BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the day 31st day of May 2012
Filed on : 19/10/2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member.
C.C. No.556/2010
Between
Mercy Bissy Joseph, : Complainant
D/o. T.J. Joseph, (By Adv. George Cherian Karippa-
Res. at Thundiparambil parambil, Karippaparambil
house, Ochanthuruthu P.O. Associaes, HB.48, Panampilly
Nagar, Kochi-682 036.
Vs.
M/s. ABJ Properties Pvt. Ltd. : Opposite party
IInd Floor, SMP Complex, (By Adv. Gigimon Issac,
Vyttila, Pin-682 019, Infaant Jesus Building, Banerji
rep. by Managing Director road, Cochin-31.)
Sri. Aloysious K.U.
Paul Gomez, Member.
The complaint has been filed in the back ground of following facts.
The complainant happened to notice an advertisement issued under the auspices of opposite party offering flats in the completed villas project at Aroor for 10.5 lakhs onwards. Accordingly complainant met managing director of the opposite party at Vytilla. After joint site inspection opposite party promised the complainant to provide apartment No. A in the ground floor of Riverin Apartments admeasuring 786 sq. ft with 2 bed rooms. At the request of the complainant the said plan was agreed to be modified and ultimately a studio apartment of approximately 532 sq.ft area with an independent car park was offered at the price of Rs. 10,50,000/- and complainant in furtherance of the oral agreement remitted Rs. 1.5 lakhs by way of advance. On the pretext of storing building materials in the area earmarked for the construction of apartment No. A, opposite party had been protracting the execution of the agreement and construction. Complainant is ready to pay the balance amount of 9 lakhs on short notice. The deficiency in this regard has caused mental agony to the complainant. The complaint is concluded with the prayer seeking direction against opposite party for the transfer of promised apartment after accepting Rs. 9 lakhs apart from payment of compensation and costs.
2. In the version submitted by the opposite party it is urged that complainant is not a consumer as defined in Section 2 (1) (d) of the Consumer Protection Act. Except the receipt of Rs. 1.50 lakhs all other facts are denied. The amount was only an advance for booking an apartment in the residential complex. Contractual relationship comes into force only when an agreement is executed by the parties, which has not been done in this case. In fact when the complainant approached, 90% of the construction was completed in October 2010. Constructions were undertaken on the basis of approved plan and permit issued by the local authority namely the Arookutty Grama Panchayat. Apartment A in the ground floor is having super built-up area of 786 sq.ft. Completion plan is submitted before the local authority and ownership certificate has been issued to opposite party. Had there been any deviation from the approved plan, local authority would have refused ownership certificate. Hence there is no substance in the contention that opposite party has modified the Area of apartment A to 532 sq. ft. The total plinth area shown in the application submitted before various authorities such as Electricity Board, Water Authority etc. is 786 sqft. Apartment A was offered to the complainant after giving some discount in view of her peculiar position. Complainant did not turn up after tendering the advance amount of Rs. 1.50 lakhs. On account of the complainant being a lady and widow opposite party was prepared to sell the undivided share for construction of apartment A in the ground floor on payment of Rs. 15 lakhs.
The document produced before the Forum as plan of the apartment is a fabricate and concocted document. There is no legal relationship between Mr. Sebastian and opposite party. The advertisement published in Manonarma classifieds pertains to some constructions at Aroor and it is not related to construction undertaken by this opposite party. Regarding the mail the message it conveys is that for booking the apartment Rs.1 lakh has to be paid and agreement will have to be executed within one week.
It is pertinent to note that complainant has paid the advance on 07-07-2010 and complaint is filed on 18-10-2010. Thus she is praying for direction against opposite party to execute the sale deed in 3 months period without paying the balance amount. This opposite party want to sell this apartment if the complainant wants it, provided she pays the present price. The complainant has not suffered any loss or mental agony at the hands of opposite party. The version is concluded with challenging jurisdiction of the Forum and maintainability of the complaint.
3. An I.A. was allowed restraining the opposite party from alienating the impugned apartment. Complainant was examined as PW1. Exts. A1 to A6 marked on her side. Opposite party was examined as DW1. Exts. B1 to B6 marked on his side. Learned counsel on both sides heard.
4. The following points are ripe for settlement
(i) Whether there was any agreement for construction of apartment. ?
(ii) Whether there was any under taking given by opposite party to
alter the measurements to suit the complainant?
(iii) What was the price agreed between the parties?
(iv) Whether complainant is entitled for any relief?
v What are those reliefs, if any?
5. Points Nos. i&ii. The complainant is a young widow who was frantically in search for a roof over her head to live with her only child safely and securely. She happened to glance Ext. A1 advertisement which suited her long cherished desire to have an abode to her little family. It is pertinent to; note that the aforesaid advertisement was regarding flats at Aroor. The price of the flat stated therein began at 10.5lakhs. Anyhow, eventually she could meet managing director of opposite party and on joint inspection of the site she was promised apartment No. A on the ground floor of the Riverin Apartment which is located at Arookutty, which is in fact the impugned flat. According to the lady opposite party was generous enough to convert the said two bed room apartment to a studio apartment with single room and car park to suit her purpose and also the price was fixed at 10.5 lakhs. As a sequel to this understanding between them, she paid Rs. 1,50,000/- towards advance for the apartment which is evidenced by Ext. A4 receipt. She has stated that it was promised by opposite party to hand over the possession and ownership by 15-10-2010. She is aggrieved because of protracting the execution of sale of the apartment.
On the other hand opposite party denied all these averments except the receipt of the Ext. A4 amount by way of advance. He also refutes the contention regarding conversion of the apartment to an one room, studio apartment to suit the financial capacity of the complainant. Moreover, he is of the view that such a conversion, is beyond his capacity because the plan had already been approved by the local authorities. Furthermore, when she approached him 90% of the construction had already been completed.
It is indeed a difficult task to do justice where there is death of material evidence. Being a quasi judicial authority we cannot be carried away by sympathy and compassion. Barring Ext. A4 receipt to show that complainant has remitted Rs. 1.5 lakh for the purpose of booking apartment No. A in the ground floor of Riverin Apartment, Arookutty, there is absolutely no material evidence to substantiate her contentions. Even Ext. A1 advertisement would go to show that the same is regarding the flats at Aroor where as the complaint has been brought regarding the disputed residential complex at Arrookutty. Hence all her averments concerning one Sebastian loses its credibility. Also the averments regarding conversion to one room apartment can be taken only with a pinch of salt because there is no tangible evidence to substantiate her position. Same is the case with the total price of the apartment as claimed by the complainant to have been fixed at Rs. 10.5 lakhs . Barring her own deposition as PW1 there is no material produced by the complainant. Of course she has produced Ext. A3 revised plan. The marking of the said plan was vehemently objected to by the learned counsel who appeared on behalf of the opposite party. We cannot give much credence to the said document since it has been disowned by the opposite party. Also she has stated that there was an undertaking from the side of opposite party that possession would be handed over to her not later than 15-10-2010. This statement remains to be a bald one as long as it is not substantiated by cogent evidence. Hence we do not derive any substantial support from complainant to do justice to her. Still we think the solitary piece of material evidence of Ext. A4 coupled with admissions made by opposite party are potent enough to turn table on the opposite party in the given facts and circumstances of the case. Moreover, even if we discard the averments and pleadings of complainant and rely only on what have been conceded by the opposite party, we think there are amble material to tilt the balance in favour of the complainant.
The opposite party has not disputed the Ext. A4 receipt and the acceptance of the amount of Rs. 1.5 lakhs specified therein. He has not also been in disagreement with the fact that the site was inspected jointly by the parties and they have come to a consensus for the transfer of the flat No. A on the ground floor of the Riverin apartments. We have to appreciate these facts in the back ground of the conceded fact that when the complainant approached him 90% of the work was over. In that view of the matter, the question of executing a formal Ext. B1 agreement was out of question unlike in other cases, specifying different stages of completion and schedule of payment. The admission of the opposite party, vide schedule –D to Ext. B2 would show that 1 lakh rupees is the amount usually received as advance for booking. Where as Rs. 1.5 lakh has been paid in this case, she stands out from others. In the back ground of aforesaid circumstances, there is preponderance of probabilities indicating the possibility of an understanding between the parties whereby the opposite party had given a undertaking to transfer for the impugned apartment to the complainant on or before the stipulated time. In that view, the question of non-execution of agreement and delay on the part of the complainant in paying the balance amount of consideration does not arise.
6. Point No. iii. The next point at issue is the price of the apartment in question. Even though complainant has contended that the price was 10.5 lakhs, it is to be kept in mind that, it was for the studio apartment. Whereas we have dismissed the pleading based on conversion of the apartment with car park, we are not inclined to follow such a story. In this context it is pertinent to notice that at clause 5 of Ext. B1 it is stated that entire sale price of apartment No. IIA admeasuring an area of 786 sqft is stated to be Rs. 15,80,000/- (Rupees fifteen lakhs eighty thousand only) It is worth while to notice at page 5 para 7 of the version opposite party has admitted that the total consideration for the property including undivided share is Rs. 15 lakhs and that is why complaint has paid Rs. 1.5 lakhs as 10% of the above sum. On the original complaint it was conceded that she had parted with 10% of the total price Viz 1.5 lakhs as advance. On an after thought, may be, the complaint was amended to delete this portion. We think there is nothing wrong in arriving at the conclusion that 15 lakhs was the agreed sum as the price of the flat No. A of the Riverin apartment. It is worth while to note that opposite party has disclosed his willingness to sell the flat to the lady provided she pays the present price. It is also to be noted that opposite party was prepared to sell the flat to the lady at the price of Rs. 15 lakhs. At this juncture, it is pertinent to note that the opposite party has admitted that this lady has been granted some concession. At page 7 of his deposition the opposite party has categorically stated that he had allowed concession to the extent of 1.5-2 lakhs. Thus we can ultimately arrive at the conclusion that the price of the flat under dispute was 13 lakhs. (15-2)
7. Point No. iii & iv. After having agreed to sell the flat at the price of 13 lakhs, what prevented the opposite party from executing the promise is an intriguing question. Any how, the long cherished dream of the young widow to have a shelter of her own was shattered by the opposite party. For this breach, he is answerable. This has landed the complainant in mental agony and disappointment for which opposite party must compensate in terms of money. But, it has to be borne in mind, compensation and interest do not go to hand in hand. Since the complainant has availed the benefit of relief from paying interest on the price of the flat, we refrain from granting any compensation. He is also liable to pay cost of the proceedings.
8. The prayer in the complaint is to direct the opposite party to execute the sale deed of apartment No. A in the ground floor having 532 sq.ft. with car park in Riverin Apartments by accepting 9 lakhs from the complainant. Obviously, in view of the discussion, the aforesaid prayer cannot be allowed since such an apartment is non-existent. Still we do not throw away the complaint on that ground. We know that apartment No. A measuring 786 sq.ft is still available for disposal to the complainant. Hence we amend the prayer accordingly to do justice to the complaint. We do think the consumer Forums have such power to prune the prayer in the facts and circumstances of the case. Being a quasi-Judicial body constituted for the purpose of doing justice to the consumer, we do not find anything wrong in taking departure from the beaten track set out for Civil Court.
8. Accordingly the complaint stands allowed as follows:
Two sets of reliefs are granted to the complainant and complainant will be at liberty to choose any of one those sets.
Set. A.
i. Opposite party shall execute the sale deed of apartment No.A admeasuring 786 sqft along with car park in Riverin Apartments at Arookutty on remittance of Rs. 11.50 lakhs by the complainant.
ii. The expenses and incidental charges for registration of the property shall be borne by the complainant.
Set B.
i. Opposite party shall refund to the complainant Rs. 1.50 lakh paid as advance along with interest @ 12% p.a. from the date of payment to the complainant till realization.
ii. Opposite party shall pay Rs. 1,000/-towards costs of the proceedings.
The order shall be complied with within 30 days from the date of receipt of the copy of said order.
Pronounced in the open Forum on this the 31st day of May 2012.
Sd/-
Paul Gomez, Member
Sd/-
A Rajesh, President
Sd/-
C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits:
Ext. A1 : Paper publication
A2 : Copy of letter dt. 27-06-2010
A3 : Copy of sketch
A4 : Copy of receipt dt. 07-07-2010
A5 : Copy of letter dt. 21/02/2012
A6 : Copy of information
Opposite party’s exhibits:
Ext. B1 : Copy of agreement dt. 03/05/2010
B2 : Copy of sketch
B3 : Copy of schedule of payments
B4 : Copy of ownership certificate
B5 : Copy of receipt No. 6
B6series : Copies of photos
Depositions:
PW1 : Copy of Mercy Bissy Joseph
DW1 : Aloysius K.C.
