BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 21st day of December 2013
Filed on : 04/03/2011
PRESENT:
Shri. A. Rajesh, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.129/2011
Between
1. C.R. Parameswaran Pillai, :Complainants
S/o. P.S. Kumara Pillai, (By Adv. George Cherian
Res. At Hari Om, Karippaparambil Associates,
Iyyattil Jn, Kochi-682 011. HB.48, Panampilly Nagar,
2. Prema V. Nair, Kochi-682 036)
W/o. C.R.Parameswaran Pillai,
Res. At Hari Om, Iyyattil Jn,
Kochi-682 011.
Vs
1. M/s. DLF Southern Towns Pvt. Ltd., :Opposite parties
B 34, Inner Circle Cannaught Place, (By Adv. Nithin George,
New Delhi-110 001. Menon & Pai, I.S. Press road,
rep. by its Managing Director. Ernakulam, Kochi-18)
2. M/s. DLF Southern Towns Pvt. Ltd.,
PDR Bhavan,
Foreshore Road,
Kochi-682 016
rep. by its Branch manager.
O R D E R
A Rajesh, President.
The case of the complainants is as follows:
The complainants booked an apartment with the opposite parties in their project by name “new town height DLF Kakkanadu” by paying Rs. 4
lakhs. At the time of booking the opposite parties agreed to complete the apartment complex before October 2011. On 23-10-2008 the opposite parties issued an allotment letter allotting flat No. 23 having an area of 1593 sq. ft @ Rs.2,350 per sq. feet at a total price of Rs. 40,89,130/- Lured by the assurances and undertakings of the opposite parties the complainants executed an agreement and returned the same to the opposite parties on 24-12-2008 along with second payment of Rs. 4,01,896/-. Thereafter on 29-01-2009 the complainants effected the 3rd payment of Rs. 3,00,711/-. Subsequently the progress of construction was very poor and the complainants came to know that the opposite parties could not complete the construction in time. So on 09-07-2010 the complainants issued a letter informing the opposite parties of their intention to withdraw the application for allotment and also requested for refund of the amounts paid to the opposite parties with interest @ 18% p.a. but to no avail. Even as on 02-02-2011 the construction was going on. Thus the complainants are before us seeking direction against the opposite parties to refund the total amount of Rs.15,39,729/- including interest @ 12% p.a. together with a compensation of Rs. 4,60,000/-. This complaint hence.
2. The version of the opposite parties is as follows:
As per clause No. 29 in the application for allotment the disputes arising out of the contract shall be settled through arbitration and so this Forum has no jurisdiction to entertain the complaint. The averments raised in the complaint are only of contractual nature, they are beyond the jurisdiction of this forum. The present claim is outside the pecuniary jurisdiction of this Forum, since the value of the services in question is Rs. 40,,89,130/-. On 30-09-2008 the complainants had booked the apartment for a total sale price of Rs. 40,09,480/-. The complainants paid the
booking amount which is treated as the earnest money amounting to Rs. 4 lakhs. The opposite party has given assurance that it shall endeavor to complete the construction of the apartment within 36 months from the date of execution of the agreement. The opposite party has not received the apartment buyers’ agreement completly signed and duly executed by the complainants. The agreement was returned to the complainants for proper execution and complete signatures on all the pages of the agreement. The 1st instalment became due on 30-11-2008, the complainants paid the same only on 24-12-2008. The complainants have effected the next payment of Rs. 3,00,711/- on 29-06-2009. The complainants have failed to pay their due share of cost in the construction of their building in which the apartment is located. The opposite party has considerably gone ahead with the construction of the building. Now the percentage wise completion of the building stands at 85%. By letter dated 09-07-2010 the complainants requested for return of the amount with interest. The opposite party sent a reply dated 10-08-2010 stating that the complainants may make the payments of due amounts failing which the allotment will be cancelled and the earnest money will be forfeited. The complainants have failed to make the payments of 6 instalments totaling to Rs. 19,54,128.42. The complainants were reminded repeatedly to make payments. Since there was no response, the opposite party cancelled the allotment and forfeited the earnest money. There is no deficiency in service on the part of the opposite parties. The complaint is liable to be dismissed.
3. The 1st complainant was examined as PW1 and Exts. A1 to A16 were marked. The witness for the opposite parties was examined as DW1 and Exts. B1 to B33 were marked. Heard the counsel for the parties.
4. The points that arose for consideration are as follows:
i. Whether this complaint is to be referred for arbitration?
ii. Whether this Forum has pecuniary jurisdiction to entertain this
complaint?
iii. Whether the complaint is maintainable in this forum?
iv. Whether the opposite parties are liable to refund the amounts
paid by the complainants with interest?
v. Whether the opposite parties are liable to pay a compensation of
Rs. 4,60,000/- to the complainants?
5. Point No. i. At the outset by relying on clause 29 of Ext. B1 application for allotment by sale the opposite parties contended that the disputes arising out of the contract shall be settled through arbitration. We are not to accept the above contention in view of the decision of the law of the land in Fair Air Engineers Vs. M.K. Modi 1996 CTJ 749 (SC). In which it was held that, “even if there exists an arbitration clause in an agreement and complaint is made by the consumer in relation to certain deficiency of service, then the existence of arbitration clause will not be bar to the entertainment of the complaint by the Redressal Agency.” Flimsy attitude which would wrong the consumer can not be accepted by this forum whatsoever especially when the same is sustained by the above finding of the Hon’ble apex Court mentioned.
6. Point No. ii. The opposite parties challenged the maintainability of the complaint on the ground that as per the complaint the value of the service is Rs. 40,89,130/- which is outside the pecuniary jurisdiction of this Forum. We are only to reject this ground too for the simple reason that as per the complaint the complainants have claimed a total sum below Rs. 20
lakhs from the opposite parties which is well within the pecuniary jurisdiction of this forum.
7. Point No. iii. Section2(1) (0) of the Consumer Protection Act contemplates that ‘housing construction’ is a service under the purview of the Consumer Protection Act. The Hon’ble Apex Court in Lucknow Development Authority Vs M.K. Gupta III (1994) CPJ 7 (SC) and in Ghaziabad Development Authority Vs. Balbir Sigh II (2004) CPJ 12 (SC) in a considered view has categorically sustained the contention that this is a case maintainable in this Forum. So the contention of the opposite parties that this complaint is not maintainable in this Forum fails. Rejected hence.
8. Point No. iv. It is not in dispute that on 30-09-2008 the complainants booked an apartment of the opposite parties’ project by name new town heights DLF, Kakkanadu by executing Ext. B1 application for allotment by sale. It is also not in dispute that the complainants paid the following amounts to the opposite parties in furtherance of Ext. B1.
Serial No. | Date | Amount (in Rs.) |
1 | 30-09-2008 | 4,00,000 |
2 | 24-12-2008 | 4,01,896 |
3 | 21-01-2009 | 3,00,711 |
| Total | 11,02,607/- |
9. According to the complainants at the time of execution of Ext. B1 the opposite parties had agreed to complete the construction of the apartment complex before October 2011 and since there was no progress in the construction they opted not to pay the subsequent instalments and
requested to refund the amount paid with interest. On the contrary the opposite parties contended that the complainants even failed to execute the apartment buyers agreement as they have not returned the same duly signed and executed. It is stated that in spite of repeated requests and reminders the complainants failed to make the subsequent instalments as per Ext. B1 and the opposite parties were constrained to cancel the booking and forfeit the amounts paid by the complainants.
10. Admittedly the complainants and the opposite parties did not properly execute the apartment buyers agreement in consequence of Ext. B1 for their own reasons. In that case indisputably the terms and conditions in the unexecuted apartment buyers agreement is not binding on either. We have carefully gone through Ext. B1 regarding the terms and conditions for withholding the earnest money, however such a clause does not see light of the day in Ext. B1. In the absence of such a clause in Ext. B1 and in the non existence of the apartment buyers agreement for no exclusive execution of the same the opposite parties have no right to forfeit the amount paid by the complainants on account of booking of the apartment and the subsequent 2 instalments. Deficiency in service and unfair trade practice are writ large on the part of the opposite parties. The opposite parties are to refund the received amounts to the complainants with interest @ 12% p.a. from the date of each receipt till realization. Our decision is based on the pronouncement of the Hon’ble National Consumer Disputes Redressal Commission in Rajbeer Singh Vs. The Manager, the Emmar MGF. Land Ltd., and Another ( RP No. 4288/2012 decided on 16-08-2013)
11. During the proceedings in this forum at the instance of the complainants vide order in I.A. No. 135/2011 dated 04-03-2011 this Forum restrained the opposite parties from cancelling the allotment of flat in question until further orders. The said order stands vacated only on refund of the amounts by the opposite parties to the complainants.
12. Point No. v. The primary grievances of the complainants having been met adequately we refrain from ordering compensation in the complaint.
13. In the result, we partly allow the complaint and direct that the opposite parties shall jointly and severally refund Rs. 11,02,607/- to the complainants with interest @ 12% p.a. from the date of each payment till realization.
The above said order shall be complied with, within a period of 30 days from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 21st day of December 2013.
Sd/-A. Rajesh, President.
Sd/- Sheen Jose, Member.
Sd/-Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Receipt dt. 30/09/2009
A2 : Copy of Currier/
Registered A.D.
A3 : Copy of Demand notice
dt. 31/10/2008
A4 : Copy of letter
dt. 09/08/2010
A5 : Copy of letter dt. 24-12-2008
A6 : Copy of receipt
dt. 26/12/2008
A7 : Copy of receipt
dt. 30/01/2009
A8 : Copy of delays still ail
realty sector
A9 : Copy of letter dt. 09-07-2010
A10 : Copy of letter dt. 14-09-2010
A11 : Copy of letter dt. 17-09-2010
A12 : Copy of G-mail
dt.02-02-2011
A13 : Copy of letter
dt.24-02-2011
A14 : Copy of Information filed
on 05-05-2010
A15 : Copy of letter dt. 25-08-2011
A16 : Copy of letter dt. 24-09-2011
Opposite party’s exhibits:
B1 : Copy of application for
allotment by sale
B2 : Copy of cheque
dt. 30-09-200
B3 : Copy of statement
dt. 09/2008
B4 : Copy of letter
B5 : A.D. card
B6 : Copy of receipt
dt. 30-09-2008
B7 : Copy of schedule of
Payments
B8 : Copy of demand notice
dt.31/10/2008
B9 : Copy of reminder
dt. 04/12/2008
B10 : copy of reminder II
dt. 17/12/2008
B11 : Copy of courier
dt.02-12-2008
B12 : Copy of receipt dt.
26/12/2008
B13 : Copy of demand notice
dt. 31/12/2008
B14 : Copy of letter dt. 07-01-2009
B15 : Copy of courier
dt. 07-01-2009
B16 : Copy of demand notice
dt.02-03-2009
B17 : Copy of payment request
B18 : Copy of reminder payment
request
B19 : Copy of g-mail
dt. 08-12-2009
B20 : Copy of demand notice
dt. 08-06-2010
B21 : Copy of delayed interest
dt.27-05-2010
B23 : Copy of letter dt. 10-08-2010
B24 : Copy of letter dt. 19-08-2010
B25 : Copy of e-mail
dt. 26-08-2010
B26 : Copy of letter dt. 07/09/2010
B27 : Copy of demand notice
dt. 23-09-2010
B28 : Copy of letter dt. 18-11-2010
B29 : Copy of demand notice
dt. 04/01/2011
B30 : Copy of statement
dt. 01-01-2011
B31 : Copy of letter
dt. 24-02-2011
B32 : Copy of Courier
dt. 13/05/2011
B33 : Copy of letter dt. 16-06-2011
Deposition s
PW1 : C.R. Parameswaran Pillai
DW1 : Bindu Giji
