BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 09/08/2011

Date of Order : 30/06/'2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 431/2011

Between

And

C.C. No. 432/2011

Between

And

C O M M O N O R D E R

A. Rajesh, President.

1. The dispute involved in the above cases are the same and the opposite parties are the same, we are disposing off these complaints by this common order. Moreover during the proceedings, the counsel for the complainant in C.C. No. 431/2011filed a memorandum stating that the entire evidence can be adopted in C.C. No. 432/2011 as well. The memorandum has been accepted by the Forum.

2. The case of the complainant in C.C. No. 431/2011 is as follows :

The 1^st opposite party is a builder and the 2^nd and 3^rd opposite parties are sales agents of the 1^st opposite party. Lured by the assurances of the 2^nd and 3^rd opposite parties, in January 2007, the complainant booked a flat in the project of the 1^st opposite party by name 'Apple Com' situated in the property of the 4^th opposite party. On 04-08-2007, the complainant paid a sum of Rs. 1,98,000/- to the 1^st opposite party as part payment towards sale consideration. On 06-08-2007, as directed by the complainant, her daughter transferred a sum of Rs. 3,80,000/- to the account of the 3^rd opposite party. On 11-08-2007, the 1^st opposite party executed a sale deed in favour of the complainant and her husband. Again on 03-09-2007, the complainant paid Rs. 8,00,000/- through the account of the 3^rd opposite party. Though, it was agreed as per the agreement that the possession of the flat would be handed over to the complainant within 18 months from August 2007, the 1^st opposite party failed to complete the same as promised. The complainant caused a letter to the 1^st opposite party on 03-06-2011 requesting to refund the amount of Rs. 13,78,000/-. The 1^st opposite party received the notice, but there was no response. So, the complainant is before us seeking direction against the opposite parties to refund the amount together with compensation of Rs. 2 lakhs and Rs. 10,000/- towards costs of the proceedings.

3. In C.C. No. 432/2011, the complainant is seeking direction against the opposite parties to refund Rs. 10,00,000/- with interest together with compensation of Rs. 2 lakhs and Rs. 10,000/- towards costs of the proceedings.

4. The version of the 2^nd and 3^rd opposite parties in C.C. No. 431/2011 is as follows :-

The 2^nd and 3^rd opposite parties are non-resident Indians working abroad since 1976. There was a promotion and public exhibition by the 1^st opposite party in July 2007 in UAE. The 2^nd and 3^rd opposite parties booked a flat in the project of the 1^st opposite party. The complainant being close relatives, requested the 2^nd and 3^rd opposite parties to book for them 2 units in the project and the booking was done on 21-07-2007 at Hilton Hotel, Ras Al-Khaimah, UAE. Subsequently, the agreement was entered into between the complainant and the 1^st opposite party directly. The complainant in order to avail the special price for the flats, the payments were routed through the 2^nd and 3^rd opposite parties. The complainant deposited a total sum of Rs. 11,80,000/- in the bank account of the 2^nd and 3^rd opposite parties. They duly paid the amount together with Rs. 21,500/- as booking fees totaling to Rs. 12,01,500/- to the 1^st opposite party and the receipts have been issued in the name of the complainants by the 1^st opposite party against the entire payment of Rs. 12,01,500/-. The 2^nd and 3^rd opposite parties are not a party to any contract and are not liable to enforce it or to compensate in case of breach of contract or deficiency of service. The complainant has no cause of action against the 2^nd and 3^rd opposite parties.

5. The 2^nd and 3^rd opposite parties filed a separate version in C.C. No. 432/2011 raising the very same contentions in C.C. No. 431/2011.

6. This Forum duly sent notice of this complaint to the 1^st opposite party they accepted the same, but they remained absent during the proceedings for reasons of their own. The 4^th opposite party was deleted from the party array as per order dated 13-09-2011. The power of attorney of the complainant in C.C. NO. 431/2011 was examined as PW1 and Exts. A1 to A6 were marked. No oral evidence was adduced by the 2^nd and 3^rd opposite parties. Exts. B1 to B3 were marked. In C.C. No. 432/2011, no oral evidence was adduced by the parties. Exts. A1 to A6 were marked on the side of the complainant. Neither oral nor documentary evidence was adduced by the 2^nd and 3^rd opposite parties. Heard the counsel for the complainant and the 2^nd and 3^rd opposite parties in both the cases.

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

1. Whether the complainants are entitled to get refund of the advance amount from the opposite parties?

2. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainants?

8. Point No. i. :- During the proceedings, at the instance of the complainant in C.C. No. 431/2011 as per the order in I.A. No. 442/2011 dated 10-08-2011, the 1^st opposite party was directed to not to alienate the scheduled property till final disposal of the complaint. The complainant in C.C. No. 432/2011 filed I.A. No. 443/2011 which was allowed with the same relief.

9. According to the complainant, the 2^nd and 3^rd opposite parties are the agents of the 1^st opposite party builder and allured by the assurances of the opposite parties, the complainant in the above cases paid a sum of Rs. 13,78,000/- and Rs. 10,00,000/- respectively. During evidence, PW1 deposed that there is documentary evidence to show the nexus between the 1^st opposite party and the 2^nd and 3^rd opposite parties. But he failed to produce the same before this Forum. In short, nothing is substantiated against the 2^nd and 3^rd opposite parties substantiating the same. However, the 1^st opposite party entered into agreement with the complainants for the sale of 2 flats and executed the sale deed in favour of the complainants. (Ext. A4 in both the cases) As per Ext. A2 in C.C. No. 432/2011 the agreement executed into between the complainants and the 1^st opposite party, the 1^st opposite party agreed to hand over the possession of the flat within 18 months from the date of agreement in which evidently they failed. So, the claim of the complainants sustainable in law.

10. Exts. B1 to B3 go to show that series of litigations are pending before various courts between the complainants and the 2^nd and 3^rd opposite parties remedies of which lie elsewhere, which they are free to pursue according to law.

11. Point No. ii. :- The 1^st opposite party failed to respond to the lawyer notice issued by the complainant, neither were they diligent in responding to the notice issued by this Forum which calls for explanation which is not forthcoming. A compensation for such an irresponsible attitude towards this Forum and especially in law calls for compensation squarely and at full length, we fix it at Rs. one lakh each in both the cases. Since, the primary grievances have been squarely met no order as to costs are called for.

12. In the result, we partly allow the complaints and direct as follows :

1. In C.C. No. 431/2011 :-

1. The order in I.A. No. 442/2011 is made absolute.

2. The 1^st opposite party shall refund Rs. 13.78 lakhs to the complainant together with interest @ 12% p.a. from the date of each payment of each installment till realisation.

3. The 1^st opposite party shall pay a sum of Rs. 1,00,000/- to the complainant towards compensation for the reasons stated above.

2. In C.C. No. 432/2011 :-

1. The order in I.A. No. 443/2011 is made absolute.

2. The 1^st opposite party shall refund Rs. 10 lakhs to the complainant together with interest @ 12% p.a. from the date of each payment of each instalment till realisation.

3. The 1^st opposite party shall pay a sum of Rs. 1,00,000/- to the complainant towards compensation for the reasons stated above.

The above orders shall be complied with, within a period of 30 days from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 30^th day of June 2012

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Senior Superintendent.

A P P E N D I X

In C.C. No. 431/2011 :

Complainant's Exhibits :-

Opposite party's Exhibits :-

In C.C. No. 432/2011 :

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

Depositions :: Nil

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