BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 24/05/2011

Date of Order : 22/10/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 267/2011

Between

And

O R D E R

C.K. Lekhamma, Member.

1. The undisputed facts of the complaint are as follows :

The complainants were lured by the attractive advertisements issued by the opposite parties in Mathrubhumi daily dated 11-11-2007 and other leading newspapers in respect of a project promoted by “Apple A day properties Ltd.” The complainants had booked the flat No. 3-D in “Apple Limited Edition, Palarivattom” project on 11-11-2007 itself by paying Rs. 10,000/-. As per the construction agreement on 12-12-2007, the handing over of the apartment was to be completed within 12 months from the date of agreement and the payments were to be made as per the payments schedule. The opposite parties have executed a sale deed in respect of 5.87% undivided share in the property. The complainants made arrangements with HDFC Ltd. for releasing the amounts at various stages. They had paid an amount of Rs. 5,00,000/- on 14-12-2007. Subsequently an amount of Rs. 13,77,724/- was released by HDFC Ltd. on various occasions, even without the concurrence of the complainants. But the construction of the apartment has not either accelerated or has been completed as promised even as on today. The opposite parties have also misappropriated the amounts paid by the complainants and diverted the same for some other purpose. The complainants have been unnecessarily paying pre-EMI since January 2009 which would amount to Rs. 3,27,146/- approximately. Total pre-EMI thus paid by the complainants till March 2011 would be Rs. 3,79,523/-. The complainants have been paid rent for the period since January 2009 due to the non-completion of the flat. The above conduct of the opposite parties is a deficiency of service and negligence. Thus, the complainants seeking the following reliefs against the opposite parties :

1. To direct the 1^st opposite party to complete the construction of the apartment bearing No. 3D Apple Limited Edition Palarivattom within a time frame to be fixed by this Forum.

2. To direct the 1^st opposite party to pay an amount of Rs. 3,27,146/- being the excess pre-EMI paid till March 2011.

3. To direct the opposite parties to pay an amount of Rs. 2,43,000/- towards rent paid by the complainants since January 2009 to March 2011.

4. To direct the opposite parties to pay an amount of Rs. 1,46,016/- towards interest for the amount of Rs. 5,10,000/-, compensation and costs of the proceedings.

2. The complainants were represented through counsel. The notice issued to the opposite parties was returned stating the reason “unclaimed”. Proof affidavit has been filed by the 1^st complainant. Exts. A1 to A5 were marked on their side. Heard the counsel for the complainants.

3. The points that came up for consideration are :-

1. Whether the complainants are entitled to get possession of the apartment allotted to them by the opposite parties?

2. Whether the complainants are entitled to get rent paid by them and excess pre-EMI amount paid by them from the opposite parties?

3. Compensation and costs, if any?

4. Point Nos. 1 to 3 :- The case of the complainants is that they had booked a flat with the opposite parties on 11-11-2007 by paying booking charge Rs 10,000/-. It is contended that they have paid Rs. 5,00,000/- on 14-12-2007 and subsequently Rs. 13,77,724/- to the opposite parties. It is also contended that the opposite parties assured that within 12 months they would complete the construction and till date the opposite parties have not been completed the construction work.

5. Ext. A1 is the newspaper in which the advertisement of the concerned flat had published. Ext. A2 is the copy of agreement for sale of undivided share in land. Ext. A3 is the copy of construction agreement. Exts. A4 and A5 are the copies of communications issued by the opposite parties to the complainants. There is no evidence adduced by the complainants with regard to the payment made by them to the opposite parties. However, Ext. A5 letter go to show that the opposite parties demanded the due amount of Rs. 4,31,362/- in which they mentioned that electric and plumping works are over. Moreover, the complainants have taken out a commission and the commissioner reported that the construction works are not yet completed. As per Ext. A3 agreement, the opposite parties ought to have delivered the possession of the flat within one year from 12-12-2007 in which they failed. In that case, the complainant is entitled to get compensation for the delay in delivery of the flat. Admittedly, there is no clause in Ext. A3 agreement to pay compensation in case the opposite party fails to deliver the possession to the complainants. Indisputably, the complainant has had to suffer mental agony and other hardships though there is no provision in Ext. A3 to pay compensation. Considering the evidence in this case, we are of the view that the complainant is entitled to get reasonable rent from the date of delivery as stated in Ext. A3 till the date of actual handing over the possession of the flat. We fix it at Rs. 10,000/- per month. Though the complainants demanded to pay back the excess EMI Rs. 3,27,146/- paid by them from the opposite parties. But there is no evidence adduced by them that they have paid such amount before the bank.

6. Accordingly, we partly allow the complaint as follows :

1. The opposite parties shall jointly and severally deliver the possession of the flat to the complainants immediately.

2. The opposite parties shall jointly and severally pay to the complainants Rs. 10,000/- per month from the date of agreed delivery of possession mentioned in Ext. A3 till the actual delivery of the flat.

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 open Forum on this the 22^nd day of October 2011.

Sd/- C.K. Lekhamma, Member.

Sd/- A. Rajesh,President.

Sd/- Paul Gomez, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

=========