BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 04/06/2011

Date of Order : 31/07/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 288/2011

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :

The complainant entered into an agreement for sale with regard to undivided share of property and agreement for construction of an apartment therein with the 1^st opposite party on 25-10-2006 at a total cost of Rs. 37,47,000/-. The 1^st opposite party agreed to hand over the possession of the flat by November 2008. The complainant as such had paid the entire amount less the 5% which is to be paid at the time of handing over the possession of the flat. In spite of repeated requests and issuance of lawyer notice, the 1^st opposite party failed to complete the construction of the apartment. The complainant had to close the loan account prematurely, since the opposite parties failed to complete the construction of the flat in time. Thus, the complainant is before us seeking direction against the opposite parties to pay Rs. 10 lakhs to complete the construction of the apartment, to pay Rs. 2 lakhs by way of compensation, to pay Rs. 3 lakhs towards loan pre-closure charges and interest and to pay Rs. 25,000/- by way of costs of the proceedings.

2. The version of the 1^st opposite party :

The complainant is not a consumer as per the provision of Section 2 (1) (d) of the Consumer Protection Act. Due to the financial recession, some delay has taken place in the completion of the project. A few customers preferred criminal complaints against the 1^st opposite party. At the intervention of the Kerala Legal Services Authority, the 1^st is taking their earnest efforts to settle the dispute between the customers and the 1^st opposite party. The project would be completed within 10 months from July 2012. The 1^st opposite party is ready to refund the amount received from the complainant. There is no unfair trade practice or deficiency in service on the part of the 1^st opposite party.

3. The defense of the 2^nd opposite party :

The complainant is not a consumer as per the provision of the Consumer Protection Act. During 2006, the 2^nd opposite party was working as a sales executive of the 1^st opposite party. On 18-04-2006, the 2^nd opposite party purchased flat No. D in the 6^th floor of the project of the 1^st opposite party by name “Apple My Home Apartments”. Since the 2^nd opposite party got transferred to Vijayavada he opted to sell his apartment and for that purpose he instructed the 1^st opposite party to find out a purchaser. Accordingly, the complainant purchased the flat along with all rights accrued by the 2^nd opposite party. The complainant has no cause of action against the 2^nd opposite party.

4. The power of attorney of the complainant was examined as PW1 and Exts. A1 to A5 were marked on the side of the complainant. Neither oral nor documentary evidence was adduced by the opposite parties. Argument note was filed by the counsel for the complainant. Heard the counsel for the parties.

5. The points that came up for consideration are as follows :

1. Whether the complainant is a consumer?

2. Whether the complainant is entitled to get Rs. 10 lakhs from the opposite parties to complete the flat in question?

3. Whether the complainant is entitled to get the loan pre-closure charges and other expenses from the opposite parties?

4. Whether the opposite parties are liable to pay the costs of the proceedings to the complainant?

6. Point No. i. :- Section 2 (1)(o) of the Consumer Protection Act contemplates that housing construction is a service under the purview of the Act. The Hon'ble Supreme Court in Lucknow Development Authority Vs. M.K. Gupta III (1994) CPJ 7 (SC) and in Gaziabad Development Authority Vs. Balbir Singh II (2004) CPJ 12 (SC), in a considered view has categorically sustained the contention that this is a case maintainable in this Forum. Not to mention the contentions lack lustre hence.

7. Point No. ii. :- Admittedly, the complainant and the 1^st opposite party entered into Ext. A1 agreement for construction of the apartment on 25-10-2006. As per the agreement, the 1^st opposite party agreed to finish the construction work within 24 months. The total price of the flat as per the agreement was Rs. 37,47,000/- inclusive of value of undivided share of land of Rs. 1,20,900/- as well. According to the complainant, an amount of Rs. 10 lakhs is necessary to complete the construction of the flat as of now. However, both the parties failed to produce any document or evidence to prove the present condition or stage of construction of the apartment. So, the claim for Rs. 10 lakhs to complete the construction of the flat is without any basis and untenable here in law.

8. Indisputably, the 1^st opposite party had received a total sum of Rs. 34,50,000/- from the complainant out of the total price of Rs. 37,47,000/-. As per the agreement, the complainant is to pay the balance amount at the time of handing over the possession of the flat. But it is pertinent to note that the complainant has neither a prayer against the 1^st opposite party to complete the construction of the flat nor a one to get refund of the amount paid by him. Since the 1^st opposite party failed to submit any reason or anything in black and white for the delay in completing the construction of the apartment the 1^st opposite party is liable to pay interest from the accepted amount from the agreed date of handing over of the possession of the flat that is from November 2008 to the actual delay of possession of the apartment to the complainant. Our decision is based on the dictum laid down by the Hon'ble National Consumer Disputes Redressal Commission in GDA Vs. Alok Chandra Sharma 2011 (2) CPJ 389 (NC) and the Hon'ble Supreme Court in H.P. Housing Board Vs. Janak Gupta Civil Appeal No. 6346/2002, decided on 26-03-2009.

9. Point No. iii. :- Ext. A5 would show that the complainant had availed a bank loan of Rs. 30 lakhs from the State Bank of Travancore, M.G. Road, Ernakulam Branch on 18-12-2006 and he prematurely closed the loan account on 01-10-2010 and he had to remit an amount of Rs. 57,159/- towards interest. Since, we have directed the 1^st opposite party to pay interest from the whole amount. We refrain from ordering refund of the above amount to avoid multiplicity.

10. Point No. iv. :- Ext. A1 contract has dragged the complainant to unnecessary litigation and expense of time and money, had not the 1^st opposite party gone back on their word, a situation which we feel call for costs of the proceedings. We fix it at Rs. 10,000/-.

11. In the result, we allow the complaint and direct as follows :

1. The 1^st opposite part shall pay interest @ 12% p.a. to the complainant for Rs. 34,50,000/- (Rupees thirty four lakhs and fifty thousand only) from November 2008 till the delivery of possession of the apartment as per Ext. A1 agreement.

2. The 1^st opposite party shall pay Rs. 10,000/- (Rupees Ten thousand only) to the complainant towards costs of the proceedings.

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 31^st day of July 2012.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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