BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 15/09/2011

Date of Order : 27/05/2015

Present :-

Shri. Cherian. K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 494/2011

Between

And

O R D E R

V.K. Beena Kumari, Member.

1. The facts leading to this consumer complaint are as follows :-

The complainant Sri. Dinesh Nambiar booked an apartment numbered 14-A with the 1^st opposite party builder M/s. Apple A Day Properties Pvt. Ltd. in their project named “Big Apple” for a total consideration of Rs. 18,22,917/-. The 1^st opposite party builder agreed to construct and deliver a flat of super built up area of 934 sq.ft. vide agreement dated 18-05-2007. In the mean time, the complainant purchased undivided share in the landed property for a consideration of Rs. 26,000/- vide sale deed dated 02-03-2007. The complainant paid Rs. 10,000/- towards advance amount and a further amount of Rs. 2,82,917/- to the 1^st opposite party builder. The complainant also entered into a tripartite agreement with the 1^st opposite party builder and the opposite parties 2 and 3 Federal Bank Ltd. on 19-05-2007 in order to avail loan of Rs. 15,40,000/- for the construction of the flat as specified in the agreement. The construction work of the flat was agreed to be completed within 24 months. The complainant repaid Rs. 7,00,000/- to the 3^rd opposite party bank towards loan amount, since the 1^st opposite party builder had carried out only the structure work. The complainant contended that the 2^nd and 3^rd opposite parties had released more amount to the 1^st opposite party builder without considering the different stages or progress of construction and without adhering to the schedule C to the agreement. Now, the 1^st and 2^nd opposite parties are demanding Rs. 11,06,345/- from the complainant vide an SMS message dated 13-08-2011. The complainant alleged that all the opposite parties colluded each other to release more amount to the 1^st opposite party builder, thereby caused huge financial loss to the complainant. The complainant seeks direction from this Forum against the 1^st opposite party builder to refund Rs. 2,99,000/- with 15% interest p.a. with effect from 18-05-2007 till realisation along with Rs. 5,00,000/- towards compensation for the inconveniences caused to the complainant. The complainant also seeks a direction against the 2^nd and 3^rd opposite parties to refund Rs. 7,00,000/- collected from him along with 15% interest p.a. from the date of filing this complaint till realisation, also to direct the 2^nd and 3^rd opposite parties to recover any sum due to them with respect to the loan given to the complainant from the property and the flat mortgaged to them.

2. The version of the 1^st opposite party is as follows :-

The 1^st opposite party M/s. Apple A Day Properties Pvt. Ltd. filed no version against the complaint filed by the complainant.

3. The defense of the 3^rd opposite party is as follows :-

It is submitted that this Forum has no jurisdiction to entertain and adjudicate this dispute raised by the complainant against the 3^rd opposite party Manager, Federal Bank Ltd., Pachalam branch that the 3^rd opposite party bank released Rs. 12,66,562/- to the 1^st opposite party builder as per the loan agreement at different stages of construction of the “Big Apple Project” of the 1^st opposite party builder, that there is no violation of the agreement on the part of the 3^rd opposite party bank, that RDDB and FI Act 1993 and SARFEASI Act 2002 provides adequate and effective remedies to the complainant-borrower against any action taken by the 3^rd opposite party (creditor) bank by way of seeking reliefs for set off, counter claim, injunction, granting of stay etc. through Debt Recovery Tribunal (DRT) constituted by RDDB and FI Act and also in appeal under Section 17 of the SARFAESI Act. It is submitted that the 3^rd opposite party bank is having charge over A and B schedule properties in the said tripartite agreement, that there is no over payment made by the opposite party bank, that a legal notice was issued by the opposite party bank on 07-09-2011 demanding settlement of accounts. There is no collusion between the 2^nd and 3^rd opposite party bank with the 1^st opposite party builder as alleged, that the complaint against the 2^nd and 3^rd opposite party bank is misconceived, unsustainable and is liable to be dismissed.

4. During the proceedings in this Forum, the complainant consumer sought for an interim order vide I.A. No. 540/2014 directing the 2^nd and 3^rd opposite party bank not to take any coercive action against the complainant and this Forum vide order dated 13-12-2011 in I.A. No. 540/2014 directed the 2^nd and 3^rd opposite parties not to take any coercive action against the complainant to recover the amount due to them. The above order was quashed by the Hon'ble High Court of Kerala in WPC No. 2303/12 dated 23-05-2013 stating that the Consumer Forum has no jurisdiction to entertain the matter relating to SARFAESI proceedings. Subsequently, the complainant has filed an I. A. No. 151/29015 stating that the dispute between him and the 2^nd and 3^rd opposite parties bank was settled out of the Forum and requested that the names of 2^nd and 3^rd opposite parties may be deleted from the party array. This Forum vide order dated 27^th March 2015, the above I.A. allowed and deleted the names of the 2^nd and 3^rd opposite parties in the party array. Thus, the only remaining opposite party is the 1^st opposite party builder, the Apple A Day Properties Pvt. Ltd.

5. No oral evidence adduced by the complainant. The documentary evidences furnished by the complainant were marked as Exts. A1 to A4 and report of the expert commissioner was marked as Ext. C1. Exts. B1 to B7 were marked on the side of 2^nd and 3^rd opposite parties and the witness was examined as DW1 on their side. The 2^nd and 3^rd opposite parties were subsequently deleted from the party array as stated in the foregoing paragraph. When the case was posted for final hearing, the counsel for the complainant was present and he was heard and this complaint is disposed off as ex-parte.

6. The following issues are came up for consideration in this case :-

1. Whether the complainant is entitled to get refund of Rs. 2,99,000/- with interest at the rate of 15% p.a. from 18-05-2007 from the date of agreement till realisation?

2. Whether the 1^st opposite party is liable to pay Rs. 5,00,000/- towards compensation for the non-delivery of the apartment on the agreed date of delivery of the fully constructed flat?

7. Issue No. i. :- The complainant booked a flat in the 'Big Apple' project of the 1^st opposite party builder after paying Rs. 10,000/- towards registration fee. The total consideration for the flat was for Rs. 18,22,917/- as evidenced by the Ext. A1 registration form issued by the 1^st opposite party builder. The 1^st opposite party builder vide their letter dated 19-05-2007 to the 3^rd opposite party bank, Pachalam branch informed that they have sold Flat A of Big Apple at Pipe Line Road, Palarivattom to the complainant Sri. Dinesh Nambiar for a total consideration of Rs. 18,22,917/- as evidenced by Ext. A2. Ext. A4 is the construction agreement dated 18-05-2007 entered into between the complainant and the 1^st opposite party builder agreeing to construct the above said flat as per the specifications in the agreement dated 18-05-2007 by 31-07-2008 and to deliver the possession of the flat within 180 days after the completion, provided the entire amount due to the 1^st opposite party builder had been paid by the complainant as per the schedule to the construction agreement. The complainant submitted that the 1^st opposite party builder had been completed the construction of the flat in spite of the fact that the 3^rd opposite party bank had released more amount to the 1^st opposite party builder. At the instance of the complainant, an expert commissioner was appointed by this Forum vide order dated 23-09-2013 in I.A. No. 495/2013 to ascertain the present stage of the construction of the apartment and the expert commissioner Sri. Biju. K. Abrabam a Licensed Civil Engineer inspected and reported the present stage of construction of the apartment vide his report marked as Ext. C1. The expert commissioner has stated in the above report, that “the construction of the structural work of the whole building complex had been completed, that the flat of the complainant is situated on the 14^th floor of the building complex and the roof slab and all the partition walls were fully constructed in respect of the complainant's flat, that the plastering and putty work for the wall paintings have been completed and all the pipe works for the electrical wiring and plumping were completed. There is a provision for lift in the building to the 14^th floor, but the lift room was not completed and no lift was installed. The stair case to the 14^th floor was also not completed. The water tank above the building was not completed and the common amenities were also not completed. It is reported by the expert commissioner that an amount of Rs. 5,39,000/- is required for the completion of the balance work of the flat including the common items such as lift, stair case, water tank, septic tank car parking etc.” The above estimate is prepared as per the local rate existed in the area. From the above report, it is evident that the construction work of the complainant's flat is not yet completed. In the circumstances, the claim of the complainant to refund Rs. 2,99,000/- with interest at the rate of 12% p.a. from 18-05-2007, the date of agreement till realisation is found allowable and is allowed.

8. Issue No. ii. :- The complainant has claimed Rs. 5,00,000/- towards compensation for the non-delivery of the apartment on the agreed date of delivery of the fully constructed apartment. From the report of the expert commissioner, it has come to the notice of the Forum that a major portion of the construction work of the apartment is still pending. We are of the firm opinion that it amounts to deficiency on the part of the opposite party builder and the complainant is entitled to get compensation for the deficiency in service on the part of the 1^st opposite party builder and we fix the compensation at Rs. 2,00,000/- with interest from the date of this order.

9. In the result, this complaint is partly allowed and we direct as follows :-

1. The 1^st opposite party builder shall refund to the complainant Rs. 2,99,000/- (Rupees Two lakhs ninety nine thousand only) with interest at the rate of 12% p.a. from 18-5-2007, the date of agreement till realisation.

2. The 1^st opposite party builder shall pay Rs. 2,00,000/- (Rupees Two lakhs only) towards compensation with interest at the rate of 12% p.a. from the date of this order till realisation.

The order shall be complied with, within a period of thirty days from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 27^th day of May 2015

Sd/- V.K. Beena Kumari, Member.

Sd/- Cherian. K. Kuriakose, President.

Sd/- Sheen Jose, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-