agreement dated 31-03-2007 the opposite party agreed to hand over the possession of the flat in December 2008. In ext. A4 letter dated 07-06- 2010 the opposite party stated as follows:
“We would like to inform you that, as per the agreement, the compensation (incase of delay in handing over), is Rs. 2 per sq.feet and as special case we have increased the compensation to Rs. 6,000/- per month for your apartment in Big Apple, from June 2010, The EMI which was paid from your end till date is Rs. 75,000/- and the same will be refunded to you in 3 installments”
In view of the admitted contract in Ext. A4 and in the absence of anything to the contrary the promise of ;the opposite party is sustained and they shall pay accordingly.
7. Point No. iii. Primarily and admittedly the opposite party failed to perform the contract which put the complainants to this litigation which has considerably caused them hardships evidently. We are of the opinion that a consumer has been wronged but the Hon’ble Constitution holds that every right has a remedy. Since the basis grievances having been met squarely we feel that a compensation of Rs. 50,000/- would meet ends of justice. Ordered accordingly.
8. In the result, we pass the following order
i. The opposite party shall forthwith deliver the possession of the aforesaid flat to the complainants.
ii. The opposite party shall pay to the complainants the amounts as per Ext. A4 letter till delivery of the flat.
iii. The opposite party shall also pay to the complainants a compensation of Rs. 50,000/- for the reasons stated above.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order failing which the above amounts shall carry interest @ 12% p.a. till payment.
Pronounced in the open Forum on this the 30th day of September 2011
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainants Exhibits
Ext. A1 : General Power of attorney
A2 : Copy of Deed of sale
A3 : Copy of agreement for construction of apartment
A4 : Copy of letter dt. 07/06/2010
A5 : Copy of letter dt19-06-2010
Opposite party’s Exhibits : Nil
Depositions:
PW1 : Anitha Nazzar
Copy of order despatched on :
By Post : By Hand:
