THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD, THIRUVANANTHAPURAM.
CC. 45/2012
JUDGMENT DATED. 12-11-2015
PRESENT:-
JUSTICE. SRI. P.Q. BARKATH ALI : PRESIDENT
SRI. V.V.JOSE : MEMBER
COMPLAINANT :
Sri. Gibson John,
S/o John Thomas,
Residing at Pulikunnel House,
3036, ponoth road, Kaloor P.O,
Pin- 682017
(By Adv. S. Reghukumar)
V/S
OPPOSITE PARTIES:
1.M/s DLF Southern Towns Pvt Ltd,
B34, Inner Circle Cannaught Place,
New Delhi- 110001 rep by
Its Managing Director
2.M/s DLF Southern Towns Pvt Ltd,
PDR Bhavan, Foreshore Road,
Kochi-682016 rep by its Branch Manager.
(By Adv. V.K. Mohankumar)
JUDGMENT
JUSTICE . SRI. P.Q. BARKATH ALI: PRESIDENT
This a complaint filed under section 17 and 18 of Consumer Protection Act of 1986 by the complainant claiming refund of the amount paid by him to the opposite parties with interest and compensation.
(2)
The case of the complainant as detailed in the complaint in brief is this:
Complainant had booked an apartment No. GO 32 in the 3rd floor of Block G in the own going project of opposite parties for a sale consideration of Rs. 46, 07,210/-. Incorporating the terms and conditions an agreement was executed between the complainant and the opposite parties on August 31, 2010. As on the date of agreement itself complainant paid 23, 03,605/-. The agreed date of construction was 36 months from the date of booking, that is, on or before September 30, 2011. Subsequently they have informed the complainant that they are unable to complete the work and cancelled the booking of the apartment by letter dated October 10, 2011. In that letter they have informed the complainant that they are forfeiting Rs. 9,59,188/- and only balance amount of Rs. 13,44,416/- is refundable. Therefore there is deficiency of service with opposite parties. Complainant claimed the amount paid by him with interest and Rs. 10 lakhs as compensation.
First opposite party is M/s DLFS, Southern Towns Pvt Ltd, New Delhi represented by its Managing Director. Second opposite party is their branch at Kochi. They in their version contended thus. Booking of the apartment and the receipt of Rs. 23, 03,605/- is admitted. As the complainant delayed further
(3)
payment , the booking was cancelled by the opposite party. As per the terms of agreement opposite party is entitled to forfeit the earnest money out of the amount paid by the complainant. Thus the opposite parties are bound refund only the balance amount.
Complainant was examined as Pw1 and he produce Exbt. A1 to A8 . The Deputy Manager (Legal) was examined as DW1 on the side of the opposite parties and Exbts. B1 to B6 were marked on their side.
Heard. Both sides.
The following points arise for consideration.
- Whether there was any deficiency of service on the part of the opposite parties .
- What are the reliefs the complainant is entitled to ?
The booking of the apartment by the complainant in the own going project of the opposite parties ‘ New Heights’ DLF, Kakkanad for a sale of consideration of Rs. 46,07,210/- is admitted . It is also not disputed that complainant paid a total sum of Rs. 23,03,605/-. Exbt. A4 is the said agreement dated August 31,2010. Exbt. A1 to A3 are copy of Stamped receipts issued by the opposite parties .
(4)
The booking was subsequently cancelled by the opposite parties by Exbts. A6 letter dated October 10, 2011, as the opposite parties were not able to complete the work.
The case of the opposite party is that complainant delayed the payment and further there was some dispute with Panchayath Authority and therefore they cancelled the agreement with the complainant and that as there was fault on the part of the complainant they are entitled to forfeit Rs. 9, 59, 188/- and was prepared to refund of Rs. 13, 44, 416/-.
On going through the evidence adduced by PW1 and Dw1 and the documents produce by them, it is clear that opposite parties have not so far , completed the construction of the apartments. The agreed date was 36 months from the date of booking that is before September 30, 2011. As the opposite parties have not so far completed the building construction there is clear deficiency of service on their part . It follows that they are not entitled to forfeit any amount from the amount paid by the complainant and are bound the refund the entire amount paid by
(5)
the complainant. The opposite parties have paid Rs. 13, 64,891/- as evidenced by Exbt. A7 the copy of the cheque. Therefore opposite parties are bound to pay to the complainant Rs. 9,59,189/-.
As regards compensation we feel that an interest at the rate of 12% per annum from September 30, 2011 till September 19, 2012 on the entire amount of Rs. 23,03,605/- and thereafter at the same rate for the balance amount of Rs. 9, 59,189/- till realisation would meet the ends of justice.
In the result complaint is allowed in part. Opposite parties are directed to pay to the complainant Rs. 9,59,189/- with interest at the rate of 12% per annum from September 30, 2011 till September 19, 2012 for the entire amount of Rs, 23,03,603/- and thereafter at the same rate for the balance amount 9,59,189/- till realization. Complainant is entitled to a cost of Rs. 10,000/- in this complaint .
JUSTICE. P.Q. BARKATH ALI : PRESIDENT
V.V.JOSE : MEMBER
(6)
APPENDIX
Complainant filed proof affidavit.
PW1- Sri. Gibson John
Exbits for the Complainant:
Exbt. A1- Copy of stamped receipt dated. 30/09/2008 for Rs. 5 lakhs issued by the opposite parties.
Exbt. A2- Copy of stamped receipt dated. 19/01/2009 for Rs. 4,21,442/- issued by the opposite parties.
Exbt.A3- Copy of stamped receipt dated 31/08/2010 for Rs. 13,82,163/-issued by the opposite parties.
Exbt.A4- Agreement dated. 31/08/2010 between the opposite parties and the complainant.
Exbt. A5- Progress report for the month of July 2011 issued by the opposite parties to the complainant dated. 05/08/2011.
Exbt. A6- Copy of cancellation letter dated 10/10/2011 from the opposite parties to the complainant.
Exbt. A7- copy of Cheque bearing number 487537 dated. 19-09-2012 for Rs. 13,64,891/- drawn ICICI bank Ltd, Kochi Branch.
Exbt. A8- Email dated. 23/12/2012.
(7)
Exbits for the Opposite party:
DW1- Sri. Sayed Ibrahim. M.
Exbt. B1 – Demand notice from opposite parties to the complainant dated. 31/10/2008
Exbt.B2- Reminder 1 from opposite parties to the complainant dated. 04/12/2008
Exbt. B3- Reminder II letter given to the complainant from opposite parties dated. 17/12/2008
Exbt.B4-Demand notice dated. 31/12/2008 from opposite party to the complainant .
Exbt. B5- Reminder 1 dated. 02/02/2009 from opposite party to the complainant .
Exbt.B6-Reminder 2nd , dated. 17/02/2009 from opposite party to the complainant.
Exbt. B7- Letter from opposite party to the complainant dated. July 16, 2009.
Exbt. B8- Letter from opposite party to the complainant dated. 21, June-10
Exbt.B9- Letter from opposite party to the complainant dated.11,August-10
Exbt.B10- Letter from opposite party to the complainant dated. 08/03/2011.
Exbt.B11-Letter from opposite party to the complainant dated. April21, 2011
Exbt.B12-Letter from opposite party to the complainant dated. May 26, 2011.
Exbt.B13-Letter from opposite party to the complainant dated. June01,2011.
(8)
Exbt.B14-Letter from opposite party to the complainant dated. June09,2011.
Exbt.B15-Letter from opposite party to the complainant dated. 28/06/2011.
Exbt. B16- Certified true copy of the resolution passed by the board of directors of the company through circulation on June24, 2013.
JUSTICE. P.Q. BARKATH ALI : PRESIDENT
V.V.JOSE : MEMBER
Shy/-
THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
CC. 45/2012
JUDGMENT DATED. 12-11-2015
Shy/-
